Barati @ Santosh vs The State Of Madhya Pradesh on 22 August, 2017

CRA-2757-2013 2759/2013

22-08-2017

Ms. Gayatri Ladhiya and Ms. Savita Choudhary, learned
counsel for the appellants.
Shri Arvind Singh, learned Government Advocate for the
respondent/State.

Heard on I.A. No. 5603/17 an application moved by
appellant Shankar Bediya in Cr. A. No. 2757/2013 and I.
A. No. 3237/2016 of appellant Barati @ Santosh Kol
in Cr. A. No. 2759/13. The appellants have been convicted
for offences U/s. 366 of the I.P.C. and sentenced to 5
years R.I. with fine of Rs. 2000/-, U/s. 5 (I)/6 of POCSO Act
with R.I. for 10 years and fine of Rs. 5,000/- and U/s. 5

(g)/6 of the POCSO Act with R.I. of 10 years and fine of Rs.
5000/-. The appellants are in jail since 20/12/2012.
These are the first applications for suspension of sentence
and grant of bail filed on behalf of both the appellants. It
was pertinent to mention here that the appeals are jail
appeals. The charge against the appellants is that
between 17/12/2012 from 5 P.M. onwards till 19/12/2012
till 4 P.M, the prosecutrix was held captive by the
appellants and continuously raped. They were tried by the
learned Court below and vide impugned order dated
3/10/2013, the appellants were convicted. As on date, the
appellants have already completed 4 years and 6 months
in jail.

Learned counsel for the appellants have addressed the
Court and have impressed upon the Court that the
evidence brought on record has, far from proving the
case of the prosecution beyond reasonable doubt, given
rise to a suspicion relating to the motive of the
complainants. Learned counsel for the appellants have
referred to the statement of PW-2 Tassi Kol who is the
brother of the prosecutrix and has stated in paragraph no.
4 that after the prosecutrix went missing on 17/12/2012,
the family did not inform the police or the panchayat or
any other authority, infact, no information was given to

the authorities from 17th to 19th and that they are stated
to have made independent efforts to trace the prosecutrix
and the prosecutrix is stated to have come home on her
own on 19/12/2012. As per the Ld. Counsel for the
appellants, such conduct on the part of the family of the
prosecutrix goes against the very normal course of
human conduct. The prosecutrix in this case has been
examined as PW-4. Her apparent age has been shown as

11. She states in her evidence before the Court that she
was forcibly taken away by both the appellants into the
jungle where she was raped continuously by two of them
for three days and she was even tied to a tree to prevent
her escape.

The Doctor who conducted the MLC of the prosecutrix has
been examined as PW-19. She has stated that there were
no external injuries anywhere on the body of the
prosecutrix. The M.L.C of the prosecutrix is Exhibit P-7.
The Doctor has observed in the MLC that the hymen is
torn, old and healed and that two fingers can be easily
inserted into the vagina. The doctor has further opined
that the prosecutrix age is 13 years and that she is
habituated to sexual intercourse. No bleeding per vagina
has been observed and neither is there any kind of injury
on the private parts. As regards the time period of lapsed
after the rupture of the hymen, the Doctor has stated in
paragraph 4 that the hymen did not tear two or three
days prior to the examination of the prosecutrix but at
least one to two months before the examination of the
prosecutrix, which was on 20/12/2012. On the basis of the
this, the Ld. Counsel for the appellants have impressed
upon the Court that the allegation of rape levelled by the
prosecutrix on the appellants is false as her hymen
rupture was at least one to two months before the
appellants are alleged to have raped her. This according
to learned counsels assume great relevance as the period
of offence during which the prosecutrix was allegedly
raped was between 17/12/2012 and 19/12/2012 and her
M.L.C. was on 20/12/2012. If she was indeed raped as
stated by her, and that to repeatedly over three days,
then the M.L.C. would have reflected the same.
Per contra, learned counsel for the State has drawn the
attention of this Court to the F.S.L report which is Exhibit
P-15 in which the F.S.L report has returned a positive
result for human sperm on Ex. A, B, C, D, E and F. Ex. A is
the vaginal slide taken from the prosecutrix. Ex. B is
under-garments of the prosecutrix and Ex. C is the semen
slide taken from appellant Barati and Ex. D is his under-
garments of appellant Barati. Ex. E is the semen slide
taken from the accused Shankar and Ex. F is his under-
garments. On the basis of this, learned counsel for the
State has submitted that it was the appellants themselves
who have committed rape upon the prosecutrix.
To this contention, learned counsel for the appellants
have submitted that the F.S.L. report only proves that a
man had sexual intercourse with the prosecutrix but who
that man was, could have been conclusively proved by a
D.N.A test which is not done in this case. As regards the
age of the prosecutrix, learned counsel for the appellants
have drawn attention of this Court to the statement of
PW-3 who is mother of the prosecutrix Smt. Kallu Bai and
specifically to paragraph no. 5 in the cross-examination in
which the witness has stated that it is correct to suggest,
that the prosecutrix could be aged 18-19 years also. The
Ld. Counsel for the appellants have also taken up the fact
of false implication of the appellants herein on account of
previous enmity existing between the family of the
prosecutrix and the appellants herein. Once, again the
statement of PW-3, the mother of the prosecutrix has
been referred to by learned counsel for the appellants
who have drawn the attention of this Court to paragraph
no. 6 of the cross-examination of PW-3 in which she has
stated that there was previous enmity existing between
the family of the prosecutrix with the family of appellant
Barati on account of a girl related to appellant Barati
having run away with a boy from the family of the
prosecutrix. This witness has also admitted that appellant
Shankar was close to the appellant Barati and used to be
always seen in the company of Barati and also in the
habit of speaking in favour of Barati. The element of pre-
existing enmity has also come in the statement of brother
of the prosecutrix who has also stated likewise.
Looking at the facts and circumstances of the case and
primarily;

(a). That the appellants have already served jail term of
four years and six months.

(b). That, besides the statement of the prosecutrix, there
is no corroborative evidence to render the said statement
trust-worthy for the purpose of conviction.

(c). That, the M.L.C. of the prosecutrix and the statement
of the Doctor in the trial, in which it has come out that
there are no injuries anywhere on the body of the
prosecutrix who was allegedly raped for three
consecutive days by the appellants and was also tied to a
tree to prevent her escape and that her hymen was torn,
old and healed and the opinion of the Doctor that the
prosecutrix was habituated to sexual intercourse and her
statement in the Court where the Doctor has stated that
the hymen tear had taken place one to two months
before the prosecutrix was examined by the Doctor which
again goes to put a doubt on the version given by the
prosecutrix and

(d). The absence of the D.N.A. report which could have
conclusively proved or disproved the allegations of the
prosecutrix.

Thus, the I.A.s are allowed and it is directed that the
remaining part of jail sentence of appellants Shankar
Bediya and Barati @ Santosh Kol herein shall remain
suspended and it is directed that the appellants herein
shall be released on bail upon each of them furnishing a
personal bond of Rs. 50,000/- (Rupees Fifty thousand
only) with one solvent surety each in the like amount to
the satisfaction of the trial Court. The appellants shall
appear before the Registry of this Court on 21.02.2018
and on such other dates as may be directed in this behalf.
C.C. as per rules.

(ATUL SREEDHARAN)
JUDGE

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