Madhya Pradesh High Court
Kuwar Pal vs The State Of Madhya Pradesh on 28 June, 2021
Equivalent citations: AIRONLINE 2021 MP 796
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 3366/2021
Kuwar Pal Vs. State of MP
Through video conferencing.
Gwalior, Dated : 28-06-2021
Shri Ambuj Jain, Counsel for the appellant.
Shri C.P. Singh, Counsel for State/respondent.
None for the respondent No. 2/complainant. It is submitted by the counsel for the State that the complainant has been informed about the pendency of this appeal as required under Section 15-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short "Act").
Heard finally through video conferencing. Case diary is available.
This first criminal appeal under Section 14-A (2) of the Act has been filed for grant of bail.
The appellant has been arrested in connection with Crime No.605/2020 registered by Police Station Ishagarh Distt. Ashoknagar for offence punishable under Sections 376, 341 Z and 506 of IPC and under Section 3 (1) (w) (ii) and 3 (2) (va) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act, 1989 and 3/ 4 of Protection of Children from Sexual Offences Act.
The State counsel was directed to obtain FSL/ DNA Report of the prosecutrix. Today it is submitted by Shri Singh that some more 2 THE HIGH COURT OF MADHYA PRADESH Cr.A. No. 3366/2021 Kuwar Pal Vs. State of MP time may be granted to obtain DNA test report. The prayer for adjournment was opposed by the Counsel for the appellant. It is submitted by the Counsel for the appellant that he is ready to argue the matter on merits .
Accordingly, the counsel for the appellant was heard on merits. It is submitted by Counsel for the appellant that the prosecutrix has turned hostile and as per the assessment of the Court, her age is 19 years. The prosecution has not put a single question to the prosecutrix with regard to her age, therefore it is clear that the prosecution has admitted the age of the prosecutrix which has been assessed by the Court. The father and the mother of the prosecutrix have turned hostile. It is further submitted that no ossification test of the prosecutrix was conducted to ascertain her age. No external injuries on the body of the prosecutrix were found and it is further submitted that in fact the prosecutrix was a consenting party.
Per contra the application is vehemently opposed by the state Counsel.
It is submitted by Shri Singh that as per the school record, date of birth of prosecutrix is 5.3.2003 and thus she was minor on the date of incident. It is further submitted that so far as the age assessed by the Court below is concerned, the Public Prosecutor had no right to cross examine the judge. Further, as the prosecutrix has not alleged 3 THE HIGH COURT OF MADHYA PRADESH Cr.A. No. 3366/2021 Kuwar Pal Vs. State of MP anything about her age, therefore, there was no question for prosecution to declare her hostile. It is further submitted that the Supreme Court in the case of Hemudan Nanbha Gadhvi vs. State of Gujarat reported in (2019) 17 SCC 523 has held that even if the prosecutrix has turned hostile still the accused can be convicted with the help of scientific evidence. It is submitted that since DNA report is yet to be received, therefore, it cannot be assumed that there is no substantive evidence against the applicant.
Heard the learned Counsel for the parties. The appellant has filed the deposition sheet of the prosecutrix. In examination-in-chief the prosecutrix has stated about some dispute took place between her and the appellant, but denied that rape was committed on her. However, she admitted that the FIR (Exhibit P-1) was lodged by her and bears her signatures. In paragraph-2 of her cross-examination, it is admitted that she has entered into compromise with the appellant. Further, in paragraph-6 of cross- examination by the Public Prosecutor, she once again admitted that she has entered into compromise with the appellant. Thus, it is clear that although the appellant was behind the bar, but he had taken services of pairokars to win over the prosecution witnesses. In the case of Himudan (supra), the supreme Court has held as under:- 4
THE HIGH COURT OF MADHYA PRADESH Cr.A. No. 3366/2021 Kuwar Pal Vs. State of MP
10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. Neither the accused nor can the victim be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat [Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] and Mahila Vinod Kumari v. State of M.P. [Mahila Vinod Kumari v.
State of M.P., (2008) 8 SCC 34 : (2008) 3 SCC (Cri) 414] If the medical evidence had not confirmed sexual assault on the prosecutrix, the TIP and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.
11. It would indeed be a travesty of justice in the peculiar facts of the present case if the appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available. In Iqbal v. State of U.P. [Iqbal v. State of U.P., (2015) 6 SCC 623 : (2015) 3 SCC (Cri) 301] , it was observed as follows : (SCC p. 630, para 15) "15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence."
12. The corroboration of the identification in TIP is to be found in the medical report of the prosecutrix considered in conjunction with the semen found on the 5 THE HIGH COURT OF MADHYA PRADESH Cr.A. No. 3366/2021 Kuwar Pal Vs. State of MP clothes of the prosecutrix and the appellant belonging to Group B of the appellant. The vaginal smear and vaginal swab have also confirmed the presence of semen. A close analysis of the facts and circumstances of the case, and the nature of the evidence available unequivocally establishes the appellant as the perpetrator of sexual assault on the prosecutrix. The serologist report was an expert opinion under Section 45 of the Evidence Act, 1872 and was therefore admissible in evidence without being marked an exhibit formally or having to be proved by oral evidence.
13. The contention on behalf of the appellant that the serological report was not put to him by the court under Section 313 CrPC and therefore, he has been prejudiced in his defence, has been raised for the first time before this Court. The serological report being available, it was a failure on the part of the trial court to bring it to the attention of the appellant. The prosecution cannot be said to be guilty of not adducing or suppressing any evidence. In view of the nature of the evidence available in the present case, as discussed hereinbefore, we are of the opinion that no prejudice can be said to have been caused to the appellant for that reason, as held in Nar Singh v. State of Haryana [Nar Singh v. State of Haryana, (2015) 1 SCC 496 : (2015) 1 SCC (Cri) 699] : (SCC pp. 511-12, paras 32-33) "32. ... When there is omission to put material evidence to the accused in the course of examination under Section 313 CrPC, the prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance between conflicting rights and duties.
33. Coming to the facts of this case, the FSL report (Ext. P-12) was relied upon both by the trial court as well as by the High Court [Nar Singh v. State of Haryana, 2012 SCC OnLine P&H 24505] . The objection as to the defective Section 313 CrPC statement has not been raised in the trial court or in the 6 THE HIGH COURT OF MADHYA PRADESH Cr.A. No. 3366/2021 Kuwar Pal Vs. State of MP High Court and the omission to put the question under Section 313 CrPC, and prejudice caused to the accused is raised before this Court for the first time. It was brought to our notice that the appellant is in custody for about eight years. While the right of the accused to speedy trial is a valuable one, the Court has to subserve the interest of justice keeping in view the right of the victim's family and society at large."
14. The present was an appropriate case to direct the prosecution of the prosecutrix under Section 344 CrPC alike Mahila Vinod Kumari [Mahila Vinod Kumari v. State of M.P., (2008) 8 SCC 34 : (2008) 3 SCC (Cri) 414] for tendering false evidence. But considering that the prosecutrix was barely 9 years old on the date of occurrence, that the occurrence had taken place 14 long years ago, she may have since been married and settled to a new life, all of which may possibly be jeopardised, we refrain from directing her prosecution, which we were otherwise inclined to order. Thus, it is clear that accused is not to be acquitted merely on the ground that he has compelled the prosecutrix to enter into compromise and if that is done, then it would be nothing but travesty of justice.
In view of the specific admission with regard to compromise with the appellant in paragraph 2 and 6 of cross examination of the prosecutrix, coupled with the fact that DNA report is not received so far, no case is made out for grant of bail.
The appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge ar ABDUR RAHMAN 2021.06.29 11:38:25 +05'30'