Kalu vs The State Of Madhya Pradesh
2023 Latest Caselaw 17775 MP

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 26 th OF OCTOBER, 2023
                 CRIMINAL APPEAL No. 1371 of 2020

BETWEEN:-
KALU S/O KASHIRAM BHEEL, AGED ABOUT 26 YEARS,
OCCUPATION: LABOUR R/O VILLAGE SIWAL P.S.
NEPANAGAR DISTT BURHANPUR (MADHYA PRADESH)

                                                               .....APPELLANT
(BY SHRI SAMAR SINGH RAJPUT - ADVOCATE)

AND
STATE OF MADHYA PRADESH THROUGH P.S.
NEPANAGAR DISTRICT BURHANPUR (MADHYA
PRADESH)

                                                              .....RESPONDENT
(BY SMT. VINITA SHARMA - PANEL LAWYER)

      Heard on         : 19.10.2023
      Pronounced on : 26.10.2023

      This appeal having been heard and reserved for judgment, coming on

for pronouncement this day, the court passed the following:
                                JUDGMENT

T h is appeal has been preferred by the appellant to challenge his conviction passed on 1.2.2020 in Special Case No.17/2018 by Special Judge (POCSO Act), Burhanpur, whereby he was convicted under Sections 452, 354 I P C and Sections 7/8 of POCSO Act and was sentenced to three years rigorous imprisonment and fine of Rs.1,000/- for the offences of Sections 452 IPC and 7/8 of POCSO Act individually with a default clause to undergo three

months additional rigorous imprisonment for each case of non-payment of fine amount.

2 . Brief facts of the prosecution case are that the prosecutrix, aged around 11 years, was in the house of her uncle; on the date of incident i.e. 21.5.2018 she was sleeping on the cot at around 4:00 p.m.when her mother and aunt both had gone to river for washing clothes while her father and uncle had also gone outside; the appellant came there and used criminal force to outrage the modesty of prosecutrix; on her shouting, the appellant ran away; on return of her relatives, prosecutrix narrated the incident to them and then went to the police station to report the matter. Crime No.149/2018 was registered in Police

Station, Nepanagar, district Burhanpur, and the matter was investigated; the appellant was put on trial and was convicted and sentenced as aforesaid.

3. The grounds raised in this criminal appeal are that there was no direct or indirect evidence available against the appellant, still the trial court held the appellant guilty; there were major omissions and contradictions in the court testimonies of witnesses as compared to the FIR lodged in the case and their previous statements; the learned trial court did not exercise judicious mind while passing the impugned judgment; the aspect of delay in lodging the FIR was not at all considered; the learned trial court committed grave error for holding the appellant guilty despite the fact that prosecution witnesses failed to give credible testimony and corroborate the prosecution story. It is, therefore, prayed that the present appeal be allowed and the appellant be acquitted in the case.

4 . State has opposed this appeal and has argued that the impugned judgment does not warrant any interference in the finding of conviction or the quantum of sentence.

5. Record of the trial court has been perused and arguments of both the

parties have been heard.

6. This is a case where the testimony of prosecutrix has to be examined carefully because incident was not seen by anyone nor the medical or scientific evidence is available there for corroboration or negation of prosecution story. The prosecutrix (P.W.2) and her mother (P.W.1) have been examined in support of the case. Dr. Surbhi Shah (P.W.3) is the medical examiner who did not find any injury or marks of injury on the person of prosecutrix. Suman (P.W.4) is the police officer who wrote down the FIR and recorded the statements of witnesses. She also sent the prosecutrix for medical examination. Kamlesh (P.W.5) is the police officer who completed the remaining investigation. Smt. Annpurna (P.W.6) is the Principal of the school where the prosecutrix had her education.

7. It has been claimed by the appellant that the prosecution story is not reliably proved in the case and for this, it is contended that there were severe contradictions and omissions in the testimonies of prosecution witnesses as well as to their earlier statements given to the police. Further, it has been claimed that the narration before the court did not assimilate with the narration as given in FIR, marked as Ex.P-1.

8 . I have gone through the FIR as well as the statements given by prosecutrix under Section 164 Cr.P.C. These two documents have been

marked as Exs.P-1 and P-2. It is interesting to note that while cross-examining the prosecutrix, not a single fact was exposed by the appellant's side, which was contradictory to the narration as given in Exs.P-1 and P-2. Even the police statements of prosecutrix were not found to be contradictory to what she stated before the court and for this reason alone they were not taken into as evidence.

9. The mother of prosecutrix P.W.1 was cross-examined at length but even her statements remained unchallenged on the facts narrated about the incident. Undoubtedly, she was not present in the house when the incident occurred but she has claimed that on her return from the river, she was narrated the incident by the prosecutrix. The defence could not highlight a single contradiction in the testimony of this witness as compared to the testimony of prosecutrix.

10. The defence has emphasized upon the fact that there was a dispute between the two parties regarding some land and for this, it has relied upon the testimonies of P.W.1 and P.W.2. The mother of prosecutrix P.W.1 has denied any such dispute existing between the two parties prior to the date of incident, while prosecutrix P.W.2 has admitted that a dispute arose between her father and the appellant for the usage of that property. There might have been a contentious property between the parties but dispute about that cannot alone be a ground to disbelieve the reliable testimony of prosecutrix and her mother. No defence witness has been examined to clarify the extent and gravity of this dispute. Had it been a case of false implication, some or other fact might have been disclosed in the testimony of young prosecutrix making her unworthy of any credit but she has been reliable and consistent throughout her testimony and no contradiction could have been elicited during her cross-examination which would have gone against her previous statements. Therefore, enmity cannot be considered as a relevant ground to disbelieve the testimony of prosecutrix.

11. The prosecution has relied upon the school record of prosecutrix and the statements of Principal, Smt. Annapurna, examined as P.W.6 regarding the date of birth of prosecutrix. On the basis of this evidence, it is proved that the date of birth of prosecutrix was 4.3.2007 while the incident occurred on

21.5.2018. Accordingly, the prosecutrix was merely 11 years old at the time of incident. The learned counsel for appellant has referred to the testimony of mother of prosecutrix, P.W.1, and prosecutrix herself, P.W.2, that they were not aware of the actual date of prosecutrix and the teacher i.e. Smt. Annapurna (P.W.6) was not posted in the school when this date of birth was entered in the school register. I have considered all these facts.

12. It cannot be denied that when this incident occurred in 2018, Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 was in force and similar provision of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 had also come into force. According to these provisions, the date of birth certificate from the school which the victim first attended is a relevant document for assessment of the age of victim. Hence, reliance placed by the prosecution on date of birth register maintained by the school is as per the requirement of law and in this register, marked as Ex.P-7, the father of prosecutrix has given information about the date of birth of prosecutrix as well as her brother. According to this register, the date of birth of prosecutrix is 4.3.2007. There is no evidence in rebuttal which can challenge the correctness of this information.

13. Learned counsel for the appellant has relied upon the decision of High Court of Patna passed on 7.7.2021 in Criminal Appeal No.159/2018 (Arjun Kumar alias Prince v. The State of Bihar). In that case, it was observed that prosecution cannot rely upon the approximate age of the victim and any such evidence would not be sufficient to reach to any conclusion about the commission of crime. It has also been observed that the school document relating to the age of victim was deliberately not brought on record in that case

and even the report of ossification/radiological test was not produced to offer a n opportunity to the defence to cross-examine the experts regarding the scientific method adopted by them while assessing the age of prosecutrix. But the facts of the present case are definitely not akin to the facts of that citation. In the present case, the date of birth of prosecutrix is duly proved from the entry of her school register and this entry is from the school which was first attended by her. According to the prosecutrix, she had studied only till Class I and thereafter she left the school. Thus, this was also the only school where the prosecutrix had studied. Taking into consideration this entry from her sole school, the cited case law cannot be applied here.

1 4 . On the basis of aforesaid discussions, it is established that the prosecutrix was just above the age of 11 years when the incident occurred and it is proved by the reliable evidence of prosecution that the appellant used criminal force to outrage the modesty of prosecutrix after committing the house trespass. Accordingly, the conviction of appellant passed under Sections 452

and 354 IPC as well as Section 7/8 of POCSO Act is justified and appellant has not been able to successfully challenge this finding of conviction on the merits of the case.

15. In the light of above observations, this appeal fails so far as the conviction of appellant under Sections 452 and 354 IPC and Section 7/8 of POCSO Act is concerned. He is sentenced to three years imprisonment and fine of Rs.1,000/- both under Section 452 IPC and Section 7/8 of POCSO Act. Having taken into consideration the nature of offence and the extent of force used, this sentence is reduced to ten months rigorous imprisonment and fine amount of Rs.5,000/- under each individual head of conviction, i.e. under Section 452 IPC and Section 7/8 of POCSO Act. In case of non-payment of

fine, the appellant shall undergo additional rigorous imprisonment of three months for each default.

16. On payment of fine amount, Rs.10,000/- shall be paid to prosecutrix as compensation.

17. Let the copy of this judgment be send to the trial court along with its record for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.10.27 15:11:02 +05'30' Adobe Reader version: 11.0.8