Madhya Pradesh High Court
Bondra Alias Ravindra vs The State Of Madhya Pradesh on 22 April, 2024
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
CRIMINAL APPEAL NO. 974 of 2018
BETWEEN:-
BONDRA ALIAS RAVINDRA S/O SHRI BABU
PRAJAPATI, AGED ABOUT 27 YEARS,
OCCUPATION: LABOUR MAGRONI P.S. MAGRONI
NARWAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SURESH AGRAWAL - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION NARWAR DISTRICT SHIVPURI
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI M.S. JADON - PUBLIC PROSECUTOR)
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Reserved on : 23-02-2024
Delivered on : 22-04-2024
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This appeal having been heard and reserved for judgment coming on
for pronouncement this day, delivered the following:-
JUDGMENT
1. The present appeal under Section 374 of Cr.P.C. is preferred by the appellant against the judgment of conviction and order of sentence dated 26-12-2017 passed by the Special Judge 2 (Atrocities Act), Shivpuri in Special Trial No.77/2016 whereby appellant has been convicted as under:
S.No. Offence u/s Imprisonment Fine Default
Stipulation
1 376(2)(tha) r/w 4 of 10 years' RI Rs.10,000/- 2 years' RI
POCSO Act
2. Precisely stated facts of the case as per the case of prosecution are that prosecutrix aged 15 years is a mentally retarded girl. On 25- 04-2016 when her mother was giving bath and changing the clothes of prosecutrix, she cried due to pain. On enquiry, she found swelling and laceration over the private parts of prosecutrix. On asking, prosecutrix named the appellant stating that at about 4-5 pm on Monday, appellant took her to ruins behind the Katarra School and committed rape with her. Thereafter, mother of the prosecutrix went to the house of accused/appellant to complain the appellant but since mother of appellant started quarreling her, therefore on 28-04-2016 she lodged the FIR at Crime No.153/2016 at Police Station Narwar District Shivpuri. Thereafter, investigation started, prosecutrix was medically examined, x-ray for age determination was done and after completing all necessities of the investigation, challan was filed in the matter under Sections 376(2), 377 of IPC, Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act") and Sections 3(2)
(v), B(i)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 before the concerned Court.
3. Thereafter, case was committed to the Special Court. Trial Court framed the charges and proceeded with trial. Before the trial 3 Court, appellant abjured his guilt and prayed for trial. On behalf of prosecution, 9 witnesses were examined and in defence 2 witnesses have been examined to establish the plea of alibi. After recording of evidence ocular as well as documentary and hearing the submissions of counsel for the parties, the trial Court convicted and sentenced the appellant as referred above, therefore, appellant is before this Court.
4. It is submitted by learned counsel for the appellant that the trial Court erred in convicting the appellant for the offence referred above. There is material contradictions and omissions between the statements of prosecution witnesses and such aspect has not been considered by the trial Court. Independent witnesses examined by the prosecution did not support the story of prosecution and declared hostile. No explanation has been given by the prosecution for the delayed FIR and this aspect has not been taken into consideration by the trial Court. The spot map prepared by the Police does not match with the spot map prepared by Patwari under the instruction of SDO(P), Karera District Shivpuri. The case of prosecution is not medically corroborated as the Dr. Anjana Jain (PW-5) did not give opinion in relation to commission of rape with the prosecutrix. Further the trial Court committed grave error in not taking into consideration the statements of defence witnesses Meena Prajapati (DW-1) and Deepak Prajpati (DW-2). The ground of delay in relation to sending the clothes of prosecutrix to the FSL report has also been raised by the appellant. Thus, prayed for setting aside the impugned judgment of conviction and order of sentence passed by 4 the trial Court.
5. On the other hand, learned counsel for the respondent/State opposed the prayer and supported the impugned judgment of trial Court. It is further submitted that a mentally retarded girl aged 15 years has been subjected to commission of rape by the appellant, injuries were also found over the private parts of the prosecutrix and the case of prosecution is duly supported by the prosecution witnesses. Thus, prayed for dismissal of this appeal.
6. Heard learned counsel for the parties and perused the record.
7. It is a case where appellant is facing the allegation of commission of rape over a 15 years' old differently abled (mentally retarded) girl. It is established fact that prosecutrix is mentally and physically weak and suffering paralysis in her left side of the body and is not able to speak properly, therefore, she could not report the matter in time to her mother. The commission of offence could only come into the knowledge of mother of prosecutrix when she was giving bath and changing the clothes of the prosecutrix. Thereafter, she went to complain the appellant to his house where her mother started quarreling her and since complainant party is rustic villager and did not know nitty gritty of the legal process, therefore, the delay of three days occurred in lodging the FIR. From the statements of witnesses it appears that since prosecutrix is mentally and physically challenged minor girl and was not able to narrate the whole incident and mother of prosecutrix does not want to level the allegations of rape to any innocent person, therefore, firstly she enquired and thereafter only the FIR has been lodged. This process consumed some time.
5Thus, the delay occurred in lodging the FIR appears to be based on bona fide reasons.
8. Prosecutrix is mentally and physically incapable and on her behalf her mother (PW-1) used to discharge her daily work and being her mother, she understands her indications well. Mother of prosecutrix (PW-2) categorically deposed that when gave bath to the prosecutrix then she found injuries over the private parts of the prosecutrix and on asking, prosecutrix stated that appellant Bondra alias Ravindra gave her 10 rupees and took her behind the school and committed intercourse (from both the sides) and injuries were also there on her privates parts. This witness (PW-1) further deposed that when mother of the appellant refused the allegations and started quarreling her, then only FIR has been lodged. This itself speaks about the sanctity of the story put forth by the mother of prosecutrix.
9. Prosecutrix (PW-2) also named the appellant who committed rape with her. Her deposition indicates that she narrated the course of events in specific manner. She referred the name of appellant also in her chief-examination. Although she admitted the fact in cross- examination that she referred the name of appellant because of her mother but that does not mean that it is a case of tutored witness. On a question being raised by the Court, she clarified the position. Therefore, it is not a case of false implication and deposition of prosecutrix also remained intact.
10. Dr. Anjana Jain (PW-5) who medically examined the prosecutrix vide Ex-P/5 found swelling over the private parts of the prosecutrix and hymen was found to be torn. She categorically 6 denied that the said injuries could be caused either by any pointed wood or due to falling down. As the exact date of sexual intercourse with the prosecutrix was not there and after some time her medical examination was done, therefore, the injuries caused to prosecutrix while commission of rape could not come exactly in her medical examination.
11. Forensic Science Laboratory, Gwalior examined the clothes of the prosecutrix and appellant and sent for forensic examination and vide Ex-P/15 and found human sperm over the panty of the prosecutrix, underwear of accused and vaginal slide. Thus, the case of prosecution is corroborated with the FSL report.
12. So far as submission of appellant in relation to mismatch of spot map Ex-P/10 and P/12 is concerned, since the spot map Ex-P/12 was prepared by Police on the instruction of mother of prosecutrix (PW-1) and spot map Ex-P/10 was prepared by Patwari, therefore, some discrepancy may occur because mother of prosecutrix is an illiterate lady and she might not be able to explain the spot map appropriately. Any such anomaly may occur in the spot maps but for this, no benefit can be given to the accused.
13. Here, in the present case, clothes of the prosecutrix were seized on 29-04-2016 but sent for forensic examination on 12-05-2016 after 12 days. For this purpose Head Constable Kishan Singh (PW-6) was examined before the trial Court and surprisingly no suggestion has been given to this witness in relation to the delay occurred. This witness categorically stated that constable Gagan Bhargava (84) handed over the sealed sample to him and he 7 seized that sample and sent on 12-05-2016 for forensic examination. The report of FSL cannot be questioned merely on the ground that on 03-05-2016 appellant was arrested, therefore, there is possibility of some foul play. It be noted here that, appellant was arrested on 03-05-2016 but his semen was seized on 12-05-2016 itself while the clothes of prosecutrix were seized and sealed on 29-04-2016, therefore, the possibility of any foul play appears to be falsified.
14. Here, in the present case prosecutrix is a 15 years' old mentally and physically challenged girl and her mother is a rustic villager, therefore, statements of both these witnesses cannot be marshaled literally. The fact remains that a mentally retarded girl aged 15 years, has been subjected to commission of rape with a premeditated mind that she is unable to narrate the story to any one and said thought of accused would have happened had her mother would not have seen the laceration and swelling over the private parts of prosecutrix.
15. The Hon'ble Apex Court in the case of K. Prakashan Vs. P.K.Surenderan (2008) 1 SCC 258 and T. Subramanian Vs. State of Tamil Nadu (2006) 1 SCC 401 held that if two views are possible and one view is taken by the trial Court after due appreciation of evidence then unless sheer perversity or illegality crept into the judgment of trial Court, the scope of interference is limited. Learned counsel for the appellant failed to point out any illegality or sheer perversity in the impugned judgment of conviction and order of sentence passed by the trial Court.
16. In view of the above, looking to the testimony of prosecutrix 8 (PW-2), her mother (PW-1), Dr. Anjana Jain (PW-5) and other prosecution witnesses and the injuries duly corroborated with medical evidence proved by the doctor, this Court is of the considered view that the trial Court did not commit any error in convicting the appellant. Prosecution succeeded in proving its case beyond reasonable doubt. The Court below duly vetted the rival submissions and thereafter passed the impugned judgment of conviction against the appellant.
17. Resultantly, the appeal preferred by the appellant fails and is hereby dismissed. Appellant is in jail. He shall undergo the jail sentence as awarded by the trial Court. Record of the trial Court be sent back.
18. Copy of the judgment be sent to the trial Court for information.
(ANAND PATHAK)
Anil* JUDGE
ANIL KUMAR
CHAURASIYA
2024.04.23
11:19:53
+05'30'