Satpal Lodhi. 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 of the judgment dated 28/06/2014 passed by the Special Judge under the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), Sagar in Special ST No.27/2013, whereby the present appellant has been convicted and sentenced as under:

Conviction u/s

Sentence

Default clause

376(2)(i) of IPC

RI for 10 years with fine of Rs.2,000/-

RI for six months

In brief the facts of the case are that the FIR (Ex.P-7) was lodged on 3.3.2013 at about 6:30 PM by Imartibai (PW-6), mother of the prosecutrix to the effect that at around 12 to 1:00 PM her daughter (prosecutrix) aged around 8 years had gone to fetch sugar from the shop of Naam Singh but when she came back she was crying and informed that while she was going to fetch sugar she was stopped by accused-appellant Satpal Lodhi and lured her to his house on the pretext of some work and after closing the door from inside he undressed her and committed rape on her and left her after giving Rs.2/- and also threatening her not to inform anybody. Complainant Imartibai waited for sometime, as her husband was not at home, and since he did not come for a long time, she herself took the prosecutrix to the Police Station and lodged the report at 6:30 PM. The prosecutrix was examined and the accused was also arrested. After due investigation, the charge sheet was filed and the learned Special Judge of the trial Court after recording the evidence has convicted the appellant as aforesaid.

Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the case inasmuch as the treating doctor has clearly opined that the hymen of the prosecutrix was intact and as such no case of rape can be made out. It is further submitted that there is no corroborative evidence on record to connect the present appellant with the alleged offence. It is further submitted that although the underwear of the prosecutrix was also seized and the vaginal slides also taken but no FSL or DNA report has been produced on record. Thus it is submitted that the appellant be acquitted.

Learned counsel for the appellant has further submitted that there was a dispute going on between the family members of the prosecutrix and the appellant on account of water, which has also been admitted by complainant Imartibai (PW-6) in para 11 and 12 of her deposition. Learned counsel for the appellant has also drawn the attention of this Court to the deposition of Mitthu Singh Lodhi (DW-1), who has stated that on the date when the incident took place, a dispute took place between the mother of the appellant Jeera Bai and complainant Imartibai, which led to appellant throwing or pushing the prosecutrix towards the water tap, because of which she had suffered some minor injuries on her vagina.

On the other hand, learned counsel for the State has opposed the prayer of the appellant and has submitted that the appellant has rightly been convicted by the learned Judge of the trial Court. It is further submitted that the case of the prosecution has been proved positively not only by the evidence of the prosecutrix and her mother Imartibai (PW-6), but also by Dr. Swati (PW-4), who had conducted the MLC in which, although it is stated that the hymen of the prosecutrix was not torn but according to Dr. Swati the prosecutrix was subjected to sexual intercourse. It is further submitted that in a case of rape the penetration is not necessary and is not the requirement of law and the evidence produced by the prosecution has not been rebutted by the appellant in any manner, as the suggestion was made to the doctor Dr. Swati whether the injury which had been caused to the prosecutrix around her vagina can also be caused on account of all, has been categorically denied. Thus it is submitted that the appeal may be dismissed.

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

From the record it is apparent that the incident took place on 3.3.2013 at around 12 to 1:00 PM whereas the FIR (Ex.P-7) has been lodged at 6:30 PM in the evening by the mother of the prosecutrix, Imartibai (PW-6), who has stated that she could not come within time as she was waiting for her husband and since he did not come, she went to the police station along with the prosecutrix.

So far as the age of the prosecutrix is concerned, the same has been proved to be 8-9 years by Dr. Swati (PW-4), who is the Radiologist at the District Hospital, Sagar. In addition to that, Jasrath Pradhan Chadhar (PW-9), Incharge, Head Master, Government Primary School, Bankarai, Police Station Vinayka District Sagar has also been examined, who has produced the scholar register (Ex.P-12C) of the prosecutrix and accordingly he has given the date of birth certificate (Ex.P-13) of the prosecutrix. According to which her date of birth is 3.3.2003, thus as on 3.3.2013 the age of the prosecutrix would come to around ten years. Thus, the age of the prosecutrix is held to be ten years and as such she is a minor.

So far as the medical evidence on record is con-cerned, the prosecutrix has been examined by Dr. Swati (PW-4) who vide her MLC report (Ex.P-5) found that it was difficult to insert two fingers in the vagina of the prosecutrix. She also took the sample of the hymen swab. She also found that the hymen was open but was not torn and according to her expert opinion the prosecutrix was subjected to sexual intercourse. In her cross examination she has admitted that her opinion is based on the fact that her hymen was open and around the area it was red-ness although she has admitted that whether there was any penetration or not, she could not say anything about it, however on further cross examination she has clarified that the redness of area around the vagina proves that some external object has been tried to be inserted into it. She has also denied that such redness can come due to reaction because of washing from a soap and also that such injury cannot be caused by falling on a stone. Thus admittedly Dr. Swati (PW-4) has opined that the pros-ecutrix was subjected to sexual intercourse and as has been held by the learned Judge of the trial Court that while relying upon the judgment of the Hon'ble Apex Court in the case of Aman Kumar Vs. State of Haryana, reported in (2004) 4 SCC 379 wherein it is held that complete penetration is not required toto con-stitute an offence of rape as the penetration may still oc-cur with the hymen remaining intact. Reference may also be had to the case of Puran Chand v. State of H.P., (2014) 5 SCC 689, relevant paras of the same read as under :-

"12. We have taken note of and considered all the arguments advanced by the counsel for the appellant in support of the plea, that the incid-ent in fact did not happen at all and the FIR was registered merely due to enmity. In this re-spect, the most important evidence assailing the prosecution case is the evidence of the doc-tor in which serious infirmities have been poin-ted out by the defence. However, on a close scrutiny of the deposition of PW 5 Dr Nirmala Vaish, all the courts below have taken note of the fact with respect to non- rupture of hymen that it is not clear from the statement of the doctor, PW 5 which could reveal or prove that on actual examination, she found the hymen of the prosecutrix intact. Thus, reliance placed on behalf of the appellant-accused that the hymen of the victim girl was intact could not be accep-ted by the High Court and in view of the time gap between the sexual assault and the examin-ation of the prosecutrix, the medical report of the prosecutrix not reflecting sexual act is not of much significance, as per the view taken by the courts below. The prosecutrix/victim has stood the test of cross-examination as she has specifically stated that the accused forcibly committed sexual assault/rape on her against her wish on 20- 8-2006. The defence however has tried to rely on the medical report in order to create a doubt about the actual assault on the victim girl.

While we have noted that the doctor has not categorically denied the rupture of hymen of the victim girl, we also take note of the fact that the version is supported by other attending circumstances and evidence adduced by the prosecution through the victim girl which is supported by her father and brother. Even if we were to doubt the prosecution version due to alleged infirmity in the medical evidence, it cannot be overlooked that the case of this nature will have to be examined with the aid of the accompanying circumstantial evidence in order to test the veracity of the prosecution case. ................................."

Tested on the anvil of the aforesaid dictum, in the case on hand, this Court has no doubt that the prosecutrix was subjected to sexual intercourse and was raped.

So far as the culpability of the appellant is concerned, the prosecutrix has clearly alleged the offence of rape against the appellant. She has denied that the appellant has been falsely implicated because of water dispute between the mother of the appellant and mother of the prosecutrix. Similar statement has also been given by Imartibai (PW-6) who has stated that on the fateful day the prosecutrix had gone to fetch sugar from the shop of Naam Singh but she did not come back earlier and when she came back she was crying and informed her mother Imartibai (PW-6) that the accused had raped her. She has also stated that the prosecutrix informed her that the accused had also given Rs.2/- to her. She also saw the underwear of the prosecutrix as she was slightly bleeding and she also removed the same and gave a fresh underwear to her. She has also stated that there is a dispute going on between her and mother of the appellant.

From the testimony of all these witnesses the only conclusion which can be drawn and as has been drawn by the learned Judge of the trial Court is that the injuries of redness suffered by the prosecutrix cannot brushed aside lightly and there is no reason for this Court to disbelieve the opinion as has been given by Dr. Swati (PW-4). Although the other prosecution witnesses have not supported the case of the prosecution but the evidence which has been adduced is sufficient to bring home the charge of rape against the appellant/accused. The defence witness examined by the appellant has not been able to prove the innocence of the appellant and appears to be an interested or tutored.

In view of the aforesaid discussion, in the considered opinion of this Court no case for interference in the impugned judgment is made out. Accordingly, the appeal being devoid of merit is hereby dismissed.