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Mukesh vs The State Of Madhya Pradesh on 28 March, 2018

-: 1 :- Criminal Appeal No.1393 of 2012.

( Single Bench )
( Hon’ble Shri Justice Vivek Rusia )

Criminal Appeal No.1393 of 2012.

Mukesh s/o Bagdiram
State of Madhya Pradesh
Shri Yash Pal Rathore, learned counsel for the appellant,
through Legal Aid.
Shri Swapnil Sharma, learned Govt. Advocate for the


( Delivered on this 28th day of March, 2018 )

THE appellant has filed the present appeal
being aggrieved by judgment dated 8th November, 2010
passed by Sessions Judge, Ujjain in Sessions Trial
No.161/2010, by which he has been convicted under
Sections 363, 366 and 376 of IPC and sentenced to undergo
3 years’ RI with fine of Rs.2,000-00; 3 years’ RI with fine of
Rs.2,000-00 and 10 years’ RI with fine of Rs.5,000-00
respectively, with default stipulation.

[2] As per prosecution story, Shamubai lodged
a report that in the night of 09.12.2009 her daughter was
sleeping inside the hut but in the morning of 10.12.2009 at
05.00 AM she was not found there hence she lodged a report
of missing person. On 16.01.2010 the prosecutrix was

-: 2 :- Criminal Appeal No.1393 of 2012.

recovered from the custody of the accused. Thereafter an
FIR was registered against the accused under Sections 363,
366 and 376 of IPC. The prosecutrix was medically
examined and the statements of witnesses were recorded.
After completing the usual investigation, challan was filed
and trial was committed to the Sessions Court. On the basis
of documentary evidence as well as medical evidence, the
learned Court came to the conclusion that at the time of
incident the prosecutrix was more than 18 years of age. After
appreciating the evidence on record, the learned Sessions
Court has convicted the appellant and sentenced as stated

[3] Being aggrieved by the aforesaid conviction
and sentence, the appellant preferred this appeal along with
an application for suspension of sentence.

[4] Vide order dated 19.12.2012 the appeal was
admitted for final hearing but the application for suspension
of sentence was dismissed.

[5] During pendency of this appeal, the
appellant has already undergone the entire sentences
awarded by the Sessions Court. As per the report dated
23.03.2018 send by Deputy Jail Superintendent, Central Jail,
Ujjain, the appellant has been released from the jail on
23.08.2017 after undergoing the sentences and depositing
the fine amount on 18.08.2017. Therefore, there is no
question of deciding this appeal on the point of sentences.

[6] So far as the conviction of the appellant
under Sections 363, 366 and 376 of IPC are concerned, Shri
Yash Pal Rathore, learned counsel for the appellant argued

-: 3 :- Criminal Appeal No.1393 of 2012.

that as per the ossification report the age of the prosecutrix
was to be held 18 to 20 years and since she was a consenting
party and there was affair between them, the appellant has
wrongly been convicted. The victim remained in the
company of the appellant for more than 30 days and did not
resist. No independent witnesses have been examined by the
prosecution. Therefore, he has wrongly been convicted and

[7] Shri Swapnil Sharma, learned Govt.

Advocate for the Respondent/State argued in support of the
judgment and prayed for dismissal of the appeal.

[8] The prosecution examined Dr. Asha
Jaithaliya (PW-1) who has examined the prosecutrix and did
not gave definite opinion about commission of rape. The
prosecution examined Smt. Sunanda (PW-3), Head Master
of the School, who appeared along with the Scholar Register
and according to the record, the date of birth of girl was 10 th
October, 1996. The girl was examined as PW-5 who has
correctly answered the questions put by the Court and
categorically stated that the appellant has forcibly taken her
to the factory and kept her inside the room and locked out
side the room and entire month he committed rape on her.
He has threatened her mother that he will not leave the girl
till she deliver two child. The police has recovered the girl
from the custody of the appellant. Her version has not been
changed in the cross-examination and she has stated that she
did not disclose because she was under the threat of the
appellant. The prosecution examined Shamubai, mother of
the prosecutrix as PW-6.

-: 4 :- Criminal Appeal No.1393 of 2012.

[9] The learned Sessions Court after detailed

appreciation of evidence has rightly came to the conclusion
that the appellant has committed rape on the girl. The
appellant has failed to establish that there was affair between
them and she was consenting with him. She has made
specifically allegations against the appellant in the Court.
The appellant was found below 16 years of age.

[10] So far as the conviction based on the sole
testimony of the prosecutrix is concerned and the issue of
consent, the Apex Court in the case of Deepak v/s State of
Haryana [(2015) 4 SCC 762] has considered the same in
paras 24 to 27 which are reproduced below :-

“25. In order to enable the court to draw presumption as
contained in Section 114-A against the accused, it is necessary to
first prove the commission of sexual intercourse by the accused on
the prosecutrix and second, it should be proved that it was done
without the consent of the prosecutrix. Once the prosecutrix states
in her evidence that she did not consent to act of sexual intercourse
done by the accused on her which, as per her statement, was
committed by the accused against her will and the accused failed to
give any satisfactory explanation in his defence evidence on this
issue, the court will be entitled to draw the presumption under
Section 114-A of the Indian Evidence Act against the accused
holding that he committed the act of sexual intercourse on the
prosecutrix against her will and without her consent. The question
as to whether the sexual intercourse was done with or without
consent being a question of fact has to be proved by the evidence in
every case before invoking the rigour of Section 114-A of the Indian
Evidence Act.

25. Coming now to the case in hand, we find that the prosecutrix,
in her sworn testimony, in clear terms has said that she did not give
her consent for commission of the act to the appellant and that he
committed the act of sexual violence on her against her will. The
appellant was not able to give any satisfactory explanation in his
statement recorded under Section 313 of the Code nor was he able
to adduce any defence evidence to rebut the presumption contained
in Section 114-A of the Indian Evidence Act, 1872 against him. So
far as commission of sexual intercourse is concerned, it is proved
with the medical evidence that it was performed by the appellant
with the prosecutrix.

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

-: 5 :- Criminal Appeal No.1393 of 2012.

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.”

[11] In the light of foregoing discussion, I do not
find any merit in this appeal and the same is accordingly

Sharma AK/*

Digitally signed by Anl Kumar
Date: 2018.04.02 11:57:21 +05’30’

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