Nanhelal vs State of Madhya Pradesh

Hon''ble Justice Shri N.K. Gupta

The appellant has preferred this appeal against the judgment dated 30.11.1996 passed by the learned Sessions Judge, Hoshangabad in ST. No. 285 of 1995 whereby the appellant was convicted for offence punishable u/s 376 read with Section 511 of I.P.C. and sentenced for four years rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine, four months simple imprisonment was directed. The prosecution''s case, in short, is that on 27.4.1995 the prosecutrix (PW 7) a minor girl of 8 years was playing in her house situated at Quarter Type I of Ordnance Factory Area, Itarsi. Her mother was sick and therefore, she was inside the house. The appellant came to the house of the prosecutrix and asked for some water and thereafter, he directed to provide a jug of water in his house which was situated on the first floor of the same building. Initially one Dinesh went along with the prosecutrix. Thereafter, Dinesh went away. In the meantime, Jyoti Bai (PW 2) mother of the prosecutrix, went to the hospital and she came back in the evening. The appellant called the prosecutrix inside his house and directed her to lay down on the bed and ultimately he committed rape on the prosecutrix. When Babulal (PW 1) father of the prosecutrix, came to the house, the prosecutrix informed him about the incident then he took the prosecutrix to the hospital. He found that blood was oozing from the private part of the prosecutrix. On 28.4.1995 Babulal went to his office and thereafter, he went to the Police Station Itarsi Dehat where he lodged an FIR Ex. P/1 at about 5.15 p.m. in the evening. The prosecutrix was directed for her medico legal examination. Dr. Z. Zia (PW 3) examined the prosecutrix and gave her report Ex. P/4. She found that no external or internal injury was there to the prosecutrix. Her hymen was intact. However, on the right side of the hymen a linear abrasion was present. She prepared two slides of the vaginal swab and handed over to the concerned Constable after their sealing for Forensic Science Analysis. The appellant was also arrested and he was also directed for his medico legal examination. Dr. R.K. Gupta examined the applicant and gave his report Ex. P/15. No abnormality was found to the applicant. Two slides of his semen were prepared and handed over to the concerned Constable after due sealing for their Forensic Science Analysis. All the slides were sent to the Forensic Science Laboratory. After due investigation a charge sheet was filed before the JMFC Itarsi who committed the case to the Sessions Court, Hoshangabad.

The appellant abjured his guilt. He did not take any specific plea in the case but, he has stated that he was falsely implicated in the crime because he saw Jyoti Bai with the witness Gopal Sharma and therefore, to pressurize the applicant a false case was lodged against the applicant. However, no defence evidence was adduced.

The learned Sessions Judge after considering the evidence adduced by the prosecutrix acquitted the appellant from the charge of offence punishable u/s 376 of I.P.C. but convicted him for the offence punishable u/s 376 read with Section 511 of I.P.C. and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned Senior Advocate for the appellant has submitted that the appellant was falsely implicated in the crime due to enmity with the father and mother of the prosecutrix. FIR was lodged with delay of at least one day and no explanation was given for the delay in lodging the FIR. In this context the learned Senior Advocate placed his reliance on the judgment passed by Hon''ble the Apex Court in the case of Vikrant Tyres Ltd. Vs. Collector of Central Excise, Madras, It is further submitted that the prosecutrix may not be relied unless there is any corroboration. In this context, reliance is placed upon the judgment passed by the Single Bench of Nagpur High Court in the case of Gangaram Nanhcosingh vs. The Crown and also on the judgment passed by Hon''ble the Apex Court in the case of Aman Kumar and Another Vs. State of Haryana, In the alternate it is submitted that the appellant is a reputed citizen of the locality who has faced the trial and appeal for last 17 years. He remained in the custody for some time and therefore, looking to the torture of his facing the trial and appeal for a lengthy period, he may not be sent to the jail again.

On the other hand the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct. There is no basis by which any interference can be done in the appeal.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appeal filed by the appellant can be accepted ? And whether the sentence directed against the appellant can be reduced ?

In the present case the prosecutrix was the only eye witness in the case. Prosecutrix (PW 7) has stated about the particulars of the offence of rape. The prosecutrix was a girl of 8 years of age and she could be tutored by her father and therefore, her testimony should be considered on the basis of the circumstances. At present Hon''ble the Apex Court has decided in so many cases that no corroboration is required to accept the testimony of the prosecutrix. However, the prosecutrix was a child witness and therefore, her testimony should be considered by the other circumstances because the trial Court has acquitted the appellant for offence punishable u/s 376 of I.P.C.

Babulal (PW 1) father of the prosecutrix and Jyoti Bai (PW 2) mother of the prosecutrix have stated that when Babulal came to his house at about 9.00 p.m. in the night the prosecutrix told about the incident and he saw that blood was oozing from the private part of the prosecutrix and he had shown the situation to the witness Gopal Prasad Sharma (PW 4). The witness Gopal Prasad Sharma did not claim that he saw the blood oozing from the private part of the prosecutrix but, he confirmed that the prosecutrix informed about the entire incident. The appellant took a defence that there was illicit relations between the witness Jyoti Bai (PW 2) and witness Gopal Prasad Sharma (PW 4) and he saw them in such a condition and therefore with the help of the prosecutrix they falsely implicated the applicant. If the evidence given by Gopal Prasad Sharma (PW 4) is perused then it would be clear that no suggestion was given to him as to whether the appellant saw him with the witness Jyoti Bai. If there was a pressure of the appellant to these witnesses that the appellant would tell about the entire incident to the husband of the witness Jyoti Bai then certainly such incident was known to the appellant from the very beginning and therefore, such incident could be suggested to the witness Jyoti Bai as well as to the witness Gopal Prasad Sharma but, no such suggestion was given to any of these witnesses and therefore, the enmity as stated by the appellant appears to be an after thought which has no value. Some suggestions of enmity were given to Babulal and Jyoti Bai but, the appellant did not say in his statement u/s 313 of the Cr.P.C about such enmity. If relation of the appellant was inimical with the witness Babulal then there was no possibility for the appellant to go to the house of the witness Babulal and ask for some water. The prosecutrix was providing some water to the appellant and her mother went to the hospital. The conduct of the mother of the prosecutrix indicates that it was a routine matter for her that her child was providing some water to the appellant who was residing on the first floor of the same building and therefore, looking to the conduct of the prosecutrix and her family members it appears that there was no enmity between the parents of the prosecutrix and the appellant and hence there was no possibility of false implication of the appellant.

As discussed above that the prosecutrix was a child witness and therefore, she could tell about the entire story if she was tutored. She has narrated about the entire procedure of the intercourse but, if such a forceful intercourse was done by the appellant then the prosecutrix must have sustained some internal injury including damage to the hymen but, according to Dr. Z. Zia no external or internal injury was found to the prosecutrix. Only a linear abrasion was visible over her hymen. Under such circumstances, the learned Sessions Judge did not believe the story of the prosecutrix that the rape was committed upon the prosecutrix.

If the appellant was intended to commit the rape upon the prosecutrix then at the time of incident father of the prosecutrix was not at home and the mother had also gone to the hospital for her treatment, Dinesh, a child of the neighbour''s family also went back and therefore, there was no problem to the appellant to commit rape with the prosecutrix, if he was intended to do so. Under such circumstances, if he could not be convicted for offence punishable u/s 376 of I.P.C. then the version of the prosecutrix cannot be accepted that the appellant was about to penetrate and therefore, he cannot be convicted for offence punishable u/s 376 read with Section 511 of I.P.C.

If the abrasion caused to the hymen of the prosecutrix is considered that it was caused due to insertion of the penis then penetration was complete and the appellant was to be convicted for offence punishable u/s 376 of I.P.C. but, no other signs are present to do so. As admitted by the Dr. Z. Zia such an abrasion could be caused by insertion of some hard and blunt object in the vagina. Under such circumstances, it cannot be said that the abrasion was caused due to the penetration done by force or the applicant was intended to insert the penis into the vagina of the prosecutrix.

It is stated by the witness Babulal that the prosecutrix was limping while walking and he saw that some blood was oozing from her private part but, it appears that he is telling a falsehood. If the evidence given by Jyoti Bai is perused then it would be clear that when she came back from the hospital, the prosecutrix was playing with other children and thereafter, she continued to play with the children outside the house and when Babulal came to the house the prosecutrix also came inside the house. If the prosecutrix was suffering from pain and injury then it was not possible for her to stay with the children out of the house for so many hours after the incident. Under such circumstances, it appears that the prosecutrix intimated her father that some vulgar act was done by the applicant and thereafter, he cooked the story.

Babulal has stated that initially he was not interested to inform the Police. He had shown his daughter at the hospital of the factory in the night and thereafter on the next day he went to the duties. No treatment papers have been submitted by the witness Babulal to the Police to show that the prosecutrix suffered any injury or had any problem in the night of the incident. Babulal has further stated that when he discussed the matter with his colleagues he was advised that he should lodge an FIR and therefore, he went to the Police Station and lodged an FIR. Looking at the evidence given by the witness Babulal it is clear that he consulted his colleagues in the office and thereafter, he lodged the FIR. It is possible that some exaggeration has been done by the witness Babulal at the time of lodging the FIR and therefore, the prosecutrix was tutored accordingly. However, it is apparent that there was no enmity of the witness Babulal with the appellant and therefore, there was no any possibility of any false implication of the applicant in the case. Hence it is apparent that something was done by the appellant to the prosecutrix and therefore, she made a complaint to her father.

As discussed above that if the appellant was interested to insert his penis in the private part of the prosecutrix then there was nobody to stop him from doing so and therefore, since he has not done any intercourse with the prosecutrix, it is apparent that he was not intended to insert his penis in the vagina of the prosecutrix and therefore, no offence u/s 376 read with Section 511 of I.P.C. is made out against the appellant but, he had done an indecent act that he inserted either a finger or any hard and blunt object in the private part of the prosecutrix. A abrasion was caused on the right side of the hymen and therefore, though the prosecutrix has exaggerated the matter and told something more about the incident but, looking to the genesis of the crime and her conduct that she intimated her father about some indecent act, her testimony can be believed up to the extent that the appellant used a criminal force to outrage the modesty of the prosecutrix.

In the present case testimony of the prosecutrix can be considered with the corroborative evidence. Facts of each case differs from another case and therefore, view taken by Hon''ble the Apex Court in the case of Aman Kumar (supra) and the view taken by the Single Bench of this Court in the case of Gangaram (supra) cannot be applied in the case but, since there was no enmity between the parties the testimony of the prosecutrix can be accepted up to the extent that the appellant used criminal force to outrage her modesty and therefore, he committed the offence u/s 354 of I.P.C.

As discussed above, it is apparent that the appellant was not intended to commit any intercourse with the prosecutrix and therefore, the learned Sessions Judge erred in convicting the appellant u/s 376 read with Section 511 of I.P.C. It is established that the appellant has done some indecent act by which an abrasion was caused to the hymen of the prosecutrix and therefore, it is proved that he used a criminal force to outrage the modesty of the prosecutrix and therefore, he can be convicted for offence punishable u/s 354 of I.P.C. So far as the sentence is concerned, it appears that the appellant remained in the custody for 15 days during the trial. However, the appellant is now 52-54 years old person who, has entire family with him. He has faced the trial and appeal for 17 years. Therefore, looking to the gravity of the offence and the harassment caused to the appellant it would be proper not to send him to the jail again. It would be proper to impose a heavy fine upon the appellant for the crime committed by him.

On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction and the sentence directed by the trial Court for offence punishable u/s 376 read with Section 511 of the I.P.C. is hereby set aside. He is acquitted from the offence u/s 376 read with Section 511 of the I.P.C. but, he is convicted for offence punishable u/s 354 of I.P.C. under the same charge and sentenced for the period in which he remained in the custody through out the trial but, the fine of Rs. 7000/- is imposed upon the appellant. The appellant is directed to deposit the fine amount before the trial Court within two months from today. In default of payment of fine, he shall undergo for six months rigorous imprisonment. If fine is deposited a sum of Rs. 5000/- be provided to Babulal s/o Bhaiyalal, resident of Type I Quarters, Ordnance Factory, Itarsi, father of the prosecutrix, as a compensation to the prosecutrix.

The appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court along with its record for information and compliance.