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Ajay vs The State Of Madhya Pradesh on 24 July, 2018

CRA No. 1673/2013

Single Bench: Hon’bleShri Justice SubodhAbhyankar, J
Criminal Appeal No. 1673/2013
State of M.P.
Shri A. D. Mishra, learned counsel for the appellant.

Shri Devendra Shukla, learned PL for the respondent/State.


(Passed on the 24 day of July, 2018)

1. Heard finally with the consent of the parties.

2. This appeal has been filed by the appellant under Section 374(2) of
the Code of Criminal Procedure being aggrieved by the judgment dated
24.06.2013 passed by the First Additional Sessions Judge, Burhanpur in
S.T.No. 06/2013 whereby the learned Trial Court convicted the appellant
as under:-

Conviction Sentence
U/s. 376(1) of IPC R.I. for 10 years and fine of Rs.1,000/-;
in default 2 months additional R.I.
U/s. 377 of IPC R.I. for 10 years and fine of Rs.1,000/-;
in default 2 months additional R.I.
U/s 3/ 4 of the POCSO Act, 2012 R.I. for 10 years and fine of Rs.1,000/-;
in default 2 months additional R.I.

3. The facts giving rise to the present appeal are that on 23.04.2013
at around 1:30 to 2 P.M when the victim aged 7 years had gone to the
appellant’s shop to buy cold drink, she came back crying and when her
father and mother asked her as to what has happened, then she informed
them that appellant Ajay had taken her to the back side of the shop to give
her Pepsi and thereafter he opened the chain of his pant and inserted his
penis in the victim’s mouth. The aforesaid incident was informed to the
Sarpanch of the village and Dehati Nalishi was registered vide Ex.P/1 at
the instance of the father of the prosecutrix at 5:40 pm. Thereafter, FIR
Ex.P/6 was registered at crime No. 101/2013 at 6:50 pm on the same day.

CRA No. 1673/2013

The appellant was arrested on the same day, in the night at around 23:10
pm and the victim/ prosecutrix was also medically examined by P.W.17 Dr.
Rehana Bohra of Nehru Hospital, Burhanpur vide Ex.P/14. No mark of
injury was found either internally or externally. Although in this MLC it is
stated that the prosecutrix had alleged oral sex by the person named Ajay
hence slides of oral swab were also taken.

4. The learned Judge of the trial Court after recording the evidence
has convicted the appellant as aforesaid and being aggrieved of the
same, this appeal has been preferred by the appellant.

5. Learned counsel for the appellant has vehemently argued before
this Court that no case for conviction under the provisions of POCSO Act
is made out as the appellant has been falsely implicated by the parents of
the prosecutrix owing to a dispute on account of non payment of amount
due to the appellant. The appellant was running a provision store and
used to give the goods to the parents of the prosecutrix on credit.

6. It is further submitted that even otherwise, no case for sexual
intercourse can be made out as the act oral sex attributed to the appellant
does not fall within the definition of rape.

7. Learned counsel has also relied upon the judgments rendered by
the Apex Court in the case of Sakshi/ Smt. Sudesh Jakhu V. Narendra
Verma and others, AIR 2004 SC 3566 to submit that no case u/s.377
is made out even if the prosecution story is accepted as also the
judgment rendered by the Orissa High Court in the case of Mihir alias
Bhikari Charan Sahu V. State of Orissa; 1992 0 Cr.L.J. 488, on the
question of quantum of sentence of the appellant, who has already
undergone more than 5 years sentence.

8. Heard the learned counsel for the parties and perused the record.

9. So far as the age of the prosecutrix is concerned, the same has
been stated to be around 7 years by her mother Pw/2 Anita and father
Pw/3 Mahehdra and the same has been proved by the Pw/18 Shridhar,
the incharge pradhan Pathak at primary school, Nachan Khera vide
Scholar Register Ex.P/15C, Admission Register P/16C and the certificate
issued by him vide Ex.P/9 according to which her date of birth is
07.08.2006. This witness P.W.18 has not been cross-examined by the
defence and as such there is nothing on record to disbelieve the aforesaid
documents, which demonstrates the date of birth of the prosecutrix to be
CRA No. 1673/2013

7.8.2006 and hence on the date of the incident i.e. 23.04.2013 the age of
the prosecutrix is held to be 6 years and 8 months.

10. So far as the allegations against the present appellant are
concerned, the prosecution has examined the prosecutrix as P.W.1, who
in her statement has clearly stated that on the date of the incident when
she had gone to buy Pepsi from the appellant’s shop, she was subjected
to oral sex by the appellant who put his penis in her mouth. She has also
stated that subsequently she was taken to hospital where she was
examined. In her cross-examination, a suggestion has been made that in
the appellant’s shop Pepsi is not sold, to which she has denied. A
suggestion is also made to her that there was a dispute between the
appellant and the prosecutrix’s parents owing to credit which the appellant
had given to them, to which also this witness had denied. Although she
has admitted that prior to the incident, the appellant had refused to give
any goods on credit to the parents of the prosecutrix and suggestion is
also made that the prosecutrix’s parents are now purchasing goods from
the shop of one Sanjay whose shop is also nearby and in his shop also
Pepsi is available but the prosecutrix is firm on her statement that she had
gone to the appellant’s shop to get Pepsi only.

11. P.W.2 Anita is the mother of the prosecutrix. She has also
reiterated the same story. In her cross-examination she has also been
confronted with the same question that she had some dispute with the
appellant in respect of credit which the appellant had given to them, to
which this witness has denied. She has also denied that the appellant
does not sell Pepsi as he has no fridge in his shop and she has
categorically denied that there was any dispute in respect of the amount
which was due to the appellant.

12. P.W.3 Mahendra is the father of the prosecutrix. He has also
narrated the same story and the same questions have been confronted to
him to which he has denied.

13. Prosecution has examined Suresh Medhe as P.W.4, who happens
to be a Panch of Gram Panchayat Nachankheda, ward No.9. Although he
is a hearsay witness but has admitted that on the date of the incident, the
mother of the prosecutrix had come to his house and narrated the incident
to him. This witness has not been challenged in any manner beneficial to
the appellant.

CRA No. 1673/2013

14. P.W.5 Baliram is the Sarpanch of village Nachankheda. He has also
supported the case of the prosecution and has even asked the prosecutrix
as to what had happened in detail. Although there are some contradictions
in his statement but the same are minor in nature and cannot be held to
be suffering from any infirmity. Thus, so far as the oral testimony is
concerned, the same stands unrebutted. So far as the medical and other
evidence is concerned, P.W.8 B.C. Tanwar is the Sub Inspector of police
station Shahpur. He had recorded the Dehati Nalishi, Ex.P/1.

15. P.W.7 Chatar Singh is the person who had collected samples of the
prosecutrix from the hospital vide Ex.P/3 and the samples of the appellant
vide Ex.P/4.

16. P.W.16 Dr. Mujjafal Bohra has examined the appellant and found to
be capable of indulging in sexual intercourse vide Ex.P/13 and had also
prepared the slides of the swab of penis.

17. P.W.17 Dr. Rehana Bohra has examined the prosecutrix and as
already stated above, although she did not find any injury on the person of
the prosecutrix but had preserved the slides of oral swab.

18. P.W.19 R.S. Amb, DSP, arrested the appellant and prepared the
spot map. He seized articles and sent the same to FSL vide Ex.P/18. FSL
report is also on record and proved as Ex.P/19 in which oral swab of the
prosecutrix marked ‘A’ and slides B slide of Semen and C slide taken from
surface of penis which were taken from the appellant were found to be
positive in nature and found to be containing human siemen and sperm
and from the slides taken from the appellant, saliva was also found.

19. In the defence, accused has not examined any person and in the
statement made under Section 313, his only defence is that the witnesses
have made false statement against him. After minutely scrutinizing the
deposition of the witnesses as also the evidence on record including FSL
report, this Court is of the considered opinion that the statement given by
the prosecutrix who is only 6-1/2 years old, cannot be disbelieved as it
does not appear to be a case where the prosecutrix, who is of tender age
would try to falsely implicate the appellant with the allegation as vividly
narrated by her in her statement. It is also rather unthinkable that the
parents of the prosecutrix , only to falsely implicate the appellant, would
go to such an extent at the risk of maligning the reputation of her
daughter. Apart from that, the FSL report demonstrates beyond
CRA No. 1673/2013

reasonable doubt the involvement of the appellant in the aforesaid offence
as the slides which were obtained from the prosecutrix and the appellant
had siemen as also the saliva respectively which proves the involvement
of the appellant in this case beyond reasonable doubt. As a result no
interference is called for so far as the offence under Section .3/4 of the
POCSO Act is concerned.

20. So far as the conviction u/s.377 is concerned, in the case of Sakshi
(supra) as relied upon by the counsel for the appellant, the Apex Court
has held that the definition of rape u/s.375 does not include all forms of
penetration such as penile/vaginal penetration, penile/oral penetration,
penile/anal penetration, finger/vaginal and finger/anal penetration and ob-
ject/vaginal penetration within its ambit thus, the conviction of the appel-
lant u/s.375(1) of IPC was indeed uncalled for being illegal and is hereby
set aside. So far as the conviction u/s.377 of IPC is concerned, which
provides for punishment for the carnal intercourse against the order of the
nature, the same is hereby confirmed as the allegation is in respect of
penile/oral penetration which would certainly fall within its ambit.

21. So far as the quantum of sentence is concerned, which is 10 years
in the present case. Looking to the age of the appellant is also around 19
years old,, the background from which he hails, as also the period of
sentence which he has already undergone,, in the considered opinion of
this court, he sentence may be reduced from 10 years to 7 years which is
the minimum sentence provided under s.3/4 of the POCSO Act.

As a result, the appellants conviction u/s.376(1) of IPC is hereby
set aside, his sentence u/s.377 of IPC and under s.3/4 of the POCSO Act
is hereby reduced from 10 years to 7 years each and so far as s.354-A is
concerned, in which he has been sentence to 1 years RI, the same is
hereby confirmed. Since he has already undergone around 5 years 3
months imprisonment, his appeal is partly allowed as aforesaid and he
shall suffer the remaining part of his sentence in accordance with law.

Digitally signed by
Date: 2018.07.25
16:20:53 +05’30’

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