HIGH COURT OF MADHYA PRADESH: JABALPUR
Criminal Appeal No. 173 of 2008
Dinesh s/o Ram Kishore Vyas ………. Appellant
The State of Madhya Pradesh …………. Respondent
DB: Hon’ble Shri Justice Hemant Gupta, Chief Justice
Hon’ble Shri Justice Vijay Kumar Shukla, J.
For the Appellant : Shri Anup Singh, Advocate
For the Respondent : Shri Akshay Namdeo, Government Advocate
Whether Approved for Reporting: Yes
Law Laid Down: Generally, the police is blamed for delay and indifferent
manner but if the police officials have acted in the manner, which is
expected of them, it cannot be said that the appellant has been falsely
Significant Paras: 16, 18 and 19
Per: Hemant Gupta, Chief Justice:
The present appeal is directed against a judgment of conviction
passed by learned Special Judge (Atrocities), Panna (M.P.) in Special Case
No. 37/2006 on 05.01.2008 whereby appellant Dinesh s/o Ram Kishore Vyas
has been convicted under Section 376(2)(g) of the Indian Penal Code along
with co-accused Prahlad s/o Ramswaroop Rajput and vide separate order,
both have been sentenced to undergo rigorous imprisonment for 10 years
and fine of Rs.1,000/-; in default of payment of fine, to further under
rigorous imprisonment for one month.
2. The prosecution case was set in motion on the basis of
statement of the prosecutrix (hereinafter referred to as the “G”) made to S.R.
Khan, Assistant Sub Inspector (ASI) posted as In-charge Police Chowki,
Maheba, Police Station Amanganj, District Panna on 26.09.2006 at 08.05
p.m. in respect of a sexual assault on her. The statement is that she is a
student of Class-8th. She went to the field to ease herself at about 07.30 p.m.
After coming back, she was washing her hands. At that time, appellant
Dinesh Vyas and co-accused Prahlad Singh Rajput caught hold of her.
Dinesh Vyas pressed her mouth. Naresh Basor was also accompanying the
accused persons. They physically lifted her and took her behind the house of
Ruppu Dhimar. Dinesh made her lay down. Prahlad and Naresh were asked
to keep watch so that nobody comes. Both of them stood at a distance.
Dinesh removed her underwear and committed forcible intercourse. She got
acute pain in her genital and was writhing in pain. The blood started oozing
out of her genital. At that stage, Dinesh Vyas, Prahlad Singh Rajput and
Naresh Basor ran away. She came back home and informed about the
incident to her maternal-grandmother Bunda Bai and maternal-uncle Baiyan.
Thereafter, she along with her maternal-uncle and maternal-aunt (Guddi)
came to report to the police station. On the basis of such report, initially an
FIR (Ex.P-9) was recorded on 26.09.2006 at 08.05 p.m. at Police Post
(Chowki Maheba, P.S. Amanganj) with Crime No.026/2006 for an offence
under Section 376(2)(g) of the IPC and Section 3 of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. After recording the FIR (Ex.P-9), Lakhanlal (PW-5), Head
Constable No.509 had taken the said FIR to Police Station Amanganj,
District Panna for registration of crime at the Police Station and on the basis
of the said report, an FIR (Ex.P-8) was registered in the intervening night of
27.09.2006 at 12.30 a.m. at Police Station Amanganj, District Panna as
Crime No.162/2006 against appellant Dinesh Vyas, co-accused Prahlad
Singh Rajput and Naresh Basor for the offence as mentioned above. Copy of
the FIR (Ex.P-9) registered at “zero” number has been annexed with the FIR
4. S.R. Khan, who recorded report (Ex.P-9) appeared as PW-13.
He deposed that statement of the prosecutrix was recorded at 08.05 p.m.
when she came with her maternal-uncle and maternal-aunt. The prosecutrix
and her maternal-uncle Bhaiyan gave written consent for her examination
and then he sent the prosecutrix for medico-legal examination vide memo
Ex.P-2. In cross-examination, he stated that prosecutrix has not stated in the
statement (Ex.P-9) that she shouted and that her Salwar was removed before
assaulting her but she has stated that her underwear was removed and that
she left her Salwar and underwear at the place of occurrence.
5. Dr. Vijeta Verma (PW-2) examined the prosecutrix at about 9.30
p.m. on the same day. She deposed that prosecutrix “G” was wearing
Maroon coloured Kurta and white Dupatta (drape), but, her Kurta was
stained with blood; her black underwear was also stained with blood and she
was not wearing Salwar. Her both hands and feet had fresh blood. The blood
was also found on her right leg and thigh. She also had an abrasion on her
left cheek and also on her neck. There was a contusion 2 x 2 cm on her right
thigh. The age of the prosecutrix was found to be 12-14 years subject to
radiological examination. She further deposed that there was fresh blood
oozing out from her vagina and that hymen was freshly torn and that the
touch of the hand to her genital leads to oozing of the blood. In internal
examination of the vagina, the blood was found but no injury was found.
One finger was entering with the difficulty. The three slides of the liquid
oozing were prepared whereas pubic hair was also kept for forensic
examination. The underwear and Kurta was also taken in possession for
forensic examination. She reported that the prosecutrix “G” was raped and
her medico legal report is Ex.P-2. She deposed that age of the prosecutrix
was determined on the basis of X-ray examination by her as 12-15 years. In
cross-examination, she deposed that maximum age was 15 years and that
there is no possibility of increase in age by 2-3 years. She deposed that the
injuries were not possible by an accident on the person of the prosecutrix.
6. On the basis of FIR (Ex.P-8/P-9), M.D. Namdeo (PW-12),
Deputy Superintendent of Police, Police Station AJAK, Panna started
investigation. He recorded the statement of the prosecutrix, her maternal-
uncle Bhaiyan and maternal-aunt Smt. Guddi, maternal-grandmother (Nani)
Smt. Bundabai and Rammilan- brother of the prosecutrix – G. He is the one
who has taken bloodstained earth from the place of occurrence and sample
earth as well as bloodstained pink underwear of the prosecutrix vide
recovery memo Ex.P-13. He also produced the mark-sheet of school of the
prosecutrix as Ex.P-12 wherein her date of birth is mentioned as 20.06.1993.
He arrested the three accused, namely, Dinesh Vyas, Prahlad Singh Rajput
and Naresh Basor and sent them for medical examination. He stated that the
seized articles were sent for forensic science examination vide memo Ex.P-
18. He identified the signature of the Superintendent of Police on memo
Ex.P-18. In cross-examination, he stated that he went to the place of
occurrence on 27.09.2006 but not with the prosecutrix but with her relations
and that there was no eyewitness. At the place of occurrence the Salwar was
7. Gorelal (PW-4), who was posted as Head Constable at AJAK
Police Station, Panna on 28.09.2006 has taken in possession the underwear
of Dinesh Vyas and semen slide, which were received in sealed packets from
District Hospital, Panna, vide recovery memo Ex.P-6. The semen slide of
Prahlad Singh Rajput and his underwear sent by District Hospital, Panna in
sealed packets were also taken in possession vide Ex.P-7. No cross-
examination was conducted on the witness.
8. As per the report of Forensic Science Laboratory (Ex.P-19),
packet-A is pubic hair; packet-B is of Kurta, marked as B 1 in the Lab,
Dupatta is B2, underwear B3 and Salwar is B4 of the prosecutrix. The slide of
the vaginal fluid is contained in packet marked as C. Another underwear of
the prosecutrix is packet-G whereas slide marked as J and underwear-K
pertain to accused Dinesh Vyas while slide-L and underwear-M pertain to
accused Prahlad Rajput. The report is that underwear B3, Salwar B4, slide-C
prepared from vaginal fluids of the prosecutrix and another underwear
packet-G have stains of semen and human sperm whereas the underwear K
of accused Dinesh has no stains of semen. The slides J and L were found to
have contained semen and human sperms. The human blood was found on
the articles in packet-B i.e. Kurta B 1, Dupatta B2, underwear B3, Salwar B4,
as well as on slide-C.
9. On the basis of the evidence collected during the investigation,
the accused were made to stand trial. After examining the evidence led by
the prosecution, appellant Dinesh Vyas amd co-accused Prahlad Singh
Rajput were convicted for the offence as mentioned above whereas co-
accused Naresh Basor was granted benefit of doubt and acquitted.
10. Learned counsel for the appellant argued that the speed with
which FIR has been lodged and the prosecutrix has been subjected to
medical examination shows something unnatural, therefore, it is a made-up
charge against the appellant and thus, conviction of the appellant is not
sustainable. Learned counsel further argued that as per the ossification test,
the prosecutrix was 12-15 years of age. Since the ossification test is not
certain, she could very well be over 16 years of age, therefore, the offence
under Section 376(2)(g) of the IPC is not made out.
11. We have heard learned counsel for the parties and find no merit
in the present appeal.
12. During trial, the prosecutrix appeared as PW-10 whereas her
maternal-uncle Bhaiyan alias Prahlad was examined as PW-7 and her
maternal-aunt Guddi was examined as PW-8. PW-9 is Bundabai, maternal-
grandmother of the prosecutrix. Apart from examining Dr. Vijeta Verma as
PW-2, the prosecution examined ASI, S.R. Khan as PW-13 and Investigating
Officer, Dy.S.P. M.D. Namdeo as PW-12. Chand Mohammad (PW-11),
witness of recovery of sample earth and underwear has turned hostile. PW-3,
Jagdish though initially turned hostile but in cross-examination by the public
prosecutor, admitted that he has signed recovery memo of bloodstained
earth, sample earth and underwear.
13. PW-10, the prosecutrix deposed that she was student of Class-
8th at the time of incident and now she is student of Class-9 th. She belongs to
Kori caste which is a scheduled caste. She gave graphic details of the
manner in which appellant Dinesh Vyas and co-accused Prahlad sexually
assaulted her and committed intercourse. She deposed that Dinesh and
Prahlad physically lifted her. Naresh was also accompanying them. It is
Dinesh Vyas, who sexually assaulted her when Prahlad and Naresh were
guarding. She deposed that she left her underwear and Salwar and came
back in Kurti alone. She has deposed that she lost her parents when she was
young and that she is living with her maternal-uncle since long. The FIR is
Ex.P-9, which bears her signature. The mark-sheet taken by the police is
Ex.P-12. In the cross-examination, she stated that she has not mentioned in
Ex.P-9 that Dinesh pressed her mouth and she cannot explain any reason.
She was cross-examined in detail but her testimony could not be shattered in
14. PW-7, Bhaiyan, maternal-uncle of the prosecutrix, has gone
with the prosecutrix to the police station for recording of FIR. He is the one
who has given consent along with the prosecutrix for her medical
15. PW-8 Guddi, is the maternal-aunt of the prosecutrix. She has
also accompanied the prosecutrix for recording of the FIR whereas PW-9,
Bundabai, maternal-grandmother of the prosecutrix, has deposed on the
basis of the information supplied by the prosecutrix.
16. The statement of the prosecutrix is corroborated by medical
evidence deposed by Dr. Vijeta Verma (PW-2). The prosecutrix was
examined within two hours of the alleged sexual assault. The prosecutrix
was still bleeding. Her bloodstained Kurta, her second underwear and
bloodstained earth lifted from the place of occurrence, the bloodstained
underwear from the place of occurrence, all were sent for forensic science
examination and have been found to be stained with human blood.
17. Dr. Verma (PW-2) has deposed that the age of the prosecutrix
was found to be 12-14 years at the time of examination and on the basis of
the ossification test, based upon X-ray examination, she was aged 12-15
years but in cross-examination, the doctor has deposed that she was not
more than 15 years in any case. Apart from the said fact, the mark-sheet of
the prosecutrix has been produced by the prosecution as Ex.P-12, which
records her date of birth as 20.06.1993, therefore, the prosecutrix was little
more than 13 years on the date of incident on 26.09.2006. Thus, the
argument of the learned counsel for the appellant that the prosecutrix was
more than 16 years of age is not sustainable.
18. The prosecution has been able to prove the allegation of sexual
assault by the appellant on a young child of 13 years. The statement of the
prosecutrix is sufficient to maintain conviction of the appellant. Appellant
Dinesh Vyas and co-accused Prahlad Singh Rajput played proactive role in
picking of the prosecutrix and taken her to a secluded place. It is appellant
Dinesh, who sexually assaulted her but Prahlad was with him throughout.
The blood was oozing from her private part. Apart from the blood, the
prosecutrix has suffered injuries on her neck, cheek and thighs, which is
possible only as the accused used force on the victim. Thus, the conviction
of the appellant for the offence under Section 376(2)(g) of the IPC cannot be
said to be suffering from any illegality.
19. The argument that the FIR was lodged within half-an-hour and
medical examination was done within two hours creates doubt on the
prosecution story is a preposterous argument. Generally, the police is blamed
for delay and indifferent manner but if the police officials have acted in the
manner, which is expected of them, it cannot be said that the appellant has
been falsely implicated.
20. Considering the entire facts and circumstances, we do not find
any illegality in the judgment passed by the learned Trial Court convicting
the appellant for the offence as mentioned above. The appeal fails and is
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
Chief Justice Judge
DN: cIN, oHIGH COURT OF MADHYA PRADESH JABALPUR,
postalCode482001, stMadhya Pradesh,
036A50070FB7C12D30DF4, cnSACHIN CHAUDHARY
Date: 2017.12.19 10:29:26 +05’30’