Ram Singh vs State Of Madhya Pradesh

This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved by the judgment dated 13.11.2014 passed by the Special/Sessions Judge under Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), Seoni in Special Case No.34/2013, whereby the present appellant has been convicted and sentenced as under:

Conviction u/s

Sentence

Default clause

5(j)(ii)(1) r/w Section 6 of POCSO Act

RI for ten years with fine of Rs.25,000/-.

RI for two years.

506 (Part-II) of IPC

RI for three years with fine of Rs.1,000/-.

RI for three years.

In brief, the case of the prosecution is that on 3.7.2013 an FIR was lodged by the prosecutrix aged 13 years stating that she is a Class-VI student and around six months ago when she was coming from her school at 2 O'clock in the afternoon she went near the house of appellant Ram Singh to answer nature's call, at that time appellant Ram Singh came there and enticed her to his house and after threatening her of dire consequences raped her. After the first incident, about which the prosecutrix did not inform anybody, he again committed the rape on 2-3 occasions and again threatened that if she tells anybody about the incident he would kill her mother, father, brother and sister, hence she did not inform the incident to anybody. However, since last 2-3 days she was feeling pain in her stomach and informed her mother, she was taken to the hospital where after examination it was found that she is having six months pregnancy, hence, after she informed her parents, a report was lodged after around six months from the date of incident. After lodging the FIR the appellant/accused was arrested and investigation was conducted. After investigation, the charge sheet was filed before the competent court, and the same was committed to the tral court. The learned Judge of the trial Court, after recording the evidence, convicted the appellant as aforesaid vide judgment dated 13.11.2014, which is under challenge before this Court.

The defence of the appellant before the trial Court was that he is innocent and has been falsely implicated in the case although he has not examined any witness in his defence.

Learned counsel for the appellant has assailed the impugned judgment on the ground that there are material contradictions and omissions in the story of the prosecution. It is further submitted that there has been undue delay in lodging the FIR and despite the rape having been committed by the appellant for more than one occasion, she did not inform anybody regarding such incident, which itself gives rise reasonable doubt about the veracity of the prosecution case.

On the other hand learned counsel for the State has opposed the prayer of the appellant and has submitted that no case for interference is made out, as the age of the prosecutrix has been proved to be less than 13 years. She was threatened by the appellant and got pregnant because of rape. It is further submitted that the prosecution has led positive evidence against the appellant relating to the alleged offence. Thus it is submitted that the appeal be dismissed.

Heard the learned counsel for the parties and perused the record.

From the record this Court finds that the prosecutrix (PW-1) has been examined by Dr.Bindu Kushram (PW-5), who found that the prosecutrix was around 13 years old and was having a pregnancy of 24 weeks. So far as the age of the prosecutrix is concerned, she has stated that the prosecutrix was already pregnant and it was not possible that her X-ray be conducted to prove her age. The prosecution has also examined Dr. Ashok Jain (PW-4) who is Radiologist and has conducted the sonography of the prosecutrix and has found that she was pregnant with around 4 ½ months old fetus.

So far as the age of the prosecutrix is concerned, the prosecution has examined Phoolwanti (PW-3), a teacher in Girls Primary School, Bichhuamal, Kurai District Seoni, who has produced the date of birth register (Ex.P-7) in which the age of the prosecutrix is mentioned as 9.11.2000, in the scholar register (Ex.P-8) also her date of birth is mentioned as 9.11.2000. This witness, in her cross examination has admitted that she does not know on what basis the aforesaid date of birth has been mentioned in the said register and in fact it is mentioned in the date of birth register that the same is written on the basis of information furnished by the mother of the prosecutrix.

Tarasiyabai (PW-7) is grandmother of the prosecutrix, who has stated that the prosecutrix is her third grandchild aged 13 years and her elder son is 17 years old and after him another grandchild was born, who is 15 years old. She has admitted that the age of the prosecutrix was recorded in the school register as per her guess as she does not know of her own date of birth.

Seema Bai (PW-8) is the mother of the prosecutrix. She has stated that at the time of incident the prosecutrix was studying in Class-V. She has reiterated the story as narrated by the prosecutrix. In her cross examination she has admitted that she does not remember the year in which her daughter (prosecutrix) was born, although she has been suggested that the prosecutrix was major at the time of incident to which she has denied. She has denied that on account of enmity, the appellant has been falsely implicated. The prosecutrix (PW-1) has also admitted that at the time of incident she was studying in Class-V. She has denied that she has named the appellant on account of pressure of her parents.

On perusal of the impugned judgment this Court finds that the learned Judge of the trial Court has come to a conclusion that the age of the prosecutrix was below 16 years. The learned Judge of the trial Court has also taken into consideration that even if two years concession is given in the age of the prosecutrix, still she would be less than 16 years old, which, in the considered opinion of this court cannot be faulted with.

So far as culpability of the appellant is concerned, this Court finds that the prosecutrix has alleged that the appellant was the person, who had committed rape on her and if the FIR was lodged after a period of six months it cannot be said that there was any delay in lodging the same as the prosecutrix was threatened by the appellant to keep mum. However, on account of her physical appearance, her family members came to know about her pregnancy due to rape committed by the appellant around six months ago. It is true that the prosecution ought to have produced the DNA report in the present case which could have confirmed that the pregnancy of the prosecutrix was on account of rape committed by the appellant only, however in absence of the same the case of the prosecution cannot be brushed aside specially looking to the fact that the prosecutrix has not been suggested that the pregnancy was on account of some other person. Thus, it is positively established that the rape was committed on the prosecutrix by the appellant only. This Court is also of the considered opinion that the prosecutrix and her family members would not try to save the actual culprit only to falsely implicate the present appellant due to old enmity, although the mother of the prosecutrix has admitted that they have enmity with the family members of the appellant but that itself cannot be said to be a reason to protect the actual culprit and to falsely implicate the present appellant.

From the aforesaid analysis of the evidence adduced from the prosecution witnesses, this Court has no hesitation to hold that the learned Judge of the trial Court has rightly come to a conclusion regarding the guilt of the appellant and there is no need to interfere with the impugned judgment.

In the result, the criminal appeal being devoid of merit stands dismissed.