Pawan Kumr Vinodia vs The State Of Madhya Pradesh
2023 Latest Caselaw 16604 MP

                                                             1
                            IN      THE      HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                      BEFORE
                                       HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                                 ON THE 9 th OF OCTOBER, 2023
                                                CRIMINAL APPEAL No. 412 of 2015

                           BETWEEN:-
                           PAWAN KUMR VINODIA S/O BHAGWATI PRASAD
                           VINODIA, AGED ABOUT 19 YEARS, R/O PEEPAL
                           MOHALLA IN FRONT OF POWER HOUSE, TEHSIL
                           ITARSI,  DISTRICT HOSHANGABAD   (MADHYA
                           PRADESH)

                                                                                          .....APPELLANT
                           (BY MS. MANJU KHATRI - AMICUS CURIAE)

                           AND
                           THE STATE OF MADHYA PRADESH P.S. ITARSI,
                           DISTRICT HOSHANGABAD (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                           (BY SHRI PRASANNAJEET CHATTERJEE - PANEL LAWYER)

                                  Reserved on            : 05.10.2023.
                                  Pronounced on          : 09.10.2023.

                                  This appeal having been heard and reserved for judgment, coming on
                           for pronouncement this day, the court passed the following:
                                                            JUDGMENT

This appeal has been preferred to challenge the judgment dated 23.01.2015 passed by additional Sessions Judge, Itarsi, District Hoshangabad (M.P.) in S.T. No.216/2013 by which the appellant was convicted for the offences of Sections 376(2) and 506 Part-II of IPC and Section 4 of POCSO Act. He was sentenced to 10 years rigorous imprisonment and fine of Rs.5,000/- for the offence of Section 376(2) of IPC and rigorous imprisonment of one year and Signature Not Verified Signed by: NITESH PANDEY Signing time: 10/10/2023 2:38:18 PM

fine of Rs.500/- for the offence of Section 506 Part-II of IPC. He was awarded additional imprisonment of one year and three months respectively, in case of non-payment of fine.

2. Brief facts of the prosecution case are that appellant is the neighbour of the prosecutrix. On 10.06.2013 at around 02:00 p.m., prosecutrix was coming to her house from the house of her relative who also lives in the neighbourhood, the appellant stopped the prosecutrix in front of his house and forcibly took her inside the house where he committed rape upon minor prosecutrix who was aged hardly 13 years at the time of incident. The appellant also threatened the prosecutrix of death to herself and her family members, if she talked about the

incident to anyone. The prosecutrix did not reveal that incident to anyone but o n next day, when her mother took off her clothes for bathing, she found blood-stains on her clothes. Upon being asked by her mother, prosecutrix revealed the incident to her. The matter was reported to the police where a case was registered at Crime No.346/2013 and after investigation, the charge-sheet was filed before the concerned Court. Upon conclusion of trial, the appellant was convicted under all the charges framed against him and was sentenced as aforesaid.

3. The grounds raised in this appeal are that the judgment is contrary to the evidence and material brought on record before the trial Court. It suffered from significant infirmities. The appellant had enmity with the relative of prosecutrix and for this, he was falsely implicated in this case. The age of the prosecutrix was also not proved by any reliable evidence. The medical examination report of the prosecutrix did not suggest the rupture of hymen. Only the interested witnesses supported the prosecution case and their versions were

Signature Not Verified Signed by: NITESH PANDEY Signing time: 10/10/2023 2:38:18 PM

contradictory. No independent or eye witness was examined to prove the guilt of appellant. It is, therefore, prayed that this appeal should be allowed and the appellant should be acquitted.

4. T h e State has opposed this appeal on the ground that the impugned judgment is based upon detailed and reasoned appreciation of evidence and there are no infirmities in the finding of conviction and sentence passed in the case. It is, therefore, prayed that this appeal should be dismissed.

5. Heard learned counsel for both the parties and the record of the trial Court has been perused.

6. In this case, the incident allegedly occurred on 10.06.2013 at around 2:00 p.m. in the noon, while the report was lodged next date on 11.06.2013 at around 10:20 a.m. The reason for delay in FIR is claimed to be, that the prosecutrix did not narrate the incident to anyone because of fright of threat given by the appellant. Exhibit P/4 shows that the house of appellant where the alleged offence was committed is surrounded by the residential houses of other persons. Similar is the statement of the mother of prosecutrix (PW.2) who has admitted in para 3 of her cross-examination that her house is only one house away from the residence of the appellant and that the adjoining house is of her father-in-law Yusuf Shah's house. The relative of prosecutrix from whose house she was returning is adjoining to the house of the appellant on the other

side. It is also admitted by this witness that there are residential houses of other persons in the neighbourhood. She has admitted that if anyone shouts in the house of appellant, the screams would be heard in the adjoining house of her father-in-law and also in her own house. Although, she has claimed that the incident occurred in the noon of a summer day, and, no one was around but that fact does not explain why the screams made in the house of appellant went Signature Not Verified Signed by: NITESH PANDEY Signing time: 10/10/2023 2:38:18 PM

unheard in the neighbouring houses including the house of prosecutrix.

7. T h e FIR reported in this matter is Exhibit P/3 which suggests that prosecutrix was not given any opportunity to scream or raise any alarm but in her Court testimony, the prosecutrix (PW.4) claims that she shouted twice, once when appellant grabbed her hand and second when appellant made her to lie down. If these screams were made by the prosecutrix then it should have been explained by the prosecution why these screams were not heard by the neighbours in such a heavily congested locality, particularly, when it was a quite afternoon as claimed by the mother of prosecutrix.

8. It is an admitted fact that no person witnessed this incident. The mother of prosecutrix came to know about the incident only on the next day. In the light of the fact that the prosecution story is solely based on the narration given by the prosecutrix, her testimony assumes considerable significance.

9. According to FIR, marked as Exhibit-P/3, the prosecutrix was forcibly taken inside the house by the appellant after covering her mouth with his hands so that she may not shout. This fact has been stated by the prosecutrix in her examination-in-chief but during cross-examination, she has claimed that when her hand was grabbed by the appellant she had shouted. Further, according to prosecutrix (PW.4), the parents and sister of appellant were present in the house and she even had conversation with them. According to her, this conversation was at around 2:00 p.m. and at the time of this conversation, the appellant was not in the house. She further states that after this conversation with the mother of appellant, the prosecutrix left for home. Looking to the contradiction in her statements, she was asked to disclose the day on which she had conversation with the family members of appellant and to this she first

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replied that she does not remember the day but later she recollects and tells that this conversation was held on the day she was caught hold of. This narration gives rise to suspicion whether the incident of getting hold of her and committing rape with her actually happened or not. She is claiming to have conversation with the family members of appellant on the day of incident and that too around the time when the alleged incident of rape was committed. The entire FIR does not disclose that the offence of rape was committed in the presence of family members of the appellant or that they were present in the house when the offence was committed.

10. T h e significant contradictions in the testimony of prosecutrix is not restricted to above discussions alone. She further claims that she was seen by her sister coming out of the house of appellant and for this reason, her mother had got the FIR registered against the appellant. She further discloses that she is not aware of the facts that were reported in the FIR. Further, she has given the statement that besides giving chocolate to her, the appellant did not commit any act with her and this is what she had reported in the FIR. In para 7 of her cross-examination, she has revealed that the appellant did not commit any act with her on that date.

11. The above details of the statements of prosecutrix reveal that she has not at all stable on her statements and the narration of incident as given by her is heavily shrouded with suspicion. On this basis, it can be safely inferred that prosecutrix (PW.4) cannot be relied upon to prove the alleged commission of offence by the appellant.

12. It has been discussed earlier that the parents of prosecutrix did not see the incident personally and they were apprised of it only through the prosecutrix. Since, the narration given by the prosecutrix is itself not reliable, the testimony Signature Not Verified Signed by: NITESH PANDEY Signing time: 10/10/2023 2:38:18 PM

of parents of prosecutrix namely mother (PW.2) and father (PW.5) are not sufficient to prove the prosecution case. The internal contradictions in their testimony need not to be discussed here for the said reason.

13. In the absence of reliable oral testimony, the medical evidence available on record is examined too. It suggests that the sperms were found on the clothes and the vaginal slide of prosecutrix but their examination for DNA profiling was not undertaken. The prosecutrix was medically examined twice. First time by Smt. Dr. Abha Jain (PW.1) on 11.06.2013 and second time by Dr. Neeta Dubey on that date itself in Dr. Shyama Prasad Mukherjee Chikitsalay. Smt. Dr. Abha Jain found no signs of external injury on the person of prosecutrix and she has stated that she tried many times to internally examine the prosecutrix but prosecutrix did not cooperate. It is further disclosed by her that the prosecutrix was to be given anesthesia for conducting internal examination but Smt. Dr. Abha Dubey (PW.11) has revealed on oath that the prosecutrix could not be given anesthesia for the reason that she had taken food within six hours of her

examination.

14. Dr. Neeta Dubey (PW.12) has made observation in her medical report that there was no injury on the entire body of the prosecutrix and as she was totally non-cooperative hence, internal examination could not be conducted. She has stated that she found no sign of rape committed upon the prosecutrix and the blood coming out of her vagina could have been of menstruation.

15. T h e medical evidence available on the record does not confirm the commission of any sexual act with the prosecutrix. The presence of sperm on her clothes and vaginal slide in the FSL report does not indicate that the appellant had committed any sexual act with the prosecutrix.

Signature Not Verified Signed by: NITESH PANDEY Signing time: 10/10/2023 2:38:18 PM

16. It needs to be mentioned here that the mother of the prosecutrix (PW.2) has categorically stated that prosecutrix is not a mentally challenged person and she is simply forgetful. The statements of prosecutrix recorded by the trial Court do not have any observation regarding the mental competence of prosecutrix in narrating the facts relating to incident. Thus, it is a case where the prosecutrix, who was competent to testify, failed to give a reliable narration of incident and even the medical evidence failed to corroborate the prosecution's case. In this perspective, this Court is of the opinion that the conviction of appellant is not sustainable in law.

17. On the basis of aforesaid discussion, this appeal is allowed and the appellant is acquitted from the charges of Sections 376(2) and 506 Part-II of IPC and Section 4 of POCSO Act. He is in custody. He be released forthwith, if not required in any other case. The amount of fine, if any, deposited by the appellant shall be refunded to him.

18. Let a copy of this judgment and record of Court below be sent back to the trial Court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE Nitesh

Signature Not Verified Signed by: NITESH PANDEY Signing time: 10/10/2023 2:38:18 PM