Toofan vs State Of Madhya Pradesh

By this appeal under Section 374 of the Criminal Procedure Code, the appellant has challenged the judgment dated 13.01.2014 passed by the Additional Sessions Judge, Jhabua in S.T.No.16/2013 convicting the appellant for offence under Section 363 of the IPC and sentencing him for 3 years R.I. with fine of Rs.2,000/- and Section 366 of the IPC sentencing him for 5 years R.I. with fine of Rs.2,000/- and under Section 376 of IPC and Section 3(A) read with Section 4 of Protection of Children from Sexual Offences Act, 2012 for 10-10 years R.I. with fine of Rs.5,000-5000/- and the default stipulation for each offence for 3-3 months and 1-1 year R.I. respectively.

The prosecution story is that on 17.03.2013, when the prosecutrix was coming back from her sister-in-law's house, on the way the appellant had caught hold of her and against her wishes taken her to Dedlamokhada where he had committed rape on her on Sunday night and Monday. On Monday night when the appellant was sleeping, the prosecutrix finding an opportunity had escaped and reached back her house. The silver ornaments which she was wearing were left behind with the appellant. FIR Ex.P-1 was registered by the prosecutrix with the Police Station Kakanwani on the basis of which the aforesaid offences were registered against the appellant. The medical examination of the prosecutrix was done. The requisite seizures were made, the statement under Section 161 of the concerned witnesses were recorded and the articles A, B, C, D, E and F were sent for chemical examination to the Forensic Science Laboratory and after concluding the investigation challan was filed against the appellant. The appellant had abjured the guilt and accordingly the trial has taken place in which the appellant was convicted and sentenced in the manner indicated above.

Learned counsel for the appellant submits that the prosecutrix was major at the time of incident and that the appellant had been falsely implicated only on the ground of non-returning of ornaments. He further submits that the medical evidence does not corroborate the allegation of rape and that there is delay in lodging the FIR.

As against this learned counsel for the State has supported the judgment.

Having heard the learned counsel for the parties and on perusal of the record it is noticed that so far as the issue of age of the prosecutrix at the time of incident is concerned, PW-5 Dr. (Smt.) Kiranbala Chaturvedi has not given any definite opinion about the age, but has stated the age to be about 16-17 years. Ex.P-4-C and Ex.P-5-C reflect the date of birth of the prosecutrix as 8th June, 1998, whereas the appellant had examined Badsingh Makawana (DW-1) who had produced the certificate of the school showing the date of birth of the prosecutrix as 4th June, 1995 in Ex.D-5-C and Ex.D-6-C. The trial Court has calculated the age of the prosecutrix on the day of the incident on the basis of Ex.D-6 itself and has found it to be less than 18 years. Hence, no error has been committed by the trial Court in reaching to the conclusion about the age of the prosecutrix being below 18 years on the date of incident.

The prosecutrix PW-1 has given the details of the incident and has clearly stated that the appellant had forcibly taken her to Dedlamokhada where he had committed rape on her. Dr.(Smt.) Kiranbala Chaturvedi (PW-5), the medical specialist who had done the medical examination of the prosecutrix had found no injuries on the private parts of the prosecutrix and had found the old ruptured hymen. In the Forensic report relating to slide Histropathology also no positive proof was found but the same was on account of the delay in the medical examination and the fact that the prosecuturix had taken bath in the meanwhile. The statement of the prosecutrix (PW-1) and her father Satra (PW-2) also reveal that after the prosecutrix had come back a Panchayat was called in the village in which no decision could be taken and one of the reason for lodging the report was that the appellant had not returned the ornaments of the prosecutrix, but that alone is not enough for acquittal because the prosecutrix has clearly narrated in detail the incident of commission of rape.

Having regard to the aforesaid, I am of the opinion that the trial Court has not committed any error in convicting the appellant for offence under Sections 363,366 and 376 of IPC and Section 3(A) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Learned counsel for the appellant at this stage has argued on the question of reducing the sentence by submitting that the appellant was a young man of 25 years at the time of commission of offence and that he had no criminal antecedents and has already suffered the sentence since the date of incident. Even otherwise, having regard to the nature of material available on record it is not a case for awarding more than the minimum prescribed sentence.

Learned counsel for the State has not pointed out anything to dispute the mitigating circumstances.

In the aforesaid circumstances, though conviction of the appellant is maintained, but the sentence awarded by the trial Court for offence under Section 376 of IPC and Section 3(A) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 is reduced to 7-7 Years which will run concurrently.

Accordingly, appeal is partly allowed to the extent indicated above.