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Kallu vs The State Of Madhya Pradesh on 7 January, 2020

Cr.A. No.9413/2018 1

THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.9413/2018
(Kallu vs. The State of Madhya Pradesh)

Shri A.K. Saxena, learned counsel for the appellant.
Shri Ankit Khare, learned Public Prosecutor for the
respondent/State.
JUDGMENT

(Passed on 07/01/2020)
Appellant has preferred this criminal appeal under
Section 374 of the Code of Criminal Procedure, 1973 (for
short “The Code”) against the judgment dated 27/11/2018
passed by Special/Sessions Judge, District-Jhabua, in Special
Sessions Trial No.123/2016, whereby the appellant has been
convicted for offence punishable under Section 366 of IPC,
1860 and Section 5(l)/6 of Protection of Children from
Sexual Offences Act, 2012 (for brevity ‘The Act, 2012’) read
with Section 376(2)(n) of IPC, 1860, sentenced to undergo 3
years R.I and 10 years R.I with fine amount of Rs.1,000/-
Rs.5,000/- respectively, and usual default stipulation.

02. Brief facts of the case are that complainant is a resident
of village Samoyi and he is a labourer having five children.
After leaving his second daughter (the victim) with his father
in the village, complainant along with his wife went to
Gujarat to work. On 06/02/2016 complainant’s father called
him over mobile and informed that from 7.30 pm onwards,
the prosecutrix is found missing and the present appellant
who is the resident of the same village is also found missing.
Complainant went to his village, searched the prosecutrix in
the neighbourhood and relatives place, however she was not
Cr.A. No.9413/2018 2

traceable. Therefore, on 13/02/2016, complainant lodged a
report at Police Station Ranapur, District Jhabua. On the
basis of which Police registered FIR bearing crime
No.49/2016 against the appellant for offence under Section
363 of IPC, 1860.

03. During investigation, police recovered the prosecutrix
from the company of the appellant and her statement was
recorded in which she stated that appellant took her
forcefully and committed rape upon her. The prosecutrix
was sent to hospital for medical examination. The statement
of other witnesses were also recorded. Police inspected the
place of occurrence and prepared the spot map. The
appellant/accused was arrested and he was also sent to
hospital for medical examination. Police recovered various
article received from the hospital in sealed condition and sent
them to FSL for chemical analysis. After completion of
investigation, Police filed charge-sheet against the appellant
for offence under Section 363, 366, 376(2)(n) of IPC, 1860
read with Section 5 (l)/6 of ‘The Act, 2012’.

04. Appellant abjured his guilt and took a plea that he has
been falsely implicated in the present case, however, he has
not examined any witnesses in his defence.

05. Trial Court, after considering the submissions advance
by the learned counsel for the parties and scrutinizing the
entire evidence on record, convicted the appellant for offence
under Sections 366 of IPC, 1860 and Section 5(l)/6 of ‘The
Act, 2012’ read with Section 376(2)(n) of IPC, 1860,
sentenced to undergo 3 years R.I and 10 years R.I with fine
Cr.A. No.9413/2018 3

amount of Rs.1,000/- Rs.5,000/- respectively, and usual
default stipulation .

06. Learned counsel for the appellant has submitted that
trial Court has committed error in convicting the appellant in
absence of any cogent material or evidence on record. There
is a delay of six days in filing the FIR and no plausible
explanation has been offered regarding the delay. There are
material omissions and contradictions in the statement of the
prosecutrix and other prosecution witnesses, however, the
same has been overlooked by the trial Court, therefore, he
prayed that the judgment of conviction and order of sentence
impugned in the present appeal are vulnerable and need to be
set aside.

7. Learned counsel for the respondent/State while refuting
the above submission contents that the trial Court on the
basis of settled position of law that the conviction can be
solely based on the testimony of the victim in the case of
rape in absence of any infirmity in her evidence so as to term
it to be untrustworthy, has rightly accepted the same in the
instant case for being relied upon and accordingly trial court
is justified in fastening the guilt for offence under Section
376 of the IPC upon appellant. It is his submission that there
is no inherent infirmity in the evidence of victim (P.W 2)
which also finds some corroboration from the evidence of
Ashok Kumar Jatav (P.W 1) and other witnesses, therefore,
he contends that their remains no justifiable reason to upset
the finding of the Trial Court.

8. Position of law with regard to the appreciation of
Cr.A. No.9413/2018 4

evidence of victim in case of rape is too settled that the
testimony of the victim of sexual assault is vital unless there
are compelling reasons which necessitate looking for
corroboration. Court should find no difficulty in agree on the
testimony of the victim of sexual assault alone to convict
whenever her testimony inspires confidence and it is found
reliable. The corroboration in such a case is not a matter of
law but guide of prudence and that corroboration is not
always necessary. So, to look for corroboration to the
evidence of the victim, the Court must assign the compelling
reason as to why it is so required.

9. In the anvil of aforesaid settled principles of law, this
Court now is called upon to carefully go through the
evidence of victim (P.W. 2) to find out as to how far the
same inspires confidence and is trustworthy so as to be
wholly relied upon or else for the same corroboration is to be
sought for and finally to judge the sustainability of
conviction and sentence.

10. In the instant case, the victim (PW 2) is the sole eye
witness of the case. Accordingly to the victim (PW 2), one
years ago her parents had gone to Gujrat for labour work and
she was living with her grant father-Nahar Singh. During this
the appellant took her to village Bochka and kept her there
for a period of one month and during this he committed rape
upon her. After one month her father came there and took
back to village Bochka, thereafter, she went to Police-Station
alongwith her father and lodged the FIR ( (Ex. P/3). She
further submitted that at the time of alleged incident she has
Cr.A. No.9413/2018 5

passed her 10th class examination and her date of birth is
10/01/2000.

11. Mahesh (PW 3) deposed that in the year 2016, he went
to Gujrat with his wife-Balki Bai for earning his livelihood
and his daughter (victim) was remained with her grand
father-Nahar Singh and grand-mohter-Meta Bai. On
06/02/2016, his father-Nahar Singh informed him on
telephone that his daughter is not in the house, then he came
back to village-Samai and lodged the missing report (Ex.
P/7) of his daughter at Police-Station-Ranapur and FIR (Ex.
P/6). After one month of the incident, his daughter was
recovered from the possession of the appellant and she
informed him that the appellant took her at Rajkot, where he
committed rape upon her. According to Mahesh (PW 3), the
date of birth of the his daughter is 10/01/2000.

12. Ashok Kumar Jatav (PW 1)-Principal of Govt. Higher
Secondary School, Jhabua testified that the victim was
entered in his school in class 9th and according to the entry
made in the scholar register, her date of birth is 10/01/2000.

13. Dr. Hemlata Rawat (PW 4), deposed that on
13/03/2016, she was posted as Medical Officer at
Community Health Center, Ranapur and on the aforesaid
date, she examined the victim (PW 2) and found that her
secondary sexual characters were not fully developed and her
hymen was old torned and she opined that no defined
opinion can be given regarding commission of rape with the
victim.

14. There is nothing has come in the statement of Ashok
Cr.A. No.9413/2018 6

Kumar Jatav (PW 1), victim (PW 2) and Mahesh (PW 3) to
disbelieve that date of birth of the victim, which is
10/01/2000, therefore, at the time of alleged incident i.e. on
06/02/2016, she was below 18 years of age.

15. The victim (PW 2) accepted that her statement under
Section 164 of the Cr.P.C. was recorded before the court of
Judicial Magistrate First Class, in which she stated that the
appellant has not committed rape upon her, even he did not
touch her. She also accepted that she remained in the
company of the appellant for more than one month and she
used to cook food for him and she used to do agricultural
work on the fields, during which she never told anybody that
the appellant took her forcefully. She also admitted that
when the appellant took her from Ranapur to village Bochka,
so many persons met her but she did not raise any alarm nor
made complaint to anyone that the appellant abducted her.
According to the MLC report also no external or internal
injuries were found on the person of the victim. It is true if
the medical report is not found corroborative, then still the
testimony of the victim should be examined on its own
merits and if the testimony of the victim is examined without
corroboration of the medical evidence, then it would be
apprehend that there was a possibility of his false implication
because of that the prosecutrix belongs to scheduled tribes
community and she accepted that there is a custom in their
community that boy gives certain amounts to girl’s father
and in the present case the appellant did not pay this amount
to her father. She also accepted in her cross-examination that
Cr.A. No.9413/2018 7

if the appellant gave this amount to her father, then she does
not lodge the FIR against the appellant. The above facts and
circumstances of the case look to the corroboration so the
same can bring confidence to the evidence of victim (P.W. 2)
so as to form the foundation of finding of guilt.

16. Looking to the aforesaid infirmities in the statement of
the victim (PW 2), it will not be safe to accept her testimony
without any corroboration, therefore, the trial Court has
committed error in accepting the testimony of the victim
(PW 2) without any medical corroboration and convicting
the appellant for the commission of offence punishable
under Section 376 of the IPC.

17. For the aforesaid discussion of evidence and reasons
the Trial Court finding in holding the appellant guilty for
offence under section 376 I.P.C is found to be
unsustainable; so also the consequential order of sentence.
Resultantly the appeal stands allowed. The impugned
judgment of conviction and order of sentence are hereby set
aside and the appellant is acquitted for the aforesaid offence.

18. The appellant is in jail, therefore, it is directed that the
appellant be released forthwith, if he is not required to be
detained in any other case.

19. Let a copy of this order alongwith the record be sent to
the trial court for information and necessary compliance.

(S. K. Awasthi)
Judge
skt
Santosh Kumar Tiwari
2020.01.07 17:56:12 +05’30’

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