Madhya Pradesh High Court
Rajendra vs The State Of Madhya Pradesh on 12 November, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:32023
1 CRA-2322-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 2322 of 2018
RAJENDRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vijay Sharma on behalf of Shri Ashish Gupta - Advocate for the
appellant.
Dr. Amit Bhatia appearing on behalf of Advocate General.
Heard on:- 06.11.2024.
Posted on:- 12.11.2024.
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JUDGMENT
This criminal appeal under Section 374(1) of the Cr.P.C is preferred being aggrieved by the conviction under Section 452, 354, 376(1), 376(2)(j) of the IPC and Section 3 readwith Section 4 of the POCSO Act, 2012 and sentence under Section 452 of the IPC for a period of 05 years R.I and Rs.200/- fine with default stipulations and Section 3 readwith Section 4 of the POCSO Act, 2012 & sentenced for a period of 10 years R.I and fine of Rs.5,000/- with default stipulations vide judgment dated 07.03.2018 in Special Sessions Case No.100103/2016 by First Additional Sessions Judge, Badwani, M.P.
2. Appellant/accused was prosecuted under Section 452,354, 354A
(i) (ii), 376(1), 376(2)(i), 376(2)(j) of the IPC and Section 3 readwith Section 4 of the POCSO Act, 2012 and Section 67 A of Information Technology Act, Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18 NEUTRAL CITATION NO. 2024:MPHC-IND:32023 2 CRA-2322-2018 2000 regarding incident dated 12.09.2015 at 12:00 pm towards a child victim of 16 years 05 months & 05 days. The First Information report was lodged on 24.09.2015 at about 12:10 pm at Police Station Tikhri, District Badwani as FIR No.281/2015.
3. The incident was stated that on 27.09.2015 when parents of the victim went to the filed for work and victim PW-1 was alone in the house, appellant/accused entered into her house and forcibly took her pictures. Victim PW-1 resisted to take her pictures then appellant/accused threatened to kill her and took the pictures of the victim in a position in which hands of the appellant/accused is on the neck of the victim and thereafter, appellant/accused committed penetrative sexual assault towards the victim. The victim PW-1 did not narrated the incident due to threat extended by the appellant/accused. The appellant/accused uploaded the photographs on Whatsapp and parents of the victim came to know about the pictures posted by the appellant/accused on Whatsapp on 22.09.2015 and thereafter, she lodged the report Ex.P-1. Victim was medically examined and after investigations the appellant/accused was taken into custody 02.10.2015 vide Ex.P-13 and completing the investigation a final report was submitted to the Court of Sessions Judge, Badwani.
4. The appellant/accused abjured the guilt and claimed for trial and prosecution examined the victim as PW-1, her father PW-2, Medical Officer Dr. Shiv Kumar Baghel who examined the appellant/accused as PW-3. The concerned teacher of the school in which victim studied as PW-5, Medical Officer Minakshi Chouhan as PW-8, Head Constable Parichand Choudhary Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18 NEUTRAL CITATION NO. 2024:MPHC-IND:32023 3 CRA-2322-2018 as PW-4, Sub-Inspector Dilip Singh as PW-6 and Leena Maroth as PW-7.
5. In examination under Section 313 of the Cr.P.C appellant/accused denied all the facts and circumstances appeared in the evidence against him or expressed ignorance and make a defense of false implications and examined the In-Charge Principal of the School in which victim PW-1 was studying at the time of incident as DW-1 to prove that at the time of incident victim PW-1 was in school where she was studying in Class- IX.
6. Appreciating the evidence Trial Court found proved that victim PW-1 is a child aged 16 years 05 months 05 days on the date of incident i.e 21.09.2015 and also found proved that victim PW-1 was put to penetrative sexual assault on 21.09.2015 in her house by appellant/accused by committing house trespass and convicted & sentenced the appellant/accused as per para 01 of the judgment but acquitted the appellant/accused from the charges of Section 354 A (i) (ii), 376 (2)(i) of the IPC and Section 67 A of Information Technology Act, 2000.
7. Assailing the conviction and sentence this appeal has been preferred on the ground that Trial Court has committed an error in recording the finding that date of birth of the victim was 25.03.1999 and also committed error in recording the finding that victim was a child below the age of 18 years on the date of incident. It is also raised that no plausible explanation has been offered by the prosecution for lodging the first information report with a delay. Trial Court has not given due credence to the medical evidence that rule out the penetrative sexual assault towards the victim PW-1 and committed error in convicting the appellant/accused and Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18 NEUTRAL CITATION NO. 2024:MPHC-IND:32023 4 CRA-2322-2018 ignoring the defence adduced by the appellant/accused. Trial Court committed error on relying the victim PW-1. Trial Court also committed error in ignoring the material omissions and contradictions in the testimony of victim PW-1 and her father PW-2.
Heard and perused the record.
8. Counsel for the respondent/State opposed the prayer relying on the testimony of victim PW-1, her father PW-2, concerned teacher PW-5 and S.I Leena Marot PW-7, scholar register Ex.P-10.
9. The victim PW-1 has stated her date of birth as 25.03.1999 and stated that she was studying in Class IX. This fact has not been challenged in her cross-examination. The defence witness DW-1 himself has stated that on 21.09.2021 the victim was studying in Class IX in the school in which the he is Principal in charge. Para 06 of the father of the victim PW-2 does not affect the credibility of Ex.P-10. Para 10 of PW-5 that at the time of admission of the victim PW-1 was not posted in the school is also not material in the light of entries in scholar register. Accordingly, the findings of the Trial Court that date of birth of the victim is 25.03.1999 and she was 16 years 05 months 05 days on the date of incident i.e 21.09.2015 is based on evidence. Accordingly, the findings of the Trial Court does not require interference and the same is affirmed.
10. Now, this Court is considering the reliability of the victim PW-1 and her father PW-2. The two grounds are raised on the reliability of victim PW-1. Firstly, that she lodged the FIR with a delay of 03 days, secondly the FSL report does not corroborate the victim PW-1 and statement of RS Ghelot Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18 NEUTRAL CITATION NO. 2024:MPHC-IND:32023 5 CRA-2322-2018 DW-1 belie the version narrated by victim PW-1.
11. The victim has explained the delay in para 03 of her statement that due to the threatening extended by the appellant/accused she did not disclosed the incident. The reason for delay is well explained. Accordingly, that does not affect the reliability of victim PW-1. Victim was examined after 03 days of the incident. Therefore, the result of FSL does not affect the reliability of the victim PW-1.
12. Suggestion of para 08 to PW-1 to the effect that at the time when appellant/accused took her photo victim PW-1 did not cover her face and she was standing and suggestion in para 09 that at the time of incident the victim PW-1 did not cried is against the statement of RS Ghelot DW-1 and did not affect the reliability of victim PW-1. The father of PW-2 has stated that he came to know about the incident when her daughter narrated the incident after enquiry about the photographs of Whatsapp. This statement is natural. Both the statements are sufficient to attract the presumption under Section 29 of the POCSO Act, 2012 and the defence put forth by the appellant/accused through RS Ghelot DW-1 and suggestion given to the victim PW-1 and her father PW-2 are not sufficient to rebut the presumption. When the victim is below 18 years then there is no question of consent.
13. Trial Court has recorded the finding that on 21.09.2015 at 12:00 pm the appellant/accused committed house trespass to commit sexual assault on the child victim PW-1 and also committed penetrative sexual assault, this finding does not require interference. Trial Court has convicted the appellant/accused under Section 354, 352 367(1), 376(2)(j) of the IPC and Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18 NEUTRAL CITATION NO. 2024:MPHC-IND:32023 6 CRA-2322-2018 Section 4 r/w Section 3 of the POCSO Act, 2012 but there are no ingredient that victim PW-1 was incapable to give the consent as required under Section 376(2) (j) of the IPC in the light of interpretation of the word 'incapable of giving consent' in Lakhi Ram Takbi Vs. State of Sikkim MANU/SI/0007/2019 in which it is held that Section 376(2)(j) deals with the situation where the victim is incapable of giving her consent due to some disability like intoxication, disease etc. But the Section do not cover the person who is incapable of giving her consent being a minor.
14. Accordingly, the ingredient of offence under Section 376(2)(j) of the IPC is not satisfied and the conviction under Section 376(2)(j) of the IPC is setaside. The conviction of appellant/accused under Section 452, 354, 376(1) of the IPC and Section 4 r/w Section 3 of the POCSO Act, 2012 is maintained. Referring to Section 42 of the POCSO Act, 2012 the appellant/accused has been sentenced under Section 4 r/w Section 3 of the POCSO Act, 2012. On the date of incident i.e 21.09.2015 the offence under Section 4 r/w Section 3 of the POCSO Act, 2012 was punishable as under:
"4. Punishment for penetrative sexual assault- (1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."
15. In this case, the appellant/accused was of 25 years and there was no criminal antecedents of the appellant/accused. In the totality of circumstances the sentence of 07 years R.I with a fine of Rs.20,000/- will Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18 NEUTRAL CITATION NO. 2024:MPHC-IND:32023 7 CRA-2322-2018 serve the purpose. In default of fine the appellant/accused shall serve additional 06 months R.I. The amount of fine shall be paid to the victim PW-
1. Accordingly, this appeal is partly allowed to the extent that sentence of the appellant/accused under Section 4 of the POCSO Act, 2012 is substituted to 07 years R.I with fine of Rs.20,000/-. In default of fine the appellant/accused shall suffer additional 06 months R.I. The conviction and sentence under Section 452 of the IPC does not call for interference and the sentences of the appellant/accused shall run concurrently.
16. The copy of the judgment shall be forwarded to the victim PW-1 in the light of Aparna Bhat & others vs. State of M.P & another - LiveLaw 2021 SC 168. The copy of the judgment shall be provided to the appellant/accused immediately through concerned Jail Superintendent.
With the aforesaid, this criminal appeal stands disposed off.
(GAJENDRA SINGH) JUDGE akanksha Signature Not Verified Signed by: AKANKSHA LAHORIYA Signing time: 12-11-2024 19:10:18