Pinki vs State of Madhya Pradesh - 2021 Supreme(MP) 341

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 341

IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Pinki v. State of Madhya Pradesh
Criminal Appeal No. 764 of 2016(Gwalior): against the judgment and sentence dated 4.8.2016 passed by the Additional Sessions Judge, Karera, District Shivpuri in Special Sessions Trial No.16/2015; Decided on 28.6.2021

Advocates:
A.K. Jain for appellant; Alok Sharma for respondent/State.

Headnote:
(1) Protection of Children from Sexual Offences Act, 2012 -- S. 4 -- sentence -- appellant completed more than seven years including remission -- submission that he may be sentenced to period undergone -- cannot be considered unless and until case is considered on merits. (2017) 11 SCC 431 followed. [Paras 2 & 3]
(2) Protection of Children from Sexual Offences Act, 2012 -- S. 4 -- Penal Code, 1860 -- S. 376 (1) -- Juvenile Justice (Care and Protection of Children) Act, 2000 -- S. 7A -- Juvenile Justice (Care and Protection of Children) Rules, 2007 -- R. 12 -- Evidence Act, 1872 -- S. 45 -- age of prosecutrix -- school record of prosecutrix available -- not necessary to look into ossification test report -- ossification test is merely medical opinion subject to margin of error of two years oneither side. (2013) 7 SCC 263 followed. [Para 24]
(3) Protection of Children from Sexual Offences Act, 2012 -- S. 4 -- Penal Code, 1860 -- S. 376 (1) -- prosecutrix aged about 14 years -- DNA test not conducted to find out if human sperms found in vaginal slide of prosecutrix were that of appellant -- but ocular and medical evidence corroborates evidence of prosecutrix -- prosecution succeeded in establishing offence beyond reasonable doubt -- conviction affirmed. [Paras 28 to 30]
(4) Protection of Children from Sexual Offences Act, 2012 -- S. 4 -- Penal Code, 1860 -- S. 376 (1) -- sentence -- appellant completed more than seven years including remission -- on date of conviction, minimum sentence for offence u/s. 4 of POCSO Act was 7 years -- minimum sentence for offence u/s. 376(1) of IPC was 10 years -- anomaly rectified by Legislature by amending POCSO Act in 2019 -- when minimum sentence for offence u/s. 376(1) of IPC was 10 years, sentence cannot be reduced to period undergone. [Para 35]
¼1½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 & /kkjk 4 & naMkns'k & vihykFkhZ us ifjgkj lfgr lkr o"kZ ls vf/kd iw.kZ fd, & fuosnu fd mls Hkksxh xbZ vof/k ls naMkfn"V fd;k tk, & rc rd fopkj ugha fd;k tk ldrk tc rd ekeys ds xq.kkxq.k ij fopkj ugha gks tkrkA ¼2017½ 11 ,l lh lh 431 vuqlfjrA ¼iSjk 2 ,oa 3½
¼2½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 & /kkjk 4 & naM lafgrk 1860 & /kkjk 376¼1½ & fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2000 & èkkjk 7d & fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ fu;e] 2007 & fuŒ12 & lk{; vf/kfu;e] 1872 & /kkjk 45 & vfHk;ksD=h dh vk;q & vfHk;ksD=h dk fo|ky; vfHkys[k miyC/k & vfLFkfodkl ijh{k.k fjiksVZ dk voyksdu vko';d ugha & vfLFkfodkl ijh{k.k fpfdRl;h jk; ek= gS ftlesa nksuksa vksj nks o"kZ dh xyrh dh xqatkb'k gksrh gSA ¼2013½ 7 ,l lh lh 263 vuqlfjrA ¼iSjk 24½
¼3½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 & /kkjk 4 & naM lafgrk] 1860 & /kkjk 376¼1½ & vfHk;ksD=h yxHkx 14 o"kZ vk;q dh & ;g irk yxkus ds fy, MhŒ,uŒ,Œ ijh{k.k ugha fd;k x;k fd vfHk;ksD=h ds ;ksfud LykbM ij ik, x, ekuo 'kqØk.kq vihykFkhZ ds Fks & rFkkfi] pk{kq"k vkSj fpfdRlh; lk{; ls vfHk;ksD=h dk lk{; laiq"V & vfHk;kstui{k ;qfDr;qDr lansg ls ijs vijkèk fl) djus esa lQy & nks"kflf) vfHkiq"VA ¼iSjk 2 ,oa 3½
¼4½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 & /kkjk 4 & naM lafgrk] 1860 & /kkjk 376¼1½ & naMkns'k & vihykFkhZ us ifjgkj lkr o"kZ ls vf/kd iw.kZ fd, & nks"kflf) ds fnukad dks iksDlks vf/kfu;e dh /kkjk 4 ds vèkhu vijk/k ds fy, U;wure naM 7 o"kZ Fkk & naM lafgrk dh /kkjk 376¼1½ ds vèkhu vijk/k ds fy, U;wure naM 10 o"kZ Fkk & fo/kku&eaMy }kjk 2019 esa iksDlks vf/kfu;e esa la'kks/ku dj folaxfr nwj dh xbZ & tc naM lafgrk dh /kkjk 376¼1½ ds v/khu vijk/k ds fy, U;wure naM 10 o"kZ Fkk rks naMkns'k de dj Hkksxh xbZ vof/k dk ugha fd;k tk ldrkA ¼iSjk 35½

JUDGMENT

1. This criminal appeal under section 374 of CrPC has been filed against the judgment and sentence dated 4.8.2016 passed by Additional Sessions Judge, Karera, District Shivpuri in S.S.T. No.16/2015, by which the appellant has been convicted under section 4 of Protection of Children from Sexual Offences Act, 2012 and has been sentenced to undergo rigorous imprisonment of 10 years and a fine of Rs.5,000/- with default imprisonment of three months.

2. At the outset, counsel for the appellant submitted that since the appellant is in jail from 24.2.2015 and he has completed more than seven years including remission, therefore, he may be sentenced to the period already undergone by him.

3. The submission made by the counsel for the appellant cannot be considered unless and until the case is considered on merits. However, the counsel for the appellant did not argue on merits and stick to his submission that the appellant may be punished with the period already undergone by him. In the light of judgment passed by the Supreme Court in the case of Nagpal Traders v. Davinder Singh reported in (2017) 11 SCC 431, the question of sentence cannot be decided unless and until the appeal is decided on merits. Accordingly, this Court is left with no other option but to consider the merits of the case on its own after going through the record.

4. According to the prosecution case, on 23.2.2015 at about 6:00 PM the prosecutrix (PW-1) had gone with her cattles along with her younger sister (PW-2) to Kumhargadha well for providing water to her cattles. At that time the appellant came there and gave Rs.40/- to the younger sister of the prosecutrix and instructed that she should equally share with the prosecutrix. The appellant also suggested the younger sister of the prosecutrix that she should stand there and thereafter he caught hold the prosecutrix from behind and gagged her mouth. He dragged her to a nearby place where the appellant committed rape on the prosecutrix and also extended a threat that she should not narrate the incident in her house, otherwise she would be killed. Thereafter, the prosecutrix came back and informed the incident to her parents. Since it was already late in the night, therefore, the FIR was lodged on the next day. The police prepared the spot map. The prosecutrix was sent for medical examination. The vaginal slide and undergarments of the prosecutrix as well as the undergarments, pubic hairs and slide of the appellant were sent for FSL report. The school record of the prosecutrix was seized. The appellant was arrested and he was got medically examined and after completing investigation, police filed the charge sheet for offence under sections 376(1), 506 (Part-II) of IPC and under section 3/4 of the POCSO Act, 2012.

5. The trial Court by order dated 17.3.2015 framed the charges under sections 376(1), 506 (Part-II) of IPC and also under section 4 of the POCSO Act, 2012.

6. The appellant abjured his guilt and pleaded not guilty.

7. The prosecution in order to prove its case, examined prosecutrix (PW-1), her younger sister (PW-2), the father of the prosecutrix (PW-3), Dr. Sunil Jain (PW-4), the mother of the prosecutrix (PW-5), Dr. Anjana Jain (PW-6), Ramesh Chandra Sharma (PW-7), Kaluram Parihar (PW-8), Smt. Anjana Khare (PW-9) and Ravindra Singh Sikarwar (PW-10).

8. The appellant examined Santosh Jatav (DW-1) and Dr. M.L. Agrawal (DW-2) in his defence.

9. The trial Court after considering the ocular as well documentary evidence held that the age of the prosecutrix was 14 years and the prosecution has succeeded in establishing that the prosecutrix was raped by the appellant and, accordingly, held the appellant is guilty for offence under section 376(1) of IPC and under section 4 of the POCSO Act but acquitted the appellant for offence under section 506 (Part-II) of IPC. Since the appellant was found guilty for offence under section 376(1) of IPC and under section 4 of the POCSO Act, therefore, in the light of sec