Madhya Pradesh High Court
Virendra vs The State Of Madhya Pradesh on 21 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 5731 of 2018
VIRENDRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Singh, learned senior counsel with Shri Rajesh Yadav
for the appellant.
Shri Kushagra Jain, learned counsel for the respondent/State.
Reserved on 07.02.2025.
Delivered on 21.02.2025.
----------------------------------------------------------------------------------------
JUDGMENT
Per: Justice Gajendra Singh:
This criminal appeal under section 374(2) of the Cr.P.C is
preferred challenging the conviction under sections 450, 354A(1)(i) read
with (2), 376(2)(i) of the IPC and section 7 r/w 8 and section 3 r/w 4 of
the POCSO, Act, 2012 and sentence under section 450 & 376(2)(i) of
the IPC for a period of 5 years with fine of Rs.2000/-, 14 years with fine
of Rs.8000/- along with default stipulation of six months & one year RI
in special case no.SC/34/2017 by Ist Addl. Sessions Judge,
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Mandleshwar (WN) vide judgment dated 16.07.2018. The sentence of
imprisonment were ordered to run concurrently.
2. The case of the prosecution before the trial court was that on
10.02.2017 at 11.a.m victim (PW/1), aged below 16 years was alone in
the house because her parents were not present in the house and
prosecution was shutting door of the house after washing clothes then
appellant/accused entered the house and closed the door and held right
hand of the prosecutrix with bad intention and gauged her mouth and
pressed the chest of victim. Appellant/accused threatened the victim
from raising alarm and committed penetrative sexual assault with the
victim (PW/1). On hearing the alarm raised by the prosecutirx PW/5
came and knocked the door then appellant/accused pushed the victim
and ran away from the house. She intimated the police chowki
Khaltanka but did not narrate the fact of penetrative sexual assault due
to shame and fear of being defamed. Thereafter she filed a written
complaint narrating the whole incident. She was medically examined on
11.02.2017. Appellant/accused was taken into custody vide Ex.P/22 on
14.02.2017. Completing the investigation in crime no.27/17, police
station Balakwada submitted a report to the special court.
Appellant/accused abjured guilt and claimed for trial. To bring home the
guilt, prosecution examined as may as 12 witnesses including the victim
as PW/1, her father as PW/2, principal of the concerned school as PW/3,
resident of the village Munim Patel as PW/4, neighbour of the victim
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who reached the place of incident as PW/5, Medical Officer Dr.Amitabh
Pandey as PW/6, Head Constable Amar Singh Pal No.669 as PW/7,
Head Constable Balu Patil No.113 as PW/8, Medical Officer
Dr.Bhupendra Singh Chouhan as PW/9, Sub Inspector Dineshsingh
Kushwah as PW/10, ASI Mangilal as PW/11 and Head Constable
Balkrishna no.257 as PW/12.
3. In cross examination under section 313 of the Cr.P.C
appellant/accused either denied or expressed ignorance regarding the
facts and circumstances brought by the prosecution against him.
Appellant/accused advanced defence that PW/5 and father of the victim
PW/2 have ill-will towards him due to a quarrel and due to this he has
been falsely implicated. Appellant/accused did not examine any witness
in his defence. Appreciating the evidence trial court found proved that
date of birth of the victim (PW/1) is 21.7.2003 and on the date of
incident i.e. 10.02.2017 the victim was below the age of 16 years i.e. 13
years six months and 20 days and found the victim (PW/1), his father
(PW/2) and neighbour (PW/5) as reliable and found the assurance of the
testimony of victim from the FSL report Ex.P/25 that reported the
presence of sperm on underwear and slide collected from the victim and
convicted the appellant/accused and sentenced as mentioned in para-1 of
the judgment.
4. Challenging the conviction and sentence this appeal has been
preferred on the ground that trial court committed error in relying
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prosecution witnesses and discarding defence version. The conviction is
based on dragging unwarranted inferences. Trial court was wrong in not
considering the material contradictions and omissions in the statement of
prosecution witnesses.
5. Heard.
6. Counsel for the State has supported the conviction and
sentence inflicted on the appellant/accused and prayed for dismissal of
the appeal.
7. Perused the record.
8. Firstly this court is examining the challenge towards age of
the victim (PW/1) recorded by the trial court.
9. PW/3 is the principal of the school in which PW/1 was
studying at the time of incident and this witness has proved the date of
birth of the PW/1 as 21.07.2003 through application form for admission
Ex.P/8C, birth certificate issued by Janpad Panchayat Kasrawad as
Ex.P/9C and scholar register Ex.P/11C and the certificate Ex.P/7. This
witness has categorically stated that victim PW/1 was admitted in school
on 28.6.2006 and her date of birth was recorded as 21.7.2003 on the
basis of birth certificate Ex.P/9C. The extract of scholar register
Ex.P/11C mentions that victim was admitted on 30.04.2007 as new
admission in LKG and thereafter she continuously studied in the same
school up to class-8 regularly. The cross examination of this witness
comprises of para-3 & 4 and no effective challenge has been given to
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the sanctity of entry regarding date of birth on the basis of birth
certificate Ex.P/19. Accordingly, findings of the trial court regarding
date of birth of the victim (PW/1) as 21.7.2003 does not call for
interference.
10. Victim as categorically stated incident of penetrative sexual
assault by appellant/accused. She also explained the reason why she did
not disclose the fact of penetrative sexual assault at first instance on
11.2.2017 at 2.45 a.m at PS Khaltaka and afterwards preferred Ex.P/2
narrating whole incident on 11.2.2017. The reason assigned by the
victim for not disclosing the act of penetrative sexual assault at first
instance does not demolish case of prosecution considering the age of
the victim and stigma and fear extended by appellant/accused. The
observation of the apex court in Bharwada Bhoginbhai Hirjibhai vs.
State of Gujarat - (1983) 3 SCC 217 is being reproduced as below:
2:3. Rarely will a girl or a woman in India make such false
allegations of sexual assault, whether she belongs to the urban
or rural society, or, sophisticated, or, not-so sophisticated, or,
unsophisticated society. Only very rarely can one conceivably
come across an exception or two and that too possibily from
amongst the urban elites. Because:- (1) A girl or a woman in
the tradition bound non-permissive Society of India would be
extremely reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred; (2) She
would be conscious of the danger of being ostracised by the
Society or being looked down by the society including by her
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own family members, relatives, friends, and neighbours; (3)
She would have to brave the whole world; (4) She would face
the risk of losing the love and respect of her own husband and
near relatives, and of her matrimonial home and happiness
being shattered; (5) If she is unmarried, she would apprehend
that it would be, difficult to secure an alliance with a suitable
match from a respectable or an acceptable family; (6) lt would
almost inevitably and almost invariably result in mental torture
and suffering to herself; (7) The tear of being taunted by others
will always haunt her; (8) She would feel extremely
embarrassed in relating the incident to others being over
powered by feeling of shame on account of the upbringing in a
tradition bound society where by and large sex is taboo; (9)
The natural inclination would be to avoid giving publicity to
the incident lest the family name and family honour is brought
into controversy; (10) The parents of an unmarried girl as also
the husband and members of the husband's family of a married
woman, would also more often than not, want to avoid
publicity on account of the fear of social stigma on the family
name and family honour; (11) The fear of the victim herself
being considered to be promiscuous or in some way
responsible for the incident regardless of her innocence; (12)
The reluctance to face interrogation by the investigating
agency, to face the court, to face the cross examination by
Counsel for the culprit, and the risk of being disbelieved, acts
as a deterrent. In view of these factors the victims and their
relatives are not too keen to bring the culprit to books. And
when in the face of these factors the crime is brought to light
there is a built in assurance that the charge is genuine rather
than fabricated.
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11. Explanation of the victim (PW/1) is acceptable as PW/5 has
supported PW/1 and Medical Officer Dr.Amita Pandey, who examined
victim on 11.2.2017, has reported in Ex.P/5 that she found pain at the
right wrist and there was redishness at her place. Face was redish and
there was pain and swelling on the left side of breast. This witness
prepared the vaginal slide and also collected underwear of the victim and
handed over to the concerned police official. This material collected
from the victim was handed over to police chowki Khaltaka and were
seized through Ex.P/19 by Head Constable Balu Patil no.113 (PW/8)
and were forwarded to Regional State Forensic Laboratary, Rau Indore
through Ex.P/23 and deposited in the FSL vide Ex.P/24 and a report
Ex.P/25 was submitted according to which semen and sperm were found
on the vaginal slide and underwear of the victim and this report assures
the truthfulness of the victim (PW/1) and is sufficient to prove the
foundational facts for raising presumption under section 29 of the
POCSO Act, 2012 and the trial court rightly invoked the presumption
under section 29 of the POCSO Act, 2012 in para-27 of the judgment
and shifted the burden to rebut presumption on the appellant/accused.
12. The burden to rebut presumption is heavy and does not
discharge only through suggestions to PW/2 and PW/5 that witnesses
were not in good relation with the appellant/accused and they have
falsely implicated appellant/accused. The admission through PW/4 that
Rajput and Yadav community have tense relations in the village is not
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sufficient to discharge the burden because to settle community scores no
one would put on stake the prestige of her unmarried child daughter on
stakes. Accordingly, trial court was justified in discarding the defence
version and convicting the appellant/accused under sections 450,
354A(1)(i) read with (2), 376(2)(i) of the IPC and section 7 r/w 8 and
section 3 r/w 4 of the POCSO, Act, 2012, hence the said conviction is
affirmed.
13. Now the question arises regarding quantum of sentence. On
the date of offence i.e. 10.2.2017 the punishment as prescribed in section
376(2(i) was RI for a term which shall not be less than 10 years, but
which may extend to imprisonment for life, which shall mean
imprisonment for reminder of that person's natural life and shall also be
liable to fine.
14. The punishment under section 4 of the POCSO Act, 2012
was imprisonment of either description for a term which shall not be
less than 7 years but which shall extend to imprisonment for life and
shall also be liable to fine and it is argued on behalf of the
appellant/accused that it was not a fit case to award sentence of
imprisonment more than ten years and trial court has not recorded any
reason for inflicting sentence of imprisonment of 14 years.
15. Trial court has recorded in para-31 of the judgment that
appellant/accused is 20 years old and he has no criminal antecedents but
trial court did not consider those facts as mitigating circumstances and
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referring to the nature of offence, age of the accused, duration of trial
and age of the victim the sentence of 14 years RI was inflicted.
16. Principle of proportionality in prescribing liability according
to culpability of each kind of criminal conduct has been very aptly
elaborated by the apex court in the case of Lehna vs. State of Haryana -
(2002) 3 SCC 76. It will be expedient to refer to the observations made
by the apex court on this subject as under:
"The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the culpability of
each kind of criminal conduct. It ordinarily allows some significant
discretion to the Judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle
considerations of culpability that are raised by the special facts of
each case. Punishment ought always to fit the crime; yet in practice
sentences are determined largely by other considerations. Sometimes
it is the correctional needs of the perpetrator that are offered to justify
a sentence; sometimes the desirability of keeping him out of
circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just desert as
the basis of punishment and create cases of apparent injustice that are
serious and widespread.
Proportion between crime and punishment is a goal expected in
principle, and in spite of errant notions it remains a strong influence
in the determination of sentences. The practice of punishing all
serious crimes with equal severity is now unknown in civilized
societies; but such a radical departure from the principle of
proportionality has disappeared from the law only in recent times.
Even now a single grave infraction is thought to call for uniformly
drastic measures. Anything less than a penalty of greatest severity for
any serious crime is thought than to be a measure of toleration that is
unwarranted and unwise. But, in fact, quite apart from those
considerations that make punishment unjustifiable when it is out of
proportion to the crime uniformly disproportionate punishment has
some very undesirable practical consequences."
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17. Proper sentence was explained in Deo Narain Mandal vs.
State of U.P - (2004) 7 SCC 257 by observing that in criminal cases
awarding of sentence is not a mere formality. Where the statute has
given the court a choice of sentence with maximum and minimum limit
presented then an element of discretion is vested with the court. This
discretion can not be exercised arbitrarily or whimsically. It will have to
be exercised taking into consideration the gravity of offence, the manner
in which it is committed, the age, the sex of the accused, in other words
the sentence to be awarded will have to be considered in the background
of the fact of each case and the court while doing so should bear in mind
the principle of proportionality. The sentence awarded should be neither
excessively harsh nor ridiculously low.
18. We have carefully examined the submission in this regard
and find that the rehabilitation of the victim has not been properly taken
into consideration. In Bhaggi @ Bhagirath @ Naran vs. State of M.P -
(2024) 2 SCR 111 apex court has addressed the requirement of imposing
sentence of fine which shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim. Section 65 of the IPC, 1860
prescribe the limit to imprisonment for non payment of fine, when
imprisonment and fine is awardable and limit is that imprisonment shall
not exceed 1/4th of the term of imprisonment which is the maximum
fixed for the offence, if the offence is punishable with imprisonment as
well as fine.
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19. Keeping in view the criminal jurisprudence which
encompasses reformative and corrective theory as also the doctrine of
proportionality, the sentence of ten years with fine of Rs.2,00,000/-
(Two Lacs) would serve the purpose.
20. Accordingly, this appeal is partly allowed to the extent that
the sentence under section 376(2)(i) of the IPC is reduced from fourteen
years to ten years RI and fine is enhanced from Rs.8000 to Rs.2,00,000/-
( rupees Two Lacs). In default of payment of fine, the appellant shall
undergo four years RI. Total fine amount shall be paid to the victim
(PW/1). No interference in the sentence under section 450 IPC is
required. Supersession warrant be prepared accordingly.
21. Copy of the judgment shall be supplied to the
appellant/accused through concerned Superintendent of Jail. Copy of
the judgment shall be supplied to the victim (PW/1) in the light of
Aparna Bhat vs. State of M.P -AIR 2021 SC 1492 .
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
