Madhya Pradesh High Court
Bhuru vs The State Of Madhya Pradesh on 23 December, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:36922
1 CRA-3195-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 3195 of 2022
BHURU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Yogesh Purohit - advocate for the appellant.
Dr. Amit Bhatia appearing on behalf of Advocate General.
Heard on:- 19.12.2024.
Posted on:- 23.12.2024.
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JUDGMENT
This criminal appeal under Section 374(1) of the Cr.P.C is preferred
being aggrieved by the conviction under Section 342 & 376 of the Indian
Penal Code, 1860 and Section 6 readwith Section 5(m) of the POCSO Act,
2012 and sentence of 01 year R.I and Rs.1,000/- fine, 10 years R.I and
Rs.2,000/- fine, 10 years R.I and Rs.2,000/- fine with default stipulations and
all sentence of imprisonment to be run concurrently. Vide judgment dated
26.09.2017 passed in Special Case No.204/2016 by Special Judge POCSO
Act & Fourth Additional Sessions Judge, Ratlam.
2. Appellant/accused was tried for committing penetrative sexual
assault towards child aged 07 years on 24.10.2016 at or about 06:00pm
regarding which an FIR (Ex.P/1) was lodged by her father (PW-1) in Police
Station Sailana, District Ratlam (M.P) and offence No.302 of 2016 was
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LAHORIYA
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registered. Child was medically examined. Appellant/accused was taken into
custody on 24.10.2016 at 23:00 pm. Appellant/accused was also examined
(Ex.P/4), samples were taken and referred to FSL Sagar for DNA finger
printing report and statements were recorded. Documents (Ex.P/6 C)
regarding age was collected in which date of birth of the child was
mentioned as 21.10.2009. Completing the investigation, a report was
submitted to the Court of Special Judge, Ratlam.
3. Appellant/accused abjured guilt and claimed for trial and
prosecution examined the father of child as (PW-1), her mother (PW-2),
concerned Head Master of School in which victim was studying as (PW-3),
Medical Officer District Hospital Ratlam where child/victim was examined
as (PW-4), Block Medical Officer Sailana Dr. Shailesh Dangi where
appellant/accused was medically examined as (PW-5), Uncle of victim/child
as (PW-6), Investigating Officer Sub-Inspector Sushil Pathak as (PW-7),
Head Constable Mustaq Khan as (PW-8), Police Officer Jyoti Solanki who
recorded the First Information Report and completed initial investigations as
(PW-9).
4. In cross-examination under Section 313 of the Cr.P.C the
appellant/accused denied of the circumstances appearing against him in
evidence and advanced his defence through signs that there is a dispute
regarding land and money and PW-1 asked money to consume the liquor. He
denied to fulfill the demand of PW-1 and due to this he is falsely implicated
him in this case.
5. Appreciating the evidence trial Court, found proved that date of
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birth of the child is 21.10.2009 and on the date of incident i.e. 24.10.2016,
child was 07 years old and also found proved that there was penetrative
sexual assault with child/victim and convicted and sentenced the
appellant/accused as per para 01 of the judgment.
6. Challenging the conviction and sentence, this appeal has been
preferred on the ground that testimony of PW-1 and uncle of the child/victim
PW-6 is full of material contradictions and testimony of PW-2 (who is the
mother of the child/victim) is also contradictory. Medical Officer (PW-4) has
not found any internal or external injury on the body of child/victim.
Accordingly, testimony of eye witness i.e. PW-1 & PW-6 does not found
corroboration from the medical evidence. Trial Court did not appreciated the
fact that witness and appellant/accused are relatives and there is a dispute of
property and appellant/accused has been falsely implicated due to the
property dispute. The testimony of Investigation Officer (PW-7) is also
contradictory and his investigation is faulty. Trial Court also committed error
in not appreciating the fact that child/victim has not been examined. The
sentence has been imposed arbitrarily.
Heard.
7. Counsel for the respondent/State has supported the judgment
submitting that prosecution proved fundamental facts to attract the
presumption under Section 29 of the POCSO Act, 2012 and
appellant/accused could not discharge his burden to rebut the presumption.
The sentence imposed on the appellant/accused is minimum and no further
leniency can be extended to the appellant/accused and hence, prays for
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LAHORIYA
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dismissal of the appeal.
Perused the record.
8. Trial Court in para 09 of the judgment has recorded the finding
that the date of birth of the victim is 21.10.2009 and on the date of incident
i.e. 24.10.2016 the child was 07 years old. This finding is based on testimony
of PW-1, PW-2 and head master of the school PW-3 and the extracts of
scholar register (Ex.P/6C). As per PW-1, daughter was studying in first
standard and head master PW-3 has categorically stated that child was
admitted to their school on 27.06.2016 in first standard and her date of birth
is recorded as 21.10.2009. Cross-examination through para 04 & 05 of this
witness does not create any doubt regarding the truthfulness of this witness
regarding age. Hence, findings of the trial Court that date of birth of the child
was 21.10.2009 and on the date of incident child was 07 years old does not
call for interference and hence is affirmed.
9. Child could not be examined and reason for non-examination of
the child is recorded in the ordersheet dated 08.02.2017 after observing the
child in Court and found that she is unable to understand the questions put to
her and give rational answers to those questions. Accordingly, non-
examination of child is not fatal for prosecution. PW-1 has stated that he
returned to home at 6:00 pm. When he did not found her daughter at home
then he raised alarm and heard the weeping sound of his daughter inside the
house of appellant/accused. He knocked the door of appellant/accused but
appellant/accused did not opened the door. Then father of the victim (PW-1)
went to the roof of the appellant/accused house removed one title and found
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LAHORIYA
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that pyjama of his daughter was untied and the pant of the appellant/accused
was also untied. He and his brother (PW-6) came down in the house and his
daughter was weeping. He found that appellant/accused has put lock to the
doors of the house. He caught hold the appellant/accused and his daughter
told that appellant/accused has committed wrong deed with her. He took the
appellant/accused to the Police Station and lodged an FIR (Ex.P/1) and
thereafter, his daughter was medically examined.
10. PW-6 has also supported his brother PW-1. Mother (PW-2) has
also supported the prosecution stating the conduct of victim. Medical Officer
Sunita (PW-4) has stated that on examination of child/victim redness and
swelling over hymen of the child was present. She also recovered the pink
leggings worn by the victim and handed over to the Police Officer. Dr.
Shailesh Dangi (PW-5) stated that he examined the appellant/accused at PHC
Sailana on 24.10.2016 and found that he was capable to commit sexual
assault and also prepared two slides of semen and collected smegma and
blood samples of appellant/accused and handed over to the Police Officer.
Sub-Inspector Sushil Pathak (PW-7) stated that he forwarded the material
collected from child and appellant/accused for DNA finger printing to FSL
Sagar and report of FSL Sagar (Ex.P/16) reported that male DNA profile was
found on the leggings of the victim & that male DNA profile was matching
with the DNA profile found from the swab of smegma collected from
accused and blood sample of appellant/accused.
11. In medical jurisprudence and toxicology 24th edition reprint
2012 at page 668, Modi has opined that:-
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“In small children, the hymen is not usually ruptured, but may
become red and congested along with the inflammation and
bruising of the labia. If considerable violence is used, there is often
laceration of the fourchette and the pre-ineum.”
12. In Mehun Lamurong Vs. State of Meghalaya LAWS (MEGH)-
2022-8-21, the Meghalaya High Court has held that the examination
conducted on victim within close proximity of the incident revealing redness
& swelling in the vaginal walls would be indicative of penetration.
13. Appreciating the tenderness and swelling of hymen and presence
of male DNA of the appellant/accused on the leggings of the victim/child
and the situation in which PW-1 & PW-6 found the child with the
appellant/accused in closed doors of his house, the trial Court rightly
concluded that presumption under Section 29 of the POCSO Act, 2012 is
attracted in this case and burden of the appellant/accused to rebut the
presumption is heavy and mere suggestion of property dispute without
specific details or explanation that PW-1 asked him to supply the liquor are
not sufficient to rebut the presumption. Trial Court has rightly discussed the
defence of the appellant/accused in para 30 of the judgment. Trial Court has
discussed the truthfulness of DNA report in para 32 to 35 of the judgment
and his findings are proper. Accordingly, findings of the trial Court
convicting the appellant/accused under Section 376, 342 of the IPC and
Section 6 readwith Section 5(m) of POCSO Act, 2012 are based on proper
appreciation of evidence and does not call for interference. Minimum
sentence has been imposed to appellant/accused under Section 6 readwith
Section 5(m) of the POCSO Act, 2012. Accordingly, the sentence imposed
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LAHORIYA
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also does not call for interference.
14. This criminal appeal being devoid of merits and is hereby
dismissed. The copy of the judgment be supplied to the victim in the light of
in the light of Aparna Bhat & others vs. State of M.P & another – LiveLaw
2021 SC 168. Also, the copy of the judgment be supplied to the
appellant/accused through Jail Superintendent, Central Jail, Ratlam.
(GAJENDRA SINGH)
JUDGE
akanksha
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Signed by: AKANKSHA
LAHORIYA
Signing time: 23-12-2024
18:00:54