Pintu @ Mukesh vs The State Of M.P. on 25 May, 2017

Cr.A.No.837/2000

23.5.2017
Shri Anand Soni, learned counsel for the appellant.
Shri C.S.Ujjainiya, learned Panel Lawyer for the respondent/
State.
Arguments heard. Reserved for orders.

(Rajeev Kumar Dubey)
Judge

Patil

25.5.2017
Order passed separately, signed and dated.

(Rajeev Kumar Dubey)
Judge

Patil
Cr.A.No.837/2000

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE

SINGLE BENCH: HON. JUSTICE SHRI RAJEEV KUMAR DUBEY, J.

Cr.A.No.837/2000

Pintoo @ Mukesh S/o Bhairam

Versus

State of M.P.

—————————————————————————————
Shri Anand Soni, learned counsel for the appellant.
Shri C.S.Ujjainiya, learned Panel Lawyer for the respondent/State.
—————————————————————————————
JUDGMENT

(Delivered on 25/05/2017)

This criminal appeal has been filed under Section 374 of
Code of Criminal Procedure against the judgment of conviction
dated 27.6.2000 passed by Sessions Judge, Indore in
S.T.No.405/1998, whereby learned Sessions Judge found the
appellant guilty for the offence under Section 376 of IPC and
sentenced him to undergo seven years RI with fine of Rs.1,000/-
with default stipulation.

2. Brief facts of the case are that prosecutrix (PW3) (name and
identity of the prosecutrix imposed by law contained in section 228A
of IPC is not disclosed) and her mother Shanti Bai (PW-1) resident
of Shanti Nagar, Musakhedi, Indore used to work as petty labourers.
On 4.8.1998 Shantibhai could not go for work on account of illness
of younger brother of prosecutrix, whose father was also out of
Indore. Thus, the prosecutrix alone came to work with contractor
Rewaram, who had been constructing a building in Ranipura,
Indore. Accused/appellant Pintoo @ Mukesh was also on work as
labourer on that site, whom prosecutrix already knew. On the day,
at the time of rest for lunch at about 1.00 PM prosecutrix went
upstairs for taking her food, where appellant Pintoo @ Mukesh
came and caught hold of prosecutrix and committed rape with her
under the threat of murder. Since nobody was downstairs,
prosecutrix could not tell the incident to anybody and returned her
home at 3.00 PM, where she narrated the incident to her mother.
Since her father was not available,so when her uncle returned at
night she accompanied by her mother and uncle went to Police
Station for lodging the report. The prosecutrix lodged FIR Ex.P/2 at
Cr.A.No.837/2000

P.S., Mahila Thana, Indore. On that F.I.R. Crime No.71/1998 was
registered against the appellant for the offence punishable under
Section 376 and 506 of IPC and investigate the matter. During
investigation prosecutrix was medically examined. Spot map was
prepared. Doctor also prepared slide of vaginal discharge of
prosecutrix and also seized her Salwar and sent to Police Station in
a sealed packet along with seal impression which were also seized
by the police and seizure memo Ex.P/6 was prepared. The
statements of prosecutrix (PW-3), her mother Smt.Shanti Bai
(PW-1) and Santosh (PW2) were recorded and accused was
arrested on 5.8.1998 and was also medically examined where he
was found capable of doing intercourse. Doctor also seized
underwear of accused/appellant and also prepared slide of his
semen and after packing it sent that articles to P.S., Mahila Thana.
Where after seizing that article seizure memo Ex.P/8 was prepared.
The seized articles were sent for examination to Regional Forensic
Science Laboratory, where human semen and blood stain was
noted on slides of vaginal discharge of prosecutrix and on her
Salwar. After investigation Police filed charge sheet against the
appellant before the Court. On that charge sheet S.T.No.405/1998
was registered against the appellant. Learned Sessions Judge
framed charge against the appellant for the offence punishable
under Section 376 of IPC. The accused abjured the guilt and took
defence that he has falsely been implicated in the case. The
prosecution produced as many as five witnesses to prove its case.
However, after trial learned Sessions Judge found the appellant
guilty for the offence punishable under Section 376 IPC and
sentenced him as aforesaid. Being aggrieved with the same
appellant has filed this criminal appeal.

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3. Learned counsel for the appellant submitted that the
prosecutrix in her statement clearly stated that on the date of
incident appellant did not commit rape with her and some quarrel
occurred with the appellant, so her uncle lodged the report against
the appellant. The Police did not tell her that what had been written
in the report. Other witness Santosh (PW2) also turned hostile and
did not support the prosecution story.The first information report has
also been delayed so that the story of the prosecution becomes
doubtful. Learned trial Court without considering these facts wrongly
found the appellant guilty for the offence punishable under Section
376
IPC.

Cr.A.No.837/2000

4. On the contrary learned counsel for the State submitted that
although, prosecutrix in her examination-in-chief denied from the
fact that appellant committed rape with her on the date of incident,
but when Government pleader asked leading question to her.She
clearly deposed that on the date of incident appellant committed
rape with her. The complete statement of the prosecutrix shall be
read together, and not in piecemeal. Prosecutrix statement is also
corroborated from the statement of her mother Smt.Shanti Bai and
also supported from the FSL report. So there is no reason to
disbelieve the statement of prosecutrix. From her statement which
is also corroborated by other evidence, it is clearly proved that at
the time of incident appellant committed rape with prosecutrix. So
learned trial Court rightly found appellant guilty for the offence under
Section 376 of IPC.

Point of determination in this appeal is whether the
conviction and sentence awarded by the trial Court to
the appellant under Section 376 of IPC is liable to be set
aside for the reasons stated in the memo of appeal and
raised during argument.

5. On the fact of rape prosecutrix (PW-3) deposed that on the
date of incident her mother Shantibhai could not go for work with
contractor Rewaram. She alone came to work, where in the noon at
the time of lunch appellant caught hold of her and committed rape
with her. Her statement was also corroborated from FIR EX.P/2,
which was also proved by Nisha Reddy (PW-5), the then Sub-
Inspector, Mahila Thana, Indore and from the statement of her
mother Shanti Bai (PW-1), who also clearly deposed that on the
date of incident her daughter prosecutrix alone went to work with
contractor Rewaram. She returned home from work at 3.00 PM and
told her that appellant committed rape with her. At that time her
husband was not at home, she reported the incident to Chhatar
Singh and with whom she went to Mahila Thana, where prosecutrix
lodged the report Ex.P/2.

6. Although, prosecutrix (PW-3) in para 2 of her examination-in-
chief deposed that accused Pintoo did not commit rape with her and
on account of quarrel between her and appellant, her mother lodged
the report against the appellant but when Public Prosecutor asked
leading questions to her, she supported the prosecution story in toto
and stated which reads as thus;-

READ  Santu @ Santosh vs The State Of Madhya Pradesh on 21 June, 2017

Cr.A.No.837/2000

^^eSaus Fkkus ij fjiksVZ fy[kokbZ FkhA tks ?kVUkk esjs lkFk gqbZ Fkh] og fjiksVZ esa fy[kok nh
FkhA fjiksVZ esa fcydqy lPPkh ?kVuk fy[kokbZ FkhA eSa cksyrh xbZ iqfylokys fjiksVZ
fy[krs x;sA nksigj esa tc ge [kkuk [kkus yxs rc fiUVw us eqs idM+ fy;kA ml
le; dksbZ Hkh ugha FkkA fiUVw us ,slh ugha cksyk fd fPkYykbZ rks ekj MkywwaxkkA eSausa
fjiksVZ esa ;g ckr fy[kok;k Fkk fd mlus esjh lyokj fudky nh Fkh vksj mlus
viuk isUV [kksy fn;k FkkA mlus eqs tehu ij iVd fn;k FkkA mlus viuh is’kkc
dh txg dks viuh is’kkc dh txg esa Mky nh FkhA og FkksM+h nsj ls gV x;k FkkA
mlus dgk Fkk fd fdlh dks crkuk er ugha rks tku ls ekj MkywaxkA ;g ckr Bhd gS
fd vkjksih fiUVw us esjh ethZ ds f[kykQ dke fd;k FkkA**

7. Only on the count that on being asked leading questions by
the prosecution in her further statement prosecutrix deposed that
appellant committed rape with her and while denied the fact in her
earlier examination-in-chief the statement of Prosecutrix regarding
rape cannot be discarded. Her statement will read as a whole not in
a piecemeal. She is an illiterate lady. It appears from her statement
that due to hesitance and shame she earlier deposed that appellant
did not commit rape with her,but on asking leading question she told
the truth. Her statement regarding rape was corroborated from other
evidence also. Although, the FIR Ex.P/2 was lodged after a gap of
about eleven and half hours of the incident at 1.00 AM in the night,
whereas the incident is said to have occurred at 1.30 PM, but this
delay is satisfactorily explained by the prosecution. Shanti Bai
(PW-1) clearly deposed that prosecutrix returned to home at 3.00
PM and when prosecutrix’s uncle Chhatar Singh came to home
from duty in the night at 12.00 – 1.00 AM, they went to lodge the
FIR. Apex court in the case of Satpal singh vs State of Haryana
reported in (2010) 8 Supreme court Cases 714 held “In case of
sexual offences, the criteria may be different altogether. As honour
of the family is involved, its members have to decide whether to
take the matter to the court or not. In such a fact-situation, near
relations of the prosecutrix may take time as to what course of
action should be adopted. Thus, delay is bound to occur. This Court
has always taken judicial notice of the fact that “ordinarily the family
of the victim would not intend to get a stigma attached to the victim.
Delay in lodging the First Information Report in a case of this nature
is a normal phenomenon”. So only on the ground that incident
occurred at 1.30 PM, while the FIR was lodged at 1.00 AM in the
night, the prosecution story cannot be doubted.

8. Although, Santosh @ Prakash (PW-2) did not support the
prosecution story on the fact that appellant Pintoo @ Mukesh and
prosecutrix remained alone at the time of lunch and the fact that
prosecutrix was weeping at the time of returning from site yet he
has stated to have seen her sad face. In the case of C. Muniappan
Cr.A.No.837/2000

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v. State of T.N., (2010) 9 SCC 567, the Supreme Court has held
that the evidence of a hostile witness cannot be discarded as a
whole, and relevant parts thereof which are admissible in law, can
be used by the prosecution or the defence. So the statement
Santosh @ Prakash (PW-2) also supported the prosecution story
up to that extent that when Santosh returned from lunch the face of
prosecutrix was sad. FSL report Ex.P/10 also reveals the presence
of semen and human spermatozoa on slide of vaginal discharge
and cloths of the victim which is also a strong corroborative piece of
evidence to support the prosecution version even if it has not been
established that the spermatozoa was that of accused.

9. In this regard Nisha Reddy (PW-5) clearly deposed that after
registering the crime on the report of prosecutrix she got her
medically examined and after her examination report Ex.P/4 and
one sealed packet containing cloth (salwar) and slide of vaginal
discharge of prosecutrix was received , which she seized and
prepared seizure memo Ex.P/6 and P/7. On 5.8.1998 also arrested
the appellant and prepared arrest memo Ex.P/8 and also got the
appellant medically examined. After examination of appellant
medical report Ex.P/3 was received, which was proved by Dr.Vijay
Agrawal. Nisha Reddy (PW-5) further deposed that she sent seized
articles to FSL from where report Ex.P/10 was received. In that
report it is also mentioned that on slide of vaginal discharge of
prosecutrix and her Salwar human blood and semen were found,
which also corroborated the prosecutrix statement that at the time of
incident appellant committed rape with the prosecutrix. Even
appellant admitted during his examination under section 313 of IPC
that on the date of incident at noon when prosecutrix was alone at
site he caught hold of her. So, there is no reason to disbelieve the
prosecutrix statement that appellant committed rape with her. In the
considered opinion of this Court, learned trial Court did not commit
any mistake in finding the appellant guilty for the offence punishable
under Section 376 IPC.

10. As far as sentence is concerned the learned Judge has
sentenced appellant under Section 376 IPC to undergo Seven years
RI with fine of Rs.2,000/-. For the offence under section 376
Minimum sentence is prescribed as seven years RI. So learned trial
Court did not commit any mistake in awarding seven years rigorous
imprisonment, which is quite adequate and this Court does not find
any reason to interfere with the sentence given by the trial court.

Cr.A.No.837/2000

11. In the ultimate analysis we find no merit in the appeal and
consequently the same stands dismissed. As the appellant is on bail
his bail bonds stands forfeited and he be taken into custody to
suffer the remaining Jail sentence. The appellant Pintoo @ Mukesh
is directed to surrender before the trial court on 5.6.17 and the trial
court is directed to send him to jail for serving the remaining part of
jail sentence. If the appellant Pintoo @ Mukesh does not surrender
as directed above, the trial court shall take action according to law
for the arrest of appellant. The period of custody during trial shall be
adjusted towards the period of substantive sentence of
imprisonment.

The appeal is disposed of accordingly.

(Rajeev Kumar Dubey)
Judge
25/05/2017
Patil

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