Chhotu @ Vikas vs The State Of Madhya Pradesh

Prem Narayan Singh, J

This criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 has been filed by the appellant being aggrieved by the judgment dated 13.09.2019 passed by the learned Additional District Sessions Judge, Sujalpur, District Shajapur in Sessions Trial No. 178/2016, whereby the appellant has been convicted for the offence under Sections 363 and 366 of the Indian Penal Code, 1860 (hereinafter referred as to 'IPC') and Section 5(L)/6 of the Protection of Children from Sexual Offence Act, 2012 (in short ‘POCSO Act’) for 3 years R.I., 07 years RI and 10 years R.I. with fine of Rs.500/-, Rs.500/- and Rs.2,000/- and default stipulations.

The Prosecution case in a nutshell is that the complainant has filed an oral complaint 23.06.2016 stating that on 19.06.2016, he himself alongwith wife were watching TV after dinner. At that time, his son and victim/ his daughter was sitting at the gate. At about 10:00 o’clock in the night, he saw, his daughter aged 16 years was not there. The back gate of the house was opened. He searched his daughter in village and nearby the village, but he did not find out her. One Chhotu S/o Ranjeet was living in Sarkari Bhawan in front of his house, he was also missing from the same day. Chhotu took his daughter. On this complaint, in Police Station-Avantipur, District-Badodiya, District Shajapur, offences under Sections 363, 366 of IPC. During the investigation, Section 3/4 and 5(L) of POCSO Act, were added in the crime against the appellant. After completing the investigation, charge-sheet was filed and on the basis of available record, charges under Sections 363, 366 of IPC and Section 5(L)/6 of POCSO Act were framed. In turn, the accused/appellant abjured his guilt and prayed for trial.

In order to bring home the charges, the prosecution has adduced as many as 13 witnesses namely the prosecutrix (PW-1), Shankarlal, father of the prosecutrix (PW-2), Shardabai, mother of the prosecutrix (PW-3), Durgaprasad (PW-4), Dr. D. Badodiya, Medical Officer (PW-5), Kailash (PW-6), Amarsingh Malviya (PW-7), Akhilesh (PW-8), Ramchandra (PW-9), Vishnu (PW-10), Donatus Ikka, ASI (PW-11), Rewal Singh, Inspector (PW-12), Dr. Asharani Jain, Gynecologist Specialist (PW-13). On behalf of defence, no witness was furnished.

The learned trial Court having relied upon the testimonies of the prosecution witnesses and other documents like FIR and scholar register, convicted the appellant for the offence under Section 363 & 366 of IPC and Section 5(L)/6 of POCSO Act for 3 years R.I., 7 years RI and 10 years RI with fine of Rs.500/-, Rs.500/- and Rs.2,000/- and default stipulations.

Being disgruntled from the findings and conviction of sentence, the appellant has preferred this appeal on various grounds. Learned counsel for the appellant has submitted that the impugned judgment is perverse in view of the law and facts. The learned trial Court has erred in passing the order of conviction and sentencing the accused on the basis of contradictory evidence of prosecution. The age of the prosecutrix is also not properly pondered. There is no sexual assault instincts on part of the appellant established by the prosecution. Hence, prayed for acquittal in this case. It has also been submitted that the appellant has falsely been implicated in this case on the basis of some old animosity. Therefore, the appellant is liable to be acquitted. Learned counsel for the appellant further demurred regarding the omissions, contradictions and embellishment in the testimonies of prosecutrix as well as other witnesses.

6 In backdrop of the contentions, the question for determination is as to whether the appellant has kidnapped the prosecutrix and committed rape with her.

In this regard, the testimony of father of the prosecutrix (PW-2) is required to be ruminated. The father of the prosecutrix has testified that on 19.06.2016, the complainant/father of the prosecutrix alongwith his wife were watching TV after dinner. At that time, his son and victim/ his daughter was sitting at the gate. At about 10:00 o’clock in the night, he saw, his daughter aged 16 years was not there. The back gate of the house was opened. He searched his daughter in village and nearby the village, but he did not find out her. The date of birth of the prosecutrix is 22.06.2000. After 6-7 days from the incident, when the police recovered his daughter alongwith appellant Chhotu, his daughter told him that the appellant took her and on the pretext of marriage committed rape upon her. The statement of this witness also finds support from the statements of prosecutrix (PW-1) and mother of the prosecutrix (PW-3).

The prosecutrix (PW-1) has elucidated in her statement that the appellant has taken her on bike on the pretext of marriage and made physical relation with her several times and that statement has not been rebutted in her cross-examination. Similarly, the statements of father of the prosecutrix (PW-2) and mother of the prosecutrix (PW-3) have not been controverted in their cross-examination regarding kidnaping and intercourse. The prosecution case also finds support from FIR (Exhibit-P/5 & P/6) which was supported by Donatus Ikka, ASI (PW-11) and Rewal Singh (PW-12). Amarsingh Malviya (PW-7) has furnished scholar register for ascertaining the age of prosecutrix. The statement of these witnesses have not been controverted in their cross-examination.

So far as the contentions regarding omissions, contradictions and embellishment in testimonies of prosecution witnesses are concerned, learned counsel for the petitioner is unable to point out any material, contradiction or omission which is going to the root of the case. In this regard, the attention of this Court has been drawn towards the Judgment of the Hon'ble Supreme Court rendered in Takdir Samsuddin Sheikh vs. State of Gujrat and another AIR 2012 SC 37, wherein the Hon'ble Apex Court, endorsing its earlier Judgment, held as under:-

"9. We are of the view that all omissions/ contradictions pointed out by the appellants' counsel had been trivial in nature, which do not go to the root of the cause. It is settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions/ improvements/ embellishments etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate court in natural course would not be justified in reviewing the same again without justifiable reasons. (Vide: Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of Maharashtra, (2010) 13 SCC 657)."

In this regard, the following ratio held by the Hon'ble Supreme Court in Pundappa Yankappa Pujari v. State of Karnataka, 2014 LawSuit (SC) 516, is worth to quote here-

"[9] xxx xxx xxx The evidence on record has to be read as a whole and it is not proper to reject one or other evidence on the ground of certain contradictions and omissions which do not go the roots of the case. If the testimony of the eye- witnesses are found trustworthy and remained unchanged, ignorance of such testimony can be held to be perverse."

Learned counsel has also expostulated that the appellant was implicated in this crime due to animosity only. On this aspect, it is mandated by Hon'ble the Apex Court in the case of Ramesh Baburao Devaskar and others Vs. State of Maharashtra reported in (2007) 13 SCC 501 that enmity, as is well-known, is a double edged weapon. Whereas, existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. This ratio is recently endorsed by Full Bench of Hon'ble Apex Court in Balram vs. State of M.P. (Criminal Appeal 2300/2019 decided on 08.11.2023). In the case at hand, the evidence available on record evinced the facts that mere existence of a previous dispute will not demolish the case of prosecution, if the prosecution is otherwise able to prove its case on merits.

In view of the aforesaid settled position of law, the testimonies of prosecutrix as well as other witnesses cannot be wiped out on the basis of trivial contradictions or on said enmity. Virtually, the testimony of prosecutrix should be regarded as an injured witness of the case and it is well settled that criminal jurisprudence attaches great weightage to the evidence of a person injured in the incidence. Such a testimony comes with a in-built guarantee of truth, specially when it is a case of physical sexual relation with a minor girl. Such type of witness cannot spare the actual culprit in order to foist an innocent person. It is also just to impossible that parents of prosecutrix would involve their minor daughter only to satisfy their vengeance.

In view of the aforesaid analysis of fact and law laid down by Hon’ble the Apex Court, the statements of the prosecutrix as well as other prosecution witnesses are sufficient to envisage the fact that the appellant has made physical relation with the prosecutrix on numerous occasions. Since as per prosecution case, the age of prosecutrix is less than 18 years, these physical relations will amount to commitment rape irrespective to the fact of consent. However, learned counsel for the appellant has raised the demurrer regarding the age of prosecutrix and submitted that the prosecution miserably failed to prove the fact that the age of prosecutrix is less than 18 years.

Now, the question is as to whether the prosecutrix is coming under the purview of 'child' who is below the age of 18 years. In this context, the High School Certificate (Ex.P/8) as well as admission register (Ex.P/12) have been filed before the Court. It was filed by Amarsingh Malviya (PW-7) and as per the scholar register, date of birth of the prosecutrix is 22.06.2000 and therefore, at the time of incident i.e. 19.06.2016, the age of the prosecutrix is less than 16 years.

So far as the determination of age is concerned, the learned trial Court has placed reliance on the landmark judgment of Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 263 in which it is mandated that the age of prosecutrix is approximately 16 years which is less than 18 years. Parties were at loggerheads on the aspect of determination of age, it is contended before this Court that the prosecution has not properly proved the age of prosecutrix. Nevertheless, the marksheet of High School Certificate (Ex.P/8) has been filed in this respect. Hon'ble the Apex Court in the case of Jarnail Singh (supra) basing the rules of the Juvenile Justice (Care and Protection of Children) Act, 2015, ordained that the age of prosecutrix should be determined on the following grounds:-

(a) (i) the matriculation or equivalent certificates, if available; and in the  absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the C ourt or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

On this point, the Division Bench of this Court reported in the case of Ramswaroop Vs. State of Madhya Pradesh 2023 Lawsuit (MP) 435 has recently, after considering the catena of cases, viewed as under :-

“34. This is trite that a document becomes admissible under Section 35 of Indian Evidence Act, if three conditions are fulfilled.  We have examined the Admission Register and date of birth Register alongwith the statement of Headmaster (PW-9) who produced them before the Court below. We are satisfied that (i) entry relating to date of birth was made in the Register in discharge of public duty (ii) the entry states a relevant fact and (iii) the entry was made by a public servant in discharge of his official duty. Thus, School Register is a relevant and admissible document as per Section 35 of the Act. The School Register was held to be admissible for the purpose of determination of age in the later judgments of Supreme Court in Shah Nawaz, Ashwani Kumar Saxena, Mahadeo and Ram Suresh Singh (supra).

Pertinently, in Ashwani Kumar Saxena (supra), the Apex Court made it crystal clear that Admission Register of the school in which a candidate first attended, is a relevant piece of evidence for determining the date of birth. It was poignantly held that the argument that parents could have entered a wrong date of birth in the Admission Register is erroneous because parents could not have anticipated at the time of entry of date of birth that their child would commit a crime or subject to a crime in future.”

In view of the aforesaid, the High School Certificate (Ex-P/8) alongwith admission register (Ex.P/12) would be taken into account for deciding the age of prosecutrix. Since, in the High School Certificate (Ex.P/8) and admission register (Ex.-P/12), the date of birth of the prosecutrix is 22.06.2000, meaning thereby, she was less than 16 years on the date of incident. Hence, the petitioner’s contentions regarding the age of prosecutrix, is turned down.

So far as the offence punishable under Sections 363 & 366 of IPC is concerned, since the age of prosecutrix is proved less that 18 years, it is also well established, when prosecution witnesses clearly narrated that the appellant took the minor child/prosecutrix on his motorcycle and seduced her to commit intercourse. Under these conditions, the findings of learned trial Court regarding offence punishable under Sections 363 & 366 of IPC and Section 5(L)/6 of POCSO Act, are found infallible and immaculate.

So far as the sentencing part is concerned, this case is related to sexual offence and looking to the age of the appellant and age of prosecutrix, no leniency is required in the circumstances of the case. Be that as it may, it is also pertinent to mention here that as such, in this case, now, as per amendment in POCSO Act w.e.f. 16.08.2019, the minimum sentence for offence under Section 5(L)/ 6 of POCSO Act is not less than 20 years. Nevertheless, the date of incident i.e. 19.06.2016, the minimum sentence for offence under Section 5(L)/6 was of 10 years, therefore, the sentence awarded to the appellant for 10 years RI is correct and in consonance of law. Since no appeal has been filed on behalf of the complainant or State, hence the said sentence cannot be enhanced so also in any way, punishment of 10 years R.I. cannot be reduced. Hence, the punishment of ten years R.I. and fine, does not warrant any interference. Likewise, the conviction and sentence under Sections 363, 366 of IPC also not requires any interference.

With the aforesaid, the present criminal appeal being sans merit is dismissed and the order of the learned trial Court is hereby affirmed. The appellant is in custody. After completion of aforesaid sentence and depositing the fine amount, he shall be released forthwith, if not required in any other case.

A copy of this order be sent to the concerned trial Court for necessary information.

Certified copy as per rules.