Madhya Pradesh High Court
Munnawar @ Munna vs The State Of Madhya Pradesh on 20 May, 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
ON THE 20th OF MAY, 2025
CRIMINAL APPEAL No. 1504 of 2015
MUNNAWAR @ MUNNA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Krishnapal Singh Khichi, learned counsel for the
appellant.
Shri H.S.Rathore, learned GA for the respondent/State.
Reserved on 13.05.2025
Delivered on 20.05.2025.
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JUDGMENT
Per: Justice Gajendra Singh
This criminal appeal under section 374(2) of the Cr.P.C
has been preferred challenging the conviction under section 366,
376(2)(f) of the IPC and sentence of 7 years RI and fine of
Rs.1,000/- with default stipulation of one month's RI and life
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imprisonment and fine of Rs.1,000/- with default stipulation of
one month's RI vide judgment dated 18.08.2015 in Sessions Case
No.384/2010 by 2nd A.S.J, Mhow, district Indore.
2. Case of the prosecution before the trial court was that
child victim (PW/10), aged 5 years was playing outside the house
at about 07.00 p.m on 12.01.2010. The appellant/accused came
there where the child (PW/10) was playing and gagged the mouth
of the child victim and took the child to the go-down shed of
railway station, Mhow and committed penetrative sexual assault
in a wagon stationed near the godown. On search the child
(PW/10) was found in injured condition. Her face was swollen
and blood was oozing from the urinal. Her clothes were blood
stained. She disclosed the incident weepingly. The First
Information Report was lodged by the father (PW/2) at 10.45 p.m
on 12.01.2010 and a crime no.27/2010 was registered at PS,
Mhow. After primary treatment at Civil Hospital, Mhow, the
child (PW/10) was referred to MY Hospital, Indore. During
investigation, the appellant/accused was identified as the person
who committed penetrative sexual assault with the child
(PW/10). Completing investigation, a report was submitted to
the Court of JMFC, Mhow, district Indore where criminal case
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No.724/2010 was registered and vide order dated 12.04.2010 the
case was committed to the Court of Session.
3. Charges under section 376 & 376(20(f) of the IPC
were framed and appellant/accused abjured the guilt and claimed
for trial.
4. To bring home the guilt, prosecution examined the
victm as PW/10, her father as PW/2, her elder sister as PW/6,
Dr.Vanita Agrawal as PW/18, Dr.B.K.Lahoti as PW/19,
Dr.Shashi Shankar Sharma as PW/20, Raju Dawariya as PW/1,
Shajah Bee as PW/3, Mahesh as PW/7, Javed Khan as PW/8,
Ismail as PW/9, Musharaf as PW/10, Constable V.S Chouhan as
PW/11, Farindabai as PW/12, D.S.P Doulatsingh as PW/13,
Medical Officer Dr.Sanjay Jain as PW/14, Munir as PW/15,
Hafiz Mohd. Jahid Hussain as PW/16 and Inspector Munnalal as
PW/17.
5. In the examination under section 313 of the Cr.P.C,
appellant/accused either denied or expressed ignorance regarding
facts and circumstances appeared against the appellant in the
prosecution evidence. He took the plea of false implication. He
did not adduce any evidence in his defence.
6. Appreciating the evidence, trial court assessed the age
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of the victim (PW/10) as 5 years on the date of incident i.e.
12.01.2010 and found proved that the appellant has kidnapped
the child (PW/10) for committing illicit intercourse and
committed penetrative sexual assault and convicted and
sentenced as mentioned in para-1 of the judgment.
7. Challenging the conviction and sentence, this appeal
has been preferred on the ground that trial court has not
appreciated the testimony of PW/10 properly and ignored the
contradictions occurred in her examination-in-chief regarding the
complicity of the appellant in the incident. Trial court also
misinterpreted the medical evidence and did not paid due
weightage to the opinion of the concerned doctor who opined that
the injury found on the body of the victim (PW/10) may be
caused by fall on a pointed object. Trial court ignored the fact
that the conviction of the appellant is based on the statement of
interested witnesses. The trial court ignored the fact that
prosecution did not examine any independent witnesses who
were residing near the place of incident. The trial court
committed error in not considering the contradictions and
omissions in the statement of witnesses and trial court ignored
the fact that the prosecution could not prove their case beyond
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reasonable doubt. The judgment of conviction and sentence is
bad in law and it deserves to be set aside.
8. Learned Govt. Advocate supported the impugned
judgment and prayed for dismissal of the appeal.
9. Heard. Perused the record.
10. The following questions arise for determination in
this appeal.
(i) Whether trial court committed error in
recording the finding that victim (PW/10), below the
age of 12 years, was subjected to rape on 12.01.2010?
(ii) Whether trial court committed error in
recording the finding that appellant was the person
who committed rape on the victim (PW/10)?
(iii) Whether trial court committed error in
imposing maximum sentence?
Determination of question no.(i):
11. In para-8 of the judgment, trial court has assessed the
age of the victim (PW/10) as 5 years and there is no effective
challenge to the age of the victim (PW/10).
12. Dr.Vanita Agrawal (PW/18) examined the victim
(PW/10) at Bhimrao Ambedkar Govt. Hospital, Dr.Ambedkar
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Nagar, Mhow, district Indore on 12.01.2010. She was taken to
the hospital with the history of sexual abuse at 07.00 p.m of
12.01.2010 and at the time of examination the victim (PW/10)
was very terrified and was not prepared for examination. Even
she was not prepared to lay on the examination table. On
external examination, she found that there was bleeding from the
vagina of the victim (PW/10). She put betadine ointment and put
a padding to prevent the bleeding and referred to MYH, Indore
for further treatment vide Ex.P/23 as victim (PW/10) required
anesthesia for further treatment.
13. Dr.Brajesh Kumar Lahoti (PW/19) and Dr.Sashi
Shankar Sharma (PW/20) posted at MYH, Indore examined the
victim (PW/10) on 13.01.2010 and found that there was grievous
injury in the vagina of the victim (PW/10). There was complete
tear of post vaginal wall extending up to cervic and uterus. The
vagina and anus were swollen. Fecal matter was present from
the vagina to anus. They prepared a midway to clear the fecal
matter present in the intestine to clean the mouth of vagina.
Thereafter they operated the victim (PW/10) second time on
28.01.2010 and an alternate way to clear the fecal matter through
abdomen was prepared so that vagina and anus injury could be
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treated and controlled the infection and discharged the victim
(PW/10) on 01.02.2010. Thereafter in the month of March, 2010
the victim (PW/10) was again admitted in MYH, Indore and
alternate way to clear the fecal matter through abdomen was
closed so that victim (PW/10) could pass the stool in a normal
way. Both the doctors opined that the victim (PW/10) suffered
grade-5 perineal injury which is the grievous injury. They opined
that above injury may be caused by sexual assault or on fall of
sharp edged weapon or sharp pierce.
14. Referring to the above opinion, it was argued that
injuries found on the body of victim (PW/10) were not proved
only due to sexual assault and it does not rule out that the injury
may be caused accidentally due to fall.
15. Victim (PW/10) has stated that injuries were caused
by bad act and Ex.P/4 is the first time medical examination at
civil hospital, Mhow and at that time vulval and vaginal swab
were taken from the body of victim (PW/10) and her pant made
available by father through Ex.P/5 was also taken and after
sealing the same were handed over to Constable Rekha Yadav.
The samples taken from the body of victim (PW/10) were
forwarded to FSL, Indore vide Ex.P/19 on 02.04.2010 and
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samples were deposited in FSL, Indore on 08.04.2010 vide
Ex.P/20 and report of FSL, Indore Ex.P/21 reported that semen
and sperm were found on the vaginal slide and pant of the victim
collected at civil hospital, Mhow on 12.01.2010. Accordingly,
the argument of the defence that injuries found on the vagina and
anal region of the victim were caused accidentally is not proved.
On the contrary it is proved that the same were caused during the
commission of rape with the victim and the finding of the trial
court recorded in para-25 that the injuries were caused due to
accidental fall has no possibility are based on proper appreciation
of evidence and the finding recorded in para-26 of the trial court
judgment that the victim (PW/10) was subjected to rape and the
injuries were caused during the sexual intercourse are proved to
be recorded after proper appreciation of evidence and the said
findings are hereby affirmed. Question No.(i) is answered
accordingly.
Determination of question No.(ii):
16. Appreciating the testimony of victim (PW/10), trial
court has concluded in para-17 that the appellant was the person
who committed rape on the victim (PW/10).
17. This finding has been challenged by the defence on
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the ground that the First Information Report Ex.P/2 lodged by the
father (PW/2) does not mention the name of the
appellant/accused. If the victim has identified the
appellant/accused at the time of incident, then she should have
informed the father and the name of the appellant/accused would
have been mentioned in the FIR. There is no test identification
parade in the case and there is no DNA finger print report or
other scientific evidence to connect the appellant/accused with
the offence committed with the victim. There is no other witness
who have seen the appellant/accused with the victim (PW/10) at
the time when the offence was said to be committed. The name
of the appellant/accused has been emerged in the influence of the
parents of the victim. The identification for the first time in the
court has no evidentiary value. The victim (PW/10) was
examined nearly four and half years after the incident when the
victim (PW/10) was of only 8 years and at the time of incident
she was only 5 years old and her memory may not be of such
quality that it could be expected that she would identify the
person who committed the offence. Considering the age of the
victim (PW/10) she may be subjected to easy tutoring.
18. In the light of above objections, we are testing the
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findings of the trial court and for this we are reappreciating the
evidence of the prosecution. On 12.08.2014 when the victim was
examined as PW/10, she was studying and the trial court
examined the competency of the witness to testify in the court
and for this purpose, trial court conducted voir dire test through
questions and a total nine questions were asked and one question
was answered as did not know but other questions were
satisfactorily answered and trial court found the victim (PW/10)
as competent to depose and after recording her competency to
testify he proceeded further without administering oath.
19. Perusal of the questions and the answer, the finding
of the trial court regarding competency of the victim (PW/10) to
give reasonable answer to the questions put to the witness is
proper. Victim (PW/10) has stated that she knows the
appellant/accused by name and by face. In para-5 she has
described that she knew the appellant/accused prior to the
incident and he was the resident of Bhishti mohalla and she
resides in Kirwani mohalla, Mhow. When both resides in the
same town then the testimony of PW/10 that she knew the
appellant/accused prior to the incident inspires confidence.
20. Now come to the objection that why victim (PW/10)
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did not disclose the name of the appellant at the first time. The
victim (PW/1) has stated in para-4 that her aunt met to her
outside Mhow railway station, then she caught the shawl of her
aunt and that aunt is examined as PW/6 and she has stated that in
search of PW/10, she went towards the station and the victim met
her outside the railway station, Mhow and at that time whole
body of the victim was injured and blood was oozing from the
vagina of the victim (PW/1). She was very scared and was not in
a position to talk. Dr.Vinita Agrawal (PW/18) has also deposed
that the victim was very scared when she examined her on
12.01.2010. Accordingly, non disclosure of the name just after
the incident does not affect the veracity of this witness.
21. The victim's mother (PW/5) has deposed that after
lodging the report when victim came in sense then she disclosed
the name of the appellant as the person who committed wrong act
with the victim (PW/10). This appellant/accused was taken into
custody on 15.01.2010 by PS Mhow vide Ex.P/11 and on
pointing the place of incident a pyjama was recovered on
17.01.2020 vide Ex.P/8 near the railway line and blood stained
small stones were also recovered from a wagon on 16.01.2010 on
pointing the appellant/accused vide Ex.P/20. The clothes and
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blood stained small stones were sent to the FSL, Indore and vide
report Ex.P/21 the blood was found on the small stones.
22. The statement of the victim under section 161 of the
Cr.P.C was recorded on 04.02.2010 and this date is just after the
discharge of PW/10 from MY Hospital, Indore on 01.02.2010
after recovery. Accordingly, neither the statement under section
161 of Cr.p.C is recorded with delay nor the version of victim
indicating the involvement of the appellant creates any
suspicion. There is no reason why the appellant will be falsely
implicated. Statement of victim PW/10 taken as a whole inspires
confidence. It passes the test of credibility regarding the
involvement of the appellant in the offence of rape committed
with her. The findings of the trial court are based on proper
appreciation of evidence, hence the findings of the trial court are
affirmed and question no.(ii) is answered accordingly.
Determination of question No.(iii):
23. At the time of incident i.e. 12.01.2010 the offence
under section 376(2)(f) of the IPC was punishable with rigorous
imprisonment for a term which shall not be less than 10 years but
which may be for life and shall also be liable to fine and a
proviso was also appended that the court may, for adequate and
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special reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term of less
than ten years.
24. Trial court has inflicted maximum sentence of life
imprisonment under section 376(2)(f) of the IPC recording the
reasons that the act committed by the appellant/accused with the
victim amounts to not only inhuman but also falls in the category
of brutality as two surgeries were performed on the body of the
victim and the victim (PW/10) had to suffer physical and mental
pain for her whole life.
25. Such incident will have an ever lasting effect on the
mind of the child (PW/10). The injuries caused to the prosecutrix
(PW/10), who is aged only 5 years will also cause her mental and
physical agony in her life time. In the case of Mukesh vs. State
(NCT) of Delhi (2017) 6 SCC 1, the Supreme Court has
emphasized to weigh the impact of such incidents on the society
in such heinous crimes. The relevant portion of the report is
being reproduced as below:
"Where a crime is committed with extreme brutality
and the collective conscience of the society is
shocked, courts must award death penalty,
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irrespective of their personal opinion as regards
desirability of death penalty. By not imposing a
death sentence in such cases, the courts may do
injustice to the society at large." "Question of
awarding sentence is a matter of discretion and has
to be exercised on consideration of circumstances
aggravating or mitigating in the individual cases.
The courts are consistently faced with the situation
where they are required to answer the new
challenges and mould the sentence to meet those
challenges. Protection of society and deterring the
criminal is the avowed object of law. It is expected
of the courts to operate the sentencing system as to
impose such sentence which reflects the social
conscience of the society. While determining
sentence in heinous crimes, Judges ought to weigh
its impact on the society and impose adequate
sentence considering the collective conscience or
society's cry for justice. While considering the
imposition of appropriate punishment, courts should
not only keep in view the rights of the criminal but
also the rights of the victim and the society at
large.In State of M.P. v. Munna Choubey and Anr.
(2005) 2 SCC 710, it was observed as under:
Therefore, undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law
and society could not long endure under
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such serious threats. It is, therefore, the
duty of every court to award proper
sentence having regard to the nature of
the offence and the manner in which it
was executed or committed etc. This
position was illuminatingly stated by this
Court in Sevaka Perumal v. State of
Tamil Naidu (1991) 3 SCC 471. Another
significant development in the
sentencing policy of India is the 'victim-
centric' approach, clearly recognised in
Machhi Singh (Supra) and re-
emphasized in a plethora of cases. It has
been consistently held that the courts
have a duty towards society and that the
punishment should be corresponding to
the crime and should act as a soothing
balm to the suffering of the victim and
their family. [Ref: Gurvail Singh @Gala
and Anr v. State of Punjab (2013) 2 SCC
713; Mohfil Khan and Anr. v. State of
Punjab (2015) 1 SCC 67; Purushottam
Dashrath Borate and Anr. v. State of
Maharashtra(2015) 6 SCC 652]. The
Courts while considering the issue of
sentencing are bound to acknowledge the
rights of the victims and their family,
apart from the rights of the society and
the accused. The agony suffered by the
family of the victims cannot be ignored
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in any case. In Mohfil Khan (supra),
this Court specifically observed that 'it
would be the paramount duty of the
Court to provide justice to the incidental
victims of the crime - the family
members of the deceased persons."
26. Legislature has answered to the society's cry for justice
in ravishment of children with brutality by enhancing penalty up
to death by incorporating section 376AB in the Indian Penal code
and enacting section 6 in the Protection of Children from Sexual
Offences Act, 2012 and section 65(2) of the Bhartiya Nyaya
Sanhita, 2023.
27. Child rape is a crime against humanity and the
responsibility lies with the courts to provide proper legal
protection to these children and under this duty the court has no
reason to show any leniency towards the appellant and we are
satisfied that the trial court has exercised the jurisdiction to
impose adequate sentence by inflicting maximum sentence of life
imprisonment for section 376 of the IPC in this case, hence we
decline to interfere in the sentence passed against the appellant.
The sentence under section 366 IPC also does not call for
interference. Question no.(iii) is answered accordingly.
28. Now come to the next question. Trial court has
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recorded the finding that due to the injuries caused in the incident
the victim suffered physical and mental trauma for a whole life
but did not adverted to the compensation. The rehabilitation of
the victim is the demand of the day especially in sexual assault
cases where grievous injuries have been caused to the victim to
do complete justice.
29. In Saibaj Noormohammad Shaikh vs. State of
Maharashtra & another - 2024 LiveLaw (SC) 860, the Apex
Court has taken note of non-awarding compensation to the victim
and directed that Sessions Court while adjudicating a case
concerning bodily injuries such as sexual assault etc. particularly
on minor children and women shall order for victim's
compensation to be paid having regard to the facts and
circumstances of the case and based on the evidence on record,
while passing the judgment either convicting or acquitting the
accused. The Apex Court further directed that the said direction
must be implemented by the District Legal Services Authority or
the State Legal Services Authority, as the case may be, in letter
and spirit and in the quickest manner and ensuring that the victim
is paid the compensation at the earliest. Relevant para is being
quoted as below:
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In the circumstances, we direct that a Sessions
Court, which adjudicates a case concerning the
bodily injuries such as sexual assault etc.
particularly on minor children and women shall
order for victim compensation to be paid having
regard to the facts and circumstances of the case
and based on the evidence on record, while passing
the judgment either convicting or acquitting the
accused. Secondly, the said direction must be
implemented by the District Legal Services
Authority or State Legal Services Authority, as the
case may be, in letter and spirit and in the quickest
manner and to ensure that the victim is paid the
compensation at the earliest.
30. Compensation scheme for women victims/survivors
of sexual assault/other crime, 2018, prescribe a minimum
compensation of Rs.4 lakhs and maximum compensation Rs.7
lakhs for the victims of rape and looking to the injuries caused to
the child (PW/10), we quantify the compensation of
Rs.5,00,000/- (Rupees Five Lakhs) to be paid to the victim
(PW/10). Order of compensation shall be satisfied by the
District Legal Services Authority, Indore within 120 days from
the date of judgment.
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31. This appeal against the conviction and sentence has
no substance and is hereby dismissed.
32. Copy of this judgment be supplied to the victim
(PW/10). Copy of the judgment be also made available to the
Secretary, District Legal Services Authority, Indore for
compliance and the compliance report be submitted to the
Principal Registrar, High Court of M.P, Bench at Indore.
33. If the order of compensation is not complied with,
then the Principal Registrar shall mention the case through PUD.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
