Jitendra vs The State Of Madhya Pradesh
2022 Latest Caselaw 617 MP

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                                                  Cr.A.No.1855/2014


             HIGH COURT OF MADHYA PRADESH
                    BENCH AT INDORE


                           Cr.A.No.1855/2014

                                   Jitendra

                                     Vs.

                                 State of M.P.

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Shri Jitendra Mandloi, learned counsel for the appellant.
Shri Amit Singh Sisodia, learned Govt.Advocate for the
respondent/State.
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Reserved on: 7/1/2022

                            ORDER

(Passed on this 13th day of January, 2022)

Appellant has preferred this criminal appeal under Section 374 of Cr.P.C. against the judgment dated 13.10.2014 passed by the Court of Special Judge Protection of Children from Sexual Offences Act, 2012 Barwani in Special S.T.No.12/2014, whereby appellant has been convicted under Section 376(D) read with Section 34 of IPC and under Section 5(g)/6 of the Protection of Children from Sexual Offences Act and sentenced to undergo RI for ten years with fine of Rs.3,000/-, RI for ten years with fine of Rs.3,000/- and in default of payment of fine additional rigorous imprisonment for six-six months each.

2. Prosecution story, in brief, is that on 6.2.2014 at about 8.00 PM, when minor prosecutrix aged about 15 years was returning home alongwith her maternal uncle's minor son Lokendra through agricultural field of Teekam, appellant alongwith his brother delinquent juvenile Ishwar met them in the way. Appellant and delinquent juvenile threatened the brother of the prosecutrix and forced him to run away from the spot. They took the prosecutrix in Teekam's banana orchid. Thereafter, appellant left the spot, leaving the delinquent juvenile and prosecutrix there. Thereafter

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delinquent juvenile tied her face with a cloth and forcefully committed sexual intercourse with her twice. While, prosecutrix tried to shout appellant threatened her and wrongfully restrained her there till morning. On the next day appellant again reached the spot and he alongwith delinquent juvenile threatened the prosecutrix with dire consequences. Prosecutrix after getting freed from appellant and delinquent juvenile, returned to her house and narrated the story to her parents and thereafter at about 10.00 AM lodged the FIR Ex.P/5 at Police Station, Anjad, District Barwani.

3. On the same day she was sent to Primary Health Centre, Anjad for medical examination vide letter Ex.P/6, where Dr. Ujwala Nagle (PW-1) alongwith other other panel Dr. Chandan Soni and Dr. Neelam Katia after medically examining her, gave MLC report Ex.P/1, wherein hymen was found ruptured alongwith redness and abrasion near hymen membrane. One scratch mark measuring 3 cms. on right tibia bone and one scratch mark measuring 2 cms. on left leg was also found on her body. She opined that probably prosecutrix was sexually assaulted. She sealed prosecutrix's underwear, pubic hairs and her vaginal slide and handed over the same alongwith cloths of the prosecutrix to Police. I.O. Abdul Gaffar recorded the statement of the prosecutrix as well as other witnesses, arrested the appellant and delinquent juvenile, went to the spot, prepared spot map Ex.P/6 and seized scholar register of the prosecutrix vide seizure memo Ex.D/4. Vide letter (Ex.P/18) sent the seized articles to FSL, Sagar for chemical examination.

4. After completion of investigation, charge sheet was filed against the appellant under Section 376(D) read with Section 34, 506 of IPC and Section 5(g)/6 of the Protection of Children from Sexual Offences Act before the Court of Addl.Chief Judicial Magistrate, Anjad, District Barwani, who committed the same to the Court of Sessions vide committal order dated 5.4.2013.

5. Learned trial Court after considering the material prima facie available on record, framed the charges under Section 376(D) read with Section 34 and 506 of IPC and Section 5(g)/6 of

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the Protection of Children from Sexual Offences Act. The appellant abjured his guilt and prayed for trial. In his statement recorded under Section 313 of Cr.P.C., the appellant pleaded his false implication in the matter only because he is the brother of the delinquent juvenile Ishwar, with whom there was dispute with the complainant. In his defence he examined three witnesses Ashok, Jagdish and Kismat.

6. Learned trial Court after appreciating the oral as well as documentary evidence available on record, recorded a finding that prosecution proved the case beyond reasonable doubt against the appellant under Section 376(D) read with Section 34, 506 of IPC and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, therefore, vide impugned judgment dated 13.10.2014 convicted him under Section 376(D) read with Section 34 of IPC and under Section 5(g)/6 of the Protection of Children from Sexual Offences Act and sentenced him to undergo RI for ten years with fine of Rs.3,000/-, RI for ten years with fine of Rs.3,000/- and in default of payment of fine additional rigorous imprisonment for six-six months each. Being aggrieved with the said judgment of conviction and order of sentence, the appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the charge.

7. Learned counsel for the appellant submits that learned trial Court has committed a legal error while appreciating the evidence available on record. Learned trial Court has totally ignored the fact that no specific overt act has been attributed or established on the part of the appellant. Medical report does not support the prosecution story and is also silent on the point of sexual assault with prosecutrix. Prosecution has not proved the fact that prosecutrix is below the age of 18 years. There is much contradictions and omissions in the statement of the prosecutrix and eye witness Lokendra about the incident. Learned trial Court has totally ignored the defence version that there is enmity between the family members of the prosecutrix and the appellant. Thus, by setting aside the impugned judgment of conviction and

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order of sentence, the appellant may be acquitted from the charge.

8. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence, submits that judgment passed by the trial Court is based on proper appreciation of evidence and material available on record as the same is well reasoned establishing the guilt of the appellant beyond reasonable doubt. There is no reason to disbelieve the statements of the prosecutrix as well as her maternal uncle's son Lokendra. Therefore, while affirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant may be dismissed.

9. Prosecutrix (PW-6), her mother (PW-2), father (PW-5) all have stated in their statements that at the time of incident prosecutrix's age was 12 years. Dr.Ujwala Nagle (PW-1) has stated in her cross-examination that she dentally examined the prosecutrix at the time of her medical examination and found 14- 14 teeth upper and lower in jaw. Shri Haba (PW-4), Principal Madhyamik Vidyalaya, Mehgaon Anjad, stated that as per scholar school register Ex.P/3, prosecutrix's date of birth is 1.7.2000, according to which at the time of incident prosecutrix's age comes about 14 years. There is nothing on record on the basis of which statement of aforesaid witnesses supported by entry of scholar register Ex.P/3 can be disbelieved, therefore, learned trial Court has not committed any mistake in holding the fact that at the time of incident prosecutrix was below 18 years.

10. Prosecutrix (PW-6) has specifically mentioning the name of the appellant stated that on the date of incident appellant alongwith delinquent juvenile Ishwar met her on the way near agricultural field of Teekam and both of them took her to Teekam's banana orchid, where appellant left her with delinquent juvenile and then delinquent juvenile tied her face with cloth and forcefully committed sexual intercourse with her twice. Lokendra PW-3), a minor boy, aged about 14 years, fully supported the statement of the prosecutrix and stated that when he was going with the prosecutrix, appellant alongwith delinquent juvenile met

Cr.A.No.1855/2014

them on the way near agricultural field of Teekam. They forced him to run away from the spot and thereafter took the prosecutrix to the Teekam's banana orchid. Nothing came in their cross- examination on the basis of which their aforesaid statements can be doubted. Their statements found support from the FIR lodged by the prosecutrix on the next day at about 10.00 AM i.e. after about two hours of her release.

11. Statement of Dr.Ujwala Nagle (PW-1) and her MLC report Ex.P/1 also support the fact that prosecutrix was sexually assaulted on the date of incident as her hymen membrane was found ruptured alongwith redness and abrasion and other injuries on her both legs. Prosecution story also found support from FSL report Ex.P/20, wherein stains of human sperm were found on the underwear and vaginal slide of the prosecutrix.

12. Appellant has examined Ahsok (DW-1), Jagdish (DW-2) and Kismat (DW-3) in his defence and all of them only stated that when they were searching prosecutrix and she was found, she told that she will implicate the appellant. They nowhere stated about any prior enmity between family of the appellant and prosecutrix.

13. In the aforesaid circumstances there is no reason to disbelieve the statement of the minor prosecutrix aged about 14 years, whose statement finds support from the statement of her maternal uncle's son Lokendra aged 14 years and also from FIR, medical report and FSL report.

14. Thus, in view of the aforesaid discussion, this Court does not find any illegality, perversity and arbitrariness in the finding recorded by learned trial Court while convicting the appellant, hence the impugned judgment of conviction and order of sentence passed by learned trial Court is hereby affirmed.

15. Accordingly, this appeal filed on behalf of the appellant is hereby dismissed.

(Satyendra Kumar Singh) Judge 13-1-2022 Patil

Digitally signed by SHAILESH PATIL Date: 2022.01.17 16:43:46 +05'30'