Milan Singh @ Rammilan vs The State Of Madhya Pradesh
2022 Latest Caselaw 13551 MP

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                                 BEFORE
                     HON'BLE SMT. JUSTICE ANJULI PALO
                        ON THE 14th OF OCTOBER, 2022

                  CRIMINAL APPEAL No. 2498 of 2016

        BETWEEN:-
        MILAN SINGH @ RAMMILAN S/O MAHAJAN
        VATTI, AGED ABOUT 22 YEARS, PIPARKHUTA,
        PS. KARANJIYA, DINDORI (MADHYA PRADESH)

                                                                .....APPELLANT
        (BY MS. SARITHA ACHARYA, ADVOCATE )

        AND
        THE STATE OF MADHYA PRADESH THROUGH
        P.S. KARANJIYA DINDORI (MADHYA PRADESH)

                                                               .....RESPONDENT
        (BY MS. EKTA GUPTA, PANEL LAWYER)
        __________________________________________________________
                      Arguments heard on               :   22.09.2022
                      Judgment delivered on            :   14.10.2022
        ___________________________________________________________
      This appeal coming on for final hearing this day, the court passed the
following:
                                JUDGMENT

T his appeal has been filed by the appellant being aggrieved by the judgment of conviction and order of sentence dated 23.8.2016 passed by First Additional Sessions Judge, Dindori, in S.T. No. 46 of 2016 whereby the appellant has been convicted for the offences punishable under Sections 366, 343, 376(2)(i)(j)(n) of IPC and sentenced to R.I. for 5 years with fine of Rs.3,000/-, R.I. for 1 year with fine of Rs.500/- and R.I. for 10 years with fine of Rs.8000/- respectively with default stipulations.

2. As per the case of the prosecution, a report was lodged by the father

of the prosecutrix namely Indralal at P.S. Karanjiya, District Dindori to the effect that on 23.3.2016 at about 6:00 pm in the evening, when he along with his wife namely Shyamwati was at home, at that time, his daughter/prosecutrix, who was a student of class VI, went outside to answer the call of nature. Thereafter Indralal went outside on a motorcycle along with Chamru Paraste and when he came back, his wife Shyamwati informed him that the prosecutrix has not yet come. It also came to his knowledge that the appellant is also missing from his house from the same day, therefore, he has a suspicion that the appellant took her daughter by luring her. Therefore, a missing report was lodged at Police Station Karanjiya against the appellant and on the basis of said report, a crime

was registered against him vide Crime No.66/16 for the offence under Section 363 of IPC. During investigation, the prosecutrix was recovered on 30.3.2016 and her statement were recorded at P.S. Gadasarai. Thereafter she was sent for medical examination and offence under Sections 366A, 376(2)(dha), 343 of IPC and Sections 4,6 of the Protection of Children From Sexual Offences Act have been registered against the appellant.

3. After due investigation, charge sheet was filed before competent Court. The case was committed to the Court of Session where charges under Sections 363, 366, 343, 376(2)(jha)(ya)(dha) and Section 6 of the Protection of Children From Sexual Offences Act.

4. The appellant abjured the guilt and pleaded that he has been falsely implicated in the case.

5. Learned trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellants as mentioned hereinabove.

6. Learned counsel for the appellant has submitted that the trial Court has

n o t properly appreciated the oral and documentary evidence available on record. The statement of the prosecutrix, regarding her recovery, is contradictory to statements of other witnesses. Further, it has not been duly proved that the prosecutrix was minor at the time of incident. The entry of the date of birth of the prosecutrix was made in the school register on the basis of Transfer Certificate (TC), which document is not admissible as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Her father did not prove her age, hence, benefit may be to the appellant.It is further submitted that the Doctor has not given any definite opinion regarding about commission of rape upon the prosecutrix. Learned counsel has placed reliance on the decisions in the cases of Raju Vs. State of Madhya Pradesh [Criminal Appeal No.6762/2018 decided on 13.3.2020]; Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 263. She has also placed reliance on the decision of Apex Court in Santosh Prasad @ Santosh Kumar Vs. State of Bihar, [Criminal Appeal No.264/2020 decided on 14.2.2020].

7. O n the other hand, learned Panel Lawyer has strongly opposed the contention raised by learned counsel for the appellant and submitted that prosecutrix was below 18 years of age. The testimony of the prosecutrix is corroborated by the medical evidence also, therefore, her testimony is sufficient to convict the appellant, therefore, this appeal is liable to be dismissed.

8. I have heard learned counsel for the parties and gone through the evidence available on record.

9. At the time of recording of statement of the prosecutrix, the trial Court itself mentioned her age to be 11 years in her deposition sheet. Father of the prosecutrix namely Indralal (PW-3), in his examination-in-chief as well as in

cross-examination stated that the age of her daughter is 11 years. Elder sister of the prosecutrix namely Savitri (PW-4) in her examination-in-chief has stated that the age of the prosecutrix is 12 years and in cross-examination she has denied the suggestion that the prosecutrix is 18 years of age. (Exhibit-P-17) is a copy of Dakhil Kharij Register of the school and (Ex.P-18) is the certificate issued by Head Master, Piparkhutta Mall School, according to which the date of birth of the prosecutrix is 20.12.2004.

10. Further, Doctor Saileen Kujur (PW-7) had examined the prosecutrix and submitted his report (Ex.P-14). He found 11 teeth in her upper jaw and 13 teeth in her lower jaw. The secondary sexual character of the prosecutrix were not fully developed.

11. In view of the aforesaid evidence, it is clear that the date of birth of the prosecutrix is 20.12.2004 and the date of incident is 23.3.2016, therefore, it is proved that at the time of incident the age of the prosecutrix was about 12 years.

12. So far as commission of offence is concerned, as per medical evidence, no internal or external injuries were found on the person of the prosecutrix, however, there was pain on insertion of one finger on her private part. It was further opined that although there was no bleeding from her inner part, but it was opined that the prosecutrix might be subjected to sexual intercourse.

13. The medical evidence and opinion of Dr. Saileen Kujur (PW-07) cannot be ignored for the purpose of corroboration of the statement of the prosecutrix.

14. In the instant case, there is no reason to disbelieve the the testimony of prosecutrix (PW-1) and sole testimony of the prosecutrix is sufficient to

convict the appellant.

15. In the case of Ganesan Vs. State represented by its inspector of Police reported in (2020) 10 SCC 573, the Supreme Court by referring its earlier decisions has observed that there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.

16. The Supreme Court in the case of Phool Singh Vs. State of M.P. reported in (2022) 2 SCC 74 has observed that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. It has further been observed that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. Sole testimony of the prosecutrix should not be doubted by the Court merely on basis of assumptions and surmises.

17. In the present case, the sole testimony of the prosecutrix seems to be trustworthy. It is duly proved that at the time of incident, she was minor aged about 12 years. Although some suggestions were given to her to establish that she was consenting party such as she was familiar with the appellant and they used to visit each other's house frequently, however, looking to the age of the prosecutrix, such suggestions are completely baseless.

18. Learned counsel for the applicant has placed reliance on Raju Vs. State of Madhya Pradesh [Criminal Appeal No.6762/2018 decided on 13.3.2020]; Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 263; Santosh Prasad @ Santosh Kumar Vs. State of Bihar, [Criminal Appeal No.264/2020 decided on 14.2.2020]. The facts of the aforesaid cases

are different from present case, therefore, they are of no help to the appellant.

19. In view of the aforesaid discussion, in my considered opinion, the trial Court has not committed any error in convicting the appellant for the aforesaid offence. I do not find any ground to interfere in the judgment of conviction and order of sentence passed by the trial Court.

20. Accordingly, the appeal being devoid of merit, is hereby dismissed.

21. Let a copy of this judgment be sent to the trial Court for information.

(SMT. ANJULI PALO) JUDGE PB

PRADYUMNA BARVE 2022.10.14 18:28:32 +05'30'