Bablu vs State on 7 June, 2017



Date of Decision: June 07, 2017

+ CRL.A. 402/2015

BABLU ….. Appellant
Through: Mr.Pramod Kumar Dubey,
DHCLSC Panel Advocate


STATE ….. Respondent
Through: Ms. Neelam Sharma, Addl. Public


% (ORAL)

In this appeal, the challenge is to impugned judgment of 24 th
September 2013 vide which appellant has been held guilty for the
offence under Section 376 of IPC and to impugned order of sentence of
26th September, 2013 vide which he has been sentenced to rigorous
imprisonment for ten years with fine of `10,000/-, with default clause.
Appellant also stands convicted and sentenced for the offences under
Section 363 of IPC and 366 of IPC to rigorous imprisonment for seven
years each, with fine of `5000/- each, with default clause. Trial Court has
directed the above sentences to run concurrently.

The facts as noted in the impugned judgment are as under:-

Crl.A.No.402/2015 Page 1 of 5

“…Complainant Krishna made the statement which is to
the effect that, he lives at the given address and is a
rickshaw pullar. On 24/05/2009, her
daughter/prosecutrix aged three years at about 8:30 p.m.
was playing outside the house and he was also standing
outside the house and at that time his neighbour Bablu
who lives opposite to his house came to her daughter/
prosecutrix and started playing with her (khilane lag
gaya) and then he (complainant) told him (Bablu) that it
is too dark (kaafi raat ho gayi), let her daughter be given
to him and he (Bablu) also go to sleep on which he
(Bablu) asked him (complainant) to go and he (Bablu)
will leave the prosecutrix at his (complainant’s) house.
He (complainant) left prosecutrix in the company of him
(Bablu) and waited for long but Bablu did not come to
the house. Then, he (complainant) went out and saw that
Bablu and her daughter/prosecutrix were not there. They
were searched but could not be found. He (complainant)
searched them here there (aas pass), but they could
not be found. Then, he (complainant) on 24/05/2009,
phoned on no.100 and the police came there. Police also
made search but her daughter could not be found and he
(complainant) said that at present he does not want any
legal action and tries to trace her by his own means
(apne taur par talash kar leta hu). On 25/05/2009, when
he (complainant) saw Bablu at about 7:00 a.m. in the
morning, going to his room asked him where his
daughter is but he (Bablu) could not give any satisfactory
reply. When he (complainant) collected nearby persons
(aas paas ke logon ko ikattha kiya) and asked Bablu by
pressurizing him (dabav dall kar pucha). Then, Bablu
told that he has kept concealed prosecutrix in Ramleela
Maidan, Village Badli. On which, complainant taking
his wife, neighbours Vijay, Dinesh, Pradeep, with Bablu
reached at Ramleela Maidan, Village Badli and where he
(complainant) saw that his daughter/prosecutrix was
lying inside dry grass (ghaas phoos) and he

Crl.A.No.402/2015 Page 2 of 5
(complainant) recovered her and she was in naked
condition and was in semi-consciousness (nagna avastha
mei thi va ardh chetna me thi) and the blood was present
all over her body and also on her vagina and had dried.
Her T-shirt of red colour and underwear (kachhi) of
kathai color which she was wearing were also not found
present. Thereafter, the complainant gave the
information on no.100 and the police came there and
took the prosecutrix in possession.”

At trial, apart from evidence of parents of prosecutrix, i.e. Krishna
(PW-1) and Pushpa (PW-2), there is evidence of neighbours- Dinesh (PW-

3) Pradeep Kumar (PW-5) and that of Dr. Gopal Krishan (PW-8) and
Dr. Seema (PW-11) who have proved the MLC of the prosecutrix. ASI
Raj Bala (PW-16) is the Investigating Officer of this case. The FSL
report has been proved on record by Ms. Shashi Bala (PW-17). While
taking note of the stand of appellant of false implication, trial court has
relied upon the prosecution evidence to convict and sentence the
appellant-accused as noted hereinabove.

The challenge to the impugned conviction and sentence is on the
ground that evidence of parents of prosecutrix is contradictory. It is
pointed out by learned counsel for appellant that it has come in evidence
of prosecutrix’s father (PW-1) that he had allowed prosecutrix to play
with appellant-accused, whereas prosecutrix’s mother (PW-2) in her
evidence has maintained that they were not on talking terms with
appellant-accused. Learned counsel for appellant draws attention of this
Court to FSL report to point out that the report regarding the grouping of
semen is not conclusive and so benefit of doubt ought to be extended to

Crl.A.No.402/2015 Page 3 of 5
appellant, who had taken a plea of alibi before the trial court. To submit
so, attention of this Court is drawn to the cross-examination of
prosecutrix’s father to show that appellant used to leave for work in the
evening by 7:00 P.M. or so and used to return back from his work in the
morning at about 7:00 A.M. on the next day. Thus, it is submitted by
learned counsel for appellant that impugned judgment and sentence
deserves to be set aside while extending the benefit of doubt to appellant.

On the contrary, learned Additional Public Prosecutor for
respondent-State submits that it has come on record that on the day of
incident, appellant was on leave and so the plea of alibi fails. It is pointed
out that prosecution version stands duly corroborated from the MLC of
prosecutrix. It is further submitted that FSL report corroborates the
prosecution version as semen was found in the sample taken from vagina
of prosecutrix and that offence committed by appellant is heinous one and
so this appeal deserves to be dismissed.

Upon hearing and on perusal of impugned judgment, order on
sentence and the evidence on record of this case, I find that the plea of
alibi has not been taken by appellant in his statement under Section 313
Cr.P.C. and that father of prosecutrix in his evidence, while deposing
about the time of appellant’s going for work and coming back, has
clarified that on the day of incident appellant was on leave. It has come
on record that when appellant was questioned by father of prosecutrix
about the whereabout of prosecutrix, appellant had not given any
satisfactory answer. It does appear from the evidence of prosecutrix’s
father that relation between parents of the prosecutrix and appellant were

Crl.A.No.402/2015 Page 4 of 5
cordial and that the appellant was neighbour of parents of the prosecutrix.
Though it has come in the cross-examination of mother of prosecutrix that
appellant and family of prosecutrix were not in talking terms but this by
itself does not demolish the prosecution case because there is convincing
evidence on record to the effect that under the pressure of neighbours,
appellant had told that prosecutrix is there in the Ramleela ground of the
village and infact prosecutrix was found there and blood was found on her
naked body. After going through the FSL report, I find that that semen
was found in the vagina of prosecutrix and that the blood group of sample
could not tally as it had become putrefied. But this by itself is not
sufficient to conclude that the medical evidence does not support the
prosecution version. In fact, from the MLC of the prosecutrix, the
prosecution version stands fortified.

Upon taking overall view of the evidence on record, this Court
finds that the conviction awarded to appellant is legally sustainable and
the sentence awarded to appellant is the minimum sentence and so it
cannot be reduced as there are no exceptional circumstances to do so.
Consequentially, finding no substance in this appeal, it is dismissed while
maintaining the conviction and sentence awarded to appellant.

Appellant be apprised of the fate of this appeal through concerned
Jail Superintendent.

JUNE 07, 2017

Crl.A.No.402/2015 Page 5 of 5

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