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Halke vs State Of M.P. on 11 February, 2019

1 Criminal Appeal No.608/06

High Court of Madhya Pradesh
Bench at Gwalior

DIVISION BENCH : Hon.Shri Justice Sanjay Yadav
Hon.Shri Justice Vivek Agarwal

Criminal Appeal No.608/2006

Halke …… Appellant

Vs.
State of M.P. …..Respondent

——————————————————————————–
Shri Padam Singh, learned counsel for the appellant.
Shri F.A.Shah, learned Public Prosecutor for the respondent/State.
——————————————————————————–
Whether approved for Reporting :

JUDGMENT

(Passed on this 11th day of February, 2019)

Per Justice Vivek Agarwal :

This Criminal Appeal has been filed by the appellant being

aggrieved by judgment dated 22.6.2006 passed in Sessions Trial

No.67/2005 by the Additional Sessions Judge, Ganj Basoda, Distt.

Vidisha convicting the appellant under Section 376 of IPC with

life imprisonment and fine of Rs.1,000/- and in default of payment

of fine, one month’s additional R.I., however, acquitting the

appellant from the charge under Section 506 Part II of IPC.

2. Learned counsel for the appellant submits that appellant is

the real brother of father of the prosecutrix, and therefore, being

uncle of the prosecutrix has been falsely implicated on account of

some property dispute.

3. It is submitted by the learned counsel for the appellant that
2 Criminal Appeal No.608/06

alleged incident had taken place on 4.3.2005 at 21.00 hours as has

been mentioned in the FIR (Ex.P/3) which has been recorded on

the basis of a written application given by the prosecutrix to Sub-

Divisional Officer (Police), Police Station, Ganj Basoda, enclosed

as Ex.P/2 dated 9.3.2005. It is submitted that in the FIR (Ex.P/3) it

is mentioned that intimation was received at the police Station at

16.30 hours on 10.3.2005, however, it was actually recorded on

13.3.2005 at 18.15 hours, whereas the distance of police Station,

Tyonda, Distt. Vidisha is only 2.5 kms west of village Kaboolpur

where such incident had taken place. It is also submitted that as

per the spot map (Ex.P/4) house of the accused is adjacent to that

of the prosecutrix and as per the statement given by the

prosecutrix herself she was not alone at the time of incident, and

therefore, probability of such incident of rape taking place in

presence of other relatives of the prosecutrix in the house hold,

which is admitted to be a one room hutment by her father (PW-2)

seems to be improbable.

4. Learned counsel for the appellant further submits that

appellant has examined his mother Shakkar Bai (DW-1) in defence

and has submitted that in her examination-in-chief she has

deposed that she lives in the same house in which her son Pappu

lives and no partition has taken place between the family members

and since accused and PW-2 were demanding their share,

therefore, there was a fight between the two brothers to point out
3 Criminal Appeal No.608/06

that grand-mother of the prosecutrix was present at home, and

therefore, there was no occasion for the accused to have entered in

the house and committed such act.

5. It is also submitted by learned counsel for the appellant that

prosecutrix was subjected to MLC which is available as Ex.P/6

and Dr. Sapna Alia (PW-6) has mentioned that no definite opinion

about recent sexual activity can be given. Hymen torn appears to

be healed. It is submitted that such MLC was conducted on

9.3.2005 at 8.30 pm and since the hymen was found to be healed,

therefore, probability of prosecutrix being subjected to rape on

4.3.2005 stands ruled out.

6. Learned counsel for the appellant also submits that accused

was arrested on 14.3.2005 at 00.35 hours vide Ex.P/9, but was

subjected to MLC on 15.3.2005 at 2.28 pm vide Ex.P/1. It is

submitted that doctor who had performed MLC i.e. Dr.Pradeep

Kumar Jain (PW-1) has categorically opined that injuries found

on the body of the accused may be caused by hard and blunt

object, simple in nature and duration is within 2-5 days since the

time of examination. It is pointed out that since examination was

conduced on 15.3.05 whereas the incident had allegedly taken

place on 4.3.05, therefore, the injury marks which were found on

the body of the accused were not pertaining to the alleged incident

and that again proves his innocence.

7. It is also submitted by learned counsel for the appellant that
4 Criminal Appeal No.608/06

as per the FSL report (Ex.P/11) though it is mentioned that there

were human sperm marks on Article A and B, namely

undergarment and slides of the prosecutrix, but such sperm marks

were that of the accused has not been proved by the prosecution

and on this ground also the impugned judgment deserves to be set

aside.

8. Learned counsel for the appellant has exhaustively read

examination-in-chief and cross-examination of (PW-2), father of

the prosecutrix, wherein he has admitted that accused is his real

brother and PW-2 has admitted that there is only one room in his

house and all of his five kids were present in the house. It is

submitted that though PW-2 has mentioned in his examination-in-

chief that when on 4.3.05 he returned between 8-9 pm to his home,

he found his daughter crying and she narrated the incident, but on

the contrary (PW-3) prosecutrix has mentioned that incident had

taken place at about mid-night and her parents had reached home

after 30-45 minutes of the incident when she had narrated whole

incident to her mother (PW-4). It is also submitted that prosecutrix

(PW-3) has admitted in para 5 that she has studied at village

school, but no mark-sheet from such school has been produced to

show the age of the prosecutrix. It is also submitted that delay in

FIR has not been explained and in para 17 prosecutrix has

admitted that there is a dispute between her father and the accused

on account of the fact that mother of the prosecutrix has entered
5 Criminal Appeal No.608/06

into a liaison with PW-2. It is also submitted that PW-4, mother of

the prosecutrix, has not supported the version of her husband

(PW-2) and has narrated that incident took place at about mid-

night, whereas PW-2 has stated that when they returned between

8-9 pm, then he was informed by the prosecutrix about the

incident.

9. Learned counsel for the appellant has placed reliance on

para 6 of the decision of the Supreme Court in the case of

K.Venkateshwarlu Vs. State of Andhra Pradesh as reported in

(2012) 8 SCC 73 and submits that even Supreme Court has

discussed that when there is no medical evidence on record to

establish that the spermatozoa detected on the skirt of PW-2 was

that of the appellant, then that added to the weakness of the

prosecution case.

10. Reliance has also been placed on the judgment of the

Supreme Court in the case of Bavo alias Manubhai Ambalal

Thakore Vs. State of Gujarat as reported in (2012) 2 SCC 684 to

submit that Supreme Court has held that award of life

imprisonment which is maximum prescribed is not warranted and

had modified life imprisonment to RI for ten years, and therefore,

it is prayed that looking to the fact that appellant is in custody

since the date of arrest i.e. 14.3.05 and spent almost 14 years in

custody, a lenient view be taken and his sentence be declared to

have been undergone.

6 Criminal Appeal No.608/06

11. Learned Public Prosecutor on the other hand submits that

impugned judgment does not call for any interference. Reality of

rural life, specially for a persons belonging to underprivileged

section is hard to envisage in an urban setting. There is evidence

on behalf of the prosecutrix (PW-3) as well as her father (PW-2)

that when they had approached Tyonda police Station on 5 th

March, their complaint was not lodged, as a result they had to seek

counsel and approach SDO(P) at Ganj Basoda, where when a

written application (Ex.P/2) was submitted, then police came into

action and FIR (Ex.P/3) was lodged. It is submitted that therefore,

delay in lodging of FIR is not of much relevance.

12. It is also submitted by learned Public Prosecutor that as per

Ex.P/7 and Ex.P/8 requisition for ossification test and medical

report, it is evident that Dr. Sapna Alia (PW-6) has categorically

mentioned that in distal ends of radius and ulna process of fusion

has not started. Metacarpal bone has fused, then she gave opinion

that age of the prosecutrix was 14 years +- six months. This

evidence could not be unsettled in cross-examination of Dr. Sapna

Alia (PW-6). It is also submitted that MLC (Ex.P/6) of the

prosecutrix clearly makes a mention that hymen was torn at 5 O’

clock position + 8 O’clock position appears to be healed. It is

submitted that a girl of 14 or 15 years of age undergoing such

brutal experience will show same position as has been noted by

Dr. Sapna Alia (PW-6) in Ex.P/6. It is also submitted that merely
7 Criminal Appeal No.608/06

healing of the hymen with passage of time is not unnatural as

incident had taken place on 4.3.05, whereas MLC was conducted

on 9.3.05. Therefore, merely no definite opinion has been given by

Dr. Sapna Alia (PW-6) does not mean that prosecutrix was not

subjected to brutal act of forceful intercourse.

13. It is also submitted that as far as FSL report (Ex.P/11) is

concerned, sperm marks were found on the undergarment (panty)

of the prosecutrix and the slide which was obtained from the

prosecutrix and there was no request for any DNA test by the

accused to deny such marks on panty, of his own and this aspect

has not been considered in the judgment rendered by the Hon’ble

Supreme Court in the case of K.Venkateshwarlu (supra) on

which reliance has been placed by the learned counsel for the

appellant.

14. It is further submitted by learned Public Prosecutor that it is

an admitted position that PW-2 is step-father of the prosecutrix

inasmuch as prosecutrix (PW-3) is not born out of the wedlock

between PW-2 (step-father of the prosecutrix) and PW-4(mother

of the prosecutrix) but is a child born from previous marriage of

PW-4 but nonetheless it does not render the prosecutrix an easy

prey for satisfying the lust of the appellant who happens to be the

step-uncle of the prosecutrix . It is also submitted that judgment in

the case of Bavo alias Manubhai Ambalal Thakore (supra) is

distinguishable on facts, and therefore, impugned judgment does
8 Criminal Appeal No.608/06

not call for any interference and appeal deserves to be dismissed

and be dismissed.

15. In view of the aforesaid arguments and the material on

record, we are of the opinion that there is sufficient and cogent

reason for delay in lodging of the FIR as explained by PW-2 and

PW-3, therefore, no interference is called for on this aspect.

16. As far as MLC of the prosecutrix is concerned, it clearly

reveals that hymen was torn and was found in 5 O’clock and 8

O’clock position which when read with FSL report (Ex.P/11)

corroborates that prosecutrix was subjected to forceful intercourse.

Further so far as evidence of Dr.Pradeep Kumar Jain (PW-1) in

relation to MLC (Ex.P/1) of the accused is concerned, accused was

found to be capable of intercourse and merely Dr. Pradeep Kumar

Jain (PW-1) has mentioned that such injuries as are found on the

body of the accused were 2-5 days of duration does not belie the

story of the prosecution in totality inasmuch as such injuries have

been said to be caused by hard and blunt object, whereas nails are

not hard and blunt object but hard and sharp object, therefore,

even if the protest marks on the body of the accused had healed to

some extent, that is not sufficient to discard the testimony of the

prosecutrix inasmuch as she personally has no enmity with her

step-uncle i.e. the accused and the enmity between her father (PW-

2) and the accused is reported to be on account of PW-2 entering

into a liaison with PW-4 for which prosecutrix (PW-3) was not
9 Criminal Appeal No.608/06

responsible. It is not the case of the accused that because of such

enmity between PW-2 and the accused, prosecutrix has falsely

attributed something to her step-uncle. In fact, suggestion given to

PW-2 that a false report has been lodged of the incident has been

denied by PW-2, father of the prosecutrix, in para 13 of his cross-

examination.

17. As far as burden of proof is concerned, the Supreme Court

in the case of Ganga Singh Vs. State of M.P. as reported in

(2013) 7 SCC 278 in para 11 has held as under :-

“11. Mr. Mehrotra is right in his submission that
burden is on the prosecution to prove beyond
reasonable doubt that the appellant is guilty of the
offence under Section 376, IPC and this burden
has to be discharged by adducing reliable
evidence in proof of the guilt of the appellant. In
the present case, the prosecution seeks to
establish the guilt of the appellant through the
evidence of PW-5, the prosecutrix. The law is
well- settled that the prosecutrix is a victim of,
and not an accomplice in, a sex offence and there
is no provision in the the Indian Evidence Act
requiring corroboration in material particulars of
the evidence of the prosecutrix as is in the case of
evidence of accomplice. He submitted that the
prosecutrix is thus a competent witness under
Section 118 of the Evidence Act and her evidence
must receive the same weight as is attached to an
injured witness in cases of physical violence [see
State of Maharashtra v. Chandraprakash
Kewalchand Jain (1990) 1 SCC 550]. Keeping
this principle in mind, when we look at the
evidence of PW-5, we find that she has
categorically stated that the appellant fell her
down, covered her mouth with one hand and
restricted her hands with the other hand and lifted
her petticoat and committed rape on her. It is true
that on her medical examination the next day,
PW-9 did not find any injury on the person of
PW- 5, but PW-5 has explained that she fell on
10 Criminal Appeal No.608/06

her back in the agricultural field which had a
smooth surface and there were wheat and mustard
crops in the field and this could be the reason for
her not suffering injury. ”

18. Thus, it is apparent that since there is no provision in the

Evidence Act requiring corroboration in material particulars of the

evidence of the prosecutrix as in the case of evidence of an

accomplice, therefore, failure of the prosecution to resort to the

provisions contained in Section 53-A of Cr.P.C. and subjecting the

slides and other samples to DNA examination, is not sufficient to

discard the case of the prosecution which prosecution has been

able to establish beyond reasonable doubt.

19. The evidence of PW-2 and PW-3 has some contradictions in

regard to the timing, but the fact is that PW-3 has given evidence

which has not been contradicted during cross-examination by the

defence and moreover when such evidence corroborates the

factum of age of the prosecutrix to be minor which is supported by

evidence of PW-6, the doctor who had performed MLC on the

prosecutrix, it leave no manner of doubt that prosecution has been

able to prove its case beyond reasonable doubt. In fact, statement

of the prosecutrix admitting the dispute between her step-father

and the accused shows that she is a witness who is narrating the

correct facts and is not a tutored witness. As far as evidence of

Shakkar Bai (DW-1) is concerned, she has admitted in her cross-

examination that at the relevant time PW-2 and his wife had gone

to the field when prosecutrix was alone at the house. Later on, she
11 Criminal Appeal No.608/06

has improvised her statement saying that she was there itself and it

is wrong to say that accused has committed any wrong, but the fact

is that this witness Shakkar Bai (DW-1) in cross-examination has

admitted the factum of the prosecutrix being alone at the time of

incident which corroborates the story of the prosecution and there

is possible reason for not supporting the story of the prosecution

vis-a-vis the accused as prosecutrix is her step-grand daughter,

whereas accused is her real son. Therefore, in terms of the

admission that prosecutrix was alone, no extra word can be read in

the testimony of Shakkar Bai (DW-1) to give any advantage to the

accused.

20. As far as prayer of learned counsel for the appellant to

convert the sentence from life imprisonment to one of undergone

as appellant has spent a period of just less than 14 years is

concerned, the facts of the case of Bavo alias Manubhai Ambalal

Thakore (supra) are distinguishable inasmuch as in the present

case the accused misused the liberty originating out of a

relationship of trust. It is true that prosecutrix is a step-daughter of

PW-2 but the responsibility does not flow out of DNA but flows

out of a relationship of respect and affection towards the person

who is admittedly a step-daughter of real brother of the accused,

and therefore, there being a gross violation of the privacy and

devastation of the body and soul of the prosecutrix, this Court

does not intend to grant this prayer of the appellant, and therefore,
12 Criminal Appeal No.608/06

finding no fault in the impugned judgment, appeal fails and is

dismissed. The appellant is in jail, he shall suffer the sentence as

imposed by the trial Court. Record of the trial Court be sent back.

(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
ms/-

MADHU SOODAN
PRASAD
2019.02.11
15:20:49 +05’30’

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