Veeran @ Virendra Kumar & Anr. vs The State Of M.P. on 11 May, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
{BEFORE : HONOURABLE SHRI JUSTICE J.K.MAHESHWARI}
Criminal Appeal No.258/1996

1.Veeran alias Virendra Kumar
S/o Ramkrishna Shrivastava
Aged 22 years
Occupation Kirana Shop Vendor

2.Uttam Singh
S/o Prem Singh Lodhi
Aged 21 years

Both R/o Village Nivodiya
Police Station Rahatgarh
District Sagar
(MP)…….……………….……………………….Appellants

Versus

The State of Madhya Pradesh
Through Police Station Rahatgarh
District Sagar
(MP)…………………..…………………………….Respondent

For the Appellants : Shri Manish Datt, Senior Advocate
assisted by Shri Pawan Gujar, Advocate.
For the respondent: Shri S.K.Shrivastava, Panel Lawyer

JUDGMENT

11.5.2017
This appeal under Section 374(2) of the Code of Criminal Procedure has
been filed being aggrieved by the judgment dated 2.2.1996 passed by

4 th Additional Sessions Judge, Sagar in Sessions Trial No.28/1995
convicting both the appellants for the charge under Section 376(2)(g) of
Indian Penal Code (prior to amendment of 2013) (hereinafter shall be
referred to as ‘IPC‘) and sentencing them to undergo rigorous
imprisonment of ten years with fine of Rs.3000/- each and convicting
accused Uttam Singh for the charge under Section 323 of the Indian
Penal Code and sentencing him to pay the fine of Rs.1000/- with default
stipulation.

2. The case of the prosecution in brief is that on 13.11.1993, the
prosecutrix at about 12:00 in the noon was going alongwith Tiffin to the
field where her husband Lalaram (PW.5) was working. When she
reached Nakta Nala, accused persons, namely, Veeran alias Virenda
Kuamr and Uttam Singh met and caught hold and they both committed
rape upon her.

3. The first information report to the incident was lodged by the
prosecutrix on the same day i.e. 13.11.1993 at about 6:15 pm vide
Exhibit P/4. The prosecutrix was sent for medical examination. Dr.Smit
Usha Saini (PW.1) medically examined the prosecutrix and proved her
report vide Exhibit P/1. Spot map was prepared by T.I.R.S.Parmar (PW.8)
in front of the witnesses. Accused persons were arrested and they were
also sent for their medical examination.

4. After completion of the investigation, the Challan was filed before the
Court of Judicial Magistrate First Class, Sagar, which committed the case
to the Court of Sessions where the accused persons were tried.

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5. The accused persons abjured their guilt and demanded trial by
putting their defence that PW.5 Lalaram, the husband of the prosecutrix,
came to purchase certain article at the shop of accused Virendra in a
drunken state and asked some article on credit and on refusal, he
created a scene and fell down as a result of which, he received the
injury and, therefore, a false case got registered agasint them. Another
defense has been taken by the accused persons that the prosecutrix
and her husband are working on the field of one Shailendra Shrivastava,
who had contested some election with Prithvi Singh. The father of
accused Uttam Singh supported Prithvi Singh and due to the said
enmity, the present appellants have been falsely implicated in this case.

6. The Trial Court disbelieved the defence put by the accused persons
looking to the in-ocular testimony of the prosecutrix which may not be
supported by the medical evidence being a married lady and
accordingly convicted sentenced them because the other
circumstance supports the story of the prosecution alongwith the
testimony of the Investigating Officer R.S.Parmar (PW.8).

7. Learned counsel for the appellants contends that it is a case of the
false implication of the appellants on account of some election dispute
of one Shailendra Shrivastava and Prithvi Singh and as the father of
accused Uttam Singh supported the Prithvi Singh in the election, a false
case got registered by Shailendra Shrivastava insisting the husband of
the prosecutrix. The other part of the defence, which was taken, is the
husband of the prosecutrix visited at the shop of accused Virendra and
demanded some article on credit and on refusal, he created a scene and
thereafter a false case got registered against the appellants. The third
defence has been taken by the accused persons in the cross-
examination is of the consent of prosecutrix but the Trial Court has not
considered those defences in right perspective. It is also contended that
if the statement of prosecutrix and her husband Lalaram (PW.5) is read
over, it transpires the difference of the time of the incident, therefore, it
prima facie appears to be a false case registered against the appellants
and under such circumstances, the conviction and sentence as directed
by the Trial Court may be set aside.

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8. On the other hand, learned Panel Lawyer for the State contends that
looking to the finding as recorded by the Trial Court, after due appraisal
of the testimony of the prosecutrix and her husband Lalaram (PW.5), the
medical opinion of Dr.Smt.Usha Saini (PW.1), which finds support from
the testimony of the Investigating Officer R.S.Parmar (PW.8) and Dr.Arif
Khan (PW.9), who performed the MLC (Exhbit P/9) of the husband of the
prosecutrix and the FSL report, does not warrant any interference by
this Court.

9. After hearing learned counsel for the parties, it is apparent that the
first information report to the incident is prompt one as it was lodged by
the prosecutrix on the same day i.e. 13.11.1993 at about 6:15 pm vide
Exhibit P/4. If the statement of the prosecutrix and her husband Lalaram
(PW.5) is visualized then it would appear that there is one discrepancy
with regard to the time to come on the field but on the point of
commission of the rape and thereafter the husband of complainant
visited to the house of accused and there the assault was made as
alleged finds support from the medical evidence. If the testimony of the
prosecutrix is taken into consideration, it is apparent that when she was
going alongwith Tiffin to the field where her husband Lalaram (PW.5)
was working and sooner she reached Nakta Nala, the accused persons
met and caught hold her and committed rape upon her.

10. In the cross examination made by the accused persons, they have
taken the defence of consent putting a question that after commission
of rape, the prosecutrix and accused picked up each other by force.
While the other defence is of demanding certain article at the shop
where the dispute took place and due to the said dispute, a false case
got registered against them but the said defence has been disbelieved
by the Trial Court. While the third defence was of the political rivalry
because the father of accused Uttam Singh supported one Prithvi Singh,
who had won the election against Shailendra Shrivastava with whom the
husband of the prosecutrix was working.

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11. In my considered opinion, all these three defences are inconsistent
and none of the defence has been fully proved either by the cross
examination or by the defence evidence. It is true that the prosecutrix is
major and a married lady and her testimony is to be examined with a
spirit that an innocent person should not be dealt with the charge of
Section 376 of IPC but looking to her testimony, but remained in ocular
on the issue of commission of rape by both the accused persons, finds
support from the FSL examination (Exhibit P/8) and the defence of the
accused has also not been brought on record in full force, in my
considered opinion, the finding of conviction as recorded by the Trial
Court for the charge under Section 376(2)(g) (prior to amendment of
2013) and looking to the medical evidence of the husband for the
charge under Section 323 of IPC, interference by this Court is not
warranted.

12. Accordingly, this appeal filed by the appellants being devoid of merit
is dismissed upholding the judgment of conviction and the sentence as
directed by the Trial Court vide judgment dated 2.2.1996 in Sessions
Trial No.28/1995. As the appellants are on bail, thus, Chief Judicial
Magistrate, Sagar is directed to issue warrant of arrest against the
appellants and take them into custody for serving remaining part of
their jail sentence.

13. A copy of this order be sent to the Chief Judicial Magistrate, Sagar
and the Station House Officer concerned to take appropriate action.
Learned Panel Lawyer for the State is also directed to take appropriate
steps in this regard.

(J.K. MAHESHWARI)
JUDGE

amit

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