Madhya Pradesh High Court
Kana @ Kanhaiya vs The State Of Madhya Pradesh on 8 December, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
1
Cr.A. No.1380/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 8TH DAY OF DECEMBER, 2022
CRIMINAL APPEAL No. 1380 of 2010
BETWEEN:-
KANA @ KANHAIYA S/O NARAYAN KOLI
AGED ABOUT 19 YEARS, OCCUPATION: LABOUR
RAJGAON DAWANA THIKRI
DISTT. BADWANI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI JITENDRA BOHARE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION THIKRI
DISTT. BADWANI (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI S. S. THAKUR, PUBLIC PROSECUTOR FOR STATE)
Reserved on : 31.10.2022
Pronounced on : 08.12.2022
This appeal having been heard and reserved for judgement, coming
on for pronouncement this day, Hon'ble Shri Justice Satyendra Kumar
Singh pronounced the following:
JUDGEMENT
The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."] 2 Cr.A. No.1380/2010 against the judgement dated 30.08.2010, passed by the Court of 1 st Additional Session Judge, Badwani (M.P.) in Session Trial No.07/2010, whereby the appellant has been convicted for the offence punishable under Sections 376 and 506-II of the Indian Penal Code, 1860 (in short "IPC") and sentenced him as under :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 376 of IPC RI for 9 years Rs.3,000/- RI for 1 year
2 506-II of IPC RI for 1 year Rs.500/- RI for 2 months
2. Prosecution story, in brief is as follows :-
(i) On 11.10.2009, at about 16.00 hours, when
complainant and her husband went for labour work and her minor daughter prosecutrix, aged about 8 years was at Narayan's house, at that time, Narayan's son appellant Kana @ Kanhaiya came there and asked her to accompany him to the corn field and thereafter, took her to the corn field and forcefully committed rape upon her, due to which bleeding started from her private part. Appellant threatened to kill her if she discloses his name to anyone and told her to name Rajesh as the person who committed the said act. After returning home, when her mother complainant came back in the evening and asked about the injuries, then she 3 Cr.A. No.1380/2010 told her that Rajesh had committed rape with her. Thereafter, on the same day at about 21.00 hours, complainant made a complaint to the police, on the basis of which FIR (Exhibit-P/1) was lodged at police station Thikri, District Badwani, against Rajesh for the offence punishable under Section 376 of IPC. Vide letter (Exhibit- P/6), she was sent to the District Hospital, Badwani for medical examination, where Dr. M. Saxena preliminary examined her and prepared preliminary MLC Report (Exhibit-P/12), however, due to continuous bleeding, referred her to M. Y. Hospital, Indore.
(ii) On 12.10.2009, prosecutrix was taken to M. Y. Hospital, Indore, where she was admitted from 12.10.2009 to 16.10.2009. Dr. S. Bhattacharya treated her as per prescriptions (Exhibit-P/16 to P/21). On 12.10.2009, first time she told her mother complainant that appellant committed rape with her. On the same day, her statement u/S 161 of Cr.P.C. was recorded. Appellant was arrested, as per arrest memo (Exhibit-P/8), and was sent for medical examination to District Hospital, Badwani, where Dr. D.S. Chouhan medically examined and found him capable of doing sexual activities, as per MLC report (Exhibit-P/11). School Leaving Certificate (Exhibit-P/7) of the prosecutrix with regard to her age was obtained and after completion of investigation, charge-sheet was filed against the appellant for the offence punishable u/S 376 and 506 of IPC before the Judicial Magistrate First Class, Anjad, who committed the case to the Court of Sessions Judge, Badwani, who made over the same to the Court of 1st Additional Session Judge, Badwani.
4 Cr.A. No.1380/20103. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 376 and 506-II of IPC against the appellant, who abjured his guilt and prayed for trial. In his statement recorded under Section 313 of Cr.P.C., the appellant pleaded his false implication in the matter. In support of his defense, he did not examine any witness.
4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offence punishable under Sections 376 and 506-II of IPC and sentenced him as mentioned in para-1 of this judgement. Being aggrieved with the said judgement of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgement and discharging him from the charges alleged against him.
5. Learned counsel for the appellant submits that as per prosecution case itself, prosecutrix's mother complainant initially in her FIR (Exhibit-P/1) mentioned that Rajesh had committed rape with her daughter, while she in her subsequent statements recorded during investigation and trial stated that appellant committed rape upon her. Prosecutrix also stated similar statements, hence prosecution case apparently become suspicious. Appellant has falsely been implicated in the matter, only because of previous enmity. Admittedly, prosecutrix was minor, aged about 8 years at the time of incident and probability to tutor her cannot be denied. Therefore, only on the basis of the inconsistent evidence of the prosecutrix, the allegations alleged against the appellant cannot be said to be proved beyond reasonable doubt. Learned Trial Court has committed a legal error while appreciating the 5 Cr.A. No.1380/2010 evidence available on record. Thus, the impugned judgement of conviction and order of sentence is not sustainable in law and the same be set aside and the appellant may be acquitted from the charges alleged against him.
6. Per contra, learned Public Prosecutor for the respondent- State while supporting the impugned judgement of conviction and order of sentence submits that the judgement was passed by the Trial Court after proper appreciation of evidence available on record. He submits that prosecutrix was a minor girl, aged about 8 years and her statements find support from the medical evidence. There is nothing material on the record, on the basis of which her statements can be disbelieved or doubted. The prosecution has very well proved its case beyond reasonable doubt and the same is well reasoned establishing the guilt of the appellant. Therefore, confirming the impugned judgement of conviction and order of sentence, the appeal filed by the appellant may be dismissed.
7. I have heard learned counsel for the parties at length and perused the record.
8. The prosecution has examined, in all, 12 prosecution witnesses including the prosecutrix (PW-1), her mother (PW-2), her father (PW-3), Dr. M. Saxena (PW-8), who medically examined the prosecutrix, Dr. S. Bhattacharya (PW-12), who treated the prosecutrix in M. Y. Hospital, Indore since 12.10.2009 to 16.10.2009 and SHO Sitaram Ghopada (PW-6), who lodged the FIR and investigated the case.
9. SHO Sitaram Ghopada (PW-6) deposed that during the investigation of the case, he obtained the school leaving certificate 6 Cr.A. No.1380/2010 (Exhibit-P/7) of the prosecutrix from Pradhan Pathak, Government Primary School, Talaipura, Rangaon, Thikri about the age of the prosecutrix, wherein her date of birth was written as 01.02.2003, and according to which, she was about 6-7 years of age at the time of incident. During medical examination of the prosecutrix, Dr. M. Saxena (PW-8) observed her 13th/12th tooth erupted and pubic hairs absent as per MLC report (Exhibit-P/12). Learned Trial Court while recording the statements of the prosecutrix on 19.03.2010, observed her apparent age as 8 years. Appellant has nowhere challenged the aforesaid facts therefore, this fact is established that at the time of incident, prosecutrix was minor, aged about 7 years.
10. Prosecutrix (PW-1) deposed that the appellant was her neighbour and on the date of the incident, when she had gone to his house, he took her into the field of corn and thereafter, committed rape upon her, due to which, bleeding started from her private part. She deposed that the appellant, thereafter, threatened her not to disclose his name otherwise, he as well as his brother will beat her. She deposed that the appellant also told her to name Rajesh, as the person committing wrong with her. Prosecutrix's mother (PW-2) deposed that when she came back in the evening, she found bleeding from private part of her daughter prosecutrix and on being asked, she told her that Rajesh took her to the corn field and committed rape upon her. She also deposed that she took the prosecutrix to police station Thikri and lodged the FIR (Exhibit-P/1).
11. SHO Sitaram Ghopada (PW-6) deposed that on the same day i.e. on 11.10.2009, he lodged the FIR (Exhibit-P/1) on the basis of oral complaint made by the complainant. Dr. M. Saxena (PW-8) deposed 7 Cr.A. No.1380/2010 that she during the medical examination of the prosecutrix, finding bleeding from her private part, prepared MLC report (Exhibit-P/12) and referred her to M. Y. Hospital, Indore. Dr. S. Bhattacharya (PW-12) deposed that on the next day, i.e. 12.10.2009, prosecutrix was admitted in M. Y. Hospital, Indore and she treated her since 12.10.2009 to 16.10.2009. She deposed that first degree perennial tear was found in the private part of the prosecutrix therefore, probably the prosecutrix was subjected to sexual intercourse. From the statements of aforesaid witnesses as well as medical evidence, there remains no doubt that at the time of incident, prosecutrix was subjected to forceful sexual intercourse.
12. So far as the issue whether the aforesaid act was committed by the appellant is concerned, although prosecutrix's mother (PW-2) admitted in her cross-examination that initially, she stated in her FIR (Exhibit- P/1) that the aforesaid act was committed by one Rajesh, but the prosecutrix, right from the beginning, in her first statement recorded u/S 161 of Cr.P.C., stated that due to the threatening given by the appellant, she named Rajesh as the person, who committed rape with her, but on the very next day i.e. on 12.10.2009, she narrated the incident to her mother that appellant committed rape upon her. Complainant (PW-1) also made similar statements. As the prosecutrix was minor, aged about 8 years, therefore, explanation given by her as well as her mother that after the incident due to the threatening given by the appellant, prosecutrix did not disclose the name of the appellant cannot be disbelieved. Their statements recorded during trial are consistent on the aforesaid point therefore, there is no reason to disbelieve the fact that 8 Cr.A. No.1380/2010 prosecutrix was subjected to sexual intercourse by none other than the appellant.
13. In view of the aforesaid discussions, learned Trial Court has not committed any error in finding this fact proved beyond reasonable doubt that the appellant sexually assaulted the minor prosecutrix therefore, in the considered opinion of this Court, no fault is found in the impugned judgement of conviction and order of sentence passed by the learned Trial Court holding the appellant guilty for the offence punishable under Sections 376 and 506-II of IPC. There is no merit in the appeal and thus the same is liable to be dismissed. Accordingly, the present appeal is hereby dismissed and the impugned judgement of conviction and order of sentence passed by learned Trial Court is hereby affirmed.
14. As per jail report dated 29.12.2020 of the Jail Superintendent, Central Jail, Badwani, the appellant was released from jail after suffering his whole period of sentence on 13.06.2016. It is ascertained that the appellant has completed his jail term.
15. The Registry is directed to send back the Trial Court record forthwith alongwith copy of this judgement. Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.
Certified copy as per rules.
(SATYENDRA KUMAR SINGH) JUDGE gp GEETA Digitally signed by GEETA PRAMOD DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb32501850a PRAMOD 4984b5b63f6d7a38, pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874D434, serialNumber=41554F8E701AEEB833278B4FDD900CBED72CCF299E A61E33BBE6175289BA0390, cn=GEETA PRAMOD Date: 2022.12.09 10:26:09 +05'30'