Kashiram vs The State Of Madhya Pradesh on 29 November, 2017

1 Cri.Appeal No.2263/2012

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

SINGLE BENCH

Criminal Appeal No. 2263 of 2012

APPELLANT

Kashiram, S/o Munna Lal
Tekam, aged about 22 years,
R/o Village-Gokulpur, PS-
Ugli, Distt. Seoni (MP)

Versus
RESPONDENT

State of Madhya Pradesh
Through P.S. Ugli, District-
Distt.Seoni (MP)

PRESENT :

HON’BLE SMT. JUSTICE NANDITA DUBEY

JUDGMENT RESERVED ON 25.11.2017
JUDGMENT DELIVERED ON 29.11.2017

For the Appellant:

Shri Sandeep Dubey, Advocate as Amicus Curiae.

For the State:

Shri Devendra Gangrade, Panel Lawyer.
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Law laid down

Significant paragraph numbers :

JUDGMENT

This appeal has been filed by the appellants being

aggrieved by the judgment dated 24.09.2012, passed by

learned Sessions Judge, Seoni in Sessions Trial No.
2 Cri.Appeal No.2263/2012

86/2012, whereby appellant has been found guilty for

the offence punishable under Sections 450 and 376 of

IPC and sentenced to undergo R.I.for five years and fine

of Rs.500/-,and R.I.for seven years and fine of

Rs.500/-,with default stipulations.

2. The prosecution story, in brief, is that on 6.5.2012

at around 4 pm while the prosecutrix was sleeping in

her house, the accused-appellant who is the son of the

real sister of the prosecutrix entered her house and

committed rape on her against her wishes. It is stated

that at the time of incident, husband of the prosecutrix

had gone out to the forest to graze the cattle and her two

daughters had gone to attend a wedding nearby.

According to the prosecution, the incident was

witnessed by Bundobai (PW.2) and Anil Kumar (PW.3),

who came running to the spot on hearing the hue and

cry raised by the prosecutrix and removed the appellant

from over the body of the prosecutrix.

3. The report (Ex.P/1)of the incident was lodged on

7.5.2012 at around 3 pm by the prosecutrix herself who

came to the police station along with her husband and

Kotwar Nathuram. On the basis of aforesaid report, the

criminal law was set in motion. The spot map was

prepared and broken pieces of bangles were seized from
3 Cri.Appeal No.2263/2012

the spot vide Ex.P/5.The prosecutrix was sent for

medical examination to District Hospital-Seoni where

she was examined by Dr.Rajeshwari Kushram (PW.6)

who found multiple abrasions on her back side.

4. After completion of investigation, the accused was

put on trial. The prosecution examined six witnesses

and filed various documentary evidence. The statement

of the accused under Section 313 Cr.P.C.was recorded.

The defence examined one witness, namely, Sawanlal

Gond (DW.1) in its support.

5. The trial Court, believing the testimony of

prosecutrix (PW.1), Bundobai (PW.2) and Anil Kumar

(PW.3) and further relying on the medical evidence,

found the appellant guilty of committing the offence

under Section 450 and 376 of the IPC and convicted and

sentenced him as aforesaid.

6. Shri Sandeep Dubey, learned counsel appearing

for the appellant as amicus curiae submits that the

appellant has been falsely implicated as the doctor has

not given any definite opinion about commission of rape

and the FIR was lodged on 7.5.2012, i.e. on the next

day, whereas her husband, according to prosecutrix,

has returned in the evening itself.

7. Shri Devendra Gangrade, learned Panel Lawyer
4 Cri.Appeal No.2263/2012

appearing for the respondent/State, on the other hand

supported the impugned judgment delivered by the trial

Court and prays for dismissal of the appeal.

8. Having heard the learned counsel for the parties at

length and on perusal of the record, it is observed that

the prosecutrix has been very consistent in her

statement despite extensive cross-examination. There is

no discrepancy in her case diary statement and her

statement recorded in the Court. She has stated in clear

terms that while she was sleeping alone in the house,

the accused who is her nephew, entered her house and

committed rape on her against her wishes. She has also

stated that hearing her hue and cry for help Bundobai,

Budhram and Anil came and on seeing the incident

forcefully removed the accused-appellant from over her

body. Bundobai (PW.2) and Anil Kumar (PW.3) have

supported and corroborated her statement. Anil Kumar

(PW.3) has stated that he removed the accused-

appellant from over the body of the prosecutrix, and at

that time the accused was not wearing any clothes.

9. The contention of the learned counsel for the

appellant that the doctor has not given any definite

opinion regarding the rape sans merit. The doctor has

clearly stated that the prosecutrix was accustomed to
5 Cri.Appeal No.2263/2012

intercourse which is normal in the present case as she

was a married woman. The doctor has found multiple

abrasions on the back side of the prosecutrix which

according to her could have come during the course of

rape.

10. The contention of the learned counsel for the

appellant that he has been falsely implicated on account

of the fact that he did not deliver three trolley of soil in

the house of prosecutrix and for this reason she was

annoyed with him and implicated him falsely is only

noted to be rejected. It cannot be believed that the

prosecutrix who was a real Masi would falsely implicate

her nephew, son of her real sister, in such a case.

11. It is evident from the record that the incident

happened in the evening at around 4 pm on 6.5.2012.

It is but natural for the wife to consult and deliberate

with her husband who came back in the evening after

grazing his cattle as the accused-appellant was a near

relation. It has also come in the evidence that the police

station from the place of incident is about 35 kms.away.

Under the circumstances, the FIR lodged on the next

day of the incident i.e. on 07.05.2012 cannot be said to

be delayed.

12. In view of the clear, consistent, reliable and
6 Cri.Appeal No.2263/2012

unimpeachable statement of prosecutrix which is

corroborated by the statements of Bundobai (PW.2) and

Anil Kumar (PW.3), and the medical evidence on record,

I find no illegality or infirmity in the finding of guilt

recorded by the trial Court.

13. In the circumstances, the appeal filed by the

appellant being meritless is hereby dismissed. The

conviction and sentence of the appellant is upheld.

Appellant is in jail. He shall remain incarcerated to

undergo the remaining part of his jail sentence.

14. A copy of this judgment be sent to the Secretary,

High Court Legal Services Committee, Jabalpur for

information.

(Nandita Dubey)
JUDGE
29/11/2017

jitin
JITIN KUMAR
CHOURASIA
2017.11.29
03:30:25 -08’00’

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