Bihari Lal vs The State Of M.P. on 27 November, 2017

1 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE

Division Bench: Hon’ble Shri Justice P.K. Jaiswal and

Hon’ble Shri Justice Virender Singh

Criminal Appeal No.261/2006

Biharilal S/o Narain Singh Saudhiya

Vs.
State of Madhya Pradesh

Coram:
Hon’ble Shri Justice P.K.Jaiswal, Judge,
Hon’ble Shri Justice Virender Singh, Judge.

Shri Govind Purohit, learned counsel for the appellant.
Shri Amit Singh, learned Government Advocate for the
respondent/State.
————————————————————————-
Whether approved for reporting: Yes/No

JUDGMENT

(Delivered on 27/11/2017)

Per : Virender Singh, J.:

Being aggrieved by judgment and order dated 23/01/2006
passed in S.T. No.124/2005 by Sessions Judge, Rajgarh whereby
the learned Court has held the appellant guilty for the offence
2 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

punishable under Section 376 (2) (f) of IPC and sentenced him
for life imprisonment with fine of Rs.2,500/-, in default of
payment of fine, further to undergo six months RI, the appellant
has preferred this present appeal.

2. Facts in brief are that on 30/07/2005 at about 3.00 in the
afternoon, the prosecutrix aged about 7 years was playing out-
side the house alone. Her mother had gone for work. At that time
accused came there and picked her up in his lap and took her in
his house stating that he will give her water. In the house he
asked her to play “Gala Gali”. He removed his underwear laid
down over her, and inserted his penis in the vagina of prosecutrix
forcefully, which resulted in bleeding from the vagina. The
prosecutrix started weeping, then, the accused fled away from
scene. The prosecutrix reached home crying. Coincidentally her
mother came there. She narrated the incident to her mother.
Villagers Daryaosingh, Ayodhyabai and uncle/Arjunsingh also
reached there. They all were informed about the incident.
Thereafter mother and uncle of the prosecutrix took her to the
Police Station-Jeerapur and lodged report (Ex.P/1) at about 5:00
in the evening. The police registered crime No.251/2005 under
Section 376 of IPC and sent her for medical examination,
prepared spot map, arrested the accused and got him medically
examined, recorded the statement of witnesses, obtained
documents related to age of the prosecutrix and after completing
the investigation filed the charge-sheet.

3. The appellant was charged under Section 376 (2) (f) of IPC.
He abjured his guilt. After considering the evidence, the learned
trial Court held the offence proved and punished the appellant as
3 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

stated in para 1.

4. The appeal is preferred on the ground that judgment and
order of the trial Court is contrary to law and facts available on
record. The learned trial Court erred in not considering the fact
that the alleged place of incident is said to be the house of
appellant, in which parents and four brothers in the family also
reside, therefore, at the alleged time of incident when most of the
family members remain in the house, it was not possible to
commit such incident. Family of the prosecutrix is inimical to the
family of the appellant, therefore, learned Judge has erred in
placing reliance on their statements without asking for any
independent corroboration. The learned trial Court committed
error in not considering the material contradictions and omissions
appeared in the statements of prosecution witnesses. Prosecutrix
has stated that she was playing out side her house on the cart
and it is quite possible that she might have got injured while
playing and due to the animosity existing with the appellant and
his family members with regard to a piece of land, the appellant
has falsely been implicated, therefore, appellant prayed that the
impugned judgment and order be set-aside and he be acquitted.

5. Learned Public Prosecutor has supported the judgment and
order.

6. We have considered rival contention of the parties and have
perused the record.

7. The prosecution examined the prosecutrix as witness No.2
before the trial Court, who has categorically narrated the incident
in para 2 of her statement. It would be apt to mention the
4 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

contents of this para in her own words.

“2@ fcgkjh gekjs ?kj ds ikl esa jgrk gSA xokg ls tc iqNk x;k fd
vfHk;qDr us rsjs lkFk D;k fd;kA rks xokg us vius tuuvax ij gkFk j[k
dj crk;k fd blus viuh cPph blesa ?kqlsM+ nhA ml le; eSa ?kj ds
ckgj xkM+h ij cSBh Fkh rks fcgkjh esajs dks mBk dj vius ?kj ys x;kA
vkSj blus viuh cPph ?kqlsM+ nh tc xokg ls iwNk x;k fd cPph ls
rqEgkjk D;k eryc gS rks xokg dk tokc gS fd tSlk HkSl dk nq/k
fudkyrs gS oslh cPph ?kqlsM+ nh] tc xokg ls iwNk cPph ?kqlsM+ us ls
D;k gqvk rks xokg us tukuax ij gkFk j[k dj dgk fd ;gk nnZ gqvkA
igys ;g esjs dks dejs es ys x;k fQj okil cktkj esa iVd x;kA tc
xokg ls iwNk x;k fd rsjs dks dgk yx xbZ Fkh rks mlus tuuvax ij
gkFk j[k dj dgk fd ;gk pksV yx xbZ FkhA xokg ls iwNk x;k fd
vfHk;qDr us cPph dgk ls fudkyh Fkh rks xokg us dgk fd blus viuh
isaV ls cPph fudkyh FkhA”

8. She remained firm on her statement even in her cross-
examination. Her conduct which is mentioned in para 1 of her
statement that when the accused was called near her, she got
frightened and the manner in which she narrated the incident,
which can be seen from para 2 of her statement reproduced
above, makes her statement very natural and discards all
possibility of any type of doubt towards truthfulness of her
statement. Though statement of prosecutrix is so true, that they
do not require any support of corroboration to rely upon it but
even if we ask for some corroboration, the same is also available
on record.

9. Dr. Manisha Mittal (PW/4), who examined the prosecutrix
on 31/07/2005 at Primary Health Centre (PHC), Khilchipur, Dr.
Mittal found that there was swelling present in both labia and
vagina. She was complaining of pain and tenderness. There was
5 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

bleeding from vaginal orifice and clotted blood was present over
vagina, vaginal tear was present upto posterior forchetle, Clotted
blood was present around her folds of thighs. After examination
Dr. Mittal (PW/4) opined that possibility of sexual intercourse
cannot be denied. Though there is no mention in the report of Dr.
Mittal (PW/4) as to what was the status of hymen or whether it
was ruptured or not but in her cross-examination Dr. Mittal
(PW/4) has stated that considering the condition she found on
examination she can state that hymen was ruptured. It is stated
by Dr. (Mrs.) Mittal that only by mistake she could not mention
this fact in the report.

10. The statement of prosecutrix further finds corroboration in
the form of statement of her mother-Kanchanbai (PW/1) and to
some extent from the statement of Arjunsingh (PW/3), who
though turned hostile but stated that mother of the prosecutrix
had informed him that the accused had committed rape with her
daughter. Statement of Sub-inspector Chatrapalsingh (PW/6) is
also available in support of the story narrated by the prosecutrix
and her mother, as he registered the report, sent the prosecutrix
to the Doctor and collected other evidence during the
investigation. His statement also supports narration of the
prosecutrix and her mother.

11. Age of the prosecutrix estimated by the Court is 7 years.
The same age is stated by Ramratan (PW/5) and ascertained by
Dr. Mittal (PW/4) after ossification. Nothing contrary is found on
record.

12. Though the appellant has taken plea that there was enmity
between the family members of appellant and the prosecutrix but
6 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

nothing could be produced on record to show this enmity. Mere
averment of the appellant without any supporting evidence
cannot be taken as truth. Similar is the situation regarding doubt
raised by the appellant that there were family members in the
house at the time of alleged incident. Nothing is there to believe
that at the time of incident some family members were there,
therefore, contention raised by appellant cannot be relied upon.

13. No defence has been taken during recording of statements
of prosecution witnesses including the statement of Dr. Mittal
(PW/4) that the prosecutrix sustained injuries, while she was
playing on the cart, therefore, raising this question first time in
the appeal is not at all acceptable at this stage.

14. The trial Court has considered all these evidences and has
rightly reached on the conclusion, that it was the accused who
had committed rape with the prosecutrix on the alleged date,
time and place of the incident. Nothing is there to defer from the
finding of the trial Court. We are also in agreement with this
finding.

15. As far as sentence is concerned, the Hon’ble Supreme Court
has expressed his concern in Kumudi Lal vs. State of U.P AIR
1999 SC 1699. Para 3 of the judgement reads thus:

3. In order to prove its case, besides the medical
and other evidence the prosecution had led the
evidence of Mihilal (PW-1), Avadh Ram (PW-2) who
were the eye-witnesses. Believing their evidence the
trial Court convicted the appellant for the offences
punishable under Sections 376 and 302, IPC and also
under Section 3 (ii)(v) of the Scheduled Castes and
Scheduled Tribes ( Prevention of Atrocities ) Act. As
7 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

the trial Court had imposed death sentence upon the
appellant for the offence of murder, it forwarded the
record to the High Court for confirmation of that
sentence. The appellant also filed an appeal
challenging his conviction. The High Court after re-
appreciating the evidence, agreed with the findings
recorded by the trial Court and confirmed the death
sentence by observing as under :-

“It was he who, acting as a beast of
prey, pounced upon an unprotected,
helpless and physically weak young girl,
and just to satisfy his sexual lust defiled her
despite the best possible resistance coming
from the victim. And still the innate, albeit-
depraved, urge for self survival was so
strong in him that he would not hesitate a
bit in squeezing out the last breath of the
poor little duck. His diabolic, vile and
wicked deed was the worst from of
degraded gender crime, sparing him from
the gallows would be nothing short of
letting loose a sex maniac on prowl.

Succinctly put mercy to the appellant
under these circumstances would be quite
misplaced. It would not only slight the
valient resistance put up by the deceased in
protecting her honour and chastity but also
an insult to the entire womenhood. We,
therefore, reject the appeal in its entirety
and affirm the reference for confirmation
moved by the trial Court.”

16. Considering the age of the prosecutrix and manner and the
way in which the accused misused the trust of a tender aged girl,
in our considered opinion looking to the nature and gravity of the
offence, the sentence awarded by the learned trial Court is just
and proper. We are not inclined to interfere in the conviction and
sentence awarded by the learned trial Court also. H ence the
8 Cr.A. No.261/2006
Biharilal S/o Narain Singh Saudhiya vs. State of M.P.

impugned judgment of conviction and sentence awarded to the
appellant is maintained.

17. In the result, the appeal is dismissed being bereft of
merits.

18. Order of the trial Court regarding disposal of the property
is hereby confirmed.

(P.K. Jaiswal) (Virender Singh)
Judge Judge
Aiyer*

Jagdishan Aiyer
2017.11.29
03:22:22
+05’30’

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