Cr.A. No.329/2014 1
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon’ble Shri Justice S.K. Awasthi
Cr.A. No. 329/2014
Sanny S/o Amarsingh
vs.
State of Madhya Pradesh
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Shri Dinesh Kumar Tiwari, learned counsel for the
appellant.
Shri Romesh Dave, learned Public Prosecutor for the
respondent/State.
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J UD G E M E N T
(Passed on 13/07/2018)This appeal under Section 374 of the Code of Criminal
Procedure, 1973 (for short “The Code”) has been preferred by the
appellant against judgment of conviction dated 04/01/2014, passed
by Special Judge [SC/ST (PA) Act, 1989], Barwani, District
Barwani in Special Case No.09/2013, whereby the appellant was
convicted and sentenced as under:
Conviction Sentence
Section Imprisonment Fine Imprisonment in lieu
of fine
363 IPC 3 years R.I. Rs.500/- 3 months R.I.
366 IPC 3 years R.I. Rs.500/- 3 months R.I.
376(1) IPC 7 years R.I. Rs.500/- 3 months R.I.
3(1)12 of 6 months R.I. Rs.500/- 3 months R.I.
SC/ST(PA)ACT, 1989
3 /4 of Protection of 7 years R.I. Rs.500/- 3 months R.I.
Children from Sexual
Offences Act, 2012
02. Prosecution story in short is that on 27/01/2013, at about
5.00 pm, appellant-Sanny called the prosecutrix and on the pretext
Cr.A. No.329/2014 2of marriage he abducted her and first took her to village Haribad
and then to the house of Jaipal situated at village Badgaon where he
committed rape upon here. Sitaram, father of the prosecutrix made
a missing report at the police-station Barwani. During enquiry
police recovered prosecutrix on 29/01/2013 and sent her to hospital
for medical examination as well as ossification test. On the basis
of statement given by the prosecutrix, police registered F.I.R
(Ex.P/16) at crime No.38/2013 for offence under Section 363, 366,
376, 34 of IPC and Section 3(2)(5) of SC/ST(PA) Act, 1989 against
appellant-Sanny and co-accused Mansingh. Investigation Officer,
Amarsingh Mandloi (P.W.4) prepared the spot map (Ex.P/2). He
obtained scholar register of primary school Temilapura, to prove
the age of the prosecutrix. Police arrested the accused persons.
Appellant-Sanny was sent for medical examination. Police seized
various articles received from the hospital and sent them to forensic
science laboratory for examination. Caste certificate of the
prosecutrix was also obtained. After completion of investigation,
charge-sheet was filed before the Chief Judicial Magistrate,
Barwani, who committed it to the Court of Special Judge, Barwani.
03. Appellant abjured his guilt and took a plea that he is
innocent and has been falsely implicated in the crime. However, he
has not examined any witness in his defence.
04. The trial Court, after considering the evidence adduced by
the parties, and vide the impugned judgment acquitted the co-
accused Mansingh, however, convicted the appellant and sentenced
him as mentioned herein-above.
05. The learned counsel for the appellant assailed the
conviction on the ground that F.I.R is belated. Medical report is
not supporting the statement of the prosecutrix and there is
contradiction in the statement of the prosecutrix. In spite of that the
trial Court has erroneously convicted the appellant, therefore, he
prayed that the appellant be acquitted from the charges levelled
Cr.A. No.329/2014 3
against him.
06. Per contra, learned public prosecutor appearing on behalf
of the respondent/State has supported the impugned judgment
order of conviction by submitting that the learned trial Court, on
proper evaluation of evidence, has recorded conviction and that the
same does not call for any interference.
07. I have heard learned counsel for the parties and perused
the record.
08. Prosecutrix has testified that she belongs to the caste of
Bhilal, which comes under Schedule Tribes. After the death of her
mother she is residing with her aunt at Barwani. At about 4 months
ago, her aunt had sent her to flour mill situated at Anjad Naka to
grind dough, where appellant Sanny and Mansingh met her and
Mansingh allured her that Sanny is a rich person and he will keep
her well. On the insist of Mansingh, she went with Sanny. Sanny
took her to village Haribad, where he kept her in the house of
Jaipal and committed rape upon her. Next day police reached
there and recovered her vide recovery panchnama (Ex.P/1).
09. According to Sitabai (P.W.2), prosecutrix is her niece
and after the death of her mother, she was residing with her. The
age of the prosecutrix is 14 years. Five months ago at about 5.00
pm, she sent the prosecutrix on flour mill to grind dough, when the
prosecutrix did not came back, then she sent her younger brother to
see her, he informed Sitabai that the prosecutrix has gone with
Sanny. Thereafter, the father of the prosecutrix lodged missing
report. After three days, prosecutrix was recovered from the
possession of accused from village Haribad. Accused Sanny
Mansingh were brought to the police-station, where prosecutrix
informed that accused Sanny had abducted her and committed rape
upon her twice in the house of Jaipal situated at village Haribad.
Sitaram (P.W.3) also supported the statement of his sister Sitabai
(P.W.2).
Cr.A. No.329/2014 4
10. Babulal Solanki (P.W.5) Assistant Teacher, Primary
School, Tehsil Segaon, District Khargone has stated that the
prosecutrix got admitted in their school in Class-I in the year 2006
and as per the scholar register (Ex.P/5), the date of birth of
prosecutrix is 01/02/1999. Ossification test was conducted by
Dr.G.S. Mujalda (P.W.8), who in his statement deposed that in the
ossification test the age of the prosecutrix was found to be about 12
to 14 years. These documents clearly indicates that at the time of
the incident the prosecutrix was minor. No challenge was offered
on behalf of the defence with respect to the age of the prosecutrix
as narrated by complainant Sitaram (P.W.3), therefore, it is found
proved without reasonable doubt that the prosecutrix was aged
about 12 to 14 years on the date of the incident.
11. From the perusal of the statement of prosecutrix (P.W.1),
her father and aunt, I am of the view that there is no material
contradiction, omission, exaggeration or improvement in their
statements. There is no evidence on record to show that there was
any enmity between the appellant and these witnesses, therefore, it
cannot be said that these witnesses have falsely implicated the
appellant in the present crime. Therefore, there is no reason to
disbelieve the statements of these witnesses. Although, as per the
statement of Dr. Chandan Soni (P.W.10) no internal or external
injury was found in the body of the prosecutrix and it was found
that two fingers can easily be inserted in her internal organ,
therefore, no definite opinion can be given about the commission
of rape. However, if it is assumed that the prosecutrix has gone
with the appellant on her own accord, even then, her consent has
no value because at the time of the incident, she was minor,
therefore, only on the basis that no injury was found on the body
of the prosecutrix, the appellant cannot be escaped.
12. From the aforesaid discussions, it is found proved that on
27/01/2013 prosecutrix went to the flour mill, for grinding dough,
Cr.A. No.329/2014 5
situated at Anjad Naka from where the appellant took her to
village Haribad and committed sexual intercourse with the
prosecutrix. Thus the prosecution has succeeded in establishing
the fact that the prosecutrix was raped by the appellant.
13. So far as the sentence is concerned, learned counsel for
the appellant has submitted that appellant has already served the
jail sentence of 5 years and 6 months, therefore, he prayed that the
sentence be reduced to the period already undergone. From the
perusal of record it appears that at the time of the incident the
prosecutrix was aged about 14 years and there is minimum
sentence prescribed for offence under Section 376 of IPC and 3(1)
(12) of SC/ST(PA)ACT, 1989. Further, there is no reason
available to reduce the sentence awarded to the appellant,
therefore, the prayer made by the learned counsel for the appellant
is not acceptable.
14. Consequently, upon the aforesaid analysis, the appeal is
without merit, therefore, the conviction and sentence of the
appellant as mentioned herein-above is affirmed and the present
appeal is hereby dismissed.
15. A copy of the judgment be sent to the trial Court along
with record for information and compliance.
Certified copy as per Rules.
(S.K. Awasthi)
Judge
sumathi
Digitally signed by Sumati
Jagadeesan
Date: 2018.07.16 10:43:27 +05’30’
