Chhote Alias Surendra vs State of M.P.

U.C. Maheshwari, J.—This appeal is directed by the appellant/accused u/s 374(2) of the Cr.P.C. being aggrieved by the judgment dated 9.5.1997 passed by the Special Judge, Satna in Special Sessions Trial No. 71/95, convicting and sentencing him u/s 376(1) of IPC and section 3(1)(xi) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 (in short ''the Act''), for RI 7 years with fine of Rs. 5000/-, in default of depositing the fine for six months R1 in the earlier section while RI 2 years in the later section. The sentences are directed to run concurrently. The facts giving rise to this appeal in short are that on 9.4.95 at about 10 O'' Clock in the morning the prosecutrix Janki, aged 10 years lodged the FIR at P.S. Tala, district Satna against the appellant contending that prior to the date of incident, she was used to work as laborer in the family of Ramkripal the father of the appellant and assigned the work to take the animals for grazing. On 8.4.95 in the night, after taking dinner, she was sleeping in the courtyard of the appellant''s house. In the mid-night, she was subjected to forcefully intercourse by the appellant due to which blood was profused from her private part. She immediately informed about the incident to Ramkripal, the father of the appellant and Lallu, the elder brother of the appellant but they did not take any care and sent her with the appellant to her parents home. After leaving her at parental home, the appellant fled away. On reaching to home, she apprised about the incident to her mother Chourasia Bai (P.W.4). Then accompanied with her mother and village watchman Lalman (P.W. 2), she went to police station and lodged the FIR, on which, the offence of section 376 IPC and section 3(1)(xi) of the Act was registered against the appellant and he was arrested. The witnesses were interrogated. On completion of investigation the appellant was charge-sheeted for the aforesaid offence.

After committing the case to the Sessions Court, on evaluation of the charge sheet also taking into consideration that the prosecutrix is from the community and caste covered under the Act, the charge of section 376 IPC and 3(1)(xi) of the Act were framed against the appellant. He abjured the guilt, on which, the trial was held. After recording the evidence, on appreciation of the same, the appellant was held guilty for the above mentioned offence and was also punished with the punishment as stated above. Being dissatisfied with such conviction and sentence, the appellant has come to this court with this appeal.

Shri Sharad Verma, learned counsel of the appellant after taking me through the record of the trial court including the evidence led by the prosecution as well as by the defence so also the impugned judgment argued that due to some previous enmity between the family of the appellant and father of the prosecutrix, the appellant has been falsely implicated in the matter while, in fact, he has not committed any offence. In continuation, he argued that the story put forth by the prosecution has not been supported by any independent source of the evidence. Even the story put forth by the prosecutrix has not been supported by the medical evidence. The doctor who examined the prosecutrix immediately after the incident and prepared her MLC report had also not stated specifically that the rape or intercourse was committed with the prosecutrix. He also referred the concerning part of the deposition of such doctor and said that in the lack of any positive medical evidence, mere on the testimony of the prosecutrix, the accused like the appellant could not have been convicted in the matter. He further said that even on taking into consideration, the deposition of the prosecutrix and her parents as accepted in its entirety then the act of penetration by the appellant in the private part of the prosecutrix, is not made out and in such situation also the impugned offence could not be said to be the offence of section 376(1) of IPC or any other part of such section. According to him, it was not the case of more than section 376(1) read with section 511 of the IPC. With these arguments firstly he prayed for extending acquittal to the appellant and, in alternate, prayed that by adopting the lenient view the impugned case be modified from section 376(1) of the IPC into section 376(1) read with section 511 of the IPC and in such premises, he be punished with the lesser sentence i.e. upto the period for which he has already undergone during pendency of the trial and subsequent to judgment of the trial court till passing the order for suspension of his jail sentence. He also argued that in the available circumstances, the ingredients of the offence of section 3(1)(xi) of the Act are also not made out and prayed for extending acquittal to the appellant under such section also.

On the other hand, Shri Geetesh Singh Thakur, PL by justifying the impugned conviction and sentence of the appellant said that the findings and the approach of the trial court in this regard being based on proper appreciation of the evidence are in conformity with law, the same does not require any interference at this stage either for acquittal to the appellant or modifying his awarded conviction and sentence into some other section and prayed for dismissing this appeal.

Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the record of the trial court including the evidence led by the prosecution as well as by the defence along with the impugned judgment.

It is apparent that in FIR the prosecutrix was shown to be the age of 10 years. According to the ossification test, carried out by Dr. V.G. Hinduja (P.W. 12) Asst. Surgeon posted at district hospital Satna, in view of x-ray plate (Ex.P/16) and report (Ex.P/17), her age was shown and proved to be between 9 to 12 years. However, in cross-examination, he categorically stated that he only received the x-ray plate and on that basis he has given the report Ex.P/7. He further stated that he did not personally see the prosecutrix. But it is apparent from the cross-examination that such x-ray plate and x-ray report has not been challenged on behalf of the defence saying that the same is not related to the prosecutrix.

Apart the aforesaid, on recording the deposition of the prosecutrix Janki, her age was recorded 10 years by the Court in her deposition sheet. Her mother Chourasia Bai (P.W. 4) in her deposition stated her age to be years. Dr. Mahendra Singh (PW 8) who initially examined the prosecutrix and prepared her MLC report (Ex.P/10) also stated her age to be 10 years. Accordingly in the aforesaid depositions the age of the prosecutrix was shown to be between 9 to 12 or 10 years. The same have not been disputed in the cross-examination of any such witnesses. So, in such premises, it is held that the trial court has not committed any error in holding the prosecutrix to be minor in the age. So, till this extent the impugned judgment does not require any interference, hence such finding of the trial court are hereby affirmed.

The prosecution had initiated the case stating the prosecutrix is belonging to the community of schedule caste "chamar" covered under the Act. But it is apparent from the evidence led by the prosecution as well as the papers exhibited on the record that in order to prove the caste of the prosecutrix covered by the Act, any documentary admissible evidence has neither been produced nor proved on the record. It is also apparent from the record that any certificate issued by the appropriate authority regarding caste of the prosecutrix has neither been produced nor proved on the record. In the lack of such certificate so also in view of the depositions of the prosecutrix as well as her mother Chourasia Bai (PW 4) in which they have not stated that they are from the community covered under the Act, mere on the statement of the father of the appellant Ramkripal examined as defence witness, no inference could have been drawn by the trial court to hold the caste of the prosecutrix covered under the Act. It is settled proposition of the law that to hold the conviction under the Act the prosecution is bound to prove the caste of the victim covered under the Act as well as of the accused like appellant to invoke the provision of the Act but prosecution has failed to prove the same. In such premises, the trial court has committed error in holding guilty to the appellant for the offence u/s 3(1)(xi) of the Act. Pursuant to it, such findings as well as conviction and sentence of the appellant imposed by the trial court under such section is hereby set aside and he is acquitted from such charge.

Coming to consider the sustainability of conviction and sentence of the appellant u/s 376(1) of the IPC, is concerned, on recording the deposition the prosecutrix Janki (PW 3) aged 10 years had categorically stated that on the date of the incident she was working in the family of the appellant and was assigned the work to take the animals for grazing. During such working as labor, she was residing at the courtyard of the house of appellant''s father. Before the alleged incident in the day time she was caught-hold by the appellant then she called elder brother of the appellant to save her, on which, the appellant fled away. She also informed about this incident to the father of the appellant. She also stated some other things of such day. In further deposition she stated that in the evening after taking meals, she went to sleep in the aforesaid courtyard of the appellant''s house. At about 2 O'' Clock in the night, the appellant came there and after pulling her leg upside, pressed her hands and committed intercourse on her. She categorically stated that the appellant inserted his private part into her private part. Due to which blood profused from her private part, on which, she became unconscious. Thereafter the appellant took her to her parental home. On the way she became conscious, on which, appellant said her that he will give her two rupees if she will not tell about the incident to other person. She further stated that on reaching home, appellant apprised her mother that the prosecutrix sustained the injuries due to some beating and thereafter appellant fled away from the residence. On going through the entire cross-examination of the prosecutrix, I have not found any substance showing that any of the material statement stated in the in-chief has been destroyed by any version of such cross-examination.

The version of the prosecutrix is further supported by her mother Chourasia Bai (P.W.4) who on recording her deposition categorically stated that her daughter was brought to her home by the appellant in the morning at about 7 O'' Clock and he informed her that the prosecutrix has been subjected to beating by the ghosts. But when she asked about the incident from Janki then she narrated the entire incident according to which rape was committed by the appellant on her. Her version of in-chief has not been destroyed in her cross-examination. So, accordingly the alleged incident has been proved by the prosecutrix herself which is further supported by her mother who was informed by the prosecutrix immediately after the incident.

True it is that in the deposition of Dr. Mahendra Singh (PW 8) and Dr. Snehlata Gulati (PW 7) it has come on the record that no definite opinion could have been given about committing the rape on the prosecutrix. They have also stated that they have not seen any sign of struggle on the person of the prosecutrix. Apart it, it was also stated by them that the prosecutrix was habitual of intercourse and no blood was found on her private parts. It is settled proposition of the law that mere lack of injury or sign of struggle on the person of the prosecutrix or absence of any injury on her private parts, are not sufficient circumstance to disbelieve the version of the prosecutrix. The prosecutrix has categorically stated in her deposition that rape has been committed on her by the appellant and specially when the particulars of such incident have been stated by the witness and from the other available evidence if her version does not appear to be false then the prosecutrix could not be disbelieved mere on the basis of the expert opinion or the deposition of the doctors. In the case at hand, the version stated by the prosecutrix has been further proved by her mother Chourasia Bai (P.W. 4) to whom the prosecutrix informed about the incident soon after it was committed on her by the appellant.

It is settled proposition of the law where the ocular evidence as well as expert evidence (medical evidence) are available and both are conflicting to each other then in such a situation, the ocular evidence would prevail over the expert evidence and not the expert evidence over the ocular evidence. So, in view of such principle also, the trial court has not committed any error in relying on the deposition of the prosecutrix and her mother for holding guilty to the appellant u/s 376(1) of the IPC.

In the aforesaid premises, I have not found any perversity, infirmity, illegality or anything against the propriety of the law in appreciation of the evidence in the impugned judgment for holding guilty to the appellant u/s 376 of the IPC. So, in such premises, the impugned conviction of the appellant does not require any interference at this stage in the appellate jurisdiction of this court.

True it is that as per available record the prosecutrix was below 12 years of age on the date of the incident and the impugned case ought to have been considered and decided by the trial court by framing the charge of section 376(2)(f) of the IPC in which minimum sentence of 10 years is provided but neither such charge was framed nor such aspect has been considered by the trial court. In the lack of framing the charge of section 376(2)(f) of the IPC by the trial court after 15 years from the date of impugned judgment I do not find fit to consider such matter afresh at this stage specially in the absence of any appeal at the instance of the State or on behalf of the prosecutrix. I am of the considered view that the trial court has not committed any illegality in holding guilty and punishing the appellant u/s 376(1) of the IPC.

I am also of the view that in order to consider the charge of section 376(2)(f) the court has to frame the charge of such section afresh against the appellant because this is the major offence in comparison to section 376(1) of the IPC and on framing such charge again the court is bound to remand the matter to the trial court by extending opportunity to adduce the additional evidence to the parties and, in such circumstance, possibility to make prayer for recalling the prosecutrix for reexamination, could not be ruled out. At the time of incident, the prosecutrix was 10 years of age and now she must be near about 27 years of age and might have settled in her family and; on remanding the matter, if she is recalled for examination then it may create difficulty in her family life. So, in such circumstance, I do not find fit either to frame the charge of section 376(2)(f) of the IPC or to remand the matter for any purpose even for the question regarding enhancement of the awarded jail sentence.

In view of the aforesaid by allowing this appeal in part, the conviction and sentence awarded to the appellant u/s 3(1)(xi) of the Act is hereby set aside while his conviction and sentence awarded by the trial court u/s 376(1) of the IPC is hereby affirmed. Pursuant to it, the appellant is directed to surrender himself before the trial court on or before 15.2.2013 for facing the remaining awarded jail sentence, failing which the trial court shall be at liberty to take appropriate steps in this regard to serve the remaining jail sentence to the appellant. Till the aforesaid extent, the impugned judgment is modified while the other findings of the same are hereby affirmed. The bail bonds of the appellant are hereby canceled. Appeal is allowed in part as indicated above.