Mangal Bhumia vs The State Of M.P. on 30 June, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 850 OF 1997
Mangal Bhumia
Vs.
The State of M.P.
*****
None appears for the appellant.
Mrs. Sharda Dubey, learned P.L for respondent/State.
—————————————————————————
Present: Hon’ble Shri Justice Sushil Kumar Palo —-
———————————————————————-

JUDGMENT

(30.06.2017)

Law clearly expects the appellate Court to dispose of the
appeal on merits, not merely by perusing the reasoning
of the trial Court in the judgment but by cross-checking
the reasoning of the evidence on record. It is the duty of
the appellant and his lawyer to remain present on the
appointed day, time and place, when the appeal is posted
for hearing. This is the requirement of the Code of
Criminal Procedure on a plain reading of sections
385-386 of Cr.P.C.

2 The law does not enjoin that the Court shall adjourn
the case if both the appellant and his lawyer are absent.
In the case of Bani Singh and Others Vs. State of
U.P., AIR 1996 SC 2439, the Apex Court while dealing
with
Section 386 of Cr.P.C held that when appellant and
his lawyer are absent on appointed for hearing, the Court
is not bound to adjourn the case, but should dispose of
appeal on merits. The dismissal of appeal simpliciter for
non-prosecution is not contemplated.

3 In a similar case of K.S. Panduranga Vs. State of
Karnataka, 2013 Cr.L.J 1665 the Apex Court has held
that it cannot be said that the Court cannot decide a
criminal appeal in the absence of the counsel for the
accused, even if the counsel does not appear deliberately
or shows negligence in appearing.

4 This criminal appeal is pending since 1997, but none
appeared on behalf of the appellant. Therefore, in view of
aforesaid enunciation of law, the appeal is being decided.
5 This criminal appeal has been filed under
Section 374
of the Cr.P.C challenging the judgment and sentence
dated 17.04.1997 passed by 2nd A.S.J, Jabalpur, in
Session Trial No. 193/1991, wherein the appellant has
been convicted for offence under
Section 376 and 506 (2)
of
I.P.C and sentenced to imprisonment for ten years
with fine of Rs.100/- in default of fine additional rigorous
imprisonment for two months and three years
respectively.

6 The prosecution story in brief is that on 01.01.1991 in
the afternoon, the minor prosecutrix (PW/4) had gone to
collect wood from the forest at village Mohas. Nearby the
same a man was herding the cattle. Finding the
prosecutrix (PW/4) alone, the accused forcibly fell her on
the ground by holding her hand and threatening her that
if she shouts, she would be cut by axe. Putting her on
fear of death and removing her clothes, the accused
committed sexual intercourse with the minor prosecutrix.
Because of which the minor prosecutrix bleeded. The
accused fled away from the spot. After the appellant left
the spot, the prosecutrix shouted. Her father Laxman
Singh, Ramhit and Oji lal and others came to the scene of
crime. After it was verified, people informed that it was a
person of village Muhas who committed the crime.
Accused Mangal was the person who perpetrated the
crime with the prosecutrix. Report Ex. P/4 lodged at
Police Station Bargi. Crime No. 2/1991 was registered.
7 During the investigation, the prosecutrix was sent for
medical examination with application Ex. P/1. On the
reverse of the application, Dr. Kusum Jain (PW/1) has
given the M.L.C report. Vaginal slide was prepared and
sealed. Her inner garments were also seized and handed
over to the police. The same was given at Police Station
Bargi and seized by Ex. P/4 A. Spot map P/6 was drawn.
Statements of the prosecutrix was recorded.
Subsequently, accused was arrested. His medical
examination was conducted by application Ex.P/2. Dr.
V.K. Jain, (PW/ 2) examined the accused and seized his
stained undergarments. The said undergarment was
seized by police vide seizure memo Ex. P/3. The seized
article was presented before the police station where the
same was again seized by drawing seizure memo Ex. P/5.
The axe which was used for threatening the prosecutrix
was seized by seizure memo dated 04.01.1991 Ex. P/8
from the accused, on the basis of the memorandum Ex.
P/7, given by the accused. The age of the prosecutrix was
determined by radiological test Ex. P/12 and P/13 are the
x-ray plates and Ex. P/11 is the report. The slide and
clothes seized were sent to forensic laboratory by
memorandum Ex. P/10. Report received from forensic
laboratory is Ex. P/14 and P/15.

READ  Atul Kumar Jain And Ors vs State Of Rajasthan Through P P on 20 April, 2017

8 After due investigation, charge sheet was filed.
Charges have been framed for offence under Sections
376 and
506 (2) of I.P.C. The appellant/accused abjured
guilt and claimed that he has been falsely implicated.
Mangal son of Shankar and Mangal son of Pancham were
examined in support of the defence.

9 Learned 2nd A.S.J, Jabalpur after adducing evidence
pronounced the impugned judgment and held the
appellant convicted for offence under
Sections 376 and
506 (2) of I.P.C and sentenced as mentioned above.
10 On behalf of the appellant, it is pleaded that the
appellant is innocent. He has been falsely implicated. The
prosecutrix has not identified the appellant which is very
vital for the criminal trial. The accused has been
identified by other persons stating that a person resident
of village Muhas was perpetrator of crime. Whereas the
prosecutrix has not definitely identified the appellant. No
identification parade was conducted. Witnesses identified
the appellant on the basis of identification by third
persons. Therefore, the appellant has been implicated in
the crime on the basis of circumstantial evidence and is,
therefore, entitled for acquittal.

11 Learned P.L for the respondent/State opposed the
contentions. Referring the pieces of evidence, he has
claimed that the minor prosecutrix was ravished by the
accused. The accused has been identified by the
prosecutrix, during the evidence. Accused was medically
examined. At the time of examination also, certain stains
of blood was found in his cloths, which indicates the
involvement of the accused. Hence, there is sufficient
evidence on record. The learned trial Court has properly
examined the evidence and held the the appellant
convicted. The judgment impugned does not call for any
interference.

12 Perused the record and the judgment impugned.
13 At the outset, it would be appropriate to analyze the
medical evidence gathered by the prosecution. The
prosecutrix was radiologically examined by Dr. M.
Agrawal, PW/8. According to him, the x-ray plates of the
prosecutrix was taken and examined. It was found that
the age of the prosecutrix is in between 8 to 13 years.
The x-ray plates are Ex. P/12 and 13. The written report
given by Dr. M. Agrawal (PW/8) is Ex. P/11. In the cross-
examination, no question has been put to him. His
statement remained unchallenged. Hence, no reason to
disbelieve that the prosecutrix was aged between 8 to 13
years at the time of incident. Even if, the variation of age
likely to be two years, the prosecutrix would be 15 years
at the most, at the time of incident. Therefore, it can be
safely held that the prosecutrix was below 16 years at
the time of incident.

READ  State Of Haryana vs Jasvinder Singh And Ors. on 28 March, 2000

14 Dr. Kusum Jain, PW/1 has examined the prosecutrix
on 01.01.1991 at about 9 am. She found the prosecutrix
aged 10 years. Prosecutrix had no external injury but her
sexual organs were not developed. Her monthly
menstruation period was not begun. The prosecutrix was
taken to the operation theatre and after she was
administered anesthesia. The clotted blood present on
the lower extremity and vulva, both thighs were
removed. Her hymen was torn and found bleeding. There
was tear about 0.5 present over the left parayrethral
region. The small laceration was present over the left
vaginal wall and second decree paraneal tear present
size about 2 cm x 0.5 cm. x muscle deep. The doctor
opined that rape was committed with her. For
confirmation vaginal slide was prepared and petticoat
was sent for medical examination.

15 Doctor V.K. Jain examined the appellant/accused on
03.01.1991 at civil dispensary, Bargi. He found that the
appellant Mangal Singh was about 25 years. On
examination, it was found that his pubic hair present. In
his cloths blood like stains and semen spots were
present. Respondent had no external injury but he was
habitual to sexual intercourse. His undergarment was
seized and was handed over to the police for
examination. The blood stain and the semen stain were
dried. The slide was seized by police. Constable Nandi
Lal (PW/5) has affirmed the same. Rajendra Dubey,
(PW/6) also corroborates the seizure of undergarment of
the accused vide Ex. P/5 and the undergarment of the
accused received from the hospital was seized at the
police station. J.B. Singh Sub-Inspector, (PW/7) states
that both the packets received from the police station
and seized by Ex. P/4. According to him the slide and the
undergarments were sent to the FSL, Sagar for
examination through memorandum P/10. Ex. P/15 is the
report received from the serologist which shows that
Item No. 26 was the petticoat stains of human blood. But
in the Item No. 27 the undergarment, the blood stained
is disintegrated and their origin cannot be determined.
Therefore, the reason is not conclusive. But Ex. P/15 the
report received from the F.S.L., Sagar shows that Packet
(A) is the vaginal slide of the complainat. Article (A) is
the petticoat of the complainant and (B) is the
undergarment of the accused were found to be stained of
human blood. But in
Article (C) the undergarment of the
accused semens stains were found. This report was
admissible in evidence under
Section 293 of the Cr.P.C.
16 All this medical evidence shows that the prosecutrix
(PW/4) was subjected to sexual intercourse and there has
been confirmation of blood stands on her private part as
well as on her feet and garments. She also sustained
injuries on her private part as mentioned by Dr. Kusum
Jain PW/1. Bleeding from the private part and torn of
highmen clearly indicates that she was subjected to
forcibly sexual intercourse.

17 It would be appropriate to analyze whether the
accused was responsible for the commission of sexual
intercourse.

18 According to the prosecutrix PW/4 she was at the
forest when the accused mt her. The accused caught her
hair and fell her on the ground. He then placed the axe
on her neck threatening her and committed sexual
intercourse, after removing her cloths. She could not
shout for she was under threat. She was about 11 years
old when the incident took place. She has also stated that
after the commission of the offence, the accused fled and
she shouted. Her father Laxman Singh, Ramhit and Oji
Lal came to the scene of crime. PW/3 has not supported
the prosecution story. Father of the prosecutrix Laxaman
Singh died, therefore, could not be examined. Under this
circumstances, the statement of the prosecutrix who
sustained the injuries and her evidence is corroborated
by the medical evidence seems to be of sterling quality.
There is no reason to disbelieve her. The axe by which
the accused/appellant threatened the prosecutrix was
seized from the accused by seizure memo Ex. P/8 on the
basis of memorandum Ex. P/7.

READ  Ramesh Vithal Patil vs State Of Karnataka & Ors on 31 March, 2014

19 The accused/appellant was also examined medically
immediately after his arrest. Report of doctor V.K. Jain
Ex. P/2 shows that he is capable of committing sexual
intercourse and he is habituated to sexual intercourse.
His cloths, undergarment were found stained with blood
by the report of Ex.P/15. No explanation has been offered
by the accused. As the blood was dried and disintigrated,
therefore, the origin could not be determined. Yet, the
circumstances prevailed clearly indicates that the
accused has committed the offence.

20 As regarding the identification, the prosecutrix was
not knowing the accused previous to the incident. But
she has clearly, unambiguously identified the accused in
the Court. In her cross-examination she has not only
identified the accused but she has been very clear that it
was the accused who pointed the axe and threatened her
and it was the accused who committed the crime.
21 It is the established principle of legal jurisprudence
that unless there are compelling reasons which
necessitated for corroboration of the statement, the court
should find no difficulty in acting on the testimony of a
victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to
be believable. The prosecutrix has given vivid account of
the entire episode as to how the accused has committed
the sexual assault on her. The prosecutrix narrated the
incident to the police immediately after the incident.
When she was taken to the police station, F.I.R was
lodged. The prompt F.I.R, the corroboration of the
medical evidence with opinion of the medical offences
indicating that hymen of the victim was torn and she was
ravished and her virginity had been taken away. She had
no enmity with the appellant. No chance of her falsely
implicating the appellant.

22 This Court do not see any reason to disbelieve her
statement. If the prosecutrix is believed to be truthful, no
further corroboration is required. Corroboration is
admittedly only a rule of prudence.

23 With the evidence available on record, I do not find
any illegality, irregularity or perversity in the judgment
impugned.

24 So far as the sentence is concerned, the learned trial
Court awarded the minimum sentence, therefore, this
Court do not think it a proper to interfere with the
judgment impugned. The appeal, therefore, is dismissed.
The appellant is directed to surrender before the trial
Court within 30 days from today. Failing which the
learned trial Court would be at liberty to secure his
presence by coercive means for serving the receiving jail
sentence. The period undergone by the appellant from
03.01.1991 to 07.02.1991 i.e. for one month, six days,
and 11.07.1995 to 17.04.1997 i.e. one year, nine months,
seven days in all one year, ten months, thirteen days be
set off as per Section 428 of Cr.P.C. The seized articles
are valueless, therefore, be destroyed.
25 Copy of the judgment be sent to learned trial Court
immediately, along with the original record.

(SUSHIL KUMAR PALO)
JUDGE

awinash

Leave a Comment

Your email address will not be published. Required fields are marked *