Dilip Bunkar vs The State Of Madhya Pradesh on 13 October, 2017

1 Cr.A. No. 1321/2005

HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No.1321/2007

Dilip Bunkar, son of Assru
Bunkar, aged about 40
years, resident of Juggi
No.33, Roshanpura, Police
Station Jhangirabad, District-
Bhopal(M.P.).

Versus

The State of Madhya Pradesh

PRESENT : Hon’ble Shri Justice S.K. Palo
Hon’ble Smt. Justice Nandita Dubey

Whether approved for reporting : Yes/no

For the Appellant: Shri Anil Kumar Tiwari,
Advocate as Amicus Curiae

For the respondent/State: Shri Neeraj Singh Chouhan,
Govt. Advocate

Arguments heard on : 07.10.2017
Judgment delivered on : 13.10.2017
__
Law laid down
Significant paragraph numbers :

JUDGMENT

As per Nandita Dubey, J.:

This appeal has been filed by the appellant

being aggrieved by the judgment dated 11.05.2007,

passed by Sessions Judge, Bhopal in S.T. No. 253/2005,

whereby appellant has been found guilty for the
2 Cr.A. No. 1321/2005

offence punishable under Section 376(f) of the Indian

Penal Code and has been sentenced to life

imprisonment and fine of Rs.20,000/- and in default of

payment of fine, to further suffer rigorous

imprisonment for two years.

2. The prosecution case in brief is, that on

27.10.2001, at about 7 P.M., the prosecutrix was

standing on the road, watching procession, when the

appellant, who is her real uncle (Mausa), came and

asked her to accompany him to his sister’s house, at

100 quarters. After going some distance, on the

pretext of nature’s call, he took her to the Jummburi

ground, where he beat her and took off his clothes and

prosecutrix’s underwear and threw her on the ground

and tried to rape her. When she cried and screamed,

he covered and pressed her mouth, so that no one

could hear her screams. On hearing the sound of

someone approaching, he left her and ran away.

Weeping, she went to her home and narrated the

incident to her mother. The parents alongwith the

prosecutrix went to the police station, Piplani in the

night itself to lodge the report.

3. P.W.-2 Sushilabai, mother of the prosecutrix
3 Cr.A. No. 1321/2005

lodged the FIR (Ex.P-1), on 28.10.2001 at about 3.45

A.M., on the basis of which the criminal law was set

into motion. Prosecutrix was sent for medical

examination. In the morning, site map Ex.P-8 was

prepared and underwear of the prosecutrix, that she

was wearing at the time of incident was recovered

from the place of incident. The accused absconded

and was arrested on 24.08.2005, after about four years

of the incident.

4. The trial Court recorded a finding of guilt

against the appellant and convicted him of the offence

under Section 376(f) of the I.P.C. relying on the

testimony of prosecutrix (P.W.-1), the statement of

P.W.-7 Dr. Jyoti Kalikut and the fact that appellant in his

statement under Section 313 of the Cr.P.C. has

admitted that previously also he was convicted in two

other rape cases, in crime No.277/93 for 10 years and

in crime No.277/02 for two years, rigorous

imprisonment.

5. The learned counsel appearing for the

appellant submits that the appellant has been falsely

implicated because of previous enmity on account of

money dispute. Pointing to the statement of P.W.-2
4 Cr.A. No. 1321/2005

Sushila bai, P.W.-3 Sahibrao, parents of the prosecutrix,

it is argued that the FIR was filed after due

deliberations. Learned counsel further submits that

there was no injury on the private part of the

prosecutrix and only injury on nose, which could be the

result of fall. It is argued that at the most, it was an

attempt to rape and the trial Court has erred in

awarding the maximum sentence.

6. Shri Neeraj Singh Chouhan, learned Govt.

Advocate, appearing for the respondent/State submits

that the statements of prosecutrix (P.W.-1), Sushilabai

(P.W.-2) and Shaibrao (P.W-3) are corroborated by the

medical evidence and the FSL report. He further states

that there is no inconsistency or contradiction in the

statement given by the prosecutrix in the Court and

her case diary statement and the Court below has

rightly recorded the finding of conviction against the

appellant.

7. We have heard the learned counsel for the

parties at length.

8. From a perusal of the record, specifically the

statement of prosecutrix, who was only 8 years of age
5 Cr.A. No. 1321/2005

at the time of incident, it is evident that she had

clearly stated that accused who was the real uncle

tried to rape, there is no inconsistency or ambiguity in

her case diary statement and the statement given by

her in the Court. The statements made by the

prosecutrix are consistent, unimpeachable and of

sterling quality and can be relied upon.

9. In the case of Mukesh and Another Vs.

State (NCT of Delhi) (2017) 6 SCC 1 the Supreme

Court has held :

“416. If considered on the anvil of settled
legal principles, injuries on the person of
a rape victim is not even a sine qua non
for proving the charge of rape, as held in
Joseph v. State of Kerala (2000) 5 SCC

197. The same principle was reiterated in
State of Maharashtra v. Suresh (2000) 1
SCC 471. As rightly held in State of
Rajasthan v. N.K., (2000) 5 SCC 30,
absence of injury on the person of the
victim is not necessarily an evidence of
falsity of the allegations of rape or
evidence of consent on the part of the
prosecutrix. In the present case, the
extensive injuries found on the
vagina/private parts of the body of the
victim and injuries caused to the internal
organs and all over the body, clearly
show that the victim was ravished.”

10. In the instant case, Dr. Jyoti Kalikut (P.W.-7),
6 Cr.A. No. 1321/2005

who examined the prosecutrix has stated that the

prosecutrix had simple abrasion over both the thighs

and swelling and bruises over the nose and eyes,

which are suggestive of the force used on her, while

she was subjected to the crime. On examination, the

doctor had found that urethra of the prosecutrix was

inflamed, red and congested, warm, tender and painful

on touching and there was redness around the area.

The doctor has further stated that prosecutrix has

disclosed that she was taken to jungle by her uncle

who tried to commit forcible intercourse with her.

11. It is evident from the record that the

incident took place after 07.00 P.M. on 27.10.2001 and

the report was lodged at Police Station Piplani, at

about 3.45 A.M. on 28.10.2001, i.e., on the same night

and the prosecutrix was thereafter sent for medical

examination. The contention of learned counsel for

the appellant that Sahibrao lodged the FIR after

discussing it with his wife, sans merit as it was but

natural for P.W.-2 Sushilabai and P.W.-3 Sahibrao to

ponder and discuss before filing a complaint, as the

accused person involved in the crime was the husband

of his wife’s sister and the real uncle (Mausa) of the

prosecutrix. Under the facts and circumstances of the
7 Cr.A. No. 1321/2005

case, the testimony of P.W.-2 Sushilabai and P.W.-3

Sahibrao cannot be discarded.

12. Apart from this fact, it is also evident from

the record that in two other cases, the appellant has

been previously convicted for committing the offences

of sexual assault/rape on minor girls and sentenced to

2 years and 10 years rigorous imprisonment

respectively. The appellant in his statement under

Section 313 Cr.P.C. has also admitted that he went to

the prosecutrix’s house on the fateful evening/night.

He has also admitted that he was previously convicted

in two other cases for committing sexual assault/rape

on minor girls. When he was asked, whether he wants

to give written or oral defence, he had stated that he

is disturbed by his own acts. No one accepts him in the

society and even his wife and children have disowned

him and never visit him. He has asked that he should

be hanged.

13. In the case of State of Himachal Pradesh

Vs. Sanjay Kumar alias Sunny (2017) 2 SCC 51,

the Supreme Court has held in paragraphs 30 and 31

thus:

“30. By no means, it is suggested that
whenever such charge of rape is made,
8 Cr.A. No. 1321/2005

where the victim is a child, it has to be
treated as a gospel truth and the
accused person has to be convicted. We
have already discussed above the
manner in which testimony of the
prosecutrix is to be examined and
analysed in order to find out the truth
therein and to ensure that deposition of
the victim is trustworthy. At the same
time, after taking all due precautions
which are necessary, when it is found
that the prosecution version is worth
believing, the case is to be dealt with all
sensitivity that is needed in such cases.
In such a situation one has to take stock
of the realities of life as well. Various
studies show that in more than 80%
cases of such abuses, perpetrators have
acquaintance with the victims who are
not strangers. The danger is more within
than outside. Most of the time,
acquaintance rapes, when the culprit is a
family member, are not even reported for
various reasons, not difficult to fathom.
The strongest among those is the fear of
attracting social stigma. Another
deterring factor which many times
prevents such victims or their families to
lodge a complaint is that they find whole
process of criminal justice system
extremely intimidating coupled with
absence of victim protection mechanism.
Therefore, time is ripe to bring about
significant reforms in the criminal justice
system as well. Equally, there is also a
dire need to have a survivor centric
approach towards victims of sexual
violence, particularly, the children,
keeping in view the traumatic long
9 Cr.A. No. 1321/2005

lasting effects on such victims.

31. After thorough analysis of all
relevant and attendant factors, we are of
the opinion that none of the grounds, on
which the High Court has cleared the
respondent, has any merit. By now it is
well settled that the testimony of a victim
in cases of sexual offences is vital and
unless there are compelling reasons
which necessitate looking for
corroboration of a statement, the courts
should find no difficulty to act on the
testimony of the victim of a sexual
assault alone to convict the accused. No
doubt, her testimony has to inspire
confidence. Seeking corroboration to a
statement before relying upon the same
as a rule, in such cases, would literally
amount to adding insult to injury. The
deposition of the prosecutrix has, thus, to
be taken as a whole. Needless to
reiterate that the victim of rape is not an
accomplice and her evidence can be
acted upon without corroboration. She
stands at a higher pedestal than an
injured witness does. If the court finds it
difficult to accept her version, it may
seek corroboration from some evidence
which lends assurance to her version. To
insist on corroboration, except in the
rarest of rare cases, is to equate one who
is a victim of the lust of another with an
accomplice to a crime and thereby insult
womanhood. It would be adding insult to
injury to tell a woman that her claim of
rape will not be believed unless it is
corroborated in material particulars, as in
the case of an accomplice to a crime.
10 Cr.A. No. 1321/2005

Why should the evidence of the girl or
the woman who complains of rape or
sexual molestation be viewed with the
aid of spectacles fitted with lenses tinged
with doubt, disbelief or suspicion? The
plea about lack of corroboration has no
substance {See Bhupinder Sharma v.
State of Himachal Pradesh (2003) 8 SCC
551}. Notwithstanding this legal position,
in the instant case, we even find enough
corroborative material as well, which is
discussed hereinabove.

14. Learned counsel for the appellant submits

that the appellant has been sentenced to life

imprisonment, the maximum sentence prescribed

under Section 376(f) of the I.P.C. and fine of

Rs.20,000/-. He submits that as the appellant has

remained in custody for about 12 years, under the

circumstances, his case may be considered

sympathetically and sentence may be modified in the

light of decision rendered by the Supreme Court in the

case of Bhavanbhai Bhayabhai Panella Vs. State

of Gujrat (2015) 11 SCC 566, wherein the sentence

of the appellant for the offence under Section 376(2)(f)

of I.P.C. was modified to 10 years of rigorous

imprisonment, while maintaining the sentence of fine

and compensation. However, keeping in view the facts

and circumstances of the instant case and the fact that
11 Cr.A. No. 1321/2005

the appellant is a habitual offender, no leniency be

shown to him.

15. It is to be noted that previously appellant

was convicted and sentenced to 10 years rigorous

imprisonment on 13.09.1994 for committing rape on a

minor girl, who was 7 years of age. He was released

from jail on 07.06.2001 and committed the instant

offence on 27.10.2001. He flee from the scene and

was absconding and was arrested on 24.08.2005.

During this period, he again attempted to commit rape

on a minor girl, who was 10 years of age and was

convicted on 12.04.2002 and sentenced to two years

imprisonment. Looking to the conduct of the

appellant, it is clear for a fact that he has not mended

his ways. Under the circumstances, he is not entitled

for any sympathy or leniency form this Court.

16. In the case of State of Rajasthan Vs. Om

Prakash (2002) 5 SCC 745 the Supreme Court has

held :

“19. Child rape cases are cases of
perverse lust for sex where even innocent
children are not spared in pursuit of sexual
pleasure. There cannot be anything more
obscene than this. It is a crime against
humanity. Many such cases are not even
12 Cr.A. No. 1321/2005

brought to light because of the social
stigma attached thereto. According to
some surveys, there has been a steep rise
in child rape cases. Children need special
care and protection. In such cases,
responsibility on the shoulders of the
courts is more onerous so as to provide
proper legal protection to these children.
Their physical and mental immobility call
for such protection. Children are the
natural resource of our country. They are
the country’s future. Hope of tomorrow
rests on them. In our country, a girl child is
in a very vulnerable position and one of
the modes of her exploitation is rape
besides other modes of sexual abuse.
These factors point towards a different
approach required to be adopted. The
overturning of a well-considered and well-
analysed judgment of the trial court on
grounds like non-examination of other
witnesses, when the case against the
respondent otherwise stood established
beyond any reasonable doubt was not
called for. The minor contradiction of
recovery of one or two underwears was
wholly insignificant.”

17. In the case of Mukesh (supra) the

Supreme Court has held :

“516. Society’s reasonable expectation is
that deterrent punishment commensurate
with the gravity of the offence be awarded.
When the crime is brutal, shocking the
collective conscience of the community,
sympathy in any form would be misplaced
and it would shake the confidence of public
in the administration of criminal-justice
13 Cr.A. No. 1321/2005

system. As held in Omprakash Vs. State of
Haryana (1999) 3 SCC 19, the Court must
respond to the cry of the society and to
settle what would be a deterrent
punishment for what was an apparently
abominable crime.”

18. In view of the clear, consistent, reliable and

unimpeachable statement of prosecutrix, which is

corroborated by the statement of Dr. Jyoti Kalikut

(P.W.-7) and the medical evidence on record and the

fact that appellant was habitual offender and in view of

the clear admission made by him in his statement

under Section 313 Cr.P.C., we find no illegality or

infirmity in the finding of guilt recorded by the Court

below.

19. In the circumstances, the appeal filed by the

appellant being merit-less is dismissed. The conviction

of appellant under Section 376(f) of the I.P.C. is

accordingly affirmed and confirmed. The appellant,

who is in jail shall remain incarcerated to undergo the

remaining part of the jail sentence.

(S.K. Palo) (Nandita Dubey)
JUDGE JUDGE
13/10/2017 13/10/2017

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