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Gujra vs The State Of M.P. on 13 December, 2017

-: 1 :- Criminal Appeal No.1208 of 2005.

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Vivek Rusia )
Criminal Appeal No.1208 of 2005.
Gujra s/o Teja
VERSUS
State of Madhya Pradesh
*****
Shri Balendu Dwivedi, learned counsel for the appellant
(through Legal Aid).
Shri Bhuvan Gautam, learned Govt. Advocate for the
Respondent/State.
*****

J U D G M E N T

( Delivered on this 13th day of December, 2017 )

THE appellant has filed the present appeal
under Section 374 of the Code of Criminal Procedure against
the judgment dated 05.03.2004 passed by First Additional
Sessions Judge, Mhow, District Indore in Sessions Trial
No.5/2004 by which he has been convicted under Section
376 (1) of IPC and sentenced to undergo 10 years RI with
fine of Rs.10,000-00 and in default of payment of fine, 1
year’s additional RI.

[2] It is a very unfortunate prosecution story
where the complainant Alkabai lodged an FIR against her
father that he has committed rape on her. As per the
prosecution story, complainant Alkabai and her mother
Nanibai and maternal uncle Jankilal jointly lodged the report
in Police Station Manpur on 05.09.2003 that Dada Gujra i.e.
appellant took her from her in-laws house and they were

-: 2 :- Criminal Appeal No.1208 of 2005.

going on truck. Due to traffic jam, they left the truck and
started walking in the forest. Near one Tapre, appellant
offered her liquor, when she refused, then he took her inside
the forest and committed rape. She immediately rushed to
the river where certain peoples were taking bath and she
made a complaint and narrated the story to them. Then she
came to the house of Darbar and from there she came to the
house of her maternal uncle and thereafter lodged the report.

[3] After completing the usual investigation,
challan was filed under Section 376 (1) of IPC before the
JMFC and trial was committed to the Sessions Court. The
prosecution examined prosecutris Alkabai as PW-1 and she
has narrated the entire story in camera proceedings before
the Court. She has also stated that when she was minor, even
that time also the accused has committed rape but no body
could believe her. She was cross-examined at length but her
version has remained unchanged and nothing contradiction
came out. The husband of the prosecutrix – Ramesh was also
examined as PW-2. Nanibai, mother of the prosecutrix, was
examined as PW-3 who has also supported the case of the
prosecution. Jankilal was examined as PW-4 who is
maternal uncle of the prosecutrix. Kalu was examined as
PW-5 and Amarsingh was examined as PW-6. Dr. Savita
Joshi was examined as PW-7 who has examined the
prosecutrix and gave opinion that she is a habitual of sexual
intercourse but no definite opinion of rape can be given.
Bharatsingh was examined as PW-8. Dr.S.K. Joshi was
examined as PW-9 who examined the accused and found
him capable of intercourse. The prosecution examined other
witnesses who took the seizure and arrest of the accused.

-: 3 :- Criminal Appeal No.1208 of 2005.

J.G.Choukse was examined as PW-12 who conducted the
investigation. In defence, the appellant examined Bondar as
DW-1 who has stated that there was a dispute between the
appellant and his wife Nanibai and she used to leave him.
The accused has also stated that the prosecutrix has lodged
this report at the instance of his wife and he has not
committed any rape on her.

[4] Vide judgment dated 05.03.2004 the learned
Additional Sessions Judge has convicted and sentenced the
appellant as stated above. Hence, the present appeal before
this Court.

[5] Shri Balendu Dwivedi, learned counsel
appearing on behalf of the appellant (through Legal Aid)
submitted that the appellant is in jail since 05.03.2004 and
he has undergone the entire sentence. Before conviction he
was arrested on 23.09.2003 and remained in jail up to
06.10.2003, therefore, he has undergone the entire sentence.
The appellant has challenged the aforesaid conviction and
sentence mainly on the ground that there is no definite
finding given by the doctor about the commission of rape
and there was a dispute between husband and wife i.e. the
mother of the prosecutrix and appellant. Therefore, he has
falsely been implicated in this case. They belonged to the
tribal community, therefore, they can go to the any extent to
take revenge with the appellant. The prosecutrix as well as
her mother both have admitted about the dispute with the
appellant. The story is unnatural and unbelievable. No
father would commit rape on her daughter. Therefore, the
conviction is bad-in-law and liable to be set-aside.

[6] Shri Bhuwan Gautam, learned Govt.
-: 4 :- Criminal Appeal No.1208 of 2005.

Advocate appearing on behalf of the Respondent/State
argued in support of the judgment and submitted that the
case of the prosecution has been fully supported by the
prosecutrix and other witnesses are also the material
witnesses and they have supported the prosecution. Even
the evidence of the prosecutrix is alone is sufficient to
convict the appellant.

[7] The prosecutrix has stated that the appellant
took her from her in-laws house and they were going on
truck and since there was a traffic jam, they started walking
into the forest and there he committed rape on her. They
reached to the river where the appellant took a bath and there
she made a complaint to the others. They took her to the
house of Darbar and from there she reached to the house of
her maternal uncle. The said story has been supported by her
mother, husband and maternal uncle. The prosecution
examined Amarsingh as PW-6 and Bharatsingh as PW-8 to
whom the prosecutrix has narrated the entire story. Both are
independent witnesses and do not know the appellant.
Therefore, their evidence cannot be discarded. The appellant
took only defence that he is having dispute with his wife and
she has instigated her daughter to lodge a report against him.
It is not possible in any community that on a simple
matrimonial dispute between husband and wife, the wife
would defame her daughter that she has been subjected to
rape by father. The husband of the prosecutrix has also
supported her. The prosecutrix is a married lady and living
with her husband and not with her mother. It is not possible
that in collusion with husband her mother would falsely
implicate him.

-: 5 :- Criminal Appeal No.1208 of 2005.

[8] So far as the conviction based on the sole

testimony of the prosecutrix is concerned, the Apex Court
has also considered the same in paras 26 and 27 which are
reproduced below :-

“26. We are alive to the law laid down by this Court wherein it is
ruled that in a case of rape, no self- respecting woman would ever
come forward in a court just to make a humiliating statement
against her honour such as is involved in the commission of rape on
her. The testimony of the prosecutrix in such cases is vital and
unless there are compelling reasons, which necessitate looking for
corroboration of her statement or where there are compelling
reasons for rejecting of her testimony, there is no justification on
the part of the court to reject her testimony.

27. In the instant case, our careful analysis of the statement of
the prosecutrix has created an impression on our minds that she is a
reliable and truthful witness and her testimony suffers no infirmity
or blemish whatsoever. That apart, as observed supra, even the
medical evidence supports the commission of sexual violence on her
and we need not elaborate on this issue any more in the light of
concurrent finding of the courts below having been recorded against
the appellant holding in clear terms that sign of commission of rape
on her by the appellant stood proved by medical evidence beyond
reasonable doubt. Indeed, even the appellant had not disputed the
factum of commission of sexual intercourse by him on the
prosecutrix because as taken note of, the appellant’s only defence
was that since the prosecutrix had consented to the commission of
the sexual act, no offence of rape was made out against him. This
argument we have already rejected.”

[9] Therefore, I do not find any force in the
ground raised by the appellant. The learned Additional
Sessions Judge has thoroughly examined the evidence of
each witnesses and the appellant has also undergone the
entire sentence. Therefore, I do not find any ground to
interfere in this appeal. The appeal is accordingly dismissed.

[10] Copy of this judgment with record be send
back to the Trial Court.

[ VIVEK RUSIA ]
JUDGE
Sharma AK/*

Anl Kumar Sharma
2017.12.14 12:33:31

-08’00’

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