Cheddu @ Cheda vs State Of Madhya Pradesh

The appellant has preferred this appeal against judgment and order dated 09/02/2018 passed in Special Sessions Trial No.94/2015 by 2nd Additional

Sessions Judge, Sendhwa, District-Barwani, whereby the learned trial Court has convicted the appellant for offence punishable under Sections 376,

506 Part II of IPC and Section ¾ of Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity “the POCSO Actâ€) and

awarded 7 years RI, 1 year RI and 7 years RI and fine of Rs.3000/-, Rs.200/- and Rs.3000/respectively; in default of payment of fine, further to

undergo 4 months, 2 months and 4 months RI respectively.

Background facts sans unnecessary details are that on 26.08.2015 at about 11 in the afternoon, the prosecutrix was coming back home along with

her cousin (Bima) from the shop of Bihari tailor. On the way near field of Ganpat, suddenly the appellant came out from the maize crop standing on

the field. He caught hand of the prosecutrix and dragged her inside the maize crop. She screamed. The appellant pressed her mouth and threatened

her to keep quite else he will kill her. He pushed her on the ground and forcibly raped her. Somehow she got rid of him. By that time, Radheshyam, his

wife and Kamala reached there. Seeing them, the accused fled from the spot. She revealed the incident before them and thereafter before her parents

and Patel Vahriya of the village and lodged a report (Ex.P/1) at Police Station-Sendhwa.

The police registered Crime No.351/2015, got prosecutrix examined by the doctor, prepared spot map, produced the prosecutrix before the Judicial

Magistrate and got recorded her statement under Section 164 of Cr.P.C., to ascertain the age of the prosecutrix, got her X-ray done, Xray report is

Ex.P/11 and X-ray plate is Ex.P/10. Her radiological age was estimated by the doctor between 16 to18 years. The police arrested the accused, got

him medically examined, seized pubic hair, semen slide, underwear of the accused and vaginal slide & swab, cervical slide & swab, pubic hair,

underwear of the prosecutrix and sent them for chemical analysis to the FSL and obtained report Ex.P/18. After completing investigation, the police

filed charge-sheet.

Appellant was charged under Sections 376, 506 Part-II of IPC and Section ¾ of “the POCSO Actâ€. He abjured his guilt, he was convicted

and sentenced as stated in para-1 above.

The appellant has preferred the present appeal on the grounds that the judgment and order of the learned trial Court is contrary to law and the facts

of the case. The prosecution could not prove its case beyond reasonable doubt. The statements of the witnesses are contradictory. Learned trial Court

has committed error in not considering such contradictions and omissions appeared in the statements of the witnesses. The trial Court has committed

error in appreciating the evidence in right perspective. Essential ingredients constituting the offence charged with, are not available on the record even

then the learned trial Court has convicted the appellant. The judgment passed by the learned trial Court is bad in law and therefore, it is prayed that the

same be set aside and the appellant be acquitted.

It is further contended that the prosecution could not establish age of the prosecutrix or the fact that she was under 18 years of the age at the time

of the incident. Though the prosecutrix (P.W.1) and her father have stated that at the time of the incident, age of the prosecutrix was 15 years but

they have stated this age only on the basis of their estimation. Allegation of rape is not confirmed by the prosecutrix in her Court statement and in her

cross-examination, she has clearly denied such allegation, therefore, the trial Court has committed error in convicting the accused for the offences

charged with.

Learned counsel for the appellant has further submitted that at the most the charge under Section 354 of IPC can be held proved. He further

submitted that the appellant has already served 1010 days in prison and for the offence under Section 354 Cr.P.C. he may be awarded sentence for

the period already undergone.

Learned Public Prosecutor has opposed the prayer. Supporting the judgment of the learned trial Court, the learned Public Prosecutor has submitted

that the prosecutrix in her statement has clearly depicted the incident before the trial Court and her statement is well supported by the evidence

produced by the prosecution, therefore, no ground for interference in the impugned judgment is made out and according to the learned Public

Prosecutor, the appeal deserves to be dismissed.

I have considered rival contentions of the parties and have gone through the record.

First I will consider the evidence regarding age of the prosecutrix. No mark-sheet, scholar register or any document regarding her age could be

obtained or seized by the police during investigation, therefore, investigating officer was left with no option except to get her age ascertained through

ossification test. Dr. G.S. Mujalda (P.W.11) has conducted this ossification test and after observing X-rays of wrist, clavicle and pelvis of the

prosecutrix, he opined that radiological age of the prosecutrix was between 16-18 years. In this age, as per the settled law, + - 2 years variation is

permissible and the variant favourable to the accused has to be acted upon. In this regard, we can refer to the judgment of the apex Court in the

matter of Alamelu and another vs. State Represented by Inspector of Police :2011 Cr.L.R. (SC) 200 where it is held that when there is no clear and

unambiguous evidence about the age of the prosecutrix, then the benefit of margin can be given to the accused. Under the circumstance, Counsel

urged that the learned Judge of the trial Court had erred in convicting the accused. The prosecutrix was between 15 to 17 years of age at the time

of the incident and hence, the benefit of 2 years in approximation in the assessment of the Radiologist must accrue to the appellant.

In this case, in the absence of any definite evidence regarding age of the prosecutrix and in view of the law laid down by the Hon'ble Supreme

Court on the subject, the age of the prosecutrix cannot be held to be under 18 years. The prosecutrix and her father have admitted that they do not

know the date of birth of the prosecutrix and according to her father Kaliya (P.W.2), he has mentioned age of her daughter as 15 years at the

instruction of the police personnel.

As the age of the prosecutrix could not be proved by the prosecution under 18 years, therefore, charge under Section ¾ of “the POCSO

Actâ€​ does not survive.

So far as charge of rape is concerned, in her examination-in-chief itself the prosecutrix (P.W.1) has stated that at the time of the incident the

accused caught her hand, dragged her inside the field of maize and did wrong with her (esjs lkFk [kksVk dke fd;k). What does she mean by this

“[kksVk dke†is explained by her in her cross-examination. In para-6 she has stated that “[kksVk dkeâ€means teasing or something like that.

She further stated that by “[kksVk dke†she does not mean the relation between male and female. She has admitted that at the time of incident

the accused did not make such relation as a male or man makes with female or woman. She has admitted that she screamed as the accused had

caught her hand. Similar is the statement of her father Kalia (P.W.2). Bima (P.W.3), who was accompanying the prosecutrix at the time of the

incident, have stated nothing regarding rape. Radheshyam (P.W.4) has also denied that the prosecutrix has revealed before him that at the time of the

incident, the accused raped her. Bihari (P.W.5), Raylibai (P.W.6), Kamal (P.W.7) and Vahriya (P.W.8) have turned hostile and have not supported

the case of the prosecution. In such situation of the evidence, the accused cannot be held guilty for committing rape with the prosecutrix and I am

agreed with the submissions of the learned counsel for the appellant that from the evidence produced by the prosecution the only offence punishable

under Section 354 of IPC can be found proved.

After the report, the police produced the prosecutrix before Dr. Jyoti Patel, who after examining her was of the opinion that no definite opinion

could be given regarding recent intercourse with the prosecutrix.

FSL report is produced by the prosecution. The report, confirmed presence of human sperm on Ex.A, Ex.B, Ex.C, Ex.D & Ex.G by the FSL

but no DNA profile to connect this evidence with the accused is produced by the prosecution, therefore, the evidence produced by the prosecution to

corroborate the allegation of rape is not sufficient to establish the allegation of the prosecutrix.

Nothing is there in the statement of any of the prosecution witnesses that due to life threat given by the accused at the time of the incident, any

fear was caused to the prosecutrix or that threat caused at any adverse impact on the prosecutrix. A bald statement of the prosecutrix that at the time

of the incident when she screamed, the accused told her that he will kill her is not sufficient to constitute the offence punishable under Section 506

Part-II of the IPC.

Thus, neither the prosecution could establish age of the prosecutrix under 18 years nor it could establish that at the time of the incident the

prosecutrix was raped by the accused. In absence of any proof of age of the prosecutrix, charge under “the POCSO Act†does not survive and

the evidence with regard to the alleged threat falls short to constitute the offence, therefore, it appears that the learned trial Court has not appreciated

the prosecution evidence in its right perspective and has committed error in convicting the accused for the offence under Sections 376, 506 Part-II of

IPC or Section ¾ of POCSO Act.

In my considered opinion, the evidence produced by the prosecution is only sufficient to establish the charge under Section 354 of IPC, therefore,

the appeal is partly allowed. The appellant is acquitted from the charge under Sections 376 & 506 Part-II of IPC and Section ¾ of “the POCSO

Actâ€​ and instead, he is convicted for the offence under Section 354 of IPC.

The appellant was 24 years of age at the time of the incident with no criminal history or record. He is the first offender. He has served out the

sentence of 1010 days in prison. In my opinion, looking to the nature of the incident and other facts and circumstances of the case, the ends of justice

would be sub-served if the appellant is awarded sentence for the offence punishable under Section 354 of IPC for the period already undergone,

therefore, the appellant is awarded sentence for the period already undergone along with fine of Rs.3000/-, in default of payment of fine further to

undergo RI for 3 months and fine amount if deposited be refunded to him.

He be set at liberty forthwith if not required in any other case.

Order of the learned trial Court regarding compensation to the prosecutrix and so also regarding disposal of property is hereby confirmed.