Nitin @ Monu vs State Of Madhya Pradesh

B.K. Shrivastava, J

This appeal has been preferred on 25.04.2014 under Section 374(2) of CrPC on behalf of appellant Nitin @ Monu against the judgment dated 24.02.2014 passed by Additional/Special Sessions Judge, Khandwa East Nimad (Smt. Ashita Shrivastava) in Special S.T. No. 70/2013. By the judgment impugned the learned lower Court convicted the appellant for the offences under Sections 376(2)(ज) of IPC and Section 5(ई)/6 of POCSO Act and sentenced him to 10 years RI with the fine of Rs. 1,000/- for each offences. The Court also ordered that the both sentences of conviction will run concurrently.

As per the prosecution case, Kalu Patel, father of the prosecutrix, residing at Gram Aarud, Police Station Pandhana District Khandwa, was sitting on 05.09.2013 with some other villagers in his agriculture field. His daughter (prosecutrix) and his son both aged about 3 years were also sitting there. After sometime, the accused reached there. Kalu Patel asked the accused that what are you doing here? Then accused Monu showed love with the children and thereafter he took away both the children. Kalu Patel was under impression that the accused will drop the children at home.

At about 18:15 p.m. his Bhanja (sister's son) and Ajay reached there and told that the accused committed rape with the prosecutrix. The prosecutrix came in the house with blood-stained clothes and the blood was also oozing from her private parts. He also intimated that Ajay also seen the accused with the prosecutrix when he was coming out from the aforesaid agriculture filed. After receiving the aforesaid information, Kalu Patel came to his house thereafter, he narrated the incident to some other persons and lodged the FIR at Police Station Pandhana. The police registered Crime No. 294/2013 Ex. P-1 under Section 376 (2)(झ) of IPC and Section 5(ड)/6 of POCSO Act. After taking the consent of mother and father, police sent the prosecutrix for medical examination. Dr.Rashmi Koshal (PW-8), after medical examination of the prosecutrix gave the MLC report Ex. P-18. She also sealed the underwear of the prosecutrix. Thereafter, she sent the sealed underwear, vagina slide, with the sealed impression to the police which was seized by Ex. P-9.

During investigation, the police also seized the clothes of the prosecutrix from her mother by Ex. P-3. The police also prepared the spot map Ex. P-4. The statement of Basant was also recorded under section 164 of CrPC. The police also recorded various statements. On 6. 09.2013, the police arrested the accused by Ex. P-10 and prepared a memo Ex. P-11 upon the basis of information given by the accused and also prepared a Spot Verification Panchnama Ex. P-12. Accused was sent for medical examination and Dr. H.L. Borasiya (PW-6) gave the report Ex. P-16 after medical examination of the accused.

After investigation, the police filed the challan No. 361/2013 under Section 376 (2) (झ) of IPC and Section 5(ड)/6 of POCSO Act on 8. 12.2013 before the Court of JMFC, Khandwa(Shri S.S. Baghela) who registered the Criminal Case No. 4205/2013 and committed the case to the Court of Sessions on 10.12.2013.

On 16.12.2013 the Sessions/Special Judge Khandwa, registered the Special Case No. 70/2013 and made over the case to the Court of ASJ Khandwa. On 17.12.2013, the trial Court framed the charges against the accused under Section 376 (2) (ज) of IPC and Section 5(b)/6 of POCSO Act. The accused denied from charges and demanded for trial. Thereafter, the prosecution examined 8 witnesses in support of its case. The accused also examined one witness namely Dinesh (DW-1) in his defence. The accused took the plea in his statement under Section 313 of CrPC that he was working with Kalu Ram on tractor and his payment was due which was not given by Kalu Ram. Due to this enmity a false case has been prepared.

After concluding the trial, on 24.06.2014, the trial Court passed the judgment and found all charges proved against the appellant. After hearing upon the sentence, the Court passed sentence as stated in para-1 of this judgment.

It is submitted by the appellant that the trial Court passed the judgment without proper appreciation of the evidence. The conviction and sentence are bad in the eyes of law. The Court overlooked the omissions and contradictions in the evidence of witnesses. The evidence of doctor was not supported the case of prosecution. The Court relied upon interested and related witnesses. Therefore, the judgment passed by the lower Court is liable to be set aside and the appellant is entitled to get the acquittal.

On the other side, learned counsel for the State strongly opposed the appeal. It is submitted by the counsel that prosecutrix was a girl aged about 3 years. The case is also supported by the medical evidence. The statement of the father of prosescutrix is also reliable. Other witnesses also supported the fact that the accused was last seen with the prosecutrix. Therefore, the trial Court did not commit any mistake by convicting the appellant for the alleged offence and the appeal having no substance, therefore, liable to be dismissed.

The question arose before this Court that whether the trial Court committed any mistake by convicting the appellant for the aforesaid offences?

Kalu Patel (PW-1) is the father of the prosecutrix who lodged the FIR Ex. P-1. He supported the prosecution case in his statement. He deposed that on the date of incident at about 5 p.m. he was sitting in his field with Suresh, Bharod, Bhuru Patel, Vishnu, Rajaram. My daughter(prosecutrix) aged about 3 years and son Vijay was also playing there. At that time, the accused came there. Witness said to him that what are you doing here? He also said to go away. Thereafter, the accused showed the love with the children and took the children from there. The witness again said that he thought that the accused is the boy of his village, therefore, he would drop the children to the house. The witness again said that after 15 to 20 minutes his Bhanja Jay and Ajay came there and said that there is blood in the clothes of the proscutrix who came in weeping condition. The witness came back to his house and he found that there was blood upon the underwear of the prosecutrix and the blood was also oozing from the private part of the prosecutrix and was also found in the Baniyan of the prosecutrix. The witness again said that looking to the aforesaid condition, he believed that accused committed the sexual act with the prosecutrix. Therefore, he went to the house of the accused and assaulted him by the help of Saria but the accused fled away. Thereafter, he took the prosecutrix to the doctor of the village but the doctor denied to treat the prosecutrix. He reached to the police station Pandhara and lodged FIR Ex. P-1. Prosecutrix was sent for medical examination for which the witness also gave consent Ex. P-2. The accused cross-examined the aforesaid witness PW-1 at length. The witness specifically denied that there was any money-transaction between the accused and the witness. The suggestions given by the accused, denied by the witness and the accused did not produce any reliable evidence for showing any transaction of money between them. No any reason is found in the entire cross-examination for disbelieving the testimony of the witness. No any reason is found in the evidence of witness to indicate the false implication of the accused. The victim is a girl aged about 3 years. It cannot be accepted that the father will use his daughter for false implication of the accused because of transaction of money. Therefore, the trial Court rightly believed upon the statement of this witness.

Basant Mahajan (PW-2) also said that when he was going to his house from the agriculture field, he saw the accused on the main road and at that time accused was going with the girl by holding her in his lap. It is true that the witness did not support the fact that he identified the victim, who was in the lap of accused. Therefore, the prosecution declared him hostile and accused cross-examined him upon the aforesaid point. In Para- 2 he said that the girl was weeping and he was in speed, therefore, he could not gave the attention. Looking to the complete statement of this witness, it appears that the witness also saw the accused with the prosecutrix in his lap just before the incident.

Jay (PW-3) is the Bhanja of the complainant. He said that the incident took place at about 06:00 pm. He was in the agriculture field with Ajay, Vijay and the prosecutrix. He again said that the accused telephoned to the mother of the prosecutrix and told that an accident has been happened. Thereafter, the accused took the prosecutrix but the prosecutrix was weeping in the way. The witness also said that he told the accused to give the prosecutrix in his hand but the accused took away the prosecutrix from there and the witness came back to his house. After sometime, the prosecutrix came back to home with the blood in her both legs and clothes. The witness again said that he went to agriculture filed and informed his maternal uncle Kalu Ram (PW-1). Therefore, the statement of this witness is also supported the evidence of PW-1. In the cross examination of the witness, no any reason is found to disbelieve the testimony of this witness.

Rajwanti Bai(PW4) is the mother of the prosecutrix. She also supported the evidence of Jay (PW-3). The witness said that when her husband was sitting in the filed at about 06:00 pm. the accused informed by telephone that his vehicle met with an accident. The witness came out from the house and Ajay, Jay, Vijay also followed her. She found that the prosecutrix was weeping but the accused did not permit to took away the prosecutrix by saying that he will drop. After half an hour, the accused dropped the prosecutrix in the house, at that time the girl was weeping and also sleeping. The witness found that the blood was present upon the clothes of the girl. Therefore, he sent Jay for calling her husband. Various suggestions have been given by the accused to this witness but the witness denied all the suggestions. The accused is unable to create any doubt upon the testimony of this witness. Any ground of false implication has not been found in the evidence of the aforesaid witness.

Therefore, it appears from the evidence of PW 1 to PW 4 that the prosecutrix was in the agriculture field where Kalu Patel was sitting with other villagers. The accused took away the prosecutrix. The father of the prosecutrix was under impression that the accused will drop the prosecutrix at home but the accused misused the confidence of PW-1. He also give the false information to the mother of the prosecutrix about the accident to save himself from his criminal act while there was no any accident. PW-2 and PW-3 supported the fact that they also seen the accused with the prosecutrix just before the incident.

The counsel for the appellant also argued upon the basis of statements of Dr. Rashmi Koushal (PW-8) and submitted that the doctor did not give any positive opinion regarding the commission of rape with the prosecutrix. As per counsel only attempt of rape may be said upon the basis of the statement of doctor.

Dr. Rashmi Koshik (PW-8) examined the prosecutrix on 5. 09.2013 at about 09:50 p.m. She gave the report Ex. P-18 and also said that she referred the patient/prosecutrix to M.Y. Hospital, Indore. She said in her report that in the internal examination she found one bruise 2 X 1 c.m. on the left thigh of the prosecutrix. She further said that passage of few blood clots seen through the hymen. The hymen was torn at 7 o'clock position which bleeds on touch. The doctor said that after physical and internal examination she found that there was an attempt of rape was done with the prosecutrix.

The aforesaid observation is in the medical language. Whether the act comes under the purview of rape or not, it will be decided by the definition given in the law. In this case charge under Section 5/6 of POCSO Act was also framed and the accused has been convicted by the offence under Section 5. The section is related to "aggravated penetrative sexual assault". Section-3 of the act defines the "penetrative sexual assault" which reads as under:-

"3. Penetrative sexual assault- A person is said to commit "penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) be applied his mouth to the penis, vagina, anus, urethra of the child or mkes the child to do so to such person or any other person."

The aforesaid definition of "penetrative sexual assault" clearly shows that the act done by the accused was rape. Therefore, the arguments advanced by learned counsel for the appellant cannot be accepted. Therefore, it appears that the case is medically supported by the evidence of Dr. Rashmi Koshal (PW-8). Dr. H.L. Borasiya (PW-6) proved his report Ex. P-16 which has been given on 06.09.2013 after examination of the appellant. In this report he found that the accused was competent to do sexual intercourse. In this case, the underwear of the appellant was also seized by the police. As per FSL report No. 393/13 dated 30.09.2013, the human sperm and veerya spots were found upon the underwear of the accused. Therefore, it appears that the FSL report also supported the case of prosecution.

In the aforesaid situation, it appears that the prosecution proved its case by oral evidence as well as medical evidence. Hence, the trial Court did not commit any mistake by convicting the accused for committing the rape upon the prosecutrix aged about 3 years. The Court convicted the accused for the offence under Section 376(2)(ज) of IPC and also under Section 5(ई)/6 of POCSO Act. As far as the offence under POCSO Act is concerned, it appears from the record that in the charges framed on 07.12.2013, the Court mentioned the Section 5(ई) in the ordersheet while in the prescribed form of charge, the Section is mentioned as 5(b). In the judgment para-1, the Court mentioned the charge framed under Section 5(ई) of POCSO Act. Therefore, it can be said that due to some clerical mistake, the Court mentioned Section 5(b) in the prescribed form of charge.

The Court also convicted the appellant for the offence under Section 5(ई) for which the punishment is prescribed in Section 6. If we see the POCSO Act, then it can be said that proper section has not been mentioned neither in the charge nor in the judgment. Section 5 (ज) of POCSO Act and 5(ई) of POCSO Act are not included in the Section. Actually, the police mentioned the Section 5(ड) of POCSO Act which is Section 5(m) in English. This Section was correct. The Section 5(m) shows, "whoever committed penetrative assault on a child below 12 years" is said to commit "aggravated penetrative sexual assault". The Section 6 says:-

"6. Punishment for aggravated penetrative sexual assualt- whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

It appears from the record that the Court actually convicted the appellant for the offence under Section 5(m)/(6) of POCSO Act. Due to some clerical mistake, by adopting Hindi version, wrong section has been mentioned.

As per Section 6 of the POCSO Act, the offence is punishable to RI for the minimum period of 10 years which may extent to life imprisonment.

The Trial Court also convicted for the offence under Section 376(2)(ज) of IPC. The sub-section (ज) is related to the rape with the pregnant lady. Therefore, this provision is not attracted in this case. As per the provision of Section 376, Section 376(2)(j) is attracted which is related to the rape with the woman not capable for giving consent and the punishment is prescribed as the imprisonment not less than 10 years which may extend to the imprisonment of life. It is also stated that the imprisonment for life meaning imprisonment for the remainder of that person natural life. Therefore, it appears that the punishment is the same for the both offences under IPC and under POCSO Act. In the aforesaid situation, the Section 42 of POCSO Act may be attracted which run as under:-

"42. Alternative punishment- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], 376E or Section 509 of the Indian Panel Code (45 of 1860), then, notwithstanding anything constained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Panel Code as provides for punishment which is greater in degree."

Therefore, in the aforesaid situation, looking to the Section 42 of POCSO Act, the sentence should be awarded only in any one of the Act under IPC or POCSO Act. Looking to the special act means "POCSO Act", the punishment should be awarded under the POCSO Act.

Therefore, looking to the aforesaid situation, the conviction of the appellant is modified and he is convicted for the offence under section 376(2)(j) of IPC and Section 5(m)/6 of POCSO Act. As far as the sentence is concerned, the trial court awarded the minimum sentence of 10 years. Hence, looking to the act of the accused, no interference is required in the sentence. He committed the rape with the girl aged about only 3 years. The proper leniency already shown by the lower Court. Hence, his sentence under Section 5(m)/6 of POCSO Act is hereby confirmed.

The appeal is disposed of with the aforesaid modification.

One copy of this judgment be sent to appellant through Jail Authorities.