Sanju @ Sanjay Thakur vs The State Of Madhya Pradesh on 17 April, 2017

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HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH : Hon’ble Shri Justice Ved Prakash Sharma

Criminal Appeal No.1367/2014
Sanju @ Sanjay Thakur
Vs.
State of M.P.

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Shri Praveen Newalkar, learned counsel for the appellant.
Shri Peyush Jain, learned Public Prosecutor for the
respondent-State.

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JUDGMENT

(Delivered on 17th day of April, 2017)

This appeal preferred through Superintendent,
Central Jail, Indore is directed against judgment and order dated
13.03.2014 rendered by VII Additional Sessions Judge, Indore
in Special ST No.112/13, whereby appellant Sanjay @ Sanju
Thakur has been found guilty under Section 376(2)(i) of IPC
r/w Section 5(m)/6 of Prevention of Children from Sexual
Offences Act, 2012 (for short ‘the Act’) and has been sentenced
to suffer 10 years RI and to pay a fine of Rs.5000/- with a
further stipulation that in default of payment of fine, he will
suffer additional imprisonment of 2 years.

2. The prosecution case, as having emerged during
trial, briefly stated, is that on 04.09.2013, Pushpa (P.W.1), who
was residing in a rented accommodation in Mayur Nagar, Lane
No.5, Indore with her husband Subash Kochle (P.W.3) and two
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daughters including the prosecutrix (P.W.1), aged about 6 years,
had gone to her office; her husband was also away from the
house. When around 5 p.m. Pushpa (P.W.2) came back to her
house, the prosecutrix (P.W.1) narrated to her that around 2 p.m.
during the day when she went to the room of appellant Sanjay
Thakur situated nearby for having some guidance with regard to
homework, he kissed her and bitten her on the cheeks and
thereafter, removing her undergarment and after undressing
himself by taking out of his pant, inserted his penis in her
private part. Allegedly, on cry being raised, the appellant
pressed her mouth and further threatened to kill her if she
revealed anything about the incident to anyone. When around 7
p.m. Subash Kochle (P.W.3) came back to the house, Pushpa
(P.W.2) apprised him of the whole incident. She further told to
her landlord Rakesh and his wife Rita about the incident and
thereafter, same day at around 8.35 p.m. lodged First
Information Report (Ex.P/1) in this regard with Police Station
Azad Nagar, Indore, on the basis whereof a case under Section
376
of IPC and Section ¾ of ‘the Act’ was registered against the
appellant.

3. The investigation was put in motion. B.P. Verma
(P.W.9), the then Station House Officer, Police Station-Azad
Nagar proceeded with investigation and next day, after visiting
the spot prepared spot map (Ex.P/2). The prosecutrix was also
sent for medical examination. Dr. Jagrati Punchi (P.W.4), who
was posted at the relevant time in M.Y. Hospital, Indore as
R.S.O. (Gynec) examined her and, vide report Ex.P/4 found the
hymen membrane slightly torned on upper margin, however, no
injury or bleeding was noticed. She further collected the
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undergarment and nail clippings of the prosecutrix and also
prepared a slide of her vaginal smear. All these articles after
being sealed were handed over to the police. Dr. Jagrati Punchi
(P.W.4) expressed inability to give any definite opinion
regarding rape, however, she advised for X-Ray examination.
Next day, Dr. Nirmal Bhilala (P.W.5) conducted X-Ray of wrist
and sterno-clavicular joint of the prosecutrix and, vide report
Ex.P/7 opined that she was between 6-9 years of age as
epiphyses of head of radius had appeared but not fused and the
epiphyses of olecranon process and iliac crest had not appeared.
The appellant was apprehended, vide arrest memo Ex.P/13 on
05.09.2014. He was also sent for medical examination and was
found fit for sexual intercourse. His undergarments were
obtained. A slide of his semen was also prepared and these
articles were handed over to the police in a sealed cover. The
seized articles, vide memo Ex.P/15 were sent to Regional F.S.L.
Laboratory, Indore. The Assistant Chemical Examiner, vide
report dated 27.09.2013, reported presence of sperms over the
slide of semen prepared by the doctor at the time of
examination of the appellant. The witnesses were interrogated.

3. After usual investigation, a charge-sheet was laid
before the concerned Magistrate, who after compliance of
Section 207 of ‘the Code’ committed the case to the Court of
Sessions from where it was made over to the 7 th Additional
Sessions Judge, Indore for trial.

4. A charge under Section 376 (2)(i) of IPC read with
Section 5(m)/6 of ‘the Act’ was framed by the learned trial
Court against the appellant, who abjured the guilt and pleading
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innocence claimed to be tried.

5. The prosecution, in order to bring home the guilt,
examined as many as 10 witnesses including the prosecutrix
(P.W.1), her parents – Pushpa (P.W.2), Subhash Kochle (P.W.3),
and Investigating Officer – B.P. Verma (P.W.5). Dr. Jagrati
Punchi (P.W.4) and Dr. Nirmal Bhilala (P.W.5) have conducted
the medical examination of the prosecutrix. Apart this,
documents Ex. P/1 to P/17 were marked in evidence.

6. The incriminating circumstances appearing against
the appellant in the prosecution evidence were brought to his
notice during his examination u/s. 313 of ‘the Code’ so as to
enable him to explain, however, the appellant either denied such
circumstances or expressed his innocence. The plea on behalf of
the appellant was of false implication. In defence, solitary
witness Savita, who claims to be sister of the appellant, was
examined.

7. The learned trial Court on appreciation of evidence
vide the impugned judgment found the appellant guilty u/s.
376(2)(i) of the IPC read with Section 5(m)/6 of ‘the Act’) and
accordingly, convicted and sentenced him, as stated hereinabove
in Para 1.

8. The finding of conviction and sentence has been
challenged in this appeal on multiple grounds. It is submitted by
learned counsel for the appellant that the prosecutrix (P.W.1)
being a child witness was prone to be tutored, therefore, the
learned trial Court seriously erred in placing implicit reliance on
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her testimony. It is further submitted that the prosecution has not
been able to establish that there was ‘rape’ within the meaning
of Section 375 of the IPC because there is no evidence about
complete penetration. It is also submitted that on the date of
alleged incident, the appellant was not present at his residence
situated at Indore, therefore, the question of committing rape by
him does not arise. Lastly, it is submitted that the learned trial
Court has overlooked the material omissions and contradictions
and has committed a grave error in arriving at a finding of guilt.

9. Per contra, it is submitted by the learned Public
Prosecutor that the learned trial Court on proper appreciation of
evidence has recorded the finding of guilt and that, no ground is
made out to interfere with the conviction and sentence recorded
against the appellant.

10. Heard the learned counsel for the parties and perused
the record. The question that arises for consideration is, whether
the conviction and sentence recorded by the learned trial Court
is in accordance with law and evidence ?

11. Though defence witness Sarita (D.W.1) has deposed
that the appellant, who happens to be her brother, had gone on
4.9.2013 to Dewas as his wife was quick with the child and that
he stayed there for 3 to 4 days, however, her statement stands
belied by the answer put forth by the appellant during his
examination u/s. 313 of ‘the Code’ in response to question
No.34, in which, he has stated that he left his house at around 1
pm. As a matter of fact, the stand of the appellant as regards his
presence in his house has been quite dubious. While in response
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to Question No.17, he stated that he was not present in his
house, contrarily, in response to Question No.32, he says that he
was present in his house. Here, it is noticeable that no
suggestion was given to Pushpa (P.W.2) and Subhash Kochle
(P.W.3) respectively, the mother and father of the prosecutrix
(P.W.1), that on the date of alleged incident, the appellant was
not present in his room and had already left for his in-law’s
house at Dewas. Therefore, the testimony of Sarita (D.W.1) is
not found to be at all inspiring and clearly appears to be an after
thought. Hence, the plea of alibi is not sustainable.

12. There is a serious challenge to the testimony of the
prosecutrix (P.W.1), aged about 6 years, on account of her age,
hence, before proceeding further, it has to be examined as to
whether her testimony is inspiring and can be relied upon. As
per Section 118 of the Evidence Act, a person, who is not
prevented from understanding the questions put to him or from
giving rational answers to such questions is a competent
witness. Of course, a reasonable degree of caution and
circumspection is required while dealing with testimony of a
child witness. (See: Rajaram vs. State of Bihar, (1996) 9 SCC

287). However, if on a close and careful scrutiny, such evidence
is found to be reliable, the Court can act upon the same. In the
instant case, the prosecutrix (P.W.1), a child of 6 years, has been
examined without administering oath. The learned trial Judge
has put a number of questions to this witness in order to
ascertain whether she is having ability to understand the
questions put to her and can give rational answers to such
questions. The prosecutrix (P.W.1) has given clear answers to
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Question Nos. 1 to 6 which have been put to her to examine her
capacity to depose. Therefore, considering that the prosecutrix
(P.W.1) has given rational answers to the questions put to her, it
is found that she has capacity to understand the questions and to
answer the questions in a rational manner.

13. The prosecutrix (P.W.1) has clearly deposed that on
the date of incident, when she went to the room of the appellant
for studies, he bolted the room from inside and thereafter, had
bitten her lips and subsequently removed her undergarments so
also his own undergarments and thereafter inserted something in
her private parts and thereafter, ejaculated. Though, this witness
has not been able to state the date of incident, however, she has
specifically stated that the incident occurred at 2 pm. She has
further explained that she went to the room of the appellant,
who was residing in the close vicinity, as she was having some
difficulty in solving a question. During cross-examination, this
witness has further explained that in the evening, she used to go
to the appellant for studies and that some other children also
used to come to the appellant, however, at the time of incident,
she was alone. A close and careful scrutiny of the testimony of
this witness reveals that she has given quite rational replies to
most of the questions. Her answers are quite clear and to the
point. No material omission or contradiction has emerged so as
to indicate that she has been tutored or is interested in falsely
deposing against the appellant for some extraneous reasons. The
learned trial Court on due appreciation of testimony of this
witness has found her reliable. I don’t find any reason to differ
with the view taken in this matter by the learned trial Court.

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14. From the aforesaid, it is clear that on the date of the
incident, in the afternoon, at around 2 pm., the prosecutrix went
to the room of appellant situated nearby her house and that the
appellant misusing his position undressed her and after
removing his own clothes committed sexual assault upon her by
putting his private parts in the private parts of the prosecutrix
(P.W.1).

15. The learned counsel for the appellant inviting
attention to the MLC report, Ex. P/4 prepared by Dr. Jagrati
Punchi (P.W.4) on examination of prosecutrix (P.W.1), submits
that no injury has been found on the person or private parts of
the prosecutrix (P.W.1) and, therefore, a case of rape is not made
out against the appellant. To appreciate the contention raised in
this regard, it is necessary to examine the legal position with
regard to rape.

16. In the case of Ranjit Hazarika vs. State of Assam,
1998 (8) SCC 635, the apex Court held that to constitute the
offence of rape, penetration, however slight, is sufficient. While
dealing with this aspect, the apex Court observed as under
(para-5) :

“5. The argument of the learned counsel for
the appellant that the medical evidence belies
the testimony of the prosecutrix and her
parents does not impress us. The mere fact
that no injury was found on the private parts
of the prosecutrix or her hymen was found to
be intact does not belie the statement of the
prosecutrix as she nowhere stated that she
bled per vagina as a result of the penetration
of the penis in her vagina. She was subjected
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to sexual intercourse in a standing posture
and that itself indicates the absence of any
injury on her private parts. To constitute the
offence of rape , penetration, however slight,
is sufficient. The prosecutrix deposed about
the performance of sexual intercourse by the
appellant and her statement has remained
unchallenged in the cross-examination.
Neither the non-rupture of the hymen nor the
absence of injuries on her private parts.
therefore, belies the testimony of the
prosecutrix particularly when we find that in
the cross-examination of the prosecutrix
nothing has been brought out to doubt her
veracity or to suggest as to why she would
falsely implicate the appellant and put her
own reputation at stake. The opinion of the
doctor that no rape appeared to have been
committed was based only on the absence of
rupture of the hymen and injuries on the
private parts of the prosecutrix. This opinion
cannot throw out an otherwise cogent and
trustworthy evidence of the prosecutrix.
Besides the opinion of doctor appears to be
based on ‘no reasons’.”

17. In Madan Gopal Kakkad vs. Naval Dubey, (1992) 3
SCC 204, the apex Court had an occasion to consider whether
the complete penetration is necessary to constitute rape within
Section 375 of the IPC. Referring to various authorities on the
point, apex Court held that slightest degree of penetration of the
vulva by the penis with or without emission of semen is
sufficient to constitute the rape.

18. Again, the issue was dealt with by the apex Court in
Aman Kumar vs. State of Haryana, AIR 2004 SC 1497 and it
was held as under :

“The rupture of hymen is by no means
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necessary to constitute the offence of rape.
Even a slight penetration in the vulva is
sufficient to constitute the offence of rape
and rupture of the hymen is not necessary.
Vulva penetration with or without violence is
as much rape as vaginal penetration. The
statute merely requires evidence of
penetration, and this may occur with the
hymen remaining intact. The actus reus is
complete with penetration. To constitute the
offence of rape, it is not necessary that there
should be complete penetration of the penis
with emission of semen and rupture of
hymen. Partial penetration within the labia
majora of the vulva or pudendu with or
without emission of semen is sufficient to
constitute the offence of rape as defined in
the law. The depth of penetration is
immaterial in an offence punishable under
Section 376 IPC.”

19. In Koppula Venkat Rao vs. State of A.P., AIR 2004
SC 1874, the apex Court held as under :

“The sine qua non of the offence of
rape is penetration, and not ejaculation.
Ejaculation without penetration constitutes an
attempt to commit rape and not actual rape.
Definition of ‘rape’ as contained in Section
375
IPC refers to ‘sexual intercourse’ and the
Explanation appended to the section provides
that penetration is sufficient to constitute the
sexual intercourse necessary to the offence of
rape. Intercourse means sexual connection.”

20. In Rajendra Datta Zarekar vs. State of Goa, (2009)
1 SCC (Cri.) 892, the apex Court referring to Modi’s “Medical
Jurisprudence and Toxicology” and Parikh’s “Medical
Jurisprudence and Toxicology”, opined that to constitute an
offence u/s. 376 of the IPC, it is not necessary that the hymen
should be ruptured. It is further held that sexual intercourse
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means slightest degree of penetration of the vulva by the penis
with or without emission of semen.

21. A review of all the aforesaid authorities will make it
abundantly clear that to constitute rape within Section 375 of
the IPC, neither it is necessary that there should be complete
penetration nor it is necessary that there should be rupture of
hymen or other injuries on the person or private parts of the
prosecutrix. The slightest penetration with or without emission
may constitute rape. In the instant case, Dr. Jagrati Punchhi
(P.W.4) has deposed that on examination of private parts of the
prosecutrix (P.W.1), she found that the margin of the hymen
membrane was slightly torn form one side though the same was
not completely ruptured. This finding clearly indicates towards
sexual assault and penetration to some degree, therefore, it can
be safely concluded that the appellant subjected the prosecutrix

– a girl child of 6 years, to rape.

22. Though a faint plea with regard false implication on
account of alleged dispute of Subhash Kochle (P.W.3) with the
appellant with regard to payment of money has been taken
during cross-examination, however, the same appears to be a
concoction because no reasonable person in the capacity of
father will try to implicate a person by making a false allegation
of rape qua his daughter. Therefore, the plea taken in this regard
deserves to be rejected.

23. The next contention is that the testimony of
prosecutrix is not corroborated from an independent source,
therefore, the same cannot be relied upon. The plea raised in this
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regard is devoid of merit because by now, it is well settled that
victim of sexual assault is not treated as accomplice and as such,
her evidence does not require corroboration from any
independent source. In this regard, we can usefully refer to the
decision of apex Court in Moti Lal vs. State of M. P., 2008 Cri
LJ 3543 and in State of U.P. vs. Munshi, 2009 Cri LJ 393.

24. In State of Punjab v. Gurmit Singh, (1996) 2 SCC
384, the apex Court dealing with the plea with regard to
corroboration of the testimony of the prosecutrix in a rape case,
observed as under :

“The Courts must, while evaluating
evidence, remain alive to the fact that in a case
of rape , no self-respecting woman would come
forward in a Court just to make a humiliating
statement against her honour such as is
involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect on
the veracity of the prosecution case or even
discrepancies in the statement of the
prosecutrix should not, unless, the
discrepancies are such which are of fatal nature,
be allowed to throw out an otherwise, reliable
prosecution case. The inherent bashfulness of
the females and the tendency to conceal outrage
of sexual aggression are factors which the
Courts should not overlook. The testimony of
the victim in such cases is vital and unless there
are compelling reasons which necessitate
looking for corroboration of her statement, the
Courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to
convict an accused where her testimony
inspires confidence and is found to be reliable.

Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should
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the evidence of a girl or a woman who
complains of rape or sexual molestation be
viewed with doubt, disbelief or suspicion ? The
Court while appreciating the evidence of a
prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience,
since she is a witness who is interested in the
outcome of the change levelled by her, but
there is no requirement of law to insist upon
corroboration of her statement to base
conviction of an accused. The evidence of a
victim of sexual assault stands almost on a par
with the evidence of an injured witness and to
an extent is even more reliable. Just as a
witness who has sustained some injury in the
occurrence, which is not found to be self-

inflicted, is considered to be a good witness in
the sense that he is least likely to shield the real
culprit, the evidence of a victim of a sexual
offence is entitled to great weight, absence of
corroboration notwithstanding corroborative
evidence is not an imperative component of
judicial credence in every case of rape.

Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of
prudence under given circumstances. It must
not be overlooked that a women or a girl
subjected to sexual assault is not an accomplice
to the crime but is a victim of another person’s
lust and it is improper and undesirable to test
her evidence with a certain amount of
suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a
given set of facts and circumstances with
realistic diversity and not dead uniformity lest
that type of rigidity in the shape of rule of law
is introduced through a new form of testimonial
tyranny making justice a casualty. Courts
cannot cling to a fossil formula and insist upon
corroboration even if, takes as a whole, the case
spoken of by the victim of sex crime strikes the
judicial mind as probable.”

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25. From the aforesaid discussion and analysis it is
found to be proved beyond reasonable doubt that the appellant
misused his position as neighbor and his acquaintance of the
prosecutrix (P.W.1) and to gratify his lust committed rape upon
her. Therefore, the conviction recorded against him by the
learned trial Court for offence u/s. 376(2)(i) with Section 5(m)/6
of ‘the Act’ cannot be faulted.

26. As regards sentence, the apex Court in Motilal
(supra) has held that the measure of punishment in a case of
rape cannot depend upon the social status of the victim or the
accused, rather it must depend upon the conduct of the accused,
the state and age of the sexually assaulted female and the
gravity of the criminal act. The apex Court emphasized that
crimes of violence upon women need to be severely dealt with
and that, the socio-economic status, religion, race, caste or creed
of the accused or the victim are irrelevant considerations in
sentencing policy because protection of society and deterring
the criminal is the avowed object of law and that is required to
be achieved by imposing an appropriate sentence. It was further
observed that the Courts must hear the loud, cry for justice by
the society in cases of the heinous crime of rape on innocent
helpless girls of tender years, married women and respond by
imposition of proper sentence.

27. In view of the aforesaid legal position, the sentence
of 10 years rigorous imprisonment as imposed against the
appellant by the learned trial Court, in the considered opinion of
this Court, cannot be said to be unreasonable or excessive.

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28. Having regard to the aforesaid, this appeal having no
merit deserves to be and is accordingly, hereby dismissed.

(VED PRAKASH SHARMA)
JUDGE.

soumya

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