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Jhure @ Jhuralal vs The State Of Madhya Pradesh on 29 November, 2017

1 Cr.A. No. 1069/2011

HIGH COURT OF JUDICATURE AT JABALPUR (M.P.)

SINGLE BENCH : HON’BLE JUSTICE NANDITA DUBEY

CRIMINAL APPEAL NO.1069/2011

APPELLANT : JHURE @ JHURALAL, S/O JANGAL
AHIRWAR

Vs.
RESPONDENT : STATE OF MADHYA PRADESH

For the appellant : Shri Rakesh Kumar Jain, Advocate as
Amicus curiae

For the respondent : Shri Manish Awashty, Govt. Advocate

Whether approved for reporting : Yes/no
Law laid down
Significant paragraph numbers :

Arguments heard on : 25.11.2017
Judgment delivered on : 29.11.2017
__

JUDGMENT

This appeal has been filed by the appellant

being aggrieved by the judgment dated 30.03.2011,

passed by First Additional Sessions Judge, Sagar in S.T.

No.706/2010, whereby appellant has been found guilty

for the offence punishable under Section 376(2)(h) of

the Indian Penal Code and has been sentenced to

rigorous imprisonment for ten years and fine of

Rs.2,000/- and in default of payment of fine, to further
2 Cr.A. No. 1069/2011

suffer rigorous imprisonment for six months.

2. The prosecution case, in brief, is that,

appellant is the father of the prosecutrix, who is 9

years of age. Mother of the prosecutrix had died

earlier and since then the prosecutrix was residing

alone with her father/appellant. It is the further case

of the prosecution that the prosecutrix, who was a

student of Class-II did not go to the school for 2-3 days.

When she was asked regarding her absence from the

school by her Class Teacher Smt. Bharti Singh (P.W.-1),

she disclosed about having been raped by her father

and of stomach ache. This fact was narrated by Bharti

Singh (P.W.-1) to the Principal of the School (P.W.-5)

Smt. M. Kanhouha, who thereafter wrote a letter (Ex.P-

3) regarding the said fact to P.W.-3 Mahesh Ahirwar,

Ward Member of Ward No.16 for the protection of the

prosecutrix and also called the father/appellant of the

prosecutrix to the school but he did not came. P.W.-5

Smt. M. Kanhouha thereafter enquired from the

prosecutrix and wrote a letter (Ex.P-4) to the Police

Station, Cantonment Area, district Sagar on

23.09.2010, informing about the said incident.

3. On the basis of Ex. P-4, the FIR was
3 Cr.A. No. 1069/2011

registered at Crime No.520/2010 under Section 376(2)

(f) of the I.P.C. and the criminal law was set into

motion. Spot map was prepared and the statements of

P.W.-1 Smt. Bharti Singh, P.W.-3 Mahesh Ahirwar, P.W.-4

Meerabai, P.W.-5 M. Kanhouha alongwith prosecutrix

(P.W.-7) were recorded. The prosecutrix was sent for

medical examination to the district hospital, Sagar,

where she was examined by Dr. Mamta Singh (P.W.-16)

and slides were prepared and her undergarments were

seized and sent for chemical examination. For

ascertaining the age of the prosecutrix, she was

referred to the Radiologist, Dr. Jinesh Diwakar (P.W.-17),

who after conducting the ossification test opined that

the age of prosecutrix is below 12 years.

4. The prosecution has examined as many as

17 witnesses. The statement of the appellant was

recorded under Section 313 of the Cr.P.C. However, the

appellant has not produced any witness in his defence.

5. The trial Court recorded a finding of guilt

against the appellant and convicted him of the offence

under Section 376(2)(f) of the I.P.C., (wrongly

mentioned as 376(2)(h) of the I.P.C. in the judgment)

relying on the testimony of prosecutrix (P.W.-7) and
4 Cr.A. No. 1069/2011

P.W.-1 Smt. Bharti Singh and convicted him as

aforesaid.

6. The learned counsel appearing for the

appellant submits that the appellant has been falsely

implicated because of previous enmity with ward

member Mahesh Ahirwar (P.W.-3) on account of some

land dispute and as he had opposed him in the

election.

7. Shri Manish Awasthy, learned Govt.

Advocate, appearing for the respondent/State, on the

other hand, submits that there is no inconsistency in

the statement given by the prosecutrix in the Court

and in her case diary statement and the Court below

has rightly recorded the finding of conviction against

the appellant.

8. Having heard the learned counsel for the

parties at length and on perusal of the record, it is

observed that the prosecutrix, who is a student of

Class II and only 9-10 years of age at the time of

incident has clearly stated that the appellant, her real

father had committed rape on her. She has clearly

stated in the case diary statement as well as before
5 Cr.A. No. 1069/2011

the Court that she has been living alone in the house

with the father and her father after consuming alcohol,

removed her clothes and committed rape with her.

She has also stated that she was threatened by her

father not to disclose this fact to anyone and due to

the said act, she was having stomach ache and the

blood was coming out of her vagina and because of

stomach ache, she did not go to the school for 2-3

days. She has further stated that she had narrated the

said fact to her Class Teacher P.W.-1 Smt. Bharti Singh.

Her statement is also corroborated by P.W.-1 Bharti

Singh and P.W.-5 Smt. M. Kanhouha, who have

corroborated that the said fact was narrated by the

prosecutrix to them. It is clear that 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 worth

believing.

9. P.W.-6 Poonabai, who is elder sister-in-law of

the appellant has stated that the prosecutrix has

informed her about the said fact and when she

confronted the appellant, he abused her and told her

to mind her own business.

6 Cr.A. No. 1069/2011

10. P.W.-16 Dr. Bharti Singh who has examined

the prosecutrix was inconclusive in her opinion in

regard to rape and did not find any injury in the private

parts of the prosecutrix but had stated that the

prosecutrix was complaining of pain in her private

parts and there was abrasion over her right elbow.

11. It is settled law that injuries on the person

of a rape victim is not even a sine qua non for proving

the charge of rape.

12. 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.

13. It is evident that the prosecutrix (P.W.-7)
7 Cr.A. No. 1069/2011

that she has in very clear terms stated about the wild

vile act done by her father/appellant. She has also

stated that she was threatened by her father not to

disclose this fact to anyone. It is also evident from the

record that the prosecutrix, who is the real daughter of

the appellant was living alone in the house with the

appellant and under his care. There was no reason for

her to falsely implicate her father in the incident.

14. 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,
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
8 Cr.A. No. 1069/2011

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
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
9 Cr.A. No. 1069/2011

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. 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.

15. The contention of learned counsel for the
10 Cr.A. No. 1069/2011

appellant that there was no rope as on examining the

prosecutrix, Dr. Mamta Singh (P.W.-16), did not find

any redness or bleeding in the private parts, sans

merits.

16. According to Medico legal Manual :-

“Rape on children:- In young children
there are few or no signs of general
violence, for the child usually has no
idea of what is happening, and also
incapable of resisting. The hymen is
deeply situated, and as the vagina is
very small, it is impossible for the
penetration of the adult organ to take
place. Usually, the penis is placed either
within the vulva or between the thighs.
As such, the hymen is usually intact and
there may be little redness and
tenderness of the vulva.

Full penile penetration produces
bruising of the vaginal walls and
frequently tears of the anterior and
posterior vaginal wall. Anterior tears can
involve the bladder and the posterior
tears the anorectal canal. Vaginal vault
may rupture, and there may be vaginal
herniation of abdominal viscera. The
hymen may be entirely destroyed or
may show lacerations. Blood may be
oozing from the injured parts, or clots of
blood may be found in the vagina. There
may be mucopurulent discharge from
the vagina. Circumferential tears of the
mucosa of the vestibule are common.
Any attempt to separate the thighs for
11 Cr.A. No. 1069/2011

examination causes great pain, because
of the local inflammation. The child
walks with difficulty due to pain. The
absence of marks of violence on the
genitals of the child, when an early
examination is made is strong evidence
that rape has not been committed.

17. According to Modi’s Medical Jurisprudence,

(23rd Edn., at pp. 897 and 928):

to constitute the offence of rape, it is
not necessary that there should be
complete penetration of the penis with
the emission of semen and the rupture
of hymen. Partial penetration of the
penis within the labia majora or the
vulva or pudenda, with or without the
emission of semen, or even an attempt
at penetration is quite sufficient for the
purpose of law. It is, therefore, quite
possible to commit legally, the offence
of rape without producing any injury to
the genitals or leaving any seminal
stains.

In small children, the hymen is not
usually ruptured, but may become red
and congested along with the
inflammation and bruising of the labia. If
considerable violence is used, there is
often laceration of the fourchette and
the perineum.

17. In view of the settled legal position and the

clear, consistent, reliable and unimpeachable

statement of prosecutrix, which is corroborated by the

statement of P.W.-1 Smt. Bharti Singh, P.W.-5 Smt. M.
12 Cr.A. No. 1069/2011

Kanhouha and P.W.-6 Poonabai, I 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(2)(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.

(Nandita Dubey)
JUDGE
29/11/2017

gn
Digitally signed by GEETHA NAIR
Date: 2017.11.30 16:25:31 +05’30’

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