HIGH COURT OF JUDICATURE MADHYA PRADESH,
DIVISION BENCH: Honâble Mr. Justice S.K.Gangele
Honâble Mr. Justice Subodh Abhyankar, JJ.
CRIMINAL APPEAL NO. 135 OF 2007
Tantu Lal @ Tantu.
State of Madhya Pradesh.
Shri Ajay Tamrakar, learned counsel for the appellant.
Shri CK Mishra, learned Govt. Advocate for the respondent/ State.
(Delivered on this the 24th day of October, 2017)
PER: Subodh Abhyankar,J.
This is yet another unfortunate incident disgracing and
shaking the very foundation of a relationship of a grand-father
and grand-daughter which is under scrutiny of this court.
2. This criminal appeal under Section 374(2) of the Code of
Criminal Procedure has been preferred by the appellant being
aggrieved by the judgment and order dated 28/11/2006 passed by
the Special Judge Additional Sessions Judge, Bhopal in
S.T.No.340/2005, whereby the appellant has been convicted
under Section 376(2)(f) of IPC and sentenced to life imprisonment
with fine of Rs.1,000/-, in default of the same he is further
sentenced to RI for three months.
3. The prosecution case in short is that an FIR Ex.P/4
was lodged at Police Station Bairasiya District Bhopal on
9.8.2005 by complainant PW-5 Kalu Ram son of the present
appellant to the effect that when he and his wife Phoolwati
reached at home at around 4 in the evening, their son Balram
informed them that their daughter aged five years was taken
by his father towards the jungle and when Kalu went to the
Jungle, he saw that her daughter was being raped by her
grand-father appellant Tantulal. The incident was witnessed
by the complainant Kalu and his wife Phoolwati only and
when they reached on the spot, his father ran away from the
spot. His daughter was unconscious when he reached on the
spot and her daughter was bleeding from her private part.
Soon after the FIR was lodged, the prosecutrix was taken to
the Community Health Centre, Bairasiya District Bhopal
wherefrom she was referred to the Sultaniya Janana Hospital,
Bhopal. After completing the investigation, charge sheet was
filed against the appellant under Section 376 of IPC, and the
learned Special Judge and Additional Sessions Judge, Bhopal
after recording the evidence convicted the appellant under
Section 376(2)(f) of IPC and sentenced as mentioned above.
4. Being aggrieved by the impugned judgment, finding
and sentence the instant appeal has been preferred by the
5. Shri Ajay Tamrakar, learned counsel for the
appellant has submitted that the appellant has been falsely
implicated in the matter, and the learned trial Court has
committed a grave error in convicting the present appellant
for the aforesaid offence. It is further submitted that the
prosecution has failed to establish the case against the
present appellant beyond reasonable doubt, hence finding of
guilt is erroneous, which deserves to be set aside and the
appellant be acquitted
6. On the other hand, Shri C.K.Mishra, learned counsel
appearing on behalf of the respondent/State supported the
impugned judgment, finding and sentence mainly contending that
the prosecution has established the guilt beyond reasonable doubt
against the present appellant, who happens to the grand-father of
the prosecutrix who was only 5 years old hence it does not call for
7. We have heard the learned counsel for the parties and
perused the record.
8. After considering the submissions made by the learned
counsel for the parties and going through the evidence on record
as well as the judgment rendered by the learned trial Court, this
Court is of the opinion that the present appellant has rightly been
convicted by the learned trial Court for the reasons stated
9. So far as eye-witnesses are concerned, Smt. Phoolbai
the mother of the prosecutrix has been examined as PW-4. She
has stated that around six months ago when she had gone in the
morning to work as a labourer, her daughter had also gone to the
school but when she returned bank, she was informed by her son
Balram that her daughter-the prosecutrix was taken by the
appellant towards the jungle and when she went to the jungle with
her husband, on search she found her daughter in the jungle in
unconscious condition. She has stated that appellant had raped
her daughter who was taken to the Bairasiya Hospital, Bhopal
from where she was taken to the Sultaniya Janana Hospital,
10. Kalu Ram, the author of the FIR Ex.P/4 has been
examined as PW-5. He is the father of the prosecutrix and son of
the present appellant. He has stated that he was informed by his
son Balram that his daughter was taken by the appellant towards
the jungle and when he went towards the jungle, he saw that his
father was naked and his daughter was in his lap and she was
bleeding. This witness has stated that his father i.e. the present
appellant had come from Haridwar on the same day only. A
suggestion has also been given to him that his daughter sustained
injuries due to fall on the ground but the same has been denied by
11. Ramlal has been examined as PW-6, who has stated that
Kaluram-father of the prosecutrix came to him and informed that
his father had taken away his daughter and thereafter he went
towards the jungle to search the prosecutrix. Thereafter Kaluram
came back from the jungle along with his daughter and at that
time his daughter was unconscious and Kaluram also informed
him that his father has raped her daughter.
12. Prem Shankar Shukla, who was posted as Head
Constable at Police Station Bairasiya, Bhopal has been examined
as PW-7. He has stated that he had seized the clothes of the
appellant Tantulal. Chandan Singh has been examined as PW-11,
who has stated that at the time of incident, he was at his field and
had seen appellant Tantu along with his grand-daugther, who was
holding the hands of her grand-father walking towards the jungle.
After sometime Kaluram, son of the appellant had also gone
towards the jungle, who came back along with his daughter.
According to this witness, there was bleeding from the private
parts of the prosecutrix. Ramcharan Singh Bhadoriya has been
examined as PW-12. This witness had lodged the FIR (Ex.P-4). He
sent the prosecutrix to the Civil Hospital, Bairasiya, Bhopal for
her medical examination and had prepared the spot map
(Ex.P-14). He also arrested the appellant from the spot.
13. Dr. Juhi Agrawal has been examined as PW-8, who
examined the prosecutrix on 17.8.2005. According to this witness,
the prosecutrix was aged 5 years only, there was vaginal tear as
also perinea tear. Her hymen was ruptured. There was blood in
the labia majora and scratch marks were found on the left thigh.
This witness has positively stated that the prosecutrix was
sexually assaulted. At the time of her examination, the prosecutrix
was conscious but afraid. This witness has categorically denied
that such injuries can be caused by falling on the ground.
14. Dr. Arun Kumar Ojha has been examined as PW-10, who
examined the appellant on 9.8.2005 at the Community Health
Centre, Bairasiya and found that the Dhoti, which he was wearing
at the time of committing the offence was stained with blood and
semen. This witness also found that the appellant had consumed
liquor, as the smell of alcohol was coming from his mouth.
According to this witness, the appellant was capable of
committing sexual intercourse. The report prepared by this
witness is Ex.P-16.
15. In the accused statement the appellant has taken a plea
under Section 313 of Cr.P.C. that he has been falsely implicated
by his daughter-in-law PW-4 Phoolbai who was a characterless
woman but this suggestion has not even been put to PW-4
Phoolbai thus, at the fag end of the trial the appellant has tried to
save his own skin by trying to besmirch the reputation of his
daughter-in-law which in the considered opinion of this court
cannot be accepted.
16. Having gone through the aforesaid evidence, it is
apparent that the appellant was around 70 years old when the
incident took place in the year 2005. So far as the sexual assault
committed by the appellant upon his grand daughter is concerned,
the same is positively established by the testimony of the eye-
witnesses as also the medical witnesses. It is also an admitted fact
that the prosecutrix was only five years old at the time of incident,
whereas the appellant was 70 years old. According to the doctor,
the appellant had also consumed liquor on the date of incident,
although he was fully oriented. Apart from the medical evidence,
there is no reason for his own son Kaluram, who has specifically
stated that his father committed rape upon his daughter to falsely
implicate the appellant. Under these circumstances, this Court
does not find any illegality or infirmity in the finding arrived at by
the learned Judge of the trial Court.
17. So far as the sentence is concerned, learned counsel for
the appellant has submitted that appellant has crossed the age of
around 82 year and he has already undergone the sentence of
around 12 years may be sentenced which he has already
undergone. We have given our anxious consideration to this
aspect of the matter but we are afraid that we are unable to
accept the submissions made by the counsel for the appellant for
the reason that even on the date of the commission of offence i.e.
09.08.2005 the appellant was aged around 70 years old, thus, at
such advance age if the appellant, who can only be termed as a
debauchee can rape his own granddaughter aged 5 years then he
cannot seek any mercy at the age of 82 years. In the considered
opinion of this court, the appellant has demonstrated extreme
depravity of mind in committing the offence and does not deserve
any leniency in the sentence already awarded to him. This Court is
of the view that the appellant has rightly been sentenced for life
imprisonment and looking to the crime committed by the
appellant, it is very necessary that a proper message be sent to
the society that if a person involves himself in such a heinous
crime, then he cannot and shall not be spared by this court
regardless of his age.
18. In the result, the present appeal filed by the appellant
fails and is hereby dismissed.
(S.K.Gangele) (Subodh Abhyankar)