Cr.A. No. 1310/1997 1

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
SINGLE BENCH : HON’BLE SHRI JUSTICE S.K.AWASTHI, J
CRA no. 1310/1997

Komal Bairagi S/o Shiv Narayan Bairagi

Versus

State of Madhya Pradesh
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Shri Suhel Nisar, counsel for the appellant.
Shri Swapnil Sharma, GA for the respondent / State.
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JUDGMENT

( Passed on 16 /04/2018)

The appellant has preferred this criminal appeal under section

374(2) of Cr.P.C against the judgment dated 25/11/1997 passed by Additional

Session Judge, Biora, Dist- Rajgarh in Session Trial no. 135/1996, whereby

the appelalnt has been convicted for the offence punishable under sections

376, 506-II and 306 of IPC and sentenced to undergo R.I for eight years , two

years and eight years respectively.

2 Brief facts of the case is that on 13/04/1996, the prosecutrix was

returning to her house from the dance programme organized at village –

Baikheda alongwith her friends Suganbai and Krishnabai. On the way, when

the prosecutrix reached in front of the house of the appellant /accused, he

caught hold her and took her to vacant house of Poonam Pujari, where he
Cr.A. No. 1310/1997 2

committed rape upon her and threatened her that if she narrated the incident

to anybody, then he will ruin her entire family. After that, the prosecutrix

came to her house and she narrated the story to Harinarayan and her mother

Ayodhyabai. At that time, Ayodhyabai was ill and father of the prosecutrix

was out of station. On 15/04/1996, the prosecutrix committed suicide by

setting herself at fire for the aforesaid reason. The matter was reported to the

police station – Biora and the police registered merg intimation under section

174 of Cr.P.C. The dead body of the deceased was sent for postmortem. Dr.

B.K. Athwal ( PW-11) performed the postmortem and found burn injuries

on the body of the deceased. He opined that due to the burn injuries, the

deceased has died. It was also found that hymen of the prosecutrix was torn,

two slides of her vagina were prepared and sent to FSL for chemical analysis.

3 On the basis of the merg inquiry, the police registered FIR at

Crime no. 136/1996 under sections 376, 506 and 306 of IPC against the

appellant. The investigation was initiated by Sub-Inspector B.S. Rajpal. The

accused / appellant was arrested. After due investigation, charge-sheet was

filed before the JMFC, Biora, who committed the case to the Court of

Session and ultimately, it was transferred to the Additional Session Judge,

Biora, Dist – Rajgarh.

4 The appellant abjured his guilt and took a plea that he is an

innocent person and falsely implicated in the matter due to previous enmity.

In defence, he examined Damodardas (DW-1) and Jagdish (DW-2). The trial
Cr.A. No. 1310/1997 3

Court after considering the evidence adduced by the parties, convicted and

sentenced the appellant for the offence as mentioned hereinabove.

5 I have heard learned counsel for the parties and perused the

record.

6 To bring home the charges, the prosecution examined as many as

ten witnesses, however, Suganbai ( PW-2) and Shyambabu ( PW-4) have not

supported the prosecution version. Goverdhan (PW-7) has deposed that in the

year 1996 at about 10 – 11 pm, dance programme was organized in the

marriage ceremony of Kailash and the prosecutrix along with other ladies

went to attend the same. At 11 pm, Harinarayan brother of the prosecutrix

informed him that the prosecutrix is missing, then he searched her, but she

was not found. After that, some ladies, who were coming from temple, saw

the prosecutrix coming out from the house of Radheshyam Bairagi and she

went to her house. On the next day, the prosecutrix died due to burn injuries.

He had heard that the accused committed rape upon the prosecutrix,

therefore, she set herself at fire.

7 Harinarayan (PW-3) deposed that one year ago at about 8-9 pm he

went to temple of Anjanilal where Gayatri, Sugan and Krishna had also

come for taking prasad. After that, he came to his house, but he did not

found her sister. He informed her mother that the prosecutrix is not in house,

therefore, he searched the prosecutrix in the house of Ramprasad, Ratanlal

and Shyambabu, but his sister did not get there. After sometime, Shyambabu
Cr.A. No. 1310/1997 4

informed him that his sister has come home, then he reached his house and

asked her sister, then she informed him that the accused / appellant

committed rape upon her. At that time, his mother was ill and his father had

gone out of station. Then the prosecutrix committed suicide by pouring

kerosene upon herself and set at fire. Jagannath ( PW-6) has also supported

the statement of the Harinarayan.

8. From the statement of the Harinarayan (PW 3), it appears that before

committing the suicide, deceased told him about the rape committed by the

appellant/accused upon him. Nothing has been put in his cross-examination

to controvert his statement, meaning thereby that no attempt is made on

behalf of the appellant to challenge the testimony of Harinarayan (PW 3)

regarding dying declaration given by the deceased before him. Under these

circumstances his evidence was found to be natural and he with stood in the

cross-examination, which is not bring out any contradiction or any

ommission in his version, apart from the fact that he had not axe to grind

against the appellant. Further, when based on the evidence of Dr. B.K.

Athwal (P.W. 11) and the post mortem report, the incriminating

circumstances that existed against the appellant, were put in his examination

recorded under Section 313 of the Cr.P.C. and he had no explaination to offer.

Moreover, the evidence of Harinarayan (P.W. 3) is also corroborated the

version of Goverdhan (PW 7) to considerable extent regarding the

involvement of the appellant in the alleged crime. Although, the deceased has
Cr.A. No. 1310/1997 5

committed suicide after 36 hours of the commission of rape. However, from

the statement of Harinarayan (PW 3), it reveals that at the time of incident his

mother-Ayodhyabai was ill and father was out of station, therefore, FIR

could not be lodged immediately after the incident of rape, therefore, it is

quite possible that the deceased feeling ashamed due to that incident and

because of that she has committed suicide.

9. On the basis of the aforesaid discussion it appears that the trial Court

has rightly appreciated the evidence and found guilty the appellant for the

commission of the aforesaid offence and the trial Court cannot be faulted any

error in arriving at the aforesaid conclusion, therefore, this Court does not

find any merit in this appeal. Accordingly, this appeal is dismissed in limine.

10. The appellant is on bail, his bail bonds stands discharged and he is

directed to surrender before the concerned trial Court for serving out

remaining jail sentence imposed against him.

11. Let a copy of this judgment be sent to the concerned trial Court for

information and necessary compliance.

(S.K. AWASTHI)
JUDGE

skt
Digitally signed by Santosh
Kumar Tiwari
Date: 2018.04.17 10:26:39
+05’30’