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Dinesh vs The State Of Madhya Pradesh on 16 December, 2017

CRA No.173/2008
1

HIGH COURT OF MADHYA PRADESH: JABALPUR
(DIVISION BENCH)

Criminal Appeal No. 173 of 2008

Dinesh s/o Ram Kishore Vyas ………. Appellant
Versus
The State of Madhya Pradesh …………. Respondent

Coram:
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
implicated.

Significant Paras: 16, 18 and 19

JUDGMENT

{16/12/2017}

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
CRA No.173/2008
2

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
CRA No.173/2008
3

(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

(Ex.P-8).

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
CRA No.173/2008
4

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
CRA No.173/2008
5

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

not recovered.

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
CRA No.173/2008
6

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.

CRA No.173/2008
7

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.

CRA No.173/2008
8

She was cross-examined in detail but her testimony could not be shattered in

any manner.

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

examination.

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
CRA No.173/2008
9

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
CRA No.173/2008
10

the appellant for the offence as mentioned above. The appeal fails and is

hereby dismissed.

(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
Chief Justice Judge

S/

DN: cIN, oHIGH COURT OF MADHYA PRADESH JABALPUR,
postalCode482001, stMadhya Pradesh,
2.5.4.20e0af17b0c265631809b6ba87607ad2292faaa62df0540096e4c72
619bbaf6a0f,
2.5.4.450321009B62B02412F4FE2FD500C9CFB93A127AAD25E5DCCD2
036A50070FB7C12D30DF4, cnSACHIN CHAUDHARY
Date: 2017.12.19 10:29:26 +05’30’

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