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
State of Madhya Pradesh
Shri V.P. Singh, counsel for the appellant.
Shri Sourabh Shrivastava, learned Government Advocate for the
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
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
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.
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
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
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
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
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
(i) Semicircular bite mark over supra pubic area and pubic
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
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
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
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
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)
Digitally signed by RANJEET
Date: 2018.04.10 15:20:03 +05’30’