The State Of M.P. vs Hari Patel on 21 November, 2017

HIGH COURT OF MADHYA PRADESH, JABALPUR

Criminal Appeal No.342/2002

Appellant : State of Madhya Pradesh
through SHO, Kotwali, District
Damoh.
-Vs-
Respondent : Hari Patel, S/o Ram Charan Patel,
aged about 24 years, R/o Isai
Mohalla, Damoh (M.P.)

Present : Hon. Shri Justice S.K. Gangele
Hon. Shri Justice Anurag Shrivastava

Shri B.P. Pandey, Government Advocate for the
appellant/State.
Shri R.S. Shukla, Amicus Curie for the respondent.

Whether approved for reporting : Yes/No

JUDGMENT

(21.11.2017)
Per Anurag Shrivastava, J :-

The present appeal under Section 378(1) of Cr.P.C., has
been preferred by the appellant/State being aggrieved of the
judgment and acquittal dated 10.12.2001 passed by Sessions
Judge, Damoh in Sessions Trial No.91/2001, whereby the
respondent has been acquitted of the charge of offence
punishable under Section 376 r/w 511 and 506-B of IPC.

2. The case of the prosecution in brief is that the
prosecutrix is aged about 8 years. Her father had expired
some 8 years back. After the death of father her mother Rajo
Bai had developed relations with respondent Hari Patel and
she was living with him as husband and wife since 6 years.
On 04.02.2001 around 1 O’ clock in the afternoon
respondent, sent Rajo Bai to purchase rice from the shop.

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Vs. Hari Patel.

The prosecutrix was present in the house. Thereafter
respondent pulled down her knickers and after applying oil
he pressed his mail organ on the private part of the girl.
Prosecutrix felt pain and started crying. Respondent could not
penetrate since he discharged. However, it is clear that he did
attempt to commit rape. The mother of prosecutrix returned
from the shop after sometime than the prosecutrix informed
her about the incident. She had also informed her grand-
mother. On 09.02.2001 mother of the prosecutrix Rajo Bai
lodged the report of the incident (Ex.P/8) at Police Station
Kotwali, Damoh. Police registered offence and got the
prosecutrix medically examined. The ossification test was
performed to determine her age also and after usual
investigation charge-sheet has been filed before the Court.

3. The respondent has been charged for offence
punishable under Sections 376 r/w 511 and 506-B of IPC.
Respondent abjured guilt and pleaded innocence. The
prosecution has examined 8 witnesses, whereas the
respondent had no evidence in his defence.

4. The trial Court on appreciation of evidence found the
case of prosecution not proved beyond reasonable doubt and
acquitted the respondent from the charge of alleged offence.
Against the order of acquittal the present appeal is preferred
by the State.

5. Heard arguments and perused the record.

6. It is not disputed that at the time of incident the
prosecutrix was a minor girl aged about 8 – 9 years. This fact
is also verified and proved by prosecutrix (PW-5), her mother
Rajo Bai (PW-6), grand-mother Janki Bai (PW-8) and
Radialogist Dr. O.P. Dubey (PW-1) who had conducted the
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Vs. Hari Patel.

ossification test and given the report (Ex.P/1). The findings of
trial Court in this regard is correct and acceptable.

7. It is also not disputed that after the death of husband,
the mother of prosecutrix namely Rajo Bai was living with the
respondent as husband and wife. Prosecutrix was also living
with her mother and respondent. Prosecutrix (PW-5) deposed
that on the date of incident around 1 O’ clock in the
afternoon the respondent sent her mother Rajo Bai to
purchase rice from the shop. When her mother left for the
shop respondent pulled out her knicker and after applying oil
he pressed his mail organ on the private of her. She felt pain
on her private part. Since respondent discharged, he left the
prosecutrix and let her go. The respondent threatened her
not to inform her mother otherwise he would kill her.
Therefore, she did not inform her mother but later on she
informed her grand-mother. Her grand-mother informed her
mother and thereafter the report of the incident was lodged
at Police Station. In cross-examination prosecutrix further
deposed that on the date of incident her grand-mother had
gone to Allahabad. She returned after three – four days than
she narrated about the incident to her.

8. The grand-mother of prosecutrix namely Janki Bai (PW-

8) deposed that at the time of incident she was in Allahabad.
After three – four days when she returned home prosecutrix
informed her about the incident and told her that in absence
of her mother the respondent had tried to commit rape on
her. Janki Bai further deposed that when she asked Rajo Bai
to lodge report of the incident, she did not agree to it and
told her that if she wants she may lodge the report.
Thereafter Janki Bai went to Police Station with prosecutrix
and gave information of the incident to Police. The Police
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Cr.A.No.342/2002 State of M.P.

Vs. Hari Patel.

Officer asked Janki Bai to call mother of the prosecutrix and
only on her instance the report be recorded. Than Rajo Bai
was called at Police Station and the report was lodged by her.

9. Rajo Bai (PW-6) did not corroborate the statement of
prosecutrix she had deposed that the prosecutrix had told
her nothing about the incident. Rajo Bai has been declared
hostile by the prosecution. She had denied to lodge FIR
(Ex.P/8) but admitted her signature on it. She had also
admitted that Janki Bai reached at Police Station with
prosecutrix and she was also called there by the police. It
appears that Rajo Bai is still living with respondent as
husband and wife, therefore, she is trying to save him.

10. Thus, from the statement of prosecutrix, which is duly
corroborated by her grand-mother Janki Bai, it is found that
at the time of incident the respondent had attempted to
commit rape on prosecutrix. At the time of incident
prosecutrix was aged about 8 years and living with the
respondent who was her step father. It is acceptable that due
to threatening of respondent, the prosecutrix had not
informed about the incident to other persons. In a case
where father himself is accused of committing rape on his
daughter it would be very difficult for the daughter to lodge
report. Therefore, the delay in lodging the report is
immaterial. Since medical examination of prosecutrix was
conducted after 6 – 7 days of incident and this is a case of
attempt to rape, therefore, no external injuries had been
found on private part of the prosecutrix. The mother of
prosecutrix is trying to save respondent with whom she is
living as wife. Thus, on the ground of delayed FIR and non-
corroboration of testimony of prosecutrix by her mother, the
statement of prosecutrix cannot be disbelieved. Why a young
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Vs. Hari Patel.

girl of eight years would try to falsely implicate her step
father. There is no evidence to show that prosecutrix had
been tutored to give false statement. There is no evidence to
indicate that grand-mother of the prosecutrix is having
enmity with the respondent. Only on the ground that she is a
child witness her testimony cannot be discarded.

In Radheshyam v. State of Rajasthan AIR 2014
SC(Suppl.)773 Hon’ble Apex Court in para 9 observed as
under:-

“9. In Panchhi (AIR 1998 SC 2726) after
reiterating the same principles, this Court
observed that the evidence of a child witness must
be evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and, thus, a child
witness is an easy pray to tutoring. This Court
further observed that the courts have held that
the evidence of a child witness must find adequate
corroboration before it is relied upon. But, it is
more a rule of practical wisdom than of law. It is
not necessary to refer to other judgments cited by
learned counsel because they reiterate the same
principles. The conclusion which can be deduced
from the relevant pronouncements of this Court is
that the evidence of a child witness must be
subjected to close scrutiny to rule out the
possibility of tutoring. It can be relied upon if the
court finds that the child witness has sufficient
intelligence and understanding of the obligation of
an oath. As a matter of caution, the court must
find adequate corroboration to the child witness’s
evidence. If found, reliable and truthful and
corroborated by other evidence on record, it can
be accepted without hesitation.”

11. In Gamini Balal Koteswara Rao vs. State of A.P.
(2009) 10 SCC 636 Hon’ble Apex Court has held that it is
well settled in law that:-

“It is open to the High Court to reappraise the
evidence and conclusions drawn by the trial Court
but only in a case when the judgment of the trial
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Vs. Hari Patel.

Court is stated to be perverse. The word ‘perverse’
in terms as understood in law has been defined to
mean ‘against the weight of evidence’ “.

12. In State of Punjab Vs. Karnail Singh (2003) 11
SCC 271 Hon’ble Apex Court has held as under:-

“6………The paramount consideration of the Court
is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate Court to reappreciate the
evidence even where the accused has been
acquitted for the purpose of ascertaining as to
whether any of the accused committed any
offence or not.”

13. In the present case, the testimony of prosecutrix is duly
corroborated by Janki Bai (PW-8). Her testimony appears to
be cogent, reliable and trustworthy. Thus, relying upon her
testimony it is proved that the respondent had attempted to
commit rape on prosecutrix and threatened to kill if she
would narrate about the incident to anybody. The offence
punishable under Section 376 r/w 511 and 506-B of IPC is
duly proved beyond reasonable doubt against the
respondent. The trial Court has committed illegality in
acquitting the respondent from aforesaid offences.

14. Consequently, appeal is allowed. The impugned
judgment and acquittal recorded by the trial Court in favour
of respondent is set-aside. The respondent is held guilty for
commission of offence punishable under Sections 376 r/w
511 and 506-B of IPC.

15. As far as the sentence is concerned at the time of
incident for an offence of rape on a girl of age below 10
years, the minimum punishment was 10 years. Therefore,
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Cr.A.No.342/2002 State of M.P.

Vs. Hari Patel.

relying upon case law State of Maharashtra Vs. Rajendra
Jawanmal Gandhi (1997) 8 SCC 386 , the appellant is
sentence to undergo rigorous imprisonment for 5 years and
fine of Rs.5,000/-. Failing to deposit the fine he shall suffer
R.I for 6 months. The period of custody undergone by him in
jail be set off under Section 428 of Cr.P.C.

(S.K.Gangele) (Anurag Shrivastava)
Judge Judge
M.

Digitally signed by SANTOSH
P MATHEWS
Date: 2017.11.21 16:46:39
+05’30’

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