Madhya Pradesh High Court
Ambaram vs The State Of Madhya Pradesh on 11 April, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
1
Cr.A. No.390/2018
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 11th OF APRIL, 2022
CRIMINAL APPEAL No.390 OF 2018
Between:-
AMBARAM S/O BHERUJI NAHAL
AGE : 31 YEARS
R/O VILLAGE KHAMKHEDI
P.S. BAGLI
DISTRICT - DEWAS (M.P.)
.....APPELLANT
(BY SHRI MANISH YADAV, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION HAATPIPALIYA
DISTRICT - DEWAS (M.P.)
.....RESPONDENTS
(BY SHRI AKASH SHARMA, GOVERNMENT ADVOCATE FOR STATE)
This appeal coming on for orders this day, Hon'ble Shri Justice
Satyendra Kumar Singh passed 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."] against the judgement dated 18.12.2017 passed by the Additional Sessions Judge, Bagli, District Dewas (M.P.) in S.T. No.245/2015, whereby the appellant has been convicted under Sections 363, 366, 366-A, 342, 506-II, 323, 376(1), 376-C and 2 Cr.A. No.390/2018 376(2)(n) of the Indian Penal Code (in short "IPC") alongwith Sections 11/12, 3/4, 5(l)/6, 5(m)/6 and 5(n)/6 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act") and sentenced him under Sections 363, 366- A, 342, 506-II, 323, 376(1) and 376(2)(n) of IPC alongwith Sections 11/12, 5(m)/6 and 5(n)/6 of the POCSO Act as follows :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 363 of IPC 3 years RI Rs.500/- 1 month RI
2 366-A of IPC 3 years RI Rs.500/- 1 month RI
3 342 of IPC 1 year RI Rs.500/- 1 month RI
4 506-II of IPC 2 years RI Rs.500/- 1 month RI
5 323 of IPC 6 months RI Rs.500/- 15 days RI
6 376(1) of IPC 7 years RI Rs.1,000/- 2 months RI
7 376(2)(n) of IPC 10 years RI Rs.2,000/- 4 months RI
8 11/12 of POCSO 2 years RI Rs.500/- 1 month RI
Act
9 5(m)/6 of POCSO 10 years RI Rs.2,000/- 4 months RI
Act
10 5(n)/6 of POCSO 10 years RI Rs.2,000/- 4 months RI
Act
2. Prosecution story, in brief is as follows :-
(i) On the date of incident i.e. on 07.06.2015, complainant's daughter
Gitabai and son-in-law appellant Ambaram came to complainant's house at Village Baroli and in the intervening night of 07-08.06.2015, when the complainant and his other family members were sleeping, appellant forcibly took complainant's minor daughter prosecutrix, aged about 10-12 3 Cr.A. No.390/2018 years towards hilly area of village Baroli, kept her there in the night and thereafter, threatened and assaulted her and forcefully committed rape upon her. On the next day, he took her to Shivpur by bus and thereafter to his house at village Khamkhedi where he kept her in the hilly area in day hours while in his hut in night hours and committed rape upon her repeatedly. Next day morning, when prosecutrix was found missing, complainant searched her at nearby places and when he did not find her, lodged her missing report (Exhibit-P/4) at about 13.40 hours and FIR (Exhibit-P/3) at about 16.00 hours at police station Haatpipaliya, District Dewas.
(ii) On the same day at about 17.50 hours, I.O. Sanjay Mandloi went to the complainant's house and prepared spot map (Exhibit-P/5), recorded statements of the complainant as well as his wife and daughter Gitabai i.e. wife of the appellant. On 16.06.2015, at about 20.00 hours, recovered the prosecutrix from the house of the appellant, as per Dastyabi Panchanama (Exhibit-P/6), recorded her statement and sent her to the Community Health Centre, Bagli, District Dewas for medical examination, where on the next day, Dr. Ritu Singh medically examined her and prepared MLC report (Exhibit-P/1). She prepared and sealed her vaginal slides, cervical smear alongwith her clothes and handed over the same to the concerned lady constable who brought her for medical examination.
(iii) On 17.06.2015, I.O. Sanjay Mandloi went to the spot and verified the same as per verification memo (Exhibit-P/9 and P/10), prepared spot 4 Cr.A. No.390/2018 map (Exhibit-P/11), arrested the appellant, as per arrest memo (Exhibit- P/7). On 18.06.2015, he sent the appellant for medical examination to the Community Health Centre, Haatpipaliya, District Dewas, where Dr. G. K. Chouhan medically examined him and prepared MLC report (Exhibit- P/19). He also prepared and sealed his semen slides alongwith his clothes and handed over the same to the concerned police constable. On 17.06.2015, I.O. Sanjay Mandloi obtained copy of the scholar register entry {(Exhibit-P/2(c)} alongwith letter/certificate (Exhibit-P/3) from the Government Primary School, Baroli with regard to the age of the prosecutrix and vide letter (Exhibit-P/20) sent the seized articles to Forensic Science Laboratory for chemical examination. After completion of investigation, filed the charge-sheet before the Court of Additional Sessions Judge, District Dewas.
3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 363, 366, 366-A, 342, 506-II, 323, 376(1), 376(2)(n) and 376-C of the IPC alongwith Sections 11/12, 3/4, 5(l)/6 5(m)/6 and 5(n)/6 of the POCSO Act 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. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, convicted and sentenced the appellant as aforementioned. Being aggrieved with the said judgement of conviction and order of sentence, appellant has preferred this appeal for setting 5 Cr.A. No.390/2018 aside the impugned judgement and discharging him from the charges framed against him.
4. Learned counsel for the appellant submits that learned Trial Court has committed a legal error while appreciating the evidence available on record. Nothing material has been produced with regard to the age of the prosecutrix. Scholar register entry {(Exhibit-P/2(c)} has no probative value as prosecutrix's father complainant and Assistant Teacher, Government Primary School, Baroli, Rajendra Prasad both have admitted that prosecutrix's date of birth was written on the basis of assumption and prosecution has failed to prove the fact that prosecutrix was minor at the time of incident. Prosecutrix has admitted that there was some dispute between her elder brother-in-law Bharat and younger brother-in-law i.e. appellant Ambaram and she made statements in the Court as told to her by Bharat. She has also admitted that appellant neither took her anywhere nor he committed anything wrong with her. The appellant has falsely been implicated in the matter only on the instance of his co-brother Bharat due to prior enmity. Therefore, the impugned judgement of conviction and order of sentence may be set aside and the appellant may be acquitted from the charges framed against him.
5. 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. Same is well reasoned establishing the guilt of the appellant beyond reasonable doubt. Therefore, confirming the impugned 6 Cr.A. No.390/2018 judgement of conviction and order of sentence, the appeal filed by the appellant may be dismissed.
6. I have heard learned counsel for the parties at length and perused the record.
7. This is an admitted fact that appellant is the husband of prosecutrix's sister Gitabai. Prosecutrix (PW-4) and her father complainant (PW-3) both have deposed that on the date of incident i.e. on 07.06.2015, appellant alongwith his wife Gitabai came at complainant's house and stayed there in the night at Village Baroli. Complainant (PW-3) deposed that on the next day morning, he found his minor daughter prosecutrix as well as the appellant went missing from his house. He further deposed that he searched them at their relatives and nearby places and when he did not find them, he lodged missing report of the prosecutrix at police station Haatpipaliya stating therein suspicion on the appellant. ASI - S. S. Mishra (PW-7) deposed that on 08.06.2015, at about 13.40 hours, he on the basis of complainant's statement, lodged the missing person's report (Exhibit-P/4) of the prosecutrix and thereafter FIR (Exhibit-P/3) against the appellant at police station Haatpipaliya for the offences punishable under Sections 363 and 366 of IPC.
8. Prosecutrix (PW-4) deposed that in the intervening night of the incident, when she came out of her house for answering nature's call, appellant pressed her mouth and forcefully took her on gun-point towards hilly area (Bawli) of the village, kept her there in the night and forcefully committed sexual intercourse with her. She further deposed that appellant thereafter forcefully took her to his 7 Cr.A. No.390/2018 village Khamkhedi and kept her there in his house for 2-3 days and forcefully\ committed sexual intercourse with her there also. She further deposed that when appellant called the complainant and told him to send back his wife i.e. Gitabai alongwith his child and take away the prosecutrix, the complainant came at appellant's house with police and took her back to village Baroli.
9. Complainant (PW-3) deposed that when appellant's mother called him on phone and told to send back Gitabai and take away prosecutrix, he approached the police and went to appellant's house at Khamkhedi with the police where prosecutirx was recovered from the possession of the appellant. I.O. Sanjay Mandloi (PW-6) has supported aforesaid facts and deposed that on 16.06.2015, at about 20.00 hours, he after getting the information went to appellant's house at village Khamkhedi and recovered the prosecutrix from the possession of the appellant as per Dastyabi Panchanama (Exhibit-P/6). He further deposed that on the same day after recording the statements of the prosecutrix, he sent her to Community Health Centre, Bagli for medical examination. Dr. Ritu Singh (PW-
1) deposed that on next day morning at about 9.00 AM, she examined the prosecutrix and found her hymen ruptured. She further deposed that possibility of sexual intercourse with the prosecutrix cannot be ruled out as opined by her in the MLC report (Exhibit-P/1).
10. Appellant has challenged the aforesaid facts and taken a defense that at the time of incident, prosecutrix was at her elder brother-in-law Bharat's house at village Nanukheda and was produced from there by the complainant himself at police station Haatpipaliya and she was recovered there at police station 8 Cr.A. No.390/2018 Haatpipaliya and not from the house of the appellant at village Khamkhedi. It has been stated on behalf of him that he has falsely been implicated in the matter on the instance of his co-brother Bharat due to prior enmity. It is an admitted fact that prosecutrix and complainant both are close relatives of the appellant and appellant has nowhere suggested any cogent reason as to why they are making false statements against him. Prosecutrix (PW-4) specifically denied the fact that at the time of incident, she was at her elder brother-in-law Bharat's house at village Nanukheda. The complainant (PW-3) has also denied the aforesaid fact. His statement finds support from the missing person's report (Exhibit-P/4) and also from the FIR (Exhibit-P/3) lodged by him at police station Haatpipaliya on the very next day of the incident. His statement also finds support from the statement of I.O. Sanjay Mandloi (PW-6), who deposed that on 16.06.2015, he found the prosecutrix at appellant's house at village Khamkhedi and recovered her from his possession at per Dastyabi Panchanama (Exhibit- P/6). Nothing has come on the record on the basis of which their aforesaid statements can be disbelieved or doubted, therefore, this fact is found proved that on the date of incident i.e. on 07.06.2015, appellant took the prosecutrix from complainant's house and thereafter was recovered on 16.06.2015 from his house and possession as per Dastyabi Panchanama (Exhibit-P/6).
11. So far as the issue with regard to prosecutrix's consent is concerned, statements of the prosecutrix on the point as to when and how appellant took her from complainant's house and also on the point of place and time when and where she was forcefully subjected to sexual intercourse are not consistent. She 9 Cr.A. No.390/2018 in her statement recorded under Section 164 of Cr.P.C. (Exhibit-P/12) and statement recorded under Section 161 of Cr.P.C. (Exhibit-P/14) has stated that on the date of incident, at about 8.00-9.00 PM, when she was returning back home from Gita's house after watching television, appellant on gun-point forcefully took her, while in her statement recorded during trial, she deposed that in the intervening night of the incident, at about 2.00 AM, when she woke up for answering nature's call, she found appellant standing on the street and he pressed her mouth and forcefully took her from there. She in her statement recorded under Section 161 of Cr.P.C. (Exhibit-P/14) stated that appellant committed rape upon her firstly at his house when she went there after her IVth Class examination and thereafter on the date of incident at hilly area of village Baroli and then at hilly area of his village Khamkhedi and also at his house Khamkhedi, while in her statement recorded during trial, she deposed that she was forcefully subjected to sexual intercourse by the appellant on the date of incident at hilly area of her village and thereafter at appellant's house. From her statements, it appears that she remained with the appellant for quite a long period until she was recovered. She freely moved around with the appellant and stayed at different places but she did not complain of any criminal act on the part of the appellant, therefore, the main point of discussion would be the age of the prosecutrix in order to determine as to whether she was major so as to give her consent for the aforesaid acts.
12. In this regard, statement of Assistant Teacher, Government Primary School, Baroli Rajendra Prasad (PW-2), scholar register entry (Exhibit-P/2) 10 Cr.A. No.390/2018 produced by him and letter/certificate (Exhibit-P/3) issued by him are relevant. alongwith the statements of prosecutrix's father complainant (PW-3) and observations made by the learned Trial Court at the time of recording of statements of the prosecutrix. Rajendra Prasad (PW-2) deposed that prosecutrix got admitted by her father in the school on 01.07.2011 and as per scholar register entry (Exhibit-P/2), her date of birth is 20.02.2005. He in in paras-4 and 5 of his cross-examination has specifically stated that he wrote prosecutrix's date of birth on the information given by her father. He also admitted that he did not get any document with regard to date of birth of prosecutrix from her father at the time of her admission in the school. He further admitted that prosecutrix's father complainant did not state any specific date, month and year of birth of the prosecutrix, meaning thereby, he recorded prosecutrix's date of birth in the scholar register (Exhibit-P/2) on the basis of assumption.
13. Prosecutrix's father complainant (PW-3) deposed that he got the prosecutrix admitted in the school, but he did not tell her date of birth at the time of her admission and her date of birth was written on the basis of assumption. On 11.10.2017, during his cross-examination, it has been suggested to him on behalf of the appellant that prosecutrix's age was 18 years, in response of which he has stated that her age would be 16-17-18 years. Learned Trial Court has also observed prosecutrix's age about 15-16 years on 11.10.2017 at the time of recording of her statement. Therefore, in view of the decision of the Apex Court in the case of Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, although on the basis of scholar register entry (Exhibit-P/2) and letter/certificate (Exhibit- 11 Cr.A. No.390/2018 P/3) issued by the Assistant Teacher, Government Primary School, Baroli, this fact is not found proved that prosecutrix's date of birth is 20.02.2005 and she was below 12 years of age at the time of incident but considering the overall material produced on record and observations made by the learned Trial Court and also the suggestions given to the complainant during his cross-examination on behalf of the appellant himself, this fact is found proved that she was below 18 years at the time of incident and she was not competent to give her consent at that time.
14. It has already been found proved that in the intervening night of 07- 08.06.2015, appellant took the prosecutrix from complainant's house and thereafter she was recovered from appellant's house at village Khamkhedi from his possession on 16.06.2015. From the statements of prosecutrix (PW-4) as also Dr. Ritu Singh (PW-1) and MLC report (Exhibit-P/1) prepared by her wherein in the history sheet, it was mentioned that prosecutrix was abducted and subjected to sexual intercourse by the appellant and during her medical examination, her hymen was not found intact and probability of sexual intercourse with her cannot be ruled out. This fact is also found proved that during the period of incident, prosecutrix was subjected to sexual intercourse by the appellant. As she was below 18 years and was not competent to give her consent therefore, learned Trial Court has not committed any error in holding the appellant guilty for the offences punishable under Sections 363, 366, 342, 376(1), 376(2)(n) and 376-C of IPC alongwith Sections 11/12, 3/4, 5(l)/6 and 5(n)/6 of the POCSO Act. As the age of prosecutrix has not been found proved 12 Cr.A. No.390/2018 below 12 years at the time of incident, therefore, offence punishable under Section 5(m)/6 of POCSO Act cannot be said to be proved beyond reasonable doubt. Prosecutrix (PW-4) has nowhere stated in her statement recorded during trial that appellant assaulted her during the incident therefore, offence under Section 323 of IPC is also not proved. Prosecutrix (PW-4) nowhere stated that she was forced and seduced to make illicit intercourse with another person therefore, offence under Section 366-A of IPC is also not proved. Prosecutrix (PW-4) has not stated anything specific with regard to the threatening given by the appellant to her and during investigation, pistol or any other such weapon has not been seized from the possession of the appellant, therefore, offence punishable under Section 506-II of IPC also cannot be said to be proved beyond reasonable doubt. Findings of learned Trial Court with regard to rest of the offence punishable under Sections 363, 366, 342, 376(1), 376(2)(n) and 376-C of IPC alongwith Sections 11/12, 3/4, 5(l)/6 and 5(n)/6 of POCSO Act requires no interference.
15. In view of the aforesaid discussion, as the prosecution could not prove its case beyond reasonable doubt for the offences punishable under Sections 366-A, 323 and 506-II of IPC and also under Sections 5(m)/6 of the POCSO Act, therefore, appellant is liable to be acquitted from the aforesaid offences and is hereby acquitted. Findings with regard to rest of the offences i.e. 363, 366, 342, 376(1), 376(2)(n) and 376-C of IPC alongwith Sections 11/12, 3/4, 5(l)/6 and 5(n)/6 of POCSO Act are liable to be affirmed as learned Trial Court has not committed any error in finding the appellant guilty for the said offences. Hence, 13 Cr.A. No.390/2018 appeal stands partly allowed and the judgement of conviction and order of sentence is modified to the following extent :-
The judgement and order of conviction dated 18.12.2017 passed by the Additional Sessions Judge, Bagli, District Dewas (M.P.) in S.T. No.245/2015 is modified to the extent that appellant stands acquitted from the offences punishable under 366-A, 323 and 506-II of IPC alongwith Section 5(m)/6 of POCSO Act. As the learned Trial Court convicted and sentenced the appellant for the offence punishable under Section 366-A of IPC and therefore, separate sentence for the offence punishable under Sections 366 of IPC was not passed and appellant has now been acquitted from the charge punishable under Sections 366-A of IPC, therefore, considering overall facts of the case, it would be appropriate to sentence him for the offence punishable under Sections 366 of IPC with Rigorous Imprisonment for 7 years with fine of Rs.500/- and in default of payment of fine, to undergo 2 months additional RI. As per available record, appellant is in jail since 18.06.2015 and he has already undergone the substantial period of six years nine months. Learned Trial Court is directed to ascertain the period of jail incarceration suffered by the appellant from the concerned jail. For rest of the offences i.e. offences punishable under Sections 363, 342, 376(2)(n) and 14 Cr.A. No.390/2018 376(1) of IPC alongwith 11/12 and 5(n)/6 of POCSO Act, his conviction and order of sentence is hereby affirmed. For the sake of clarity, a table is being reproduced below :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 363 of IPC 3 years RI Rs.500/- 1 month RI Affirmed
2 366-A of IPC 3 years RI Rs.500/- 1 month RI Acquitted
3 366 of IPC 7 years RI Rs.500/- 2 months RI Convicted
4 342 of IPC 1 year RI Rs.500/- 1 month RI Affirmed
5 506-II of IPC 2 years RI Rs.500/- 1 month RI Acquitted
6 323 of IPC 6 months RI Rs.500/- 15 days RI Acquitted
7 376(1) of IPC 7 years RI Rs.1,000/ 2 months RI Affirmed
-
8 376(2)(n) of 10 years RI Rs.2,000/ 4 months RI Affirmed
IPC -
9 11/12 of 2 years RI Rs.500/- 1 month RI Affirmed
POCSO Act
10 5(m)/6 of 10 years RI Rs.2,000/ 4 months RI Acquitted
POCSO Act -
11 5(n)/6 of 10 years RI Rs.2,000/ 4 months RI Affirmed
POCSO Act -
All the sentences to run concurrently
Note : Learned Trial Court has observed that as the appellant has been convicted and sentenced under Sections 376-1 and 376(2)(n) of IPC alongwith Section 5(n)/6 of POCSO Act, therefore, separate sentence has not been passed in Section 376-C of IPC alongwith 3/4 and 5(l)/6 of POCSO Act.
16. 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 15 Cr.A. No.390/2018 concerned jail authorities for its speedy compliance and necessary action.
Certified copy as per rules.
(Satyendra Kumar Singh) Judge gp GEETA PRAMOD 2022.04.12 11:59:06 +05'30'