Madhya Pradesh High Court
Balu vs The State Of M.P. on 15 February, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 15th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 1324 of 1999
BETWEEN:-
BALU S/O DARIYAVSINGH AGED ABOUT 17 YEARS,
OCCUPATION LABOUR R/O VILLAGE POLAYKALLA
DISTRICT SHAJAPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI AKHIL GODHA - ADVOCATE ON BEHALF OF SHRI S.S. SHIVHARE-
ADVOCATE)
AND
THE STATE OF M.P. THROUGH POLICE STATION
AVATIPUR BADODIYA(MADHYA PRADESH)
.....RESPONDENT
(SHRI TARUN PAGARE- PUBLIC PROSECUTOR)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
The present appeal is filed under section 374 of Cr.P.C being aggrieved
b y the order dated 05.10.1999 passed by Special Judge, Shajapur in Special
Criminal Case No.43/1999 convicting the appellant under section 376 of IPC
and sentencing him for 7 years RI.
The prosecution case is that the prosecutrix alongwith PW/2, who is 7
years old had gone to field alongwith goats for grazing the goats, the accused
came at the spot and caught hold her and removed her garments on the point of
knife. When she resisted she got injury on finger of right hand. When PW/2
who was accompanying the prosecutrix resisted. She was also beaten by the
accused. She came back home and narrated the incident to her parents and a
report was lodged.
T he prosecutrix was sent for medical examination and PW/4 Dr.R.B
Jabri examined the prosecutrix. She stated that there was injury on ring finger
and scratches, though she did not find any injury on the private part. She stated
that no definite opinion can be given about rape.
Her seized garments were sent to FSL and the FSL report is Exb.P/11.
As per the FSL report, semen were found on under garments of the
prosecutrix. The accused was also examined by PW/9 Dr.Kapil Sahaye whose
report is Exb.P/13. He found that the accused to be competent for intercourse.
Learned counsel for the appellant submits that the trial court has erred
while convicting the appellant on the basis of testimony of child witness PW/1
and PW/2. It is further argued that the testimony of prosecutrix does not
corroborate with medical and other evidence and therefore, the testimony of the
prosecutrix PW/1 and PW/2 child witness were not trustworthy.
In support of his submission, he has placed reliance on the judgment
passed in the case of Badriprasad Vs. State of MP reported in 1983(2) crimes
105, Bharat Vs State of MP reported in 1992 (3) crimes 384, Sadhray Vs.
State of MP reported in 1995 (2) crimes 106, State of Andra Pradesh vs.
Lankapalli Venkateshwarlu reported in 2000 AIR (SC) 3555, Dilip and Anor
Vs. State of MP reported in 2001 (9) SCC 452, Nandlal Yadav Vs State of
MP reported in 2002 (2) MPLJ 376 and Yerumalla Vs. State of Andra
Pradesh reported in 2006 (9) SCC 713.
Learned counsel for the respondent/state supports the order of
conviction and sentence.
The judgments relied upon by the learned counsel for the appellant would
not render any assistance to the facts of the present case.
In the case of Bharat (supra), the testimony of prosecutrix was
disbelieved on the ground that she stated that she had received injuries even on
her back and private parts. However, her testimony was not corroborated with
the medical evidence. No marks of injury was present on her body. She was
found to be habitual to sexually intercourse and there was old healed teared
hymen. The prosecutrix was a major lady. In the present case, the testimony of
minor prosecutrix aged about 13-14 years PW/1 is well corroborated with
medical evidence and FSL report.
The case of Yerumalla (supra) was being considered against the acquittal
and the court held that the trial court has disbelieved the testimony of
prosecutrix aged about 8 years on the ground that her testimony was not
corroborated by the medical evidence, which has been held fatal. Thus, the said
judgment would not render any assistance in the facts of the preset case. In the
present case, the testimony of prosecutrix is well corroborated by another
witness PW/2 medical evidence and FSL report.
Similarly in the case of Sadhray (supra), the prosecutrix has stated that
the accused did something to her. She did not make specific allegation of rape.
Apart from that, her testimony was not corroborated by medical evidences.
Under those circumstances, the order of conviction was set aside.
The case of Lankapalli (supra), was also the case of prosecutrix of major
age and her evidence was not supported by medical evidence. The trial court
had disbelieved the testimony of prosecutrix and the appeal was dismissed
against acquittal. The said judgment does not apply in the facts and evidence of
the preset case.
In the case of Dilip (supra), the Apex court set aside the order of
conviction on the ground that the testimony of lady (prosecutrix) of major age
was not corroborated with medical evidence and no marks of violence was
found on the body of the prosecutrix even on the private part.
The case of Nandlal (supra) was a case where the statement of
prosecutrix who was major was not corroborated either by medical evidence or
by FSL report. The prosecution did not examine the doctor and also did not
produce FSL report.
The case of Badriprasad (supra) was a case where the prosecutrix was a
major and her blood stained clothes were seized but were not sent for chemical
examination. The statement of prosecutrix was not corroborated by any other
evidence and therefore, the court disbelieved the testimony of prosecutrix and
acquitted the accused.
Thus, in the judgments relied by learned counsel for the appellant, the
testimony of prosecutrix of major age was disbelieved on the ground that there
was no corroboration of medical evidence or FSL report. In the light of the
aforesaid facts and evidence of the present case are examined.
The facts and evidence of the present case are carefully examined.
Prosecutrix PW/1 made specific allegations that when she had gone to the field
for grazing of goats alongwith one girl PW/2, the accused came from behind
and caught hold her and removed her saree. He was also having knife and then
removed her clothes and committed rape. While resisting she received injury on
her finger. She narrated the incident in the night to the parents and on the next
day, the report was lodged. Her version has been supported by PW/2, who is 7
years old. She also made same version. The statement of prosecutrix and PW/2
gets support by parents PW/7 Goribai and PW/3 Hari, who stated that incident
was informed by prosecutrix and then the report was lodged. In the medical
examination, Dr.R.B Jafzi has found injury on her finger and scratches on her
person. She did not find any injury on the private part. She prepared slide of
vagina and Petticoat was also seized. The garments of the prosecutrix and
appellant were sent for chemical examination and in chemical examination,
semen was found in slide and garments. PW/9 Dr.Kapil Sahaye has stated that
the appellant was found to be competent for intercourse and his report is
Exb.P/13.
The prosecutrix PW/1 is only 13-14 years old and PW/2 girl who was
accompanying the prosecutrix is only 7 years old. Their testimony is supported
by statement of parents PW/7 Goribai and PW/3 Hari. They had informed the
incident immediately to the parents and thereafter the report was lodged. They
are resident of village and some delay in lodging the FIR cannot be held to be
fatal. PW/4 Dr.R.B Jafri has stated that injury on finger was found on the
prosecutrix. Apart from that in the under garments of prosecutrix and accused
semen has been found. The testimony of prosecutrix is supported by testimony
of PW/2, who is 7 years old girl cannot be disbelieved only on the ground that
there is no definite opinion of rape. For commission of offence of rape,
penetration is not essential. The testimony is well corroborated with medical
evidence and in FSL report semen were found to be present on the under
garments.
The law regarding conviction on the basis of testimony of child witness
has been settled by the Apex court in number of judgments. In the case of
Yogesh Singh Vs. Mahabeer Singh reported in (2017) 11 SCC 195, it has been
held as under :-
23. However, it is not the law that if a witness is a child,
his evidence shall be rejected, even if it is found reliable.
The law is that evidence of a child witness must be
evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what other tell him and thus a child witness is
an easy prey to tutoring .
In the case of Dattu Ramrao Sakhare and Ors Vs. State of
Maharashtra reported in (1997) 5 SCC 341, it has been held that the
conviction can be based on the testimony of child witness. However, as a rule
of prudence, the court can seek corroboration on facts. Evidence of child
witness is amply corroborated from the other evidences, the medical evidence
and chemical evidence report, thus, the conviction can be based on the
testimony of child witness.
The submission that the accused is a juvenile was not raised during the
trial and therefore, the same cannot be appreciated at appellate stage. Nothing
has been brought in cross examination of prosecution witnesses for false
implication by two minor girls. In view of the aforesaid assimilation of facts and
evidence of the case, I do not find any error in order of conviction and
sentence.
The appeal is dismissed.
As a consequence, the order of suspension of sentence is cancelled. The
bail bond stands cancelled.
The trial Court is directed to proceed to arrest the appellant in
accordance with law to undergo remaining jail sentence.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
