Nitin @ Ranu vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

This appeal has been filed u/s 374(2) of the Cr.P.C. by appellant Nitin @ Ranu being aggrieved by judgment dated 26.04.2010 passed by Special Judge (Prevention of Atrocities) Act, Indore in Special Case No. 30/2008 convicting the accused for offence u/s 366 of the IPC and sentenced to undergo rigorous imprisonment for five years with fine of Rs. 1,000/-, in case of failure to pay the fine he was to undergo an additional sentence of one month RI. He was also convicted for offence u/s 376(1) of the IPC and sentenced to undergo rigorous imprisonment for seven years with fine of Rs. 25,000/-, in case of failure to pay the fine he was to undergo an additional sentence of six months RI. He was also convicted for offence u/s 325 of the IPC and sentenced to undergo rigorous imprisonment for one year with fine of Rs. 1,000/-, in case of failure to pay the fine he was to undergo an additional sentence of one month RI. Brief facts of the prosecution case are that the prosecutrix Asha (P.W.4) alleged to be 13 years old and resident of village Roshanai, P.S. Moghat, Distt. Khandwa was residing at Tilak Nagar Main Road near the house of Banaji Bale with her parents at the time of incident and was carrying out domestic work of cleaning the utensils and sweeping the houses of several people. On the date of the incident i.e., 18.03.2008 the prosecutrix after completing her work in the Patrakar Colony was returning home at 5 pm when she reached the main gate of the colony accused Ranu Yadav, resident of Tilak Nagar, rashly came upon by his motorcycle and brandishing his knife forcibly sat her on motorcycle and asked her not to shout and took her to the house No. 301, Swarna Plaza, Scheme No. 114 Part-2 Indore. There he gave her some water which was laced with some medicine and she fell unconscious. The accused raped her for 2 days continuously and the prosecutrix was later recovered on 20.03.2008 lying unconscious on the road and she stated that she did not know how she reached on the spot. Two police persons constable Asharam P.W.9 and constable Shailendra left her in her house by motor car. When she returned home she found that she had been physically abused. She had lost her teeth and she had pain in her body and she had received injuries. After meeting her parents she was taken to the Shakuntala hospital for treatment. She narrated the incident on 22.03.08 to her family members and mother Tarabai P.W.2. Her father Premkumar P.W.1 took her to the police station Palasia to file the FIR Ex.P/8. On recording the FIR she was sent for medical examination to M.Y. Hospital at Indore. Dr. Monika Verma P.W.5 examined her on 22.03.08 at 10.45 PM in the night and noted the injuries. On her report the offence was registered by Police Station Palasia, Indore vide Crime No. 321/08 and P.W.14 Imirin Shah Asst. Police Superintendent noted the incident and prepared the spot map by visiting the place at Scheme No. 114 and recovered the articles like bedding and the bed covers etc vide seizure memo Ex.P/4 and the accused was arrested. After completion of investigation the accused was duly charged and committed to his trial. The trial Court on considering the evidence acquitted the accused from offence u/s 363 of the IPC but convicted him for all the other offences as herein above indicated and hence the present appeal.

Counsel for the appellant has vehemently urged that it was a case of false implication primarily on the grounds that maternal aunt Anarbai P.W.10 was a tenant of the father of the accused one Suraj Yadav and has falsely been implicated in the matter. It would be evident from the material discrepancies that have been found in the testimony of P.W.1 Prem Kumar the father of the prosecutrix, the prosecutrix herself P.W.4 and Anarbai P.W.10. Counsel submitted that their statements before the police and the statements in Court were directly in contradiction. The father was stated to be drunk when the police constables had delivered the girl during recovery, according to constable P.W.9 Asharam. Whereas the father P.W.1 Prem Kumar has in direct contrast stated that he was shocked at the presence of the prosecutrix when she was brought by the constables. She had lost her teeth and found to have received severe injuries on her person and on asking how she had received them the prosecutrix did not give any reply.

Whereas Anarbai P.W.10 the maternal aunt has categorically stated that she did not know the name of the accused Ranu Yadav and it was told to her by the prosecutrix. Whereas the prosecutrix has categorically stated that she did not know the accused and the name had been informed to her by Anarbai. Thus the identity of the accused has also not been established according to the provisions of law. Counsel stated that it was a case of clear acquittal and that it was now more than 4 and 1/2 years since the appellant was in custody and he prayed for setting aside the conviction. So also Counsel pointed out more importantly that the incident had occurred on 18.03.2008, the FIR has been lodged on 22.03.08 and the delay has not been explained. The prosecutrix has also on gaining consciousness at the time of recovery told the constable P.W.9 Asharam that she had been involved in an accident and that is why she was lying unconscious on the road. Moreover even if the prosecution allegations are considered, it was consistently and firmly established in the Trial Court that the prosecutrix was more than 18 years of age by the report of the radiologist Dr. Vinod Pillai P.W.8 and it was in this regard the Trial Court had acquitted the accused from offence u/s 363 of the IPC then the statement of the prosecutrix ought not to have been relied on by the trial Court and even according to the Dr. Monika Verma P.W.5 it appeared to be a case of consensual sex, then under these circumstances Counsel prayed that the conviction be set aside. In the alternate Counsel has also prayed that since the appellant has almost undergone 4 1/2 years of the custodial sentence the sentence may be reduced to the period already undergone. He relied on Raju Vs. State of Karnataka, , Devalla Raghavulu Vs. State of Andhra Pradesh, , Ranjeet Lohra Vs. State of Bihar, & Baida Ram and Another Vs. State of Bihar, to bolster his submissions.

Counsel for the respondent/State on the other hand has opposed the submissions of the Counsel for the appellant and stated that primarily on the basis of the evidence available on record and the constable who recovered her in an unconscious state from the road and the medical report clearly indicated that the prosecutrix had received injuries and was forced into the sexual intercourse. Moreover Counsel stated that there was no need to doubt the FSL which clearly indicated that there was semen found on the clothes of the prosecutrix. Moreover the prosecutrix has been found to be reliable by the Trial Court and some contradictions are bound to be there in her statements since the prosecutrix was not in a proper mental state when she was not fully recovered and the fact has been fully established under the circumstances. Counsel stated that the judgment of the lower Court was in conformity with the provisions of law and did not call for any interference. She prayed for dismissal of the appeal. On considering the above submissions I find that no interference in the conviction of the accused is called for primarily on the basis of the medical report pertaining to the injuries and unconscious state upon recovery of the prosecutrix fully established the offence. However, considering the fact that it is now more than 4 1/2 years since the appellant is in prison and considering the nature of the evidence put forth by the Counsel for the appellant, certain doubts are raised regarding the implication of the accused since upon recovery there has been contradictory statements made by the prosecutrix. This would not however demolish the concrete evidence available on record regarding her injuries as well as opinion of Dr. Monika Verma P.W.5 that thereby indicating of sexual intercourse have been taken place. Considering the state of the prosecutrix at the time of the recovery and the attending fact that her father was drunkard would not lessen its probative value on the basis of the medical evidence available on record. In these circumstances I do not find any infirmity with the conviction of the accused for offence under Sections 366, 376(1) & 325 of the IPC. I place reliance on Baldev Singh vs. State of Punjab (2011 SC (2) 173) whereby the Apex Court had directed that the sentence of less than 10 years can be avoided for offence u/s 376(2) (G) when there are adequate and special reasons for doing so and the Court had reduced the sentence to the period already undergone and enhanced the fine to Rs. 50,000/-. However, the alternate prayer of the Counsel for the appellant being reasonable is accepted under the circumstances considering the age of the accused as well as the period undergone in jail by the appellant. Hence alhough I uphold the conviction of the accused for offence under Sections 366, 376(1) & 325 of the IPC, the custodial sentence is reduced to the period undergone. Counsel for the appellant has stated that Rs. 25,000/-has already been deposited as fine. In view of the above there is no need to interfere with the amount of fine and the same shall be given to the prosecutrix as compensation u/s 357 of the Cr.P.C. In case the fine amount has not been deposited, then, the appellant shall be liable to be taken into custody to undergo the remaining sentence as directed by the lower Court without reference to this Court.

With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellant is on bail. His bail bond and surety bond are hereby discharged.

A copy of this judgment be sent to the concerned lower Court for compliance.

CC as per rules.