Madhya Pradesh High Court
In Reference vs Ramesh on 4 March, 2016
1 Cr.R. No.4/2015 & Cr.A. No.1998/2015
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Reference No. 4/2015
IN REFERENCE
Received from learned First Additional Sessions Judge,
Ashta, Sehore (M.P.)
Versus
Ramesh, S/o Ghasiram Khati, Aged 31 years, R/o
Village Polaykala, Thana Awantipur, Badaudiya,
District Shajapur (M.P.)
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Shri Ajay Shukla, Learned Govt. Advocate for the State.
Shri U.K. Sharma, learned Senior Counsel with Shri P.N. Tiwari, learned
counsel for the respondent/accused.
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Criminal Appeal No. 1998/2015
Ramesh, S/o Ghasiram Khati, aged 31 years, R/o
Village Polaykala, Thana Awantipur, Badaudiya,
District Shajapur (M.P.)
Versus
The State of M.P. through P.S. Ashta, District Sehore
(M.P.)
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Shri U.K. Sharma, learned Senior Counsel with Shri P.N. Tiwari, learned
counsel for the appellant/accused.
Shri Ajay Shukla, learned Govt. Advocate for the State.
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PRESENT: HONOURABLE SHRI JUSTICE SHANTANU KEMKAR
HONOURABLE SHIR JUSTICE SUBHASH KAKADE
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Judgment delivered today: 04.03.2016
2 Cr.R. No.4/2015 & Cr.A. No.1998/2015
Per: Subhash Kakade, J.
(J U D G M E N T) Aforesaid criminal reference as well as appeal arises out of the common impugned judgment, therefore, this judgment shall govern the disposal of both the cases.
02. Learned First Additional Sessions Judge, Ashta, District Sehore vide impugned judgment dated 18.06.2015, passed in Sessions Trial No.15/2014, has convicted the respondent/appellant Ramesh (hereinafter referred as 'the accused' also) for the offences punishable under Sections 363, 366-A, 376(2)(i) of IPC read with Section 5/6 of Protection of Children From Sexual Offences Act, 2012 and Section 376 E IPC.
Consequent punishment is as under:-
Conviction Sentence
Section 363 of IPC 7 years R.I. with fine of Rs.1000/-, in default of
payment of fine, undergo 1 month R.I.
Section 366 A of IPC 10 years R.I. with fine of Rs.1000/- in default of
payment of fine, undergo 2 months R.I.
Section 5/6 of Life Imprisonment with fine of Rs.2000/-, in default of
Protection of Children payment of fine, undergo 3 months R.I. From Sexual Offences Act, 2012 Section 376 E IPC Death Sentence
03. Whereas learned trial Court has awarded death sentence to the accused, therefore, made reference of proceedings to this Court for confirmation of death sentence under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').
04. Feeling aggrieved by impugned judgment of conviction and order of sentence the accused Ramesh has also filed this appeal under Section 374(2) of the Code.
3 Cr.R. No.4/2015 & Cr.A. No.1998/2015
05. According to the prosecution, the prosecutrix is a native of village Nipaniyakala, P.S. Ashta, District Sehore (M.P.). At relevant point of time 8 years old prosecutrix was residing in the village with her father Arjun Patel and other family members. On 04.01.2014, the prosecutrix along with companion Karishma and Purti @ Muskan had gone to the school usually at 10:00 a.m. as she was student of Class-III standard. At about 01:30 noon during school recess period when the prosecutrix and Purti came to the nearby stall (Thela) to have some snacks, Panipuri. At same point of time one unknown person came over there and after alluring abducted the prosecutrix and disappeared. Karishma informed entire incident to Kailash, elder brother of Arjun Patel Khati, as well as to the teachers of the school also. After intensive search of the prosecutrix when all efforts went into vain, Kailash telephonically reported the matter at Police Station, Maina and same was registered as Sanha No.66 of 2014 at 15:10 hrs. for the offence under Section 363 of IPC. Investigating Officer Shri Kushwaha immediately rushed for the spot and on detailed information of Kailash registered Dehati Nalishi 0/14 under Section 363 of IPC. During usual investigation Shri Kushwaha recorded the statements of available witnesses Kailash, Karishma and Purti @ Muskan, teachers Prem Singh Chawda and Smt. Krishna and prepared spot map of kidnapping on information of Karishma.
06. It is further case of the prosecution, that on next day i.e. on 05.1.2014, the prosecutrix found alone on road in village Pochaner, hence, brought to her residence Nipaniyakala. On information, Shri Kushwaha reached to Nipaniyakala and prepared Dastyari Panchmana (Recovery memo) of the prosecutrix. Looking to the bad health condition of the 4 Cr.R. No.4/2015 & Cr.A. No.1998/2015 prosecutrix, she was referred to Civil Hospital, Ashta. Dr. Shikha Gupta medically examined the prosecutrix and found injuries on her private part, hence, as suspected case of rape, two slides of vaginal smear were prepared, and her blood stained clothes also seized and sealed packet handed over to the police officer for chemical analysis. For further treatment, the prosecutrix was referred to District Hospital Sehore and from where she was referred to Sultana Janana (Ladies) Hospital, Bhopal where she was admitted till 13.1.2014 and treated by Dr. (Smt.) Sudha Shrivastava. Investigating Officer also recorded the statements of Arjun Patel on the same day.
07. During investigation, on the basis of information given by Karishma and Purti on 07.01.2014 to Shri Kushwaha, it transpired that the unknown person is Ramesh, a resident of village Polayakalan, Police Station Shujalpur, District Shajapur (M.P.) who was convicted for same nature of offence, after alluring rape was committed with another minor girl. Certified copy of the judgment of previous conviction of the accused also obtained. On 08.01.2014, Shri Kushwaha recorded statements of Bus Conductor Anil Kumar Verma and Conductor Anil Kumar Sonaliya, passenger Jaini Prasad and villager Arjun Patel Khati and during statements of these witnesses, this fact was transpired that on 04.01.2014 Ramesh was traveling from village Aranya to Sehore Bus for village Borkheda, but alighted at Bus Stand of Village Nipaniyakala between 1:30 to 2:00 p.m. wearing black clothes and having black bag. Hence, Shri Kushwaha proceeded firstly for village Polayakalan and thereafter to Budani and arrested accused Ramesh on 10.01.2014. Dr. Sandeep Gupta examined him at Civil Hospital, Ashta when he was subjected for medical examination; 5 Cr.R. No.4/2015 & Cr.A. No.1998/2015 his blood stained clothes were also recovered and preserved for chemical examination. Sub Inspector Shri Rahul Kale collected blood sample of accused Ramesh from Civil Hospital, Ashta for D.N.A. Test.
08. On 09.01.2014, lady Sub-Inspector Urmila Choudhary recorded statements of the prosecutrix during which she stated that she was raped by unknown person. Same day, statements of Smt. Sharmila, mother of the prosecutrix were recorded by Shri Kushwaha. For DNA Test blood sample of the prosecutrix were also taken and two hairs also seized. All slides, seized clothes of the prosecutrix as well as of the accused and blood samples for DNA Test were forwarded to State Forensic Science Laboratory, Sagar and Regional Forensic Science Laboratory, Bhopal for chemical examination and corresponding reports were obtained. After completion of due investigation, the accused was charge sheeted.
09. Judicial Magistrate First Class, Ashta committed the case to the Sessions Court Sehore, who made over the case for trial to learned trial Court, who in his turn framed charges against the accused for the offences punishable under Section 363, 366-A & 376(2)(i) of IPC and Section 4 & 6 Protection of Children From Sexual Offence Act, 2012, who abjured his guilt resultantly put to trial.
10. The prosecution examined 16 witnesses who proved Ex. P-1 to P-34. During cross-examination of Kailash (PW/1), Karishma (PW/4), Conductor Anil Kumar (PW/6), Arjun Patel Khati (PW/7) and Smt. Krishna (PW/8), the defence proved Ex. D-1 to D-5 through the said witnesses. The statements of the accused were recorded under section 313 of the Code and his defence was of total denial. No witness was examined by the defence. 6 Cr.R. No.4/2015 & Cr.A. No.1998/2015
11. After appraising the oral as well as documentary evidence, the trial Court held that the prosecution had proved beyond all reasonable doubt that the accused had committed the offences with which he had been charged and found him guilty of the offences punishable under said Sections 363, 366-A, 376 (2)(i) of IPC and Section 5/6 of Protection of Children from Sexual Offences Act, 2012. Learned trial Court sentenced the accused as mentioned above, with sentenced to death by hanging for the offence punishable under section 376 E IPC, hence, also made Criminal Reference Case No.4//2015 under section 366 of the Code for confirmation of the death sentence. Being aggrieved by the judgment of conviction and sentence passed against him by the trial Court, the accused also preferred Criminal Appeal No.1998/2015.
12. The entire emphasis of the submissions made on behalf of the appellant is primarily founded on determination of a question of law, which, if answered in favour of the appellant, according to the learned senior counsel appearing for the appellant, would entitle the appellant to an order of rejection of the Criminal Reference No.4/2014 made by the trial Court for confirmation of death sentence awarded to his client. The argument is that the appellant was charged for an offence under Section 376(2)(i) of IPC and Section 5/6 of Protection of Children From Sexual Offences Act, 2012, but, without formulation, addition, alteration of the charge, the appellant has been convicted for an offence under Section 376 E IPC. This according to the learned senior counsel has deprived the appellant of a fair opportunity of defence and has caused him serious prejudice. In this sequence, it is also submitted that the amended Section 376 E IPC is a 7 Cr.R. No.4/2015 & Cr.A. No.1998/2015 graver offence than an offence punishable under Section 376(2)(i) IPC and as such the entire trial and conviction of the appellant is vitiated in law.
13. Per contra, Shri Ajay Shukla, learned Government Advocate appearing for the State has defended the case of the prosecution and contended that the appellant has suffered no prejudice, whatsoever, because of his conviction under Section 376 E IPC as the appellant was having clear idea of what he is being tried for, what accusation prosecution intends to prove against him and of which he would have to clear himself. Learned Government Advocate argued at length on this legal point. Learned counsel justified the judgment of conviction and submitted that the offence committed by the appellant is so mean and heinous that it falls clearly in the ambit of a rarest of rare case, therefore, awarded death sentence be maintained.
14. We have considered the rival submissions made by learned counsel for the parties on determination of question of law and also perused the record.
15. In a reference for confirmation of death sentence, the High Court should keep in view its duty pointed out in CHAPTER XXVIII of the Code under the head "SUBMISSION OF DEATH SENTENCES FOR CONFIRMATION". Sections 366 to 370 of the Code have been devoted by the legislature to the various facets of confirmation of death sentence and other related matters thereto.
16. Whilst confirming a capital sentence, the High Court is under an obligation to itself:-
(i) to consider the proceedings in all their aspects and come to an independent conclusion on the material on record apart from the view expressed by the Sessions Judge.8 Cr.R. No.4/2015 & Cr.A. No.1998/2015
(ii) to examine the entire evidence for itself, independent of the Sessions Court's views.
(iii) to consider the evidence afresh and arrive at its independent finding with regard to the guilt of the accused.
(iv) the High Court is duty bound to independently consider the matter carefully and examine all relevant and material evidence.
(v) the High Court would examine the evidence with great care and circumspection.
17. Hence, the matter requires to be considered afresh by this Court as guided by the Apex Court in case of Mohinder Singh v. State of Punjab, reported in AIR 2013 SC 3622.
18. As plea of serious prejudice, is raised by the defence hence, it must be examined with reference to the rights and safeguards available to the accused. Necessarily the question of prejudice will loom large if the accused is unable to take his defence properly.
19. The Dictionary meaning of expression "prejudice" has been defined as "Damage or detriment to one's legal rights or claims."
20. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. At the time when it requires determining whether any error, omission or irregularity in any proceeding under the code has occasioned a failure of justice, the court should not shut its eyes, but to examine where fault is.
21. Shri Ajay Shukla, learned Government Advocate for the State is of the opinion that the appellant does not suffer any prejudice mere on this ground of defect of non framing of charge under Section 376 E IPC, as 9 Cr.R. No.4/2015 & Cr.A. No.1998/2015 the defence was having clear idea that accused Ramesh is being tried for his previous conviction and how he will be defended.
22. One of the cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable.
23. Legal position is fairly well settled that because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if the accused has not been affected thereby.
24. The charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. Please see: B.N. Srikantiah v State AIR 1958 SC 672.
25. The Apex Court in case of Rafiq Ahmad alias Rafi v. State of Uttar Pradesh, reported at (2011) 8 SCC 300 while dealing with a question as to whether omission to frame charge was a curable irregularity held as under:-
"Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302, IPC cannot be set aside merely for want of framing of a specific/alternate charge for an offence punishable under Section 302, IPC. It is more so because the dimensions and facets of an offence under under Section 302, IPC are incorporated by specific language and are inbuilt in the offence punishable under Section 396 IPC. Thus, on the application of 10 Cr.R. No.4/2015 & Cr.A. No.1998/2015 principle of `cognate offences', there is no prejudice caused to the rights of the appellant."
26. Legal position regarding framing of charge requires repetition as non-framing of charge under Section 376 E IPC is raised main reason for serious prejudice: -
(A) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars reasonably sufficient to give the accused notice of the matter with which he is charged. It has been repeatedly held that for framing of a proper charge it is basic that not only should all material particulars be set out but, furthermore, the particulars as to date, time, place and person as also the provisions of law that are alleged to have been contravened must be spelt out in the charge.
(B) Charge is foundation of accusation and is the first notice to the accused and for this purpose charge is requires to tell an accused person as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty what that prosecution intends to prove against him and of which he will have to clear himself.
(C) Object of charge is to warn accused person of the case he is to answer, hence, framing of proper charge is vital to a criminal trial and this is a matter on which the judge should bestow the most careful attention.11 Cr.R. No.4/2015 & Cr.A. No.1998/2015
27. Section 211 to 214 of the Code gives clear and explicit directions as to how a charge should be drawn up. As is also clear from S.s. 211 and 216 of the Code, the Court has power to frame charge or alter it or add new charges at any time before the judgment is pronounced.
28. Learned trial Court having considered the material and the report submitted to it in terms of Section 173 of the Code vide order dated 26.03.2014 framed following charges against the accused, which reads as under: -
"&vkjksi&i=& ¼vkt fnukad 26@03@14 dks fojfpr½ eSa Jherh Hkkxorh pkS/kjh] izFke vij l= U;k;k/kh'k] vk"Vk] ftyk lhgksj e0iz0 vki vfHk;qDr jes'k firk ?kklhjke [kkrh mez 30 o"kZ] fuoklh xzke iksyk;dyka Fkkuk voafriqj cMksfn;k ftyk 'kktkiqj ij fuEu vkjksi yxkrh gw¡ fd& izFke%& vkius fnukad 4@1@14 dks fnu ds nks cts ds yxHkx xzke fuikfu;kdyka] Fkkuk vk"Vk ls] 18 o"kZ ls de vk;q dh vizkIro; vfHk;ksD=h dks mlds fof/kd laj{kd firk izseflag ,oa ekrk 'kfeZyk dh laj{kdrk esa ls mudh lEefr ds fcuk cgyk&Qqlyk dj ys tkdj vfHk;ksD=h dk O;igj.k fd;kA bl izdkj vkius og vijk/k fd;k] tks /kkjk 363 Hkk0na0fo0 ds rgr naMuh; gksdj bl U;k;ky; ds laKku esa gSA f}rh;%& vkius mDr fnukad le; o LFkku ij vfHk;ksD=h tks fd 18 o"kZ ls de vk;q dh yM+dh Fkh] dks v;qDr laHkksx djus ds fy;s foo'k ;k foyqC/k djus ds vk'k; ls ;k ,rn }kjk og foo'k ;k foyqC/k dh tk;sxh] ;g laHkkO; tkurs gq;s mls ys tkdj mldk vigj.k fd;kA 12 Cr.R. No.4/2015 & Cr.A. No.1998/2015 bl izdkj vkius og vijk/k fd;k] tks /kkjk 366¼d½ Hkk0na0fo0 ds rgr naMuh; gksdj bl U;k;ky; ds laKku esa gSA r`rh;%& vkius fnukad 04@01@14 dks vfHk;ksD=h tks fd] ,d vo;Ld ckfydk gS] ds lkFk cykr~ laHkksx dj ;kSu geyk dkfjr fd;kA bl izdkj vkius og vijk/k fd;k] tks /kkjk 376¼2½¼vkbZ½ Hkk0na0fo0 ds rgr naMuh; gksdj bl U;k;ky; ds laKku esa gSA prqFkZ%& vkius mDr fnukad le;kof/k o LFkku ij vfHk;ksD=h tks fd] yxHkx 08 o"kZ dh vk;q dh gksdj ckyd dh ifjHkk"kk esa vkrh gS] ds lkFk cykr laHkksx dj izos'ku ySafxd geyk dkfjr fd;kA vkidk mDr d`R; ySafxd vijk/kksa ls ckydksa dk lja{k.k vf/kfu;e 2012 dh /kkjk 4 ds vUrxZr naMuh; gS vkSj bl U;k;ky; ds laKku esa gSA iape%& vkius] mDr fnukad le;kof/k esa vfHk;ksD=h tks fd yxHkx 08 o"kZ dh vk;q dh gksdj ckyd dh Js.kh esa vkrh gS] ds lkFk ,d ls vf/kd ckj cykr~ laHkksx dj izos'ku ySafxd geyk dkfjr dj xq:rj izos'ku ySafxd geyk dkfjr fd;kA vkidk mDr d`R; ySafxd vijk/kksa ls ckydksa dk lja{k.k vf/kfu;e 2012 dh /kkjk 6 ds vUrxZr naMuh; gS vkSj bl U;k;ky; ds laKku esa gSA"
29. English Translation reads as under: -
"Charge-Sheet"
(Framed today on 26.03.14) I, Mrs. Bhagvati Choudhary, First Additional Sessions Judge, Ashta, District- Sehore M.P. labeled you accused Ramesh s/o Ghasiram Khati age-30 years R/o Polay Kala Police Station Avantipur Badodiya District- Shajapur with the underwritten charges that-
13 Cr.R. No.4/2015 & Cr.A. No.1998/2015
First: - on 04.01.14 at about 02 P.M. from village Nipaniya Kala Police Station Ashta you kidnapped the prosecutrix, who is minor under the age of 18 years, from the lawful guardianship of her father Prem Singh and mother Sharmila without their consent by enticing her.
By this you committed an offence punishable U/S-363 of I.P.C. and under cognizance of this Court.
Second:- On said date, time and place, you abducted by taking the prosecutrix, who is under the age of 18 years, with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse.
By this you committed an offence punishable U/S-366A of I.P.C. and under cognizance of this Court.
Third:- On 04.01.2014, you committed sexual assault by committing the rape upon the prosecutrix, who is a minor girl.
By this you committed an offence punishable U/S-
376(2) (i) of I.P.C. and under cognizance of this Court.
Fourth:- On said date, time and place, you committed sexual assault with prosecutrix, who is nearly 8 years of age and falls under the definition of child, by penetration after committing rape with her. Your said act is punishable U/S-4 of Prevention of Children from Sexual Offences Act, 2012 and under cognizance of this Court.
Fifth:- On said date, time and place, you committed sexual assault with prosecutrix, who is nearly 8 years of age and comes under the category of child, by committing rape more than once with grievous penetration. Your said act is punishable U/S-6 of Prevention of Children from Sexual Offences Act, 2012 and under cognizance of this Court."
30. The record of previous Sessions Trial No.76/2003 decided on 30.09.2003 by learned Additional Sessions Judge Shujalpur, District Shajapur (M.P.) reveals that in this previous Sessions case FIR was lodged by one Rajaram, father of the prosecutrix. The statement of 5 years old 14 Cr.R. No.4/2015 & Cr.A. No.1998/2015 prosecutrix in the previous sessions trial required to be repeated which reads as under:-
"1- eSa gkftj vnkyr vkjksih dks igpkurh gWawA vkjksih dk uke jes'k gS] jes'k us esjh is'kkc dh txg esa viuh is'kkc dh txg ? kqlsM+ nh Fkh ftlls [kwu fudyk Fkk vkSj eSa fcekj gks x;h FkhA eSa vius ?kj vk;h fQj iqfyl esa iksyk; pkSdh ij x;h Fkh] iksyk; ds vLirky Hkh esjs dks ys x;s Fks] ogka ls esjs dks Hkksiky ds vLirky esa ys x;s FksA 2- jes'k us tc eSa dchV ds isM+ ds ikl Fkh rc vkjksih us esjs dks nks :Ik;s fn;s vkSj QYyh ds nkus fn;s vkSj esjs dks ckM+ ds [ksr ¼xUus ds [ksr esa½ pyus dk dgk fQj eSa mlds lkFk ckM+ esa x;h Fkh] ogha ij mlus esjh is'kkc dh txg esa viuh is'kkc djus dh txg dks ?kqlsM+k FkkA"
31. English translation reads as under: -
"1. I know the accused present in the Court. The name of the accused is Ramesh. Ramesh had penetrated his organ of urination into mine wherefrom bleeding started and I fell ill. I returned to my home and then I had gone to P.S. Polay, I had also been taken to Hospital of Polay from where I had been taken to Hospital in Bhopal. .
"2. The accused Ramesh had given me two rupees and some peanuts when I was near "kabit tree" and he asked me to come to sugarcane farm. I had gone with him in the sugarcane field where he had penetrated his urinal organ into mine."
32. On comparison of FIR lodged by Rajaram with facts of this case in hand no doubt, it is crystal clear that modus operandi in both the cases were almost same. In both the cases the victims were minor girls between 5 to 8 years of age. Secondly, in previous session's case the accused offered the prosecutrix note of two rupees along with Falli Dana 15 Cr.R. No.4/2015 & Cr.A. No.1998/2015 (ground nut). In this case in hand the accused offered her Bair (Jujube) and Amarud (Guava) to the prosecutrix. Thirdly, in the previous sessions case rape was committed in sugarcane fields and in this case rape is committed in Wheat fields.
33. In previous Sessions Trial No. 76/2003 the accused was convicted for the offence punishable under Section 363 of IPC and sentenced to undergo rigorous imprisonment for two years with fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for two months, and was also convicted for the offence punishable under Section 376(1) of IPC and sentenced to undergo rigorous imprisonment for eight years with fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for six months as per judgment (Ex.P-34), copy (Ex.P-34 C) dated 30.09.2003.
34. The accused did not file any appeal before the High Court against his previous conviction; hence he was released after served out entire period of awarded jail sentence as per judgment (Ex. P-34).
35. After considering the submissions of the learned Public Prosecutor and the learned counsel for the accused, learned trial Court after apprising the oral and documentary evidence held that the prosecution had proved beyond all reasonable doubt that accused Ramesh has committed rape on the minor prosecutrix (PW-3) and keeping in view his previous conviction for the same offence of rape, held him guilty for the offence under Section 376 E IPC in paragraph-40 of the impugned judgment, which reads as under:-
^^40- izLrqr lk{; ls izdj.k esa vkjksih ds fo#) ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e dh /kkjk&29 vkSj 30 dh 16 Cr.R. No.4/2015 & Cr.A. No.1998/2015 mi/kkj.kk dk Hkh i;kZIr vk/kkj gS] ftlds [k.Mu dk nkf;Ro vkjksih dk Fkk] ftlesa og vlQy jgk gSA vkjksih dh vksj ls u rks dksbZ cpko lk{; izLrqr dh xbZ gS vkSj u gh vfHk;kstu lk{khx.k ds izfrijh{k.k ds nkSjku ,sls dksbZ rF; lkeus yk;s x;s gSa tks mDr mi/kkj.kk dk [k.Mu djsaA vr% mDr foospuk ds izdk'k esa fu"d"kZ ;g fudyrk gS fd vfHk;kstu vkjksih ds fo#) /kkjk&363] 366 ¼,½] 376 ¼2½ ¼i½ ,oa ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 dh /kkjk 5 o 6 dk vkjksi ;qfDr;qDr lansg ls ijs izekf.kr djus esa lQy jgk gSA vr% vkjksih dks mDr /kkjkvksa ds vkjksi /kkjk&376 ¼E½ ls nks"kfl) fd;k tkrk gS] fu.kZ; ltk ds iz'u ij lqus tkus ds gsrq LFkfxr fd;k x;kA
36. English translation reads as under: -
"40. On the basis of evidence produced in the case, there are sufficient grounds against the accused for the presumption U/S-29 & 30 of the Prevention of Children from the Sexual Offences Act, 2012; the liability to revoke the same was upon the accused, wherein he has been unsuccessful. Neither any evidence to defend the accused has been produced nor have any such facts been revealed during the cross- examination of prosecution witnesses, which may revoke said presumption. Hence, in the light of above discussion, it is concluded that the prosecution has been successful to prove the charges U/S-363, 366(A), 376(2) (i) of I.P.C. and U/Ss.-5 & 6 of Prevention of Children from Sexual Offences Act, 2012 beyond reasonable doubt. Hence, the accused is convicted U/S-376(E), the judgment was adjourned for the hearing on the question of punishment."
37. As it is evident that the accused was charged for offences under Sections 363, 366A and Section 376(2) (i) IPC and under Section 5/6 of Protection of Children from Sexual Offences Act, 2012 and subsequently found guilty for these offences during this trial, but, without formulation of 17 Cr.R. No.4/2015 & Cr.A. No.1998/2015 the charge or addition, allteration, accused Ramesh had been convicted for an offence under Section 376 E IPC, on basis of his previous conviction. Hence, relevant provisions of Section 376(2)(i) and Section 376 E IPC also requires to be reproduced. The provisions of Sections 363, 366A of IPC and Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012 does not require to be reproduced as punishment under these provisions is lesser than the punishment provided under Section 376(2) (i) IPC.
38. Section 376. Punishment for rape.--(1) Whoever........
(2) Whoever,--
(a) to (h)..........
(i) Commits rape on a woman when she is under sixteen years of age; or
(j) to (n).......
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
39. Section 376 E IPC, inserted by the Criminal Law (Amendment) Act, 2013, sec 9 (w.e.f. 3-2-2013), captioned "Punishment for repeat offenders" reads as under:-
"Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean 18 Cr.R. No.4/2015 & Cr.A. No.1998/2015 imprisonment for the remainder of that person's natural life, or with death."
40. The ingredients of both these offences are same to some extent as these offences belongs to same family. But, upon reasonable analysis of the language of these provisions heading of the Section 376 E IPC is altogether different. Another distinction between Sections 376 E and 376(2) (i) IPC is as wide discretion is vested in the courts in relation awarding of punishment. The court, in exercise of its jurisdiction and judicial discretion in consonance with the established principles of law can punish the accused person with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine, as the case may be, while under Section 376 E IPC, the court cannot, in its discretion, award sentence lesser than imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death. No scope for fine.
41. The provisions are clear and admit no scope for application of any other principle of interpretation except the "golden rule of construction" i.e. to read the statutory language grammatically and terminologically in the ordinary and primary sence which it appears in its context without omission or addition. Thus, read these provisions collectively, put the matter beyond ambiguity that the offence of "punishment for repeat offenders", under Section 376 E IPC is a graver offence than an offence under Section 376(2) (i) IPC or any other offence charged against accused Ramesh in this case.
19 Cr.R. No.4/2015 & Cr.A. No.1998/2015
42. Learned trial Court after hearing request of the accused and his learned counsel and also after discussing citations of the Apex Court on the point of punishment for death sentence, in para-42, sentenced accused Ramesh in following manner in para-43 of impugned judgment, which reads as under: -
"43& mDr U;k;n`"Vkarks ds izdk'k esa vkjksih dks Hkkjrh; n.M fo/kku dh /kkjk&363 esa 7 o"kZ ds lJe dkjkokl vkSj 1000@& #i;s ¼,d #i;s ds vFkZn.M½] 366&, esa 10 o"kZ ds lJe dkjkokl o 1000@& #i;s ¼,d #i;s ds vFkZn.M½] ls naf.Mr fd;k tkrk gSA mDr vFkZn.M ds O;frdze esa mls Øe'k% ,d ekg o nks ekg dk lJe dkjkokl Hkqxrk;k tkosA vkjksih dh nks"kflf) Hkkjrh; n.M fo/kku dh /kkjk&376 ¼2½ ¼i½ ,oa ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 dh /kkjk&5@6 esa Hkh dh xbZ gSA mDr vf/kfu;e dh /kkjk 5@6 esa /kkjk&376 ¼2½ ¼i½ Hkk0na0fo0 ds ?kVd lekfgr gS] vr% ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e dh /kkjk&42 esa vuqdfYir n.M ¼Alternative punishment½ dk izko/kku gS ftlds vuqlkj vijk/kh dks ml fof/k ;k vf/kfu;e ds varxZr nf.Mr fd;k tkuk pkfg, tks ek=k esa xq#Rrj gksA Hkkjrh; n.M fo/kku dh /kkjk&376 ¼2½ ¼i½ vkSj ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e dh /kkjk&5@6 esa n.M leku gS vFkkZr U;wure 10 o"kZ vkSj vf/kdre vkthou dkjkokl gS ijarq tcfd vfHk;ksD=h 8 o"khZ; vcks/k ckfydk gS] vkjksih jes'k dks /kkjk 376 ¼2½ ¼i½ Hkknfo esa izFkd ls nafMr u djrs gq, mDr vf/kfu;e dh /kkjk 5@6 ds varxZr vkthou dkjkokl ,oa 2000 #i;s ¼nks gtkj #i;s½ ds vFkZnaM ls nafMr fd;k tkrk gS] mlds O;frØe dh n'kk esa mls 3 ekg dk lJe dkjkokl izFkd ls Hkqxrk;k tkosA"
43. English translation reads as under: -
In light of the aforementioned Judicial citations, the accused is convicted u/s 363 of IPC for 7 years R.I. and fine of Rs.1000/- (Rs.one thousand), U/s 366-A of IPC for 10 years R.I. and fine of Rs.1000/-(Rs.One Thousand) and in 20 Cr.R. No.4/2015 & Cr.A. No.1998/2015 default of payment of fine one month and two months R.I. be served respectively. The accused is being convicted u/s 376 (2) (i) of IPC r/w sec. 5/6 of POCSO Act 2012. The ingredients of Sec.376(2)(i) of IPC are included under Sec.5/6 of POCSO Act. Sec.42 of POSCO Act 2012 provides for alternative punishment, according to which the accused be punished with the punishment whichever is maximum in the law or an Act. The punishment awarded under sec.376(2)(i) of IPC and that of sec.5/6 of POCSO Act 2012 are same, that is, minimum 10 years and maximum life imprisonment. Whereas, the prosecutrix is only 8 years innocent child, therefore, accused Ramesh not being convicted u/s 376(2)(i) of IPC separately is punished with L.I. u/s 5/6 of POSCO Act and the fine of Rs.2000/-, in default of payment of fine is liable to undergo 3 months R.I.
44. The heading of the particular Section of IPC provides some insight into the factors to be considered.
45. Section 376-E of IPC brings within its ambit enhanced punishment for the accused person previously convicted. The points requires for proving Section 376-E of IPC are:-
(i) the accused person has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376-D of IPC.
(ii) the accused person is subsequently, convicted of an offence punishable under any of the said sections.
46. Sub Section (7) of Section 211 of the Code lays down how previous conviction is to be set out. This Sub-section (7) provides for enhanced punishment which reads as under:-
21 Cr.R. No.4/2015 & Cr.A. No.1998/2015
"(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the facts date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed."
47. Where it is intended to prove a previous conviction for the purpose of enhancing the punishment, it should be entered in the charge and the accused should be called on to plead thereto; mere exhibiting certified copy of the judgment of previous case certainly is insufficient to prove a previous conviction.
48. Therefore it is crystal clear that where it is intended to prove a previous conviction for the purpose of enhancing the punishment, learned trial Court was also bound to be entered in the charge and accused Ramesh should be called upon to plead thereto.
49. It is evident from the perusal of charge form that the particulars of date, time, place, etc. of previous conviction of accused Ramesh does not mention in charge reproduced earlier. It is crystal clear that during trial of this case at relevant stage, as provided by Sub-section (7) of Section 211 of the Code accused Ramesh was not specifically charged with an offence under Section 376 E IPC.
50. Learned trial Court was duty bound to satisfy itself that accused Ramesh has completely understood the accusation that was against 22 Cr.R. No.4/2015 & Cr.A. No.1998/2015 him and completely realizing the consequences that follow. But there is no indication from the materials on record that it was brought to the notice of accused Ramesh that he had freedom to defend himself, as charge under Section 376 E IPC was not leveled against him. Again, there was nothing to show that accused Ramesh understood the consequences of non-framing of charge. On top of it, there was nothing to show that the facts on record reflected all the ingredients constituting the offence, punishment under Section 376 E IPC.
51. It was incumbent upon learned trial Court to ask for the prosecution to produce evidence against the accused to prove his previous conviction. Where the previous conviction admitted by the accused, even then as per cardinal principles of natural justice, the prosecution was also bound to prove with all certainty that accused Ramesh was the person previously convicted, because the prosecution intended to enhance his punishment on basis of his previous conviction, that too for capital punishment of death sentence.
52. To punish accused Ramesh for offence under Section 376 E IPC, learned trial Court opted a short-cut on basis of his previous conviction as per judgment (Ex.P34), and while found him guilty in these subsequent offences under Section 376(2)(i) IPC and other sections and by- passing mandate of sub-section (7) of Section 211 of the Code directly held him guilty, resultantly punished him under Section 376 E IPC for death sentence.
53. After holding accused Ramesh guilty in this subsequent case of rape with minor prosecutrix (PW/3), as per mandate of Sub-section (7) of Section 211 of the Code, learned trial Court was bound to stop here. 23 Cr.R. No.4/2015 & Cr.A. No.1998/2015 Next step was framing of charge of Section 376 E IPC against the accused, as it was intended to prove his previous conviction for the purpose of enhancing his punishment or to punish him differently.
54. A Constitutional Bench of the Apex Court in Willie (William) Slaney v. State of M.P. reported in AIR 1956 SC 116 while dealt with the question as to whether omission to frame a charge was a curable irregularity, held as under:-
"6 Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood line that accord with our notions of natural justice."
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
24 Cr.R. No.4/2015 & Cr.A. No.1998/2015
7. Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions."
55. In the light of above mentioned legal position the prosecution was bound to produce evidence to prove with all certainty that accused Ramesh was the person who was convicted previously. Examination of accused Ramesh was also mandatory for the purpose of enabling him to extend any circumstances apparent in the prosecution evidence against him. Next step was to call upon accused Ramesh to enter on his defence and adduce any evidence he may have in support thereof. The probable defence of accused Ramesh may be that he is not the previously convicted person. After hearing final arguments of learned counsel for the parties, then learned trial Court was authorized to pass judgment, certainty not before it, of conviction as per provisions of Section 235 of the Code. But, learned trial Court adopted almost different procedural course and after holding accused Ramesh guilty directly passed order of punishment of capital sentence.
56. Upon reasonable analysis of the language of the provisions this fact does not requires repetition that Section 376 E IPC is for graver offence than an offence punishable under Section 376(2)(i) IPC or any other offence charged against the accused.
25 Cr.R. No.4/2015 & Cr.A. No.1998/2015
57. A person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record. Usually an offence of grave nature includes in itself the essentials of a lesser but cognate offence:
Willie (William) Slaney (supra);Lakhjit Singh v. State of Punjab 1994 SCC (Cri) 235; Shamnsaheb M. Multtani vs. State of Karnataka, (2001) 2 SCC 577; Dalbir Singh v. State of U.P., (2004) 5 SCC 334.
58. This is an essential requirement in a criminal trial where the accused is required to enter upon his defence and where the consequence to the accused person is ultimate serious, i.e., capital punishment of death sentence, an adverse verdict would result in the loss of his liberty, no allowance can be made, in respect of a charge that may be found to be defective or wanting in material particulars.
59. In the light of above discussed legal position as well as comparison of ingredients of Sections and other facts and circumstances. It is evident that procedure adopted by learned trial Court that the accused was charged for a lessor offence under Section 376(2)(i) IPC and without formulation of the charge, he had been convicted for a graver offence under Section 376 E IPC. this had deprived the appellant of a fair opportunity of defence and had caused him serious prejudice.
60. Hence, we are of the opinion that the Criminal Reference No.4/2014 made by learned trial Court for confirmation of death sentence awarded to accused Ramesh is deserves to be rejected. On considering the question of law we are satisfied that the grave prejudice caused to accused Ramesh as the charge of the graver offence punishable under Section 376 E 26 Cr.R. No.4/2015 & Cr.A. No.1998/2015 IPC was not framed, at proper stage, as per mandate of Sub-section (7) of Section 211 of the Code and directly convicted and sentenced him for capital punishment, which law does not permit on any cost.
61. After deciding legal position, now we may revert to the facts and circumstances of the case in hand to decide merits-demerits of evidence of the prosecution to prove the acquisition against the accused as well as merits of appeal filed by the accused for his acquittal.
62. Learned senior counsel for the appellant contended that the trial court has erred in fact as well as in law, because failed to appreciate the evidence in its correct perspective. Further submitted that there are serious contradictions between the statements of the prosecution witnesses which were ignored and the trial Court convicted accused Ramesh on basis of surmises and conjectures. It is also urged that connection of the accused with this offence of rape is not based on direct evidence, hence, being a case of circumstantial evidence, the prosecution has failed to prove the chain of events pointing towards the guilt of the accused hence, the judgment of learned trial Court is liable to be set aside. The defects and various lacunas in the investigation also pointed out at length.
63. Shri Ajay Shukla, learned Government Advocate submitted that the trial Court has examined the facts of the case in proper perspective and the evidence adduced by the prosecution was sufficient to bring home the charges against the accused that way the trial Court does not committed any error in relying upon the evidence of the prosecutrix and other prosecution witnesses. On the evidence of recovery of blood stained clothes belonging to the accused at his instance the prosecution has been able to 27 Cr.R. No.4/2015 & Cr.A. No.1998/2015 establish its case beyond any reasonable doubt with analysis of FSL reports. Learned counsel supported and justified the judgment of conviction and submitted that appeal lacks merits and is liable to be dismissed.
64. In this case in hand, not only Karishma (PW/4), eye witness of first part of abduction of the prosecutrix is child witness of 10 years age, but, the prosecutrix (PW/3) is also of 8 years age.
65. The Indian Evidence Act, does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, sec. 118 of the Indian Evidence Act envisages that all persons shall be competent to testify, unless and court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind.
66. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but, it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. Nevertheless his/her evidence cannot be rejected if he is found reliable. His/her evidence must be evaluated more carefully and with greater circumspection.
67. The Court is also aware that children are most untrustworthy class of witnesses and some of the reasons are when of a tender age they often mistake dreams for reality, repeat glibly as of their own knowledge 28 Cr.R. No.4/2015 & Cr.A. No.1998/2015 what they have heard from others and are greatly influenced by fear of punishment, by home of reward and by desire of notoriety.
68. But, same time the court should not start with a presumption of untrustworthiness of the evidence of a child witness. A child witness is not an incompetent witness by reason of his age. Age of a child is no important factor, his degree of intelligence, maturity and knowledge matter. Lack of intellect or intelligence is mainly responsible for incompetency of a witness. The credibility of the evidence has to be judged on the touchstone of the intrinsic worth of the evidence. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.
69. The court should not convict an accused on a serious charge relying on the evidence of a child witness unless he is materially corroborated. Substantial corroboration of the evidence of child witness is necessary. Corroboration about the factum of crime and connection of the accused with the crime is necessary. The rule of corroboration of the testimony of a child witness is not a rule of practice, but, it is rather a rule of prudence.
70. The evidence of a child witness can be the basis of conviction. The court shall take precaution only that the witness is reliable and his demeanor is like any other competent witness and that there is no likelihood of being tutored - Dattu Ramrao Sakhare v State of Maharashtra, (1997) 5 SCC 341.
29 Cr.R. No.4/2015 & Cr.A. No.1998/2015
71. The decision on the question, whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The court has to satisfy that the child has capacity to understand and give rational answers.
72. It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of witness may be seriously affected so much so, that in some cases it may be necessary to reject the evidence altogether - Rameshwar Singh v State of Rajasthan AIR 1952 SC 54.
73. The intellectual capacity of a child to understand questions and to give rational answers thereto is the sole test of testimonial competency.
74. Learned trial Judge for examination of sufficiency of intelligence of the prosecutrix (PW/3) asked as many as 11 questions before starting her depositions and rightly came to the conclusion that the prosecutrix has capacity and intelligence as well as understanding of giving the reply of questions, but looking to her age oath were not administered to this child prosecutrix. Same procedure adopted before starting deposition of Karishma (PW/4) after asking 09 questions.
30 Cr.R. No.4/2015 & Cr.A. No.1998/2015
75. As per depositions of the prosecutrix (PW/3), her companion Karishma (PW/4), Kailash (PW/1) and other prosecution witnesses following facts are proved, hence, required no further detailed discussions:-
(1) Attendance of 8 year's old prosecutrix, a student of Class-III standard at her school situated at Village-
Nipaniakala, PS-Ashta, District-Sehore (MP) on dated 04.01.14 at 10 O'clock in the morning along with her companion Karishma and her younger sister Purti @ Muskan.
(2) At lunch hours, 1.30 p.m. in the noon, presence of prosecutrix along with Purti on the stall (Thela) situated nearby to the school to have some snacks i.e. Panipuri, and Karishma (PW/4) did not join them as she went to meet her younger brother Devendra at another school.
(3) This fact also does not requires any further discussion that when Karishma (PW/4) came back to the school she saw that the prosecutrix and Purti were talking with a boy wearing black coloured clothes and having a black coloured bag also. Karishma also joined them..
76. Discussions between the prosecutrix, Purti @ Muskan and Karishma on one hand and unknown boy on other hand, at the stall will be discussed onward, but the abduction of prosecutrix by the unknown boy is proved fact.
77. Another set of following facts is also proved that: -
(1) At the time of abduction of the prosecutrix she was wearing blue jeans, black T-shirt and sweater.
(2) Karishma (PW/4) along with Purti immediately rushed to the school and informed the teachers, where it was 31 Cr.R. No.4/2015 & Cr.A. No.1998/2015 advised her to go to house of the prosecutrix and informed her parents.
(3) Kailash (PW/1), elder brother of Arjun Patel (PW/7), father of the prosecutrix, was busy at his fields. At about 2.00 p.m. Karishma along with Purti came to him at well.
(4) As per Kailash (PW/1), Karishma informed him that at school one unknown person wearing black clothes came and took the prosecutrix with him after alluring that he will give her Bair (Jujube) and Amarud (Guava) at Bus Stand. (5) Naturally, on receiving this information, Kailash (PW/1) rushed to the school and negotiated with school teachers Smt.Krishna Malaiya (PW/8) and Shri Prem Singh Chawda (PW/9).
(6) The school teachers Smt. Karishma Malviya (PW/8) and Shri Prem Singh Chawda (PW/9) supported depositions of Karishma (PW/4) upto this extent that kidnapping of the prosecutrix (PW/3) by an unknown person.
(7) Kailash (PW/1) also informed Arjun, and both brothers were started search of the prosecutrix at various places including Bus Stand, but could not succeed, hence, Kailash (PW/1) telephonically informed this abduction of minor prosecutrix at Out Post-Maina of Police Station- Ashta.
32 Cr.R. No.4/2015 & Cr.A. No.1998/2015
78. On the basis of depositions of Karishma (PW/3), Kailash (PW/1), Investigation Officer Shri Kushwaha (PW-14) and other witnesses following facts are also proved that:-
(1) On 04.01.2014 Shri Virendra Singh Kushwaha (PW/14), who was posted as Sub-Inspector at Out Post, Maina of Police Station, Ashta, received this telephonic information of Kailash regarding kidnapping of the prosecutrix from her school about one and half hour ago. (2) This telephonic message registered as Ex.P/18 at Out Post, Maina by Shri Kushwaha (PW/14) which set the prosecution agency in motion.
(3) Shri Kushwaha (PW/14) immediately rushed to the Village-Nipaniyakala with police force, where on information of Kailash (PW/1) Dehati Nalishi (Ex.P/1) registered as 0/14 under Section 363 of IPC against unknown person.
(4) At Police Station-Ashta, on basis of this Dehati Nalishi (Ex.P/1) Head Constable Shri Rajesh Yadav (PW/5) registered FIR (Ex.P/6).
(5) Shri Kushwaha (PW/14) recorded statement of Kailash (PW/1), Karishma (PW/4) and Purti @ Muskan. He also recorded statement of teachers Smt. Krishna Bai (PW/8) and Prem Singh Chawda (PW/9) and prepared spot map (Ex.P/19) on intimation of Karishma (PW/4).
79. Recovery of the prosecutrix (PW/3) on next day 05.01.14 from road of village Pachanare is also proved fact along with following facts as per statements of Kailash (PW/1), Jenny Prasad (PW/2) Shri Kushwaha (PW/14) and of course from the statement of prosecutrix (PW/3):-
33 Cr.R. No.4/2015 & Cr.A. No.1998/2015
(1) During her court statements the prosecutrix (PW/3) stated that after her abduction, the accused brought her to the wheat field and committed Gandi Harkat with her. She also stated that after Gandi Harkat the accused left the place, and she became unconscious in wheat fields, therefore, she asleep there.
(2) The prosecutrix (PW/3) further deposed that in the morning she awaken and came on road where Jaini Prasad (Kakku) met him who brought him at her home in the village. Jaini Prasad (PW/2) also supported that he brought the prosecutrix from Pochanare and at that time Kailash was also accompanied him.
(3) Shri Kushwaha (PW/14) prepared Dastayabi Panchnama (recovery memo) (Ex.P/2) of the prosecutrix on 05.01.2014 and recorded statements of Arjun Patel, father of the prosecutrix.
(4) Shri Kushwaha (PW/14) on the day of recovery does not interrogated with the prosecutrix because she was ill, hence sent her for medical check up to Civil Hospital, Ashta escorted by ASI, Lavesh Kumar.
(5) Kailash (PW/1) and Jaini Prasad (PW/2) supported the statement of the prosecutrix (PW/3) saying that firstly police brought her at Civil Hospital, Ashta for medical check up from where she was referred to District Hospital, Sehore and finally she was referred to Sultaniya Janana (Ladies) Hospital, Bhopal where she was admitted and treatment was continued for 8-9 days.
80. (1) On bare perusal of the testimonies of two lady doctors, Dr.Sikha Gupta (PW/12) and Dr. Sudha Shrivastava (PW/13) and documents (Ex.P/12A and Ex.P/14 to P/17) exhibited by these experts, it can easily be gathered that labia majora and minera on lower part was 1/3 34 Cr.R. No.4/2015 & Cr.A. No.1998/2015 torned and on upper side contusion and swelling were present, and posterior wall of vagina was also spiral, irregularly torned upto full length and upto depth of annul mucosa due to these injuries intestine were visible from vaginal vault, hence surgery was also preferred. Blood was oozing and also found on jeans and sweater of the prosecutrix.
(2) According to opinion of these medical expert witness, the sexual intercourse has been done with the victim, hence, vaginal smear slide were prepared, clothes of the prosecutrix were also seized and packed.
81. Kailash (PW/1) specified that the prosecutrix got injuries on her private part, also on anus which were stitched, and ovary of the prosecutrix was also damaged.
82. Shri Kushwaha (PW/14) specified that on basis of above facts he registered offence under Section 376 of IPC, hence he also received treatment papers and RSO report of the prosecutrix from the Sultaniya Janana Hospital, Bhopal. On 22.01.14 along with the prosecutrix (PW/3) Shri Kushwaha (PW/14) visited spot of abduction prepared spot map Ex.P/3, and also went on the spot and prepared spot map Ex.P/4 where rape was committed with the prosecutrix.
83. From above mentioned facts and circumstances of first part of the prosecution case preliminary found proved that on 04.01.2014 minor prosecutrix (PW/3) was kidnapped by the unknown person. On next day i.e. 05.01.2014 the prosecutrix (PW/3) recovered and after medical examination it is found proved that she was brutally raped by the unknown person.
35 Cr.R. No.4/2015 & Cr.A. No.1998/2015
84. Now, second part of the prosecution case will be dealt with who was that unknown person and whether it is proved by the prosecution beyond every doubt that he was accused Ramesh?
85. On information given by Karishma and Purti, companion of the prosecutrix and on basis of further investigation Shri Kushwaha (PW/14) got this clue that accused is Ramesh, a resident of village Polaikalan, who also previously convicted in such type of offence and also served out awarded sentence and at present he is cleaner on a truck.
86. Discussion about the journey of accused Ramesh started from his village Polaikalan to the kidnapping spot will be discussed in detailed onward, but on enquiry, it transpired that when the prosecutrix was at her school before her kidnapping, accused Ramesh started his journey.
87. (1) It go to show that on the same time two simultaneous events were going on. First event, attendance of the prosecutrix (PW/3) at her school with her friends Purti and Karishma (PW/4). Timing of this event started on 04.01.2014 at 10:00 a.m. when the prosecutrix leaved her home for school and ended when she kidnapped in the noon, as discussed earlier at length.
(2) Second event, started at 01:00 p.m. when the accused boarded Bhairavi Bus from village Arniya to village Borkheda, but alighted at Bus Stand of village Nipaniyakala. Witnesses of this second event are Bus Conductor Anil Kumar (PW/6), passenger Jaini Prasad (PW/2), and villager Arjun Patel (PW/7).
88. As per depositions of Shri Kushwaha (PW/14), Arjun Patel (PW/7) and other prosecution witnesses following facts with regard to 36 Cr.R. No.4/2015 & Cr.A. No.1998/2015 the arrest of accused Ramesh and further investigation are also proved, hence requires no further detailed discussions:-
(1) Shri Kushwaha (PW/14) in search of the accused visited various places and got this clue that the accused is working as cleaner on a truck bearing registration No. MP 09 HG 8977 and owner is one Conductor Anil Kumar Tripathi. As truck was under repairs at Budni, therefore, Shri Kushwaha (PW/14) reached Budni with police force, took him under custody and arrested him as per memo (Ex.P/8) in presence of witnesses Arjun Patel (PW/7) and Kamal Singh (not examined) at Police Station Ashta.
(2) In presence of these attesting witnesses, Shri Kushwaha (PW/14) interrogated with accused Ramesh and on the basis of his memorandum statement (Ex.P-9) his blood stained shirt and pant were seized as per seizure memo (Ex.P-10) which was worn by him at the time of incident, and two black hairs were also found on button of shirt of the accused. As per seizure memo (Ex.P/11) black colored bag also seized. Underwear and banyan of the accused also seized.
89. As per required form (Ex.P/22) Shri Kushwaha (PW/14) sent the accused for medical check up. At Civil Hospital, Ashta he was medically examined by Dr. Sandeep Gupta (PW/15) and as per MLC Report (Ex.P/22) found him able to perform intercourse, two semen slides were prepared, underwear also seized. Dr. Gupta (PW/15) also found that accused Ramesh was infected by Hepatitis B.
90. ASI Shri Rahul Kale (PW/16) brought the accused at Civil Hospital, Ashta for collecting blood sample for DNA test and after collection required sample by Doctor received sealed sample and handed it 37 Cr.R. No.4/2015 & Cr.A. No.1998/2015 over to Shri Kushwaha (PW/14) which were seized as per seizure memo (Ex.P/24).
91. Shri Kushawaha (PW/14) stated that accused Ramesh was having criminal background and at Police Station, Awantipura Badodiya, F.I.R. (Ex. P-31) was registered as Crime No.16/03 against him for the offence punishable under Section 363 and 376 of IPC and was convicted by learned Additional Sessions Judge Shujalpur, District Shajapur (M.P.) in ST No.76/03 and was sentenced rigorous imprisonment for 8 years and 10 years respectively for the above mentioned offences. A certified copy of judgment Ex.P/32 dated 30.03.2003 were also obtained. It is pertinent to mention here that the accused have served out the entire period of his awarded jail sentence in previous case.
92. The Apex Court in case of Ashish Batham vs. State of M.P. reported at AIR 2002 SC 3206 held that:-
"8. Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long 38 Cr.R. No.4/2015 & Cr.A. No.1998/2015 mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at one the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
93. On the basis of above mentioned directions of the Apex Court in case of Ashish Batham (supra), now we will proceed to scrutinize complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence remembering it that there is a long mental distance between "may be true" and "must be true".
94. Learned trial Court failed to observe material contradictions found place in collected prosecution evidence during investigation itself, without examination of any witness of the prosecution.
95. It is pertinent to note here that the prosecutrix (PW/3) nowhere stated in her Police Statement, not exhibited, that after her kidnapping she boarded Red Coloured Bus with the unknown person.
96. As against above fact as per following portion of the Police Statement of Karishma entirely contradictory facts were found which reads as under:-
**mlesa cSBdj jks'kuh ml yM+ds ds lkFk cl esa cSB xbZ fQj eSaus f[kM+dh ij ns[kk fd jks'kuh dqN [kk jgh Fkh rFkk og yM+dk mlds gkFk esa [kkus dks dqN ns jgk Fkk A**
97. English translation reads as under:-
39 Cr.R. No.4/2015 & Cr.A. No.1998/2015
"Sitting on that, Roshni sat with the boy inside the bus and then I saw at the window that Roshni was eating something and that boy was giving her something to eat."
98. The Police Statements of Purti @ Muskan is also verbatim same with comma and fullstop.
99. On bare perusal of these contradictory facts available in prosecution documents, Police Statement of prosecutrix on one hand and Police Statements of Karishma, her sister Purti @ Muskan on the other hand clouds serious nature of doubt on working pattern of Investigating Officer Shri Kushwaha (PW/14).
100. Looking to the importance of the Police Statement of the prosecutrix (PW/3), if brush aside A to A marked portion of Police Statement (Ex.D/2) of eye witness Karishma (PW/4), even then this contradiction is of the serious nature, hence cannot be ignored due to non- availability of any justified reason.
101. These contradictions are seriously affecting sanctity of basic document Dehati Nalishi (Ex.P/1) as it is pertinent to mention here that in Dehati Nalishi (Ex.P/1) two times it is mentioned that both, the prosecutrix and unknown person were boarded Bus, though colour not mentioned.
102. During statements of the prosecutrix (PW/3) and Arjun Patel (PW/7) on one hand and statement of Karishma (PW/4) on other hand exaggerations as well as lacunas were also found.
103. The prosecutrix (PW/3) admits these facts that while she was going with unknown person, at that point of time, many persons were going on road and when both of them were crossing the Bus Stand, 40 Cr.R. No.4/2015 & Cr.A. No.1998/2015 Nipaniyakala again so many persons saw them out of which 4-5 persons were belongs to her own village Nipaniyakala.
104. In support of above facts, Arjun Patel (PW/7) claims that he saw a girl was going with the unknown person on 04.01.2014 at 2:00 p.m. towards village Badlapur and after half an hour this fact came to his knowledge that one girl of village is abducted from the school.
105. On other hand, it is pertinent to mention here that Karishma (PW/4) is not able to explain how unknown person took the prosecutrix with him. Karishma (PW/4) further admitted that at that point of time one red bus came over there but, she could not see that whether the unknown person and the prosecutrix boarded that bus or not. This ambiguous statement of Karishma (PW/4) is totally against A to A marked portion of her Police Statements (Ex. D/2).
106. As per details of Police Statements (Ex.D/1) of 10 years old Karishma (PW/4) it is apparent that when she came back she saw that her sister Purti and the prosecutrix was talking with the boy who was wearing black coloured clothes and having a black coloured bag also, she also joined them. At that time the boy asked name of father of Purti, not of the prosecutrix and other details and give allurement to Purti that her father has sent some Bair (Jujube) and Amarud (Guava) for her, but Purti and the prosecutrix left the place for Bus Stand with the boy. Karishma (PW.4) tried to stop these girls, but managed to stop her sister Purti only and the prosecutrix went with the boy. Karishma (PW/4) also deposed that the prosecutrix offered her to join with her and the boy who was offering Beehi 41 Cr.R. No.4/2015 & Cr.A. No.1998/2015 and Bair. Karishma (PW/4) admitted that she had no talk with the boy but, the boy asked the name and profession of father of her sister Purti @ Muskan, not of the prosecutrix's father details.
107. Therefore, it is clear that the boy was alluring Purti @ Muskan by offering Bair (Jujube) and Amarud (Guava) and not to the prosecutrix, but the prosecutrix started going along with the boy and even after efforts of Karishma, she could not stopped.
108. For the sake of arguments, if presume that allurement was given to the prosecutrix (PW/3) but, during examination-in-chief the prosecutrix (PW/3) deposed entirely different facts that unknown person offered her one orange toffee and Rs.5/- instead of offering Bair (Jujube) and Amarud/Jamphal (Guava) and then brought her to the wheat fields and committed rape on her.
109. During cross-examination, the prosecutrix (PW/3) further clarified that there are so many shops situated near to her school including one grocery shop from where her father usually purchases the grocery items and she also purchases Biscuits and Toffees from that shop. She also admitted that the person who abducted her also buy the orange toffees from that grocery shop. This is the important admission of the prosecution (PW/3) that during this sale-purchase of orange toffee owner of the grocery shop clearly saw that unknown person and her also.
110. These contradictions cannot be ignored looking to the fact that owner of the grocery shop, an important witness, does not examined. 42 Cr.R. No.4/2015 & Cr.A. No.1998/2015
111. With regard to health condition of the prosecutrix material contradictions were emerged out in statement of I.O. Shri Kushwaha (PW/14) as well as in statements of other prosecution witnesses when she was recovered on 05.01.2014 as per Dastayari Memo (Ex.P-2).
112. When Shri Kushwaha (PW/14) reached at village Nipaniyakala, he recorded statements of Arjun Patel, father of the prosecutrix and other witnesses except the prosecutrix, though, Investigating Officer himself prepared Dastayavi Memo (Ex. P-2) of the prosecutrix on 05.01.2014. During chief examination Shri Kushwaha (PW/14) categorically specified, on that day he does not interrogated with the prosecutrix because she was ill. In this sequence Shri Kushwaha (PW/14) further stated that firstly the prosecutrix shifted for medical aid to Civil Hospital, Ashta, then District Hospital, Sehore and finally Sultaniya Janana Hospital, Bhopal for onward treatment, on the same day, i.e., 05.01.2014.
113. As a result of it, ultimately, Police Statement of the prosecutrix (PW/3) were recorded by other Investigating Officer Sub- Inspector Smt. Urmila Choudhary, not examined at Sultaniya Janana Hospital, Bhopal on 09.01.2014. True it is that during these Police Statements the prosecutrix does not stated any word with regard to these facts that she narrated entire incident of her molestation to her family members at the time of her Dastayavi on 05.01.2014.
114. Kailash (PW/1) and Jaini Prasad (PW/2) also stated when the prosecutrix recovered on 05.01.2014 her clothes were stained with blood, though not stated that due to ill-health the prosecutrix was not able to talk with any other person.
43 Cr.R. No.4/2015 & Cr.A. No.1998/2015
115. Even then reason assigned by Shri Kushwaha (PW/14) for non recording of Police Statement of the prosecutrix on 05.01.2014 due to her ill health can not be accepted. When Shri Kushwaha (PW/14) recorded Police Statement of Arjun Patel on 05.01.2014 this hearsay witness stated that entire facts of the incident of rape, narrated to him by his daughter, the prosecutrix herself. Reasons best know to the prosecution but, it is clear that these important witness Arjun Patel does not step down in the witness box.
116. This doubt further deepen graver. When the prosecutrix brought at Civil Hospital, Ashta on 05.01.2014 Dr. Sikha Gupta (PW/12) treated her and specifically noted on her MLC report (Ex.P/12A) that at the time of check-up of the prosecutrix her condition was normal, she was physically as well as mentally fit and well oriented to time and place. Dr. Shikha Gupta (PW/12) also stated that on face, arms and legs of the girl she does not found any external injury.
117. At Sultaniya Janana Hospital, Bhopal Dr. Sudha Shrivastava (PW/13) treated the prosecutrix. Treating Dr. Sudha Shrivastava (PW/13) specifically deposed before learned trial Court that during treatment, the prosecutrix was conscious and narrated entire case history to her with attendant which is also part of her M.L.C report (Ex. P/15) and releated medial documents (Ex. P/14, 16 & 17)
118. Question is un-answered, when Arjun Patel, father of the prosecutrix stated in his Police Statements and experts in this field Dr. Shikha Gupta (PW/12) and Dr. Sudha Shrivastava (PW/13) written in M.L.C. reports (Ex. P-12A and Ex. P/14 to P/17) that on 05.01.2014 the prosecutrix was fully conscious mentally as well as physically healthy and 44 Cr.R. No.4/2015 & Cr.A. No.1998/2015 narrated entire story of rape to them, but, same time Investigating Officer Shri Kushwaha (PW/14) has not recorded Police Statements of the pros- ecutrix due to her ill health, hence, statement of the prosecutrix recorded on 09.01.2014 by other police officer after lapse of five days.
119. This contradiction regarding delay of recording of the statement of the prosecutrix on 09.01.2015 instead of 05.01.2014 due to her ill health coupled with contradictions pointed out during above discussions with regard to allurment and boarding of the prosecutrix along with the accused Ramesh on Bus clouds serious doubt on case of the prosecution as well as on investigation pattern, which are completely ignored by learned trial Court.
120. Test Identification Parade not necessary when the accused persons are known to the witnesses.
121. Conducting Test Identification Parade depends on the facts and circumstances of each case.
122. Holding the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the victim. The object of conducting Test Identification Parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person who the witnesses had been in connection with the said occurrence. 45 Cr.R. No.4/2015 & Cr.A. No.1998/2015 Ankush Maruti Shinde vs State of Maharashtra, 2010(1) MPLJ (Cri)(SC)
76.
123. In this case in hand, the prosecutrix does not knowing the accused by face or name as the accused was totally stranger for her. Same is the case of star witness Karishma and both are of tender age.
124. Learned counsel for the respondent/State submitted that the occurrence took place in brought day light, hence, the prosecutrix was having ample opportunity of notice the features of the accused and to see the uncovered face of the accused and it was not expected from her that she would forget face of the person who had subjected her to such a traumatic experience. Learned counsel for the State further submitted that the incident was so graphic that it left an indelible imprint in mind of the prosecutrix. Hence, Test Identification Parade conducted by N.T. Priyanka Netam (PW/11) has no irregularity.
125. True it is, learned trial Court also recorded the demanuar of the prosecutrix which was not answering the meaning of Gandi Harkat and her face turned faint due to pain. This observation of learned trial Court go to show that the prosecutrix was subjected to heinous crime of rape.
126. On the question of identification, one of the main pillars of the prosecution case in order to bring home in clear terms pointed towards the guilt of the accused, the prosecution to fulfill this burden examined the prosecutrix (PW/3), Karishma (PW/4) and N.T. Priyanka Netam (PW/11).
127. For Test Identification Parade of accused Ramesh, Shri Kushwaha (PW/14) wrote a letter, on which Nayab Tehsildar Priyanka 46 Cr.R. No.4/2015 & Cr.A. No.1998/2015 Netham (PW/11), Sehore conducted Test Identification Parade proceedings and prepared required memo (Ex.P-5) at District Jail, Sehore.
128. First defect:- The Apex Court in catena of cases warned that Test Identification Parade must be completed without delay. In this case in hand, the accused was arrested on dated 10.1.2014 and Test Identification Parade were conducted by Priyanka Netam (PW/11) after lapse of 14 days i.e. on 24.1.2014. This delay of conducting Test Identification Parade is not satisfactory explained by the prosecution.
129. Second defect:- Priyanka Netam (PW/11) admitted material contradictory facts regarding change of name of the residential village of the prosecutrix. She herself admitted that she does not know in which village the prosecutrix resides. The witness admitted that she corrected the name of village Polaikala from village Nipaniyakala as the village Polaikala is the resident of the prosecutrix. She clarified that name of this village Polaikala was stated to her by the prosecutrix herself. It is pertinent to mention here that above correction made by Priyanka Netam (PW/11) is totally wrong and misconceived, because as per entire oral as well as documentary evidence of the prosecution the place of residence of the prosecutrix is village Nipaniyakala, not the village Polaikala, which is residence of accused Ramesh. Shri Kushwaha (PW/14) also admitted that name of villager of the prosecutrix wrongly mentioned in Test Identification Parade Memo (Ex.P.-5).
130. Ignoring above mentioned delay in conduction of Test Identification Parade and also contradictory statement of Priyanka Netam (PW/11) regarding correction of village name of residence of the prosecutrix another fatal contradiction is available on record which 47 Cr.R. No.4/2015 & Cr.A. No.1998/2015 completely destroys truthfulness and sanctity of the proceedings of the Test Identification Parade memo (Ex. P-5) at District Jail, Sehore.
131. A child is an easy prey of tutoring, possibility of tutoring can with certainty be excluded, if the evidence is free from any defect, evidence is fairly impressive and can be regarded as true disclosure of the facts the evidence of a child witness should not be rejected.
132. So the evidence of a child witness has to be evaluated carefully because he/she is an easy prey to tutoring. Therefore the court will always look for adequate corroboration for other evidence - Bhagwan Singh v State 2003 Cr LJ 1262 (SC).
133. Evidence of a child witness is dangerous unless immediately available and before any possibility of tutoring or coaching - State of Assam v. Mafizuddin Ahmed AIR 1983 SC 274: 1983 Cr LJ 426.
134. Prosecutrix a child witness - Time gap between the occurrence and examination of the witnesses - Some lapse of memory on the part of child witness is possible. [Satyapal vs. State of Haryana, 2010 (1) M.P.L.J. (Cri.) (S.C.) 191]
135. Shri Kushwaha (PW/14) stated that he informed Arjun Patel, father of the prosecutrix in writing to remain present at District Jail, Sehore along with the prosecutrix for Test Identification Parade of accused Ramesh.
136. Priyanka Netam (PW/11) stressed on this fact that the prosecutrix was very much physical present before her at the time of identification of the accused in District Jail, Sehore. As discussed earlier, 48 Cr.R. No.4/2015 & Cr.A. No.1998/2015 Priyanka Netam (PW/11) also claims that the prosecutrix explained name of her village as Polaya. But, this statement of Priyanka Netam (PW/11) again is not true, hence not reliable and also created material contradiction regarding Test Identification Parade of accused Ramesh in the District Jail, Sehore and preparation of memo (Ex. P-5).
137. When Test Identification Parade memo (Ex.P-5) shown to the prosecutrix (PW/3) she admitted her signature, but, as per admission of the prosecutrix (PW/3), it is proved fact that she never went inside the District Jail, Sehore, hence no question arises about identification of the accused by her as per memo (Ex.P-5) or any dialogue with Priyanka Netam (PW/11).
138. The prosecutrix (PW/3) stated that her father Arjun brought her to Jail Sehore. Next question was before the prosecutrix (PW/3) why she went to Sehore Jail and what proceedings happened there at, but, she does not reply, this non-answering position of the prosecutrix is very much important as well as damaging.
139. During cross-examination the prosecutrix (PW/3) specifically admitted that when she visited jail at Sehore at that time her father brought her back after showing the jail from outside only. It means the prosecutrix (PW/3) never entered in District Jail, Sehore.
140. It goes to show that Arjun, father of the prosecutrix (PW/3) acted as a tutor, which is dangerous situation as per mandate of cases of Bhagwan Singh (supra) and Mafizuddin Ahmed (supra).
141. Reasons best known to the prosecution, but it is pertinent to mentioned here that the prosecution does not take this precaution that when minor prosecutrix's companion Karishma (PW/4) and Purti were also having sufficient time to see the accused when the accused was alluring the 49 Cr.R. No.4/2015 & Cr.A. No.1998/2015 prosecutrix and Purti at the stall, Test Identification Parade of accused Ramesh by Karishma (PW/4) and Purti not conducted? which is a doubt full lacuna.
142. It is apposite to repeat here that as per earlier discussions with regard to Test Identification Parade of the accused by the prosecutrix (PW/3) it is found proved that the prosecutrix (PW/3) never participated in Test Identification Parade of the accused in District Jail, Sehore in presence of Nayab Tahsildar Priyanka Netam (PW/11) as per memo (Ex. P-5).
143. Reasons best known to the prosecution, but, admittedly, it is clear that Karishma (PW/4) did not participate in any Test Identification Parade of accused Ramesh though Karishma (PW/4) was also having ample opportunity to see the uncovered face of accused Ramesh and to notice his features when she was present at the Stall at the time of allurment by the accused to the prosecutrix and Purti.
144. It is appropriate to mention here that the incident took place on 04.01.2014 and the prosecutrix (PW/3) as well as Karishma (PW/4) were examined on 12.06.2014 after time gap of 05 months and 08 days.
145. The Apex Court in catena of cases held that the identification of the accused during the trial in the dock by the prosecution witnesses is admissible evidence. Precaution which pointed out by the Apex Court is that after arrest of the accused he should be kept as Baparda prior to identification.
146. In this context, the Apex Court in the case of Kanan and others vs. State of Kerala, AIR 1979 SC 1127 has held as under:
"Where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is 50 Cr.R. No.4/2015 & Cr.A. No.1998/2015 absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. Parade under section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court."
147. The Apex Court in the case of Dana Yadav alias Dahu and others vs. State of Bihar, AIR 2002 SC 3325 has held as under:
"Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a week character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. In exceptional circumstance only, evidence of identification for the first time in Court.
148. Evidence as to identification of the accused for the first time in the Court is not totally irrelevant and inadmissible.
149. But, if the accused were shown to the witnesses prior to holding of Test Identification Parade, it loses all its sanctity and value. [Ramesh Chandra vs State of M.P., 2010(2) MPLJ (Cri.) 377]. 51 Cr.R. No.4/2015 & Cr.A. No.1998/2015
150. The same principal will also apply when the accused or his photo was shown to the witnesses prior to his identification before the trial Court in dock.
151. From perusal of order-sheets, it is apparent that prior to 12.06.2014 the prosecutrix (PW/3) never present before the trial Court. But, this fatal fact admitted by the prosecutrix (PW/3) during her depositions on 12.06.2014 that when she came to the Court on earlier date at that time she saw accused Ramesh who was handcuffed. This admission totally destroys sanctity and value of Dock Identification of accused Ramesh by the prosecutrix (PW/3) by this Court in case of Ramesh Chandra (supra).
152. Same is the position of Karishma (PW/4), who first time attended learned trial Court on 12.06.2014. During her cross-examination she stated that she does not participated in Test Identification Parade, but, herself admitted that new teacher of her school shown photograph of accused Ramesh who is present in the Court. Principal laid down in the case of Ramesh Chandra (supra) will also apply to this admission of Karishma (PW/4) as photograph of accused Ramesh was shown to her prior to dock identification of accused Ramesh, hence, it also losses sanctity and value.
153. For the reasons stated hereinabove in light of the decisions of the Apex Court referred to hereinabove, it would be hazardous to place reliance on the evidence of Test Identification Parade by the prosecutrix (PW/3) and Dock Identification by the prosecutrix (PW/3), Karishma (PW/4).
154. At civil Hospital, Ashta Doctor collected blood sample of the prosecutrix for D.N.A. Test, which was seized by Shri Kushwaha (PW/14). 52 Cr.R. No.4/2015 & Cr.A. No.1998/2015 When the proscutrix was admitted at Sultaniya Janana Hospital, Bhopal. Shri Kushwaha (PW/14) also collected two hairs of the prosecutrix for DNA test as per seizure memo (Exh.P-25) from her mother Smt. Sharmila.
155. Shri Rahul Kale (PW/16) went to the Civil Hospital, Ashta along with accused Ramesh for collecting his blood sample for matching with the blood sample of the prosecutrix (PW/3) for DNA test. It is further submitted by Shri Rahul Kale (PW/16) that Doctor collected the blood sample (EDTA VIAL) and sealed it and handed over to him and in his turn he handed over this sealed blood sample packet to Shri Kushwaha (PW/14) as per seizure memo (Ex.P-14).
156. Shri Kushwaha (PW/14) forwarded all the slides, seized blood stained clothes as well as blood samples through Superintendent of Police, Sehore to State Forensic Science Laboratory, Sagar and Regional Forensic Science Laboratory, Bhopal vide annexures (Ex. P-26, P-27 and P-28) respectively.
157. Junior Scientific Officer Shri M.P. Bhaskar forwarded FSL report (Ex. P-27) and Dr. Conductor Anil Kumar Singh, Scientific Officer, M.P. FSL, Sagar forwarded FSL report (Ex. P-30) to the Superintendent of Police, Sehore.
158. Suggestions were denied by Shri Kushwaha (PW/14) as well as by Shri Rahul Kale (PW/16) that blood sample of accused Ramesh was taken by adopting third degree methods in the Police Station itself and to strengthen the case of the prosecution this blood of accused was Ramesh poured on clothes of the prosecutrix and then all the samples were sent for chemical examination. Shri Kale (PW/16) also denied this suggestion that at that time Nirbhaya case of Delhi was in news and due to pressure of 53 Cr.R. No.4/2015 & Cr.A. No.1998/2015 community of the prosecutrix (PW/3) this false case is made out against accused Ramesh. It is pertinent to mention here that the prosecutrix (PW/3), Karishma (PW/4), Kailash (PW/1), Jaini Prasad (PW/2) and Arjun Patel (PW/7) all important prosecution witnesses belongs to same community. Accused Ramesh also belongs to same community.
159. From perusal of the record and statements of these two responsible witnesses, Shri Kushwaha (PW/14) and Shri Rahul Kale (PW/16), without commenting on the merits-demerits of the suggestions which were put-forth before them, it is crystal clear that Regional FSL report (Ex. P-29) of Bhopal and State FSL report (Ex. P-30) of Sagar cannot be safely accepted as basis for conviction of the accused due to onward discussed reasons.
160. Shri Rahul Kale (PW/16) admitted that for collection of blood sample of accused Ramesh for DNA test required Form was filled up and on that Form free consent of accused Ramesh was also obtained. Shri Rahul Kale (PW/16) further stated that this consent of accused Ramesh was taken on Form by the Doctor because, it was duty of Doctor. He further admitted that this Form on which written consent of accused Ramesh was endorsed, received by him and was handed over to Shri Kushwaha at Police Station and Shri Kushwaha sent this Form to FSL, Sagar.
161. But, Shri Kushwaha (PW/14) does not deposed a single word that he has received any such Form which was having free written consent of accused Ramesh for taking his blood sample for DNA Test.
162. It is pertinent to mention here that in seizure memo (Ex.P-24) nothing is mentioned by Shri Kushwaha (PW/14) regarding receiving of such Form from Shri Rahul Kale (PW/16).
54 Cr.R. No.4/2015 & Cr.A. No.1998/2015
163. Letters (Ex. P-26 and P-27) also does not contains that such Form having endorsement of free consent of accused Ramesh was sent to the State FSL, Sagar. Same is the position of (Ex.P-28) which was forwarded to the Regional FSL, Bhopal.
164. Blood sample of the prosecutrix as well as of accused Ramesh were taken at Civil Hospital, Ashta by Doctors but, these Doctors were not examined by the prosecution even name of these Doctors are not mentioned in the list of witnesses. Examination of the Doctor who collected blood sample of accused Ramesh was very much important to prove this fact that before collection of his blood sample for DNA test his free consent was obtained and it was endorsed on Form by the Doctor.
165. On top of it these important FSL reports (Ex.P-29 and P-30) were exhibited by Investigating Officer Shri Kushwaha (PW/14) despite the fact that Junior Scientific Officer Shri M.P. Bhaskar of Regional FSL, Bhopal and Scientific Officer Dr. Conductor Anil Kumar Singh. State FSL, Sagar had given their opinions but, does not examined by the prosecution which is against the principles of natural justice that without giving opportunity to the defence to cross-examine Doctors and other Scientific Officers these important FSL reports (Ex.P-29 and P-30) cannot be accepted as basis for conviction of accused Ramesh.
166. Accused Ramesh is a resident of village Polaikala, P.S. Sujalpur, District Shajapur (M.P.) as per arrest memo (Ex.P-8) details and place of the incident is the wheat field situated in village Pochaner, P.S. Ashta, District Sehore (M.P.) as per spot memo (Ex.P-4) details. Therefore, it is clear that the place of incident and place of residence of the accused are distantly situated.
55 Cr.R. No.4/2015 & Cr.A. No.1998/2015
167. To cover this distance the case of the prosecution is that when the prosecutrix was present in her school at Nipaniyakala, the accused started his journey from his village Arniya by Bus.
168. Hence, it is apparent that on the same time two simultaneous events were going on. First event, attendance of the prosecutrix (PW/3) at school with friends Purti and Karishma (PW/4). This event started from 10:00 a.m. when the prosecutrix leaved her home for school and ended when she kidnapped in the noon, as discussed earlier at length.
169. Second event, started at 1:00 p.m. when the accused boarded the Bhairnwi Bus from village Arniya to village Borakheda, but alighted at Bus Stand of village Nipaniyakala before abduction of the prosecutrix.
170. To prove this second event, journey of accused Ramesh by Bus, the prosecution examined two important witnesses, one Anil Kumar (PW/6), Conductor of the Bhairavi Bus, by which the accused traveled from village Arniya upto Bus Stand of village Nipaniyakala, other is Jaini Prasad (PW/6), who was also traveling in same Bus with accused Ramesh from village Araniya.
171. Conductor Anil Kumar (PW/6) stated that the appellant Ramesh boarded at 1:00 p.m. on Bus from village Arniya to village Borkheda and paid Rs.20/- as fare. He further stated that when Bus reached at village Nipaniakala at 1.30 p.m. the appellant Ramesh alighted there saying that he has some work at village Nipaniyakala, hence, demanded for refund of his remaining amount of fair and he also returned him 2 rupees.
172. Conductor Anil Kumar (PW/6) denied this suggestion that in previous case of rape against the appellant he was witness. He also denied this suggestion that an proclamation was issued by the police that anybody 56 Cr.R. No.4/2015 & Cr.A. No.1998/2015 who will help the police to arrest the person who committed rape with the prosecutrix of this case will get award of Rs.10,000/-.
173. This admission of Conductor Anil Kumar (PW/6) can be ignored that he is not registered conductor, but, this admission of witness cannot be ignored that police does not seized the receipt (ticket) book from which receipt was given to accused Ramesh. This fact alone is sufficient not to relay statements of Conductor Anil Kumar (PW/6).
174. Conductor Anil Kumar (PW/6) says that at about 1:45 p.m. Bus reached village Nipaniyakala. Same time he is not able to explain why this fact is not mentioned in his Police Statement (Ex. D-3) that at about 1:45 p.m. in noon, Bus was reached at village Nipaniyakala.
175. Why the police approached him was question and answer given by Conductor Anil Kumar (PW/6) is not satisfactory that the police called all the bus conductors.
176. Prior to dealing with depositions of Jaini Prasad (PW/2), pertinent to mention here that he is a "chance witness".
177. (1)Human beings do not always move in an appointed time.
(2)A chance witness is a witness who should not normally be where and when he professes to have been.
(3) If by co-incident or chance a person is present he is called a chance witness.
(4) The expression 'chance witness' is of dubious coinage. The expression may convey, that the witness is not a probable or a likely witness.
(5) A "chance witness" is one who is not ordinarily expected to be present at the place of occurrence at the material time. Accordingly, he is expected to justify how and why he came there.
57 Cr.R. No.4/2015 & Cr.A. No.1998/2015
178. (1) Evidence of chance witness can be believed if his evidence inspires confidence. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence.
(2) But, evidence of a chance witness should be closely scrutinized in order to ascertain as to whether he was in fact present at the relevant time and witnessed the occurrence.
(3) Evidence of chance witness cannot be whittled down merely on the ground that he is a chance witness.
179. His evidence is not necessarily incredible although viewed with suspicion - Bahal Singh v State of Haryana AIR 1976 SC 2032: 1976 Cr LJ 1568.
180. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded. Shankarlal v State of Rajasthan (2004)10 SCC 632: 2005 SCC (Cri) 579.
181. A resident of village Nipaniyakala Jaini Prasad (PW/2) justifying himself stating that because his maternal uncle but not disclosed name of Mama, resides at village Arniya, hence on 04.01.2014 he was returning from village Arniya by Bus to his village. Jaini Prasad (PW/2) further stated that accused Ramesh is resident of village Polai. As he furnished this knowledge of residence of accused Ramesh, therefore, he was conscious also, so again justifying himself explained that his in-laws resides at village Polai. But, during cross examination when it was asked to show name of father-in-law, Jaini Prasad (PW/2) was not able to explain name of his own father-in-law, which reflects otherwise on his truthfulness. 58 Cr.R. No.4/2015 & Cr.A. No.1998/2015
182. Jaini Prasad (PW/2) explains details of earlier crime of rape committed by the accused with a 7 years old girl with these additional facts that accused Ramesh was convicted and sentenced for 7 years, (actual period is 10 years) and released about half an year ago after serve out awarded period of jail sentence. But, same time he is not able to give details regarding profession of accused as well as profession of father of accused Ramesh, which also damages reliability of this chance witness.
183. It is apparent that Jaini Prasad (PW/2) willfully denied his relationship with the Arjun, father of the prosecutrix but totally exposed as the prosecutrix (PW/3) as well as Kailash (PW/1), brother of Arjun all the way during their depositions addressed Jaini Prasad (PW/2) as their relative uncle (Kakku/Chacha).
184. Jaini Prasad (PW/2) specified distance of 1 k.m. between Bus Stand and his home and also specified about 3 k.m. between Bus Stand and Government School of the prosecutrix which is situated near to Ashta- Nipaniya Junction. Jaini Prasad (PW/2) claims against the case of the prosecution that while he was going towards his home, two girls informed him that one unknown person abducted the prosecutrix by alluring her. Also claims that he himself informed this fact to Arjun, father of the prosecutrix regarding abduction of the prosecutrix. He further deposed that Arjun went to the school of the prosecutrix, got information from teacher Prem Singh that the prosecutrix is abducted by unknown person. Jaini Prasad (PW/2) stated that at the time of Police Statement this fact was specifically mentioned by him that he got information of abduction of the prosecutrix by unknown person from two girls, but, all these facts are not part of the case of the prosecution, on behalf of Jaini Prasad (PW/2). 59 Cr.R. No.4/2015 & Cr.A. No.1998/2015
185. During his depositions Jaini Prasad (PW/2) stated against the prosecution story that on next day at about 7 O'clock in the morning Arjun, father of the prosecutrix informed him that Arjun received a phone call that the prosecutrix is present on road of village Pochanare.
186. When Conductor Anil Kumar (PW/6) accepting request of accused Ramesh that because he has some work at Nipaniyakala, he dropped accused Ramesh at Nipaniyakala and also refunded difference of fair of 2 rupees between Nipaniyakala to Borkheda. This statement having strong presumptory value that accused Ramesh was alighted at Bus Stand of village Nipaniyakala. Against this presumption, statement of chance witness Jaini Prasad (PW/2) is available on record. Jaini Prasad (PW/2) admitted that he himself alighted at Bus Stand Nipaniyakala, but accused Ramesh did not alight there. Question arises when Jaini Prasad (PW/2) and accused Ramesh were traveling in the same Bus and he alighted at Bus Stand, but same time he is not able to state any thing with regard to the fact that accused Ramesh was also alighted at Bus Stand, which is case of the prosecution. Therefore, this statement of Jaini Prasad (PW/2) is contradictory to case of the prosecution as well as also against the statement of Conductor Anil Kumar (PW/6) and this material contradiction cannot be ignored.
187. As per directions of Apex Court mandate in cases of Bahal Singh (supra) and Shankarlal (supra), above mentioned facts and circumstances proposes to discard the depositions of Jaini Prasad (PW/2), a chance witness, who is not able to show name of his own father-in-law, a resident of Polai, but, same time knows accused Ramesh is a resident of 60 Cr.R. No.4/2015 & Cr.A. No.1998/2015 same village having full details of his previous conviction, but, again not able to explain profession of accused Ramesh and his father.
188. Arjun Patel (PW/7) is also witness of two facts, firstly as discussed earlier that as a chance witness he saw that the prosecutrix was going with the appellant on 04.01.2014 at 2.00 p.m. towards village Badlpur and after half an hour this fact came to his knowledge that one girl of his village is abducted from the school.
189. Accordingly, Arjun Patel (PW/7) claims that when on dated 04.01.2014 at 2 O'clock noon he was at his residence he saw that one 4 year girl was going with the accused towards village Badlpur but, at that time he does not give heed to these facts.
190. Arjun Patel (PW/7) pointed out the age of the abducted girl 4 years instead of 8 years, which is contradictory to the case of the prosecution as the age of the prosecutrix is 8 years.
191. It is also required to be mentioned here that when Arjun Patel (PW/7) claims that he immediately saw the accused was going with the girl after abduction even then Test Identification Parade is not conducted through this witness Arjun Patel (PW/7), which reflects doubtful credibility of this witness on part of the prosecution itself.
192. Secondly, Arjun Patel (PW/7) is attesting witness along with other witness Kamal Singh arrest memo (Ex. P-8) of accused Ramesh as well his information statement memo (Ex. P-9) and on basis of this information clothes and bag seizure memos (Ex. P-10 and P-11) respectively.
193. This fact need not to be repeated that I.O. Shri Kushwaha (PW/14) arrested accused Ramesh on dated 10.01.2014, after sixth day 61 Cr.R. No.4/2015 & Cr.A. No.1998/2015 from the date of incident i.e. 04.01.2014 at 11:30 a.m., in presence of attesting witness Arjun Patel and Kamal Singh, as per arrest memo (Ex.P-8). Shri Kushwaha (PW/14) prepared information statement memo (Ex. P-9) of accused Ramesh at 12:00 p.m. and on basis of this information clothes and black bag were seizure as per memos (Ex. P-10 and P-11) on same date between 12:30 to 12:40 p.m.
194. Out of these two attesting witnesses, Kamal Singh not examined by the prosecution, hence, statements of examined attesting witnesses Arjun Patel (PW/7) got utmost importance. But, it is pertinent to mention here that his depositions are completely against the above mentioned date and time of arrest and his information and further seizure proceedings of clothes as per memos (Ex. P-8 to P-11).
195. Arjun Patel (PW/7) deposed that after 3-4 days of abduction of the prosecutrix, this fact came to his knowledge that police has arrested the abductor hence he went to the Police Station, Ashta. Arjun Patel (PW/7) admitted that he himself went to the Police Station, Ashta without any information from the Police Station with his painful feelings that due to abduction of the girl he could not able to sleep for 24 hours. This admission of Arjun Patel (PW/7) is fatal to the case of the prosecution because, accused Ramesh was arrested after 6 th day i.e. on 10.01.2014, not on 3 rd or 4th day i.e. 07.01.2014 or 08.01.2014 as per his version.
196. Arjun Patel (PW/7) admitted that at 10 O'clock he reached at Police Station when accused Ramesh was in lockup of Police Station. Arjun Patel (PW/7) also accepted these damaging facts that he continuously signed on the papers, then he left the Police Station. In this sequence he also admits that he has no knowledge with regard to other persons of his 62 Cr.R. No.4/2015 & Cr.A. No.1998/2015 village who signed on these papers. It goes to show that in presence of Arjun Patel (PW/7) entire proceedings of arrest of accused Ramesh and seizure of his clothes as well as bag was completed itself at Police Station, Ashta either on 07.01.2014 or 08.01.2014 and with one stroke of pen at 10:00 a.m. He also admitted this fatal fact that T.I. Saheb and other police officers were also present in the Police Station and black bag was also kept near one of the police officer and the same was opened and clothes were recovered by that police officer.
197. During his cross-examination Arjun Patel (PW/7) submitted that he stated all above mentioned facts to the police but, why these facts are not part of his Police Statement (Ex.D/4) not able to explain any reason. Above discussed contradictory facts and circumstances creating serious doubtful position regarding admissibility of statement of Arjun Patel (PW/7), but also damages entire investigation with regard to one of the main pillars of the prosecution case that after arrest of accused Ramesh on his information statement, his clothes and black bag were seized as per documents (Ex. P-8 to P-11).
198. The prosecution failed to satisfy regarding this fact why on the date of incident the prosecutrix (PW/3) went to the school without uniform as Karishma went to the school wearing uniform.
199. This new fact which is not part of any of the prosecution documents stated by Kailash (PW-1) that some unknown person telephonic informed his brother Arjun that one little girl wearing blue jeans, T-shirt and black sweater is going on road of village Pochanare, Jaini Prasad (PW/2) also repeated this fact.
63 Cr.R. No.4/2015 & Cr.A. No.1998/2015
200. About the appearance of the boy, Kailash (PW-1) stated that Purti and Karishma in details informed him that height of the boy was average, eyes were manji (light yellowish brown coloured eyes), hairs were small and age was about 30 years. He further claims that this information was given by him at the time of registration of Dehati Nalishi (Ex. P-1) and during his Police Statement (Ex. D-1). It is pertinent to mention here that this detailed information about appearance of the boy in not part of Dehati Nalishi (Ex.P-1) and Police Statements (Ex. D-1) of Kailash (PW/1). These details were also one of the basis of clues gathered by Shri Kushwaha (PW/14) to ascertain that unknown person is accused Ramesh but, not mentioned in the basic document Dehati Nalishi (Ex. P-1).
201. Why accused Ramesh was visiting to village Borkheda? is also not clarified by the prosecution.
202. It is pertinent to mention here that Muskan @ Purti, best friend of the prosecutrix (PW/3) was present on 12.06.2014 in the trial Court, but, reasons better known to the prosecution, why Muskan not examined?
203. This fact is admitted by Shri Kushwaha (PW/14) that during preparation of spot map (Exh. P-4) he did not collect any blood stained soil. This admission creates doubt on these facts that when blood was found on the clothes as well as on person of the prosecutrix and also on clothes of accused Ramesh, but, why not found on spot of the rape?
204. Seizure of hairs of the prosecutrix from the shirt of the accused also creates some degree of doubt as after date of incident i.e. 04.01.2014 the accused was arrested on sixth day i.e. on 10.01.2014, 64 Cr.R. No.4/2015 & Cr.A. No.1998/2015 therefore, it cannot be presumed that a person who is by profession a truck cleaner and his shirt will be recovered along with two hairs of the prosecutrix (PW/3) on button on sixth day.
205. In our criminal law jurisprudence which is based on the adversarial model, an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by establishing guilt of the accused beyond reasonable doubt by producing the evidence to show him to be guilty of the offence with which he is charged. The fundamental and basic presumption is the innocence of the accused until the charge is proved beyond reasonable doubt on the basis of clear, co-gent, credible or unimpeachable evidence.
206. As discussed earlier at length, the evidence produced by the prosecution to prove its case against accused Ramesh, it is apparent that the evidence of prosecutrix (PW/3), Karishma (PW/4) and other prosecution witnesses go to show several important contradictions, discrepancies, omissions as well as exaggerations from which it can safely be concluded that it is not safe to hold the guilty of commission of accused Ramesh for the offences for which he was prosecuted.
207. For the aforesaid reasons:
(1) The Criminal Reference No.4/2015 made by learned trial Court for confirmation of death sentence awarded to accused Ramesh is rejected. Death sentence awarded to him is not confirmed.
(2) Taking guidance from above mentioned cases of the Apex Court and applying the principles laid down in these cases, to the facts of the case in hand also keeping this fact in mind that 65 Cr.R. No.4/2015 & Cr.A. No.1998/2015 the minor prosecutrix (PW/3) was brutally raped, we find that the solitary version of chief-examination of star witness the prosecutrix (PW/3) and sterling witness Karishma (PW/4) cannot be taken as gospel truth for their face values in the light of contradictions, discrepancies, omissions and exaggerations found in statements of these two witnesses and other prosecution witnesses. There is no scope to sustain the conviction and sentence imposed on appellant/accused Ramesh. The prosecution has failed to establish the guilt of accused Ramesh, hence, the conviction and sentence imposed upon him by learned trial Court as mentioned above for the offences punishable under Sections 363, 366-A, 376 (2)(i) and 376 E of IPC and Section 5/6 of Protection of Children from Sexual Offences Act, 2012 cannot be sustained. The impugned judgment and order of conviction and sentence dated 18.06.2015 passed by learned trial Court is hereby set aside. The appellant/accused Ramesh is acquitted from the said charges and he be set at liberty forthwith, if not required in any other case. The appeal is allowed.
208. Copy of this judgment be kept in the record of Criminal Appeal No.1998/2015.
(Shantanu Kemkar) (Subhash Kakade)
Judge Judge
ak/