SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

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

-: 1 :- Criminal Appeal No.1040 of 2012.

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Vivek Rusia )

Criminal Appeal No.1040 of 2012.

Munnalal s/o Pyara
VERSUS
State of Madhya Pradesh
*****
Shri Manish Sankhala, learned counsel for the appellant
through Legal Aid.
Shri Rajesh Mali, learned Govt. Advocate for the
Respondent/State.
*****

J U D G M E N T

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

THE appellant has filed the present appeal
being aggrieved by judgment dated 04.04.2012 passed by
First Additional Sessions Judge, Mandsaur in Sessions Trial
No.184/2010, by which he has been convicted under
Sections 363 and 376 of IPC and sentenced to undergo 1
year’s RI with fine of Rs.1,000-00 and 8 years’ RI with fine
of Rs.5,000-00 respectively, with default stipulation.

[2] The prosecution case, in short, is that
complainant Udayram lodged a report in Police Station
Suwasara, District Mandsaur on 11.08.2010 that accused
Munna has committed rape on his grand-daughter aged
about 12 years on 10.08.2010. After the registration of FIR,
usual investigation was completed and challan was filed and

-: 2 :- Criminal Appeal No.1040 of 2012.

thereafter the accused-appellant was prosecuted under
Sections 363 and 376, in alternate 376 (2) (f) of IPC. In
support of the case, the prosecution examined complainant
Udayram as PW-2 who is a grand-father of the prosecutrix.
According to him the age of the prosecutrix at the time of
incident was 10-12 years and she was of unsound mind. The
prosecutrix herself appeared before the Court as PW-6 and
the Court has assessed her age 13 years on the basis of
physical appearance. The Radiologist Dr. Deepak Kumar
was examined as PW-11 who has also assessed her age 11 to
13 years. In the Court, the Court has asked certain questions
to the girl about rape committed on her and found that she
understands the questions and answered the same by
nodding her head. On the basis of other evidence on record
corroborated with the statement of the prosecutrix, the
learned Sessions Court has convicted the accused-appellant
and sentenced to him as stated above. Hence, the present
appeal before this Court.

[3] Vide order dated 12.10.2012 this appeal was
admitted for final hearing. During pendency of this appeal,
the appellant has already undergone the sentences awarded
to him. As per the report dated 23.03.2018 send by Jail
Superintendent, District Jail, Mandsaur, the appellant has
been released on 29.10.2016 after undergoing the sentences
and depositing the fine amount. Since the appellant has
already undergone the sentences, therefore, this appeal is not
required to be considered on the ground of sentences.

[4] So far as the conviction is concerned, Shri
Manish Sankhala, learned counsel for the appellant argued

-: 3 :- Criminal Appeal No.1040 of 2012.

that there was no material available before the Court to
assess the age of prosecutrix below 16 years when she had
been admitted in the school. There was a delay in lodging
the FIR and not a single injury was found on her body.

[5] Shri Rajesh Mali, learned Govt. Advocate
for the Respondent/State argued in support of the judgment
and prayed for dismissal of the appeal.

[6] On the information given by the prosecutrix
(PW-6), her grand-father lodged an FIR. On the complaint
made by grand-father, the prosecution examined the local
witnesses. The prosecutrix identified the accused in the
Court. She has understand the questions and answered
accordingly. The seized articles were sent to FSL and in the
clothes, semen were found on various places. The girl was
medically examined which confirmed commission of rape on
her. The learned Sessions Court after detailed appreciation
of evidence has rightly came to the conclusion that the
appellant has committed rape on minor girl who was of
unsound mind. The minor omission and contradiction has
rightly been ignored by the Court as the statement of the
prosecutrix is sufficient. The counsel for the appellant has
failed to point out any infirmity in the judgment.

[7] So far as the question of delay in lodging
the FIR is concerned, the Apex Court in the recent judgment
in the case of Deepak v/s State of Haryana [(2015) 4 SCC
762] has held as under :-

“15. The Courts cannot overlook the fact that in sexual offences
and, in particular, the offence of rape and that too on a young
illiterate girl, the delay in lodging the FIR can occur due to various
reasons. One of the reasons is the reluctance of the prosecutrix or

-: 4 :- Criminal Appeal No.1040 of 2012.

her family members to go to the police station and to make a
complaint about the incident, which concerns the reputation of the
prosecutrix and the honour of the entire family. In such cases, after
giving very cool thought and considering all pros and cons arising
out of an unfortunate incident, a complaint of sexual offence is
generally lodged either by victim or by any member of her family.
Indeed, this has been the consistent view of this Court as has been
held in State of Punjab vs. Gurmit Singh Ors.[ (1996) 2 SCC

384)].

16. Keeping this well settled principle in mind, we find that the
FIR in this case was lodged on 04.04.2007 when the prosecutrix
disclosed to her mother of the incident first time as to what had
happened with her hardly two weeks before the date of disclosure
and the mother, in turn, immediately made a complaint to the
police station and disclosed to the SI, who visited her place on
coming to know of the incident. The late disclosure of the offence by
the prosecutrix was also well justified by her in her statement
recorded under Section 164 of the Code and also in her evidence
wherein she said that the appellant had taken her photographs and
had also recorded her talks with him on mobile. The accused was,
as per her version, threatening her from raising any kind of alarm
with the use of such evidence in his possession.

17. The conduct of the prosecutrix, in this regard, therefore,
appears to us to be most natural. She did not inform the incident
immediately to the parents and waited for two weeks to eventually
disclose to her mother. It was for the reason that the appellant was
all along threatening the prosecutrix of the dire consequences with
the use of the evidence, which he was having with him against her.”

[12] So far as the conviction based on the sole
testimony of the prosecutrix is concerned and the issue of
consent, the Apex Court has also considered the same in
paras 24 to 27 which are reproduced below :-

“24. 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.

-: 5 :- Criminal Appeal No.1040 of 2012.

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

[ VIVEK RUSIA ]
JUDGE
Sharma AK/*

Digitally signed by Anl Kumar
Sharma
Date: 2018.04.02 11:55:49 +05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation