Sohan Singh @ Bablu vs The State Of Madhya Pradesh on 10 October, 2017

HIGH COURT OF MADHYA PRADESH, JABALPUR

Criminal Appeal No.1613/2005

Appellant : Sohan Singh alias Bablu,
Aged 27 years, S/o Abhay
Singh Yadav, R/o Village
Sevan Tah.Khurai, Distt.
Sagar, M.P.

Vs.

Respondent : State of Madhya Pradesh,

Present : Hon. Shri Justice S.K. Gangele
Hon. Shri Justice Anurag Shrivastava

————————————————————————-
None appears for the appellant.
Smt.Durgesh Gupta, who is an Advocate in the Panel of
Legal Aid, appears on behalf of appellant, at the request
of the Court.
Shri A.N.Gupta, Government Advocate for the
respondent/State.
————————————————————————-

Whether approved for reporting: Yes/No.

JUDGMENT

(10.10.2017)

The appellant has filed this appeal against the
judgment dated 23.7.2005 passed in Sessions Trial
No.416/2004; whereby he has been convicted under
sections 376(1), 450 and 506-B of the Indian Penal Code
and sentenced to RI for life with fine of Rs.2000/-, RI for 7
years with fine of Rs.1000/- and RI for 2 years with fine of
Rs.500/-, with default stipulation.

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2. The prosecution story in brief is that on 16.9.2004
when the prosecutrix had been rolling Bidis in the courtyard
of her house, appellant came there, dragged her into a
nearby room and committed rape with her. He had
threatened her not to disclose the aforesaid act to anybody.
The prosecutrix told the incident to her husband, who
returned back in the evening. Thereafter, her husband told
the incident to other villagers, called his relative and lodged
a report at the Police Station on 18.9.2004. Police
conducted the investigation and filed the chargesheet
against the appellant before the trial court.

3. The appellant abjured his guilt and pleaded
innocence. The trial court after completion of the trial,
found the appellant guilty for commission of offences
punishable under sections 376(1), 450 and 506-B of IPC
and sentenced, as aforesaid.

4. Counsel for appellant has submitted that there is a
delay in lodging the FIR. There were other persons
present in the vicinity but the prosecutrix did not raise any
alarm. As per the medical report there was no injury on the
private parts of the prosecutrix. Hence, the trial court has
committed an error of law in holding appellant guilty for the
offence of rape. Learned counsel has further submitted that
the trial court has awarded a sentence of life, which is
excessive.

5. Learned Government Advocate has submitted that
the prosecution has proved its case beyond reasonable
doubt and there is ample evidence against the appellant.

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The trial Court has rightly held the appellant guilty for
commission of offence and awarded a proper sentence.

6. Prosecutrix (P.W.2) deposed that on the date of
incident, she was rolling Bidis in the courtyard of her
house. Her husband and children had gone to the field.
Appellant came there, caught hold of her hand and
threatened her that if she would raise any alarm, he would
kill her. The appellant was armed with a knife. Thereafter,
he had taken me in a room and committed rape with me.
Due to fear of the appellant, I did not raise any alarm. He
further gave a threat to me that if I would tell anybody
about the incident, he would kill me. At around 8 O’ Clock
in the evening when my husband came to the house I told
him about the incident. However, due to fear we did not tell
about the incident to other villagers. We called our relative
Hari Singh and told him about the incident. Thereafter, we
went to the Police Station and lodged the report, which is
Ex.P.3. I affix my thumb impression on it. Thereafter my
statement was recorded by the Police and map of the
incident was prepared by the Patwari and I affix my thumb
impression on the same.

7. In her cross-examination, the prosecutrix admitted
that this is her second marriage and she has total 6
children, 2 from first husband and 4 from the present
husband. She further admitted the fact that the appellant
had dragged her upto some distance. He had taken her in
a room. When the appellant entered the house, I had been
rolling Bidis and I had a knife with me. She denied the fact
that she lodged a false report.

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8. Rammu Patel (P.W.3), husband of the prosecutrix,
deposed that I returned back to the house at around 7-8 O’
Clock in the evening from the field. At that time, my wife-
prosecutrix told me that at around 3:00 in the afternoon
when she was rolling Bidis in the courtyard, appellant came
there, forcefully taken her inside the room and committed
rape with her. He had threatened to kill her. He had a
knife with him. My wife told me to lodge the report.
However, I told her that the appellant has a criminal history
and near about 10-12 cases are registered against him.
Therefore, due to fear I did not go to police station to lodge
the report. Third day I called my relative Hari Singh from
Chandamau and thereafter I informed the incident to
Kotwar, Sarpanch and Up-Sarpanch and other villagers.
We went to the police station to lodge the report, which is
Ex.P.2. A spot map was prepared. My statement was also
recorded. He in his cross-examination deposed that
appellant had a criminal history. Earlier also the villagers
had lodged complaints against the appellant that he used
to trouble villagers. He further deposed that we reached at
the police station at 8-9 in the morning and lodged the
report.

9. Nonitram Patel (P.W.4) deposed that after two days of
incident on Saturday Rammu, husband of the prosecutrix,
came to my house and told me that on Wednesday when I
was at the field and the prosecutrix was alone in the house
and was rolling Bidis in the courtyard of the house, the
appellant came there and he had taken the prosecutrix
forcefully in a room and committed rape with her. He also
threatened her. Therefore, report could not be lodged.

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Thereafter the relative of husband of the prosecutrix came
there and report was lodged.

10. Head Constable Om Prakash Tiwari (P.W.5) deposed
that he seized a slide of prosecutrix vide Ex.P.4 and signed
the same and also seized the undergarments of the
appellant vide seizure memo, Ex.P.25 and signed the
same.

11. Hari Singh Patel (P.W.7) deposed that my Mama i.e
husband of the prosecutrix, made a telephonic call and
summon me to village. He told me that appellant had
committed rape with his wife and he also threatened her
not to tell anybody. Thereafter, we had gone to the police
station along with other persons and lodged the report.

12. Patwari Vijay Shankar Khare (P.W.6) deposed that I
had prepared the spot map, which is Ex.P.6.

13. R.C.Dangi (P.W.8) is the Sub-Inspector. He deposed
that I was posted in December, 2004 at the Police Station,
Bandri as Station House Officer (Incharge). On 19.9.2004 I
was on leave. A written report was lodged by the
complainant and her relative. Thereafter a report was
registered vide Ex.P.3. The complainant was sent for
medical examination. I received case diary on 21.9.2004
for investigation. I prepared the spot map, Ex.P.7, and
signed the same. I recorded the statements of Rammu on
the same day. I also recorded the statements of Noniram,
Hari Singh alias Jhabbu, Ramesh, Rajkumar and
Vrindawan on 25.9.2004. The appellant was sent for
medical examination. He was arrested vide Ex.P.8. Some
articles were sent for forensic laboratory.

-6- Cr.A. No.1613/2005

14. Dr. Saroj Bhuria (P.W.9) deposed that on 20.9.2004 I
was posted as Medical Officer at Dafrin Hospital, Sagar.
On the aforesaid date, I examined the prosecutrix. She
was married lady and her sexual characters were well
developed. On her internal examination, I did not notice
any injury on her private parts. Her hymen was ruptured. I
did not submit any opinion about the rape with the
prosecutrix because she was a married lady and she was
living with her husband.

15. Dr. R.S.Upadhyay (P.W.1) deposed that on 2.10.2004
I was posted as Medical Officer at Community Health
Centre, Bandri. On the aforesaid date, I examined the
appellant and gave my opinion that he was capable to
perform sexual intercourse.

16. From perusal of record, we find that report, Ex.P.3,
was lodged by the prosecutrix herself on 19.9.2004. The
date of incident is 16.9.2004. There is a delay in lodging
the report. The delay has been explained by the
prosecutrix and her husband. It is deposed by both the
witnesses that the appellant had criminal record and near
about 10-12 criminal cases were registered against him
and he was facing trial in the aforesaid cases. Hence, due
to the fear of the appellant, report was not lodged
immediately. When the husband of prosecutrix called his
relative Hari Singh Patel (P.W.7), then the report was
lodged. This fact has also been proved by Hari Singh.
Nonitram Patel (P.W.4), who is a villager, also deposed that
the husband of prosecutrix told him about the incident on
Saturday.

-7- Cr.A. No.1613/2005

17. The Apex Court in regard to delay in lodging the FIR
has held in a case of Puran Chand Vs. State of Himachal
Pradesh, (2014) 5 SCC 689 as under:-

“12. We have taken note of and
considered all the arguments advanced
by the counsel for the appellant in
support of the plea, that the incident in
fact did not happen at all and the FIR
was registered merely due to enmity. In
this respect, the most important
evidence assailing the prosecution
case is the evidence of the doctor in
which serious infirmities have been
pointed out by the defence. However,
on a close scrutiny of the deposition of
PW 5 Dr Nirmala Vaish, all the courts
below have taken note of the fact with
respect to non-rupture of hymen that it
is not clear from the statement of the
doctor, PW 5 which could reveal or
prove that on actual examination, she
found the hymen of the prosecutrix
intact. Thus, reliance placed on behalf
of the appellant-accused that the
hymen of the victim girl was intact
could not be accepted by the High
Court and in view of the time gap
between the sexual assault and the
examination of the prosecutrix, the
medical report of the prosecutrix not
reflecting sexual act is not of much
significance, as per the view taken by
the courts below. The prosecutrix/victim
has stood the test of cross-examination
as she has specifically stated that the
accused forcibly committed sexual
assault/rape on her against her wish on
20-8-2006. The defence however has
tried to rely on the medical report in
order to create a doubt about the actual
assault on the victim girl.

13. While we have noted that the
doctor has not categorically denied the
rupture of hymen of the victim girl, we

-8- Cr.A. No.1613/2005

also take note of the fact that the
version is supported by other attending
circumstances and evidence adduced
by the prosecution through the victim
girl which is supported by her father
and brother. Even if we were to doubt
the prosecution version due to alleged
infirmity in the medical evidence, it
cannot be overlooked that the case of
this nature will have to be examined
with the aid of the accompanying
circumstantial evidence in order to test
the veracity of the prosecution case.
The delay in lodging the FIR has been
clearly explained by the prosecution
relating the circumstance and the
witnesses supporting the same have
stood the test of scrutiny of the cross-
examination as a result of which the
version of the victim girl cannot be
doubted. The delay in lodging the FIR
thus stands fully explained.

14. In fact, in an incident of this
nature where a doubt is sought to be
created by the defence relying upon the
lacuna in the medical evidence which
could not establish the incident in view
of non-committal statement of the
doctor regarding the hymen being
intact, the prosecution version cannot
be brushed aside totally and will have
to be judged by the other attending
circumstances brought on record. The
defence no doubt has taken the plea
that the girl had attempted suicide due
to the examination fear and not on
account of the rape alleged to have
been committed on her but the same
does not stand the test of scrutiny. This
defence version, in our view, is not
worth placing reliance for the victim girl
immediately on regaining
consciousness had narrated the story
to the doctor, father and her brother at
which stage it was not possible to
indulge in concoction of the story of this
nature in such a mental state. It is

-9- Cr.A. No.1613/2005

equally not possible to overlook or
ignore the trauma that the victim girl
must have suffered for 22 days after
the sexual assault/rape committed on
her especially when she could not
divulge the incident to anyone. We find
the defence of the appellant extremely
unworthy of reliance so as to demolish
the version of the prosecutrix supported
by circumstantial evidence. The version
of the victim girl who was suffering the
trauma of rape and was provoked to
take the extreme step of consuming
poison, cannot be doubted ignoring
even the fact that a girl would put
herself to disrepute and go to the
extent of supporting her parents to
lodge a false case merely due to some
enmity with the family of the accused
putting her honour at stake in a
precarious mental state. In fact, we are
prone to infer with reason that if the
prosecution had an intention of really
planting a false story of rape, it is highly
improbable that they would have
created a story having a huge time gap
between the date of incident and the
date of lodgement of the FIR leaving
the scope for weakening the
prosecution case. If it were a well
thought out concocted story so as to
lodge a false case, obviously the
prosecution would not have taken the
risk of giving a time gap of more than
20 days between the incident and the
lodgement of the FIR. This clinching
circumstantial evidence demolishes the
defence version and inspires much
confidence in what has been stated by
the victim girl.

15. In fact, at this stage, the
amendment introduced in the Evidence
Act, 1872 in Section 114-A laying down
as follows is worthwhile to be referred
to:

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“114-A. Presumption as to absence
of consent in certain prosecutions
for rape.–In a prosecution for rape
under clause (a) or clause (b) or clause

(c) or clause (d) or clause (e) or clause

(g) of sub-section (2) of Section 376 of
the Indian Penal Code (45 of 1860),
where sexual intercourse by the
accused is proved and the question is
whether it was without the consent of
the woman alleged to have been raped
and she states in her evidence before
the court that she did not consent, the
court shall presume that she did not
consent.”

16. Section 114-A no doubt
addresses on the consent part of the
woman only when the offence of rape is
proved but it also impliedly would be
applicable in a matter of this nature
where the victim girl had gone to the
extent of committing suicide due to the
trauma of rape and yet is sought to be
disbelieved at the instance of the
defence that she weaved out a
concocted story even though she
suffered the risk of death after
consuming poison. If this were to be
accepted, we fail to understand and
lament as to what is the need of
incorporating an amendment into the
Evidence Act by incorporating Section
114-A which clearly has been added to
add weight and credence to the
statement of the victim woman who
suffers the offence of rape and a
claustrophobic interpretation of this
amended provision cannot be made to
infer that the version of the victim
should be believed relating merely to
consent in a case where the offence of
rape is proved by other evidence on
record. If this view of the matter is
taken into account relying upon the
amended Section 114-A of the
Evidence Act which we clearly do, then
even if there had been a doubt about

-11- Cr.A. No.1613/2005

the medical evidence regarding non-
rupture of hymen the same would be of
no consequence as it is well settled by
now that the offence of rape would be
held to have been proved even if there
is an *attempt of rape on the woman
and not the actual commission of rape*.
Thus, if the version of the victim girl is
fit to be believed due to the attending
circumstances that she was subjected
to sexual assault of rape and the
trauma of this offence on her mind was
so acute which led her to the extent of
committing suicide which she
miraculously escaped, it would be a
travesty of justice if we were to
disbelieve her version which would
render the amendment and
incorporation of Section 114-A into the
Evidence Act as a futile exercise on the
part of the legislature which in its
wisdom has incorporated the
amendment in the Evidence Act clearly
implying and expecting the court to give
utmost weightage to the version of the
victim of the offence of rape which
definition includes also the attempt to
rape.

17. In the instant matter, in view
of the evidence led by the witnesses,
supported by the circumstantial
evidence, the prosecution version is fit
to be relied upon brushing aside the
theory of improbability of the offence
and holding the prosecution case
proved beyond reasonable doubt,
leading to the conclusion that the
incident in fact did happen in the
manner in which it has been described
by the victim girl who was only of 17
years and hence a minor at the time of
the incident supported by the medical
evidence which although might be
somewhat weak, gains strength from
other attending circumstantial evidence

-12- Cr.A. No.1613/2005

wherein there is no missing link in the
chain of events.”

The Apex Court in the aforesaid quoted judgment has
held that if the delay is clearly explained, then it could be
condoned. Apex Court has further considered and held
that the conviction can be based on the sole testimony of
prosecutrix. There is also provision of Section 114-A of the
Evidence Act.

18. In the present case, there is an evidence of
prosecutrix. She told the incident to her husband P.W.3.
There is also evidence of relative of husband of the
prosecutrix and villagers. Considering all the evidence, in
our opinion, the trial court has rightly held the appellant
guilty for commission of offence. As the appellant forcefully
entered in the house of the prosecutrix, hence he has been
held guilty for commission of offence punishable under
section 450 of IPC and awarded a sentence of 7 years RI.
He threatened to kill the prosecutrix, therefore, he has
rightly been held guilty for commission of offence under
section 506-B of IPC and awarded a sentence of 2 years
RI.

19. Now the next question is “whether it is justified to
impose a sentence of life against the appellant under
section 376(1) of IPC, as awarded by the trial court?” In
regard to award of proper sentence, the Apex Court in the
case of Hazara Singh Vs Raj Kumar and others, (2013) 9
SCC 516 has held as under in regard to award of proper
sentence:

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“27. While rejecting the similar
reasons as stated by the High Court in the
present case, the following conclusion
arrived at by this Court are relevant:

“7. …. The learned Judge then took
notice of the fact that three co- accused of
the appellants were given benefit of doubt
by the trial court and acquitted them
although they were also attributed causing
of some injuries. If acquittal of some co-
accused casts a cloud of doubt over the
entire prosecution case, the whole case
may be rejected. But we fail to understand
how acquittal of some of the accused can
have any relevance to the question of
sentence awarded to those who are
convicted. In this case the prosecution
submitted that these two appellants alone
were armed with guns. Then the learned
Judge observes that no useful purpose,
will be served by sending the appellants to
prison again to undergo the unexpired
period of their sentence. We repeatedly
asked why this indulgence and waited for
answer in vain. If someone is enlarged on
bail during the pendency of appeal and
when the appeal is dismissed sending him
back to jail is going to raise qualms of
conscience in the Judge, granting of bail
pending appeal would be counter-
productive. One can pre-empt or forestall
the decision by obtaining an order of bail.

8. If the learned Judge had in mind
the provisions of Section 360 of CrPC so
as to extend the benefit of treatment
reserved for first offenders, these
appellants hardly deserve the same.
Admittedly, both the appellants were
above the age of 21 years on the date of
committing the offence. They have
wielded dangerous weapons like firearms.
Four shots were fired. The only fortunate
part of the occurrence is that the victim
escaped death. The offence committed by
the appellants is proved to be one under
Section 307 of IPC punishable with
imprisonment for life. We were told that

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the appellants had hardly suffered
imprisonment for three months. If the
offence is under Section 307 IPC i.e.
attempt to commit murder which is
punishable with imprisonment for life and
the sentence to be awarded is
imprisonment for three months, it is better
not to award substantive sentence as it
makes mockery of justice. Mr Jain said
that the High Court has enhanced the fine
and compensated the injured and,
therefore, we should not enhance the
sentence. Accepting such a submission
would mean that if your pockets can
afford, commit serious crime, offer to pay
heavy fine and escape tentacles of law.
Power of wealth need not extend to
overawe court processes. Thus it appears
that the High Court wrongly interfered with
the order of sentence on wholly untenable
and irrelevant grounds some of them not
borne out by the record. In order,
therefore, to avoid miscarriage of justice
we must interfere and set aside the
sentence imposed by the High Court and
restore the sentence imposed by the
learned Sessions Judge which we hereby
order. Both the appellants shall be taken
into custody forthwith to suffer their
sentence.”

20. The Hon’ble Apex Court in the case of Satish Kumar
Jayanti Lal Dabgar vs State of Gujarat, (2015) 7 SCC
359 has also upheld the sentence awarded by the High
Court of four and half years for commission of offence
punishable under Section 376 of IPC. In the aforesaid
case, the High Court reduced the sentence from RI seven
years to RI four and half years.

21. In the present case, the prosecutrix was a married
lady. There is a delay in lodging the FIR. The medical

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evidence has not been corroborated to the commission of
offence of rape. Looking to the overall circumstances and
evidence on record, in our opinion, it would be just and
proper if the sentence awarded by the trial court for
commission of offence punishable under section 376 of
IPC be reduced to 7 years.

22. Consequently, the appeal filed by the appellant is
partly allowed. His conviction for commission of offence
punishable under sections 376, 450 and 506-B is hereby
upheld. However, the sentence awarded by the trial court
for commission of offence punishable under section 376 of
IPC is modified to RI for 7 years and the sentence awarded
by the trial court for other sections is hereby upheld. All the
sentences shall run concurrently. The appellant shall
remain in jail to serve the remaining part of his jail
sentence.

(S.K. Gangele) (Anurag Shrivastava)
Judge Judge

TG/-

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