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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Division Bench : Hon’ble Shri H.P. Singh, J. and
Hon’ble Shri Rajeev Kumar Dubey, J.

Criminal Appeal No.1612 of 2008
Komal Singh
vs.
State of Madhya Pradesh
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Shri V.P. Singh, counsel for the appellant.

Shri Sourabh Shrivastava, learned Government Advocate for the

respondent/State.

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JUDGMENT

Reserved on : 24.03.2018
Delivered on : 10.04.2018

Per Rajeev Kumar Dubey, J.

This criminal appeal has been filed under Section 374 of the Cr.P.C.

against the judgment dated 15th July, 2008 passed by Sessions Judge,

Mandla in Sessions Trial No.139/2007, whereby the learned Sessions Judge

found appellant guilty for the offences punishable under Sections 376 (2)(f)

363 of IPC and sentenced him to life imprisonment with fine of Rs.5000/-

with default stipulation and three years rigorous imprisonment respectively.

2. In brief the prosecution case is that on 21.08.2007 at 05:15 PM, Smt.

Kalsi Bai (PW/1) lodged the report (Ex.P/1) at Police Station Newas
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averring that she resided at Village Jangliya and did agricultural work. She

was in the house with her grand daughter, age about 2 years (name and

identity of the prosecutrix granddaughter imposed by law contained in

section 228A of IPC is not disclosed), and was gleaning the wheat while

prosecutrix was playing in the courtyard. At around 2 PM appellant Komal

Singh came there and caught hold of the prosecutrix and took her with him.

When he, did not bring her back for quite some time, she went to look out

for the prosecutrix. She saw that appellant was hidden at Sarpanch’s farm.

On seeing her he started running. On that she shouted so appellant left the

prosecutrix and started running away. She picked up the prosecutrix and

saw that blood was oozing out from her private part. Appellant committed

rape with prosecutrix. Her nephew Bhag Singh @ Ganesh (PW/7), Son

Rajesh (PW/3) and Prahlad Gaud (PW/2) chased the appellant so appellant

fell down on stone, and they caught hold of the appellant. The incident was

also seen by Chinna Bai (PW/5) and Meera Bai (PW/6) who were weeding

near the Sarpanch’s farm. On that report police registered Crime

No.100/2007 for the offence punishable under Sections 376 and 363 of IPC

and investigated the matter. During investigation, the prosecutrix was sent

for medical examination to CHC Newas, where Dr. Smt. Reeta Shrivastava

(PW/11) conducted medical examination of the prosecutrix and gave report

(Ex.P/18). She also prepared slide of vaginal swab of prosecutrix and also

seized her undergarments and pubic hairs and sent it to Police Station Newas

in a sealed packet through Constable Ramdayal Maravi which was seized by

O.P. Vinodiya (PW/10) and prepared seizure memo (Ex.P/15). Dr Ashok

Sharma (PW/10) also examined the prosecutrix and gave MLC report

(Ex.P/19). During investigation, on 21.08.2007, O.P. Vinodiya (PW/10)

arrested the appellant and prepared arrest memo (Ex.P/12) and sent him for

medical examination to CHC along with letter (Ex.P/5) where Dr. Kavindra

Singh Parte (PW/8) conducted the medical examination of the appellant and
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gave report (Ex.P/5). He also seized underwear of accused-appellant and

prepared slide of his semen and sent it to Police Station Newas through

Constable Bhoopat Singh, in a sealed packet where O.P. Vinodiya (PW/10)

seized that packet from his possession and prepared seizure memo (PW/14).

On 22/08/2007 O.P. Vinodiya (PW/10) went to spot and prepared spot map

(Ex.P/4) and he also recorded the statements of witnesses Rajendra, Seeta

Bai (PW/4), Chinna Bai (PW/5), Meera Bai (PW/6) Kamod, Bhag Singh

(PW/7), Ramesh and Rajaram and also sent all seized articles for chemical

examination to FSL Sagar through Superintendent of Police along with draft

(Ex.P/16) and from FSL Sagar report (Ex.P/20) was received. After

investigation police filed charge sheet against the appellant before Judicial

Magistrate First Class Newas, who committed the case to the Court of

Sessions. On that S.T.No.139/2007 was registered which was tried by

learned Sessions Judge Mandla and framed the charge against the appellant

for the offences punishable under Sections 324, 363 376 (2)(f) of IPC.

The appellant/accused abjured his guilt and took the defence that he is

innocent and has falsely been implicated in the case. The family members of

the prosecutrix borrowed money back from him which was due on them and

when he demanded that money the family members of the prosecutrix

lodged false report against him. In this regard he also produced Ghanshyam

Prasad Sahu (DW/1) in his defence. However, after trial learned Sessions

Judge found the appellant guilty for the offences punishable under Sections

363 376 (2)(f) of IPC and sentenced him as aforesaid. But he did not give

any finding as to whether offence under section 324 of IPC was proved

against appellant or not and only gave finding for the offences punishable

under Sections 376 (2)(f) 363 of IPC. Being aggrieved from that

judgment, appellant filed this Criminal Appeal.

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3. Learned counsel for the appellant submitted that there is no direct

evidence on record that anybody saw the appellant committing rape with the

prosecutrix. Even prosecution did not produce prosecutrix in the evidence

before the trial court. The FSL report do not support the prosecution story.

Learned Trial Court only on the basis of statements of prosecution witnesses

wrongly found the appellant guilty for the aforesaid offences while from the

statement of defence witness Ghanshyam Sahu (DW/1), it is proved that the

family members of the prosecutrix borrowed money from the appellant

which was due on them and when the appellant demanded that money the

family members of the prosecutrix lodged false report against the appellant.

Learned Trial Court without appreciating all these facts wrongly found the

appellant guilty for the aforesaid offences. Hence, counsel prayed that the

impugned judgment be set aside and the appellant be acquitted of the said

offences.

4. On the other hand, learned counsel for the respondent/State has

vehemently opposed the submissions of the learned counsel for the appellant

and fully supported the judgment of the Trial Court and submitted that from

the prosecution evidence the guilt of the appellant is clearly proved. Learned

trial Court did not commit any mistake in holding the appellant guilty for the

aforesaid offences and prayed for rejection of the appeal.

5. Point of determination in this appeal is whether the conviction and

sentence awarded by the trial Court to the appellant for the offence

punishable under Section 363 and 376 (2)(f) of IPC are liable to be set aside

for the reasons stated in the memo of appeal and argued before this court.

6. Regarding incident Kalsi Bai (PW/1) deposed that on the date of

incident, she was at her house and her grand daughter (prosecutrix) was

playing in the courtyard. At 2 PM, appellant took her with him, thereafter,

she searched for her grand daughter. During search, Chinna Bai (PW/5) and
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Meera Bai (PW/6) told her that appellant had taken the prosecutrix across

the river. On that she and Bhag Singh (PW/7) went across the river and saw

that appellant was in the field of Chinna Bai and on seeing them, appellant

took the prosecutrix and ran away. Then she, Bhag Singh (PW/7), Rajesh

(PW/3) and Rajendra chased the appellant and caught hold him, and rescued

prosecutrix from the possession of the appellant, at that time she saw that

blood was oozing out from her private part. Her statement is corroborated by

the FIR (Ex.P/1) lodged by her soon after the incident which was also

proved by P.S. Dhurve (PW/9) who wrote that report.

7. Her statement is also corroborated by the statements of Chinna Bai

(PW/5) and Meera Bai (PW/6). They clearly deposed that on the date of

incident at around 2 PM when they were working in the rice field, they saw

that appellant was taking the prosecutrix with him, thereafter, Bhagsingh @

Ganesh (PW/7) and Kalsi Bai (PW/1) came there. They rescued the

prosecutrix from the possession of the appellant and also deposed that at that

time they saw blood was oozing out from her private part and the statements

of Prahlad (PW/2), Rajesh (PW/3) and Bhagsingh @ Ganesh (PW/7) who

also deposed that they went in search of prosecutrix along with Kalsi Bai

(PW/1) and saw prosecutrix with appellant and rescued the prosecutrix from

his possession and at that time blood was oozing out from the private part of

the prosecutrix.

8. On the point that in the incident appellant also committed rape with

the prosecutrix, the prosecution story is also supported by the statements of

Dr. Smt. Rita Shrivastava (PW/11) and Dr. Ashok Sharma (PW/12) who

conducted medical examination of prosecutrix. Dr.Smt. Reeta Shrivastava

(PW/11) deposed that on 21.08.2017 she was posted as Assistant Medical

Officer at District Hospital, Mandla and on that day, she conducted the
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medical examination of the prosecutrix who was 22 months old and in the

examination she found the following external injuries on her body:-

1. Multiple linear and pin point abrasions of negligible
dimensions over face.

2. Semi circular tooth mark and abrasion over supra pubic
area and pubic symphysis.

3. Swelling over left labia majora

4. On separating vulva hymen found to be torn, linear
perineal tear from post fourchette perineal body oozing
from wound and tenderness also present.

She further deposed that in her opinion recently intercourse or attempt

of intercourse had been committed with the prosecutrix. Her statement is

also corroborated from the report (Ex.P/18) given by her.

9. Dr. Ashok Sharma (PW/12) also deposed that on 22.08.2007 at 12:30

PM, he examined the prosecutrix and found following external injuries on

her body:-

(i) Semicircular bite mark over supra pubic area and pubic
symphysis.

Size 2.5 cm x 2.5 cm Thickness – 5 cm Showing teeth
imprint of upper and lower teeth, Skin deep. Injury was
grievous in nature.

His statement is also corroborated from the report (Ex.P/18) given by

him

10. There are no important contradictions and omissions in the statements

of above mentioned witnesses, so there is no reason to disbelieve their

statements. Although, there is no direct evidence on record that anybody saw

the appellant committing rape with the prosecutrix and in the FSL report

(Ex.P/20) also it is also not mentioned that sperm was found in slide of

vaginal swab of prosecutrix. But from the statements of prosecution

witnesses, it is clearly proved that appellant took the prosecutrix and when

Kalsi Bai (PW/1) and Bhagsingh @ Ganesh (PW/7) rescued prosecutrix

from his possession, blood was oozing out from the private part of the
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prosecutrix. Even Dr. Smt. Rita Shrivastava (PW/11) in her statement clearly

deposed that at the time of examination of prosecutrix, she found that her

hymen was torn. In her opinion recently intercourse or attempt of intercourse

had been committed with the prosecutrix which clearly shows that sexual

assault was committed with the prosecutrix.

11. Although, appellant took the defence that prosecutrix sustained injury

due to falling on wooden pegs. In this regard he also produced Ghanshyam

Prasad Sahu (DW/1) in his defence who deposed that on the date of incident,

when he reached Village Jangaliya for selling clothes, he saw some persons

assaulting the appellant and at that time somebody pushed the prosecutrix so

she fell down and sustained injury in her private part due to falling on

wooden pegs. But appellant did not give any suggestion to prosecution

witnesses in their cross-examination that at the time of incident this

witnesses were present on the spot. Dr. Smt. Rita Shrivastava (PW/11) in her

cross examination clearly denied from the suggestion that the injury found

by her on the private part of prosecutrix could be caused due to falling on

wooden pegs. Even Dr. Ashok Sharma (PW/12) who examined the

prosecutrix clearly deposed that he found one teeth bite injury size 2.5 cm x

2.5 cm x .5 cm deep on the upper side of vagina of prosecutrix. So the

defence of appellant and statement of Ghanshyam Prasad Sahu (DW/1) that

prosecutrix sustained injury in her private part due to falling down becomes

false and clearly shows that somebody committed sexually assault with the

prosecutrix. Thus, defence of appellant that prosecutrix sustained injury due

to falling on wooden pegs becomes false which can not be believed.

12. In the considered opinion of this Court from the statements of

prosecution witnesses and medical examination report of the prosecutrix, it

is clearly proved that on 21.08.2007 at around 2 PM at Village Jangliya

appellant abducted prosecutrix aged about 22 months and also committed
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rape with her. So, learned trial court did not commit any mistake in finding

appellant guilty for the offences punishable under sections 376 (2)(f) 363

of IPC.

13. Learned Trial Court awarded the appellant with the sentence of life

imprisonment with fine of Rs.5000/- with default stipulation and three year

rigorous imprisonment respectively looking to the gravity of offence that

appellant committed rape with a minor girl aged about only 22 months. The

sentence awarded by the trial court is also appropriate and there is no need to

interfere with the judgment. Hence, appeal filed by the appellant/accused

stands dismissed. The appellant, who is in the custody, shall serve the

remaining part of the sentence, in accordance with law. Both jail sentences

shall run concurrently. The period already undergone shall be set off from

the period of substantive jail sentence.

14. Accordingly, the appeal stands dismissed.

(H.P. Singh) (Rajeev Kumar Dubey)
JUDGE JUDGE
(ra)
Digitally signed by RANJEET
AHIRWAL
Date: 2018.04.10 15:20:03 +05’30’