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Pappu Aharwar vs The State Of Madhya Pradesh on 28 May, 2018

1 Cr.A.No.2312 of 2007

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Single Bench : Hon’ble Shri Rajeev Kumar Dubey, J.

Criminal Appeal No.2312/2007

Pappu Aharwar

vs.

State of M.P.

——————————————————————————————–

Shri Amit Dubey, counsel for the appellant.

Shri A.K. Sharma, Government Advocate for the respondent/State.

——————————————————————————————–

JUDGEMENT

Reserved on : 21/05/2018
Delivered on : 28/05/2018

This criminal appeal has been filed under Section 374 (2) of CrPC
against the judgment dated 06.10.2007 passed by Sessions Judge, Chhatarpur in
Sessions Trial No.50/2007, whereby learned Sessions Judge found appellant
guilty for the offence punishable under Sections 342 376 (2)(f) of the IPC
and sentenced him to undergo one year rigorous imprisonment and ten years
rigorous imprisonment with fine of Rs.500/-, in default of payment of fine
amount further three months simple imprisonment respectively.

2. Brief facts of the case are that on 17/01/2007 at around 5 PM when
prosecutrix (PW/1) (her name and identity imposed by law contained in Section
228A of IPC is not disclosed) who was living with her uncle Ramswaroop
(PW/2) at Village Thilapur was returning to her house after throwing garbage,
on the way appellant came there and caught hold her hands and took her to his
house. Thereafter, he bolted the door of his house from inside and committed
rape with the prosecutrix. On hearing her shouting, the neighbour of appellant
2 Cr.A.No.2312 of 2007

Sukhnandi, Rammalai, Thakuri Bai (PW/4) and Mahadev came to appellant’s
house and told to the appellant to open the door. On that appellant opened the
door, then prosecutrix went out from appellant’s house and narrated the
incident to Thakuri Bai (PW/4), Sukhnandi and Rammalai and came to her
house and also narrated the incident to her aunt Smt. Suman (PW/3). At that
time her uncle Ramswaroop (PW/2) was not at home. He went to Jhansi, when
at 3 am, he returned from Jhansi prosecutrix also narrated the incident to him.
On that on 18/01/2007 Ramswaroop (PW/2) went to P.S. Orchha Road,
Chhatarpur along with prosecutrix and lodged the report (Ex.P/1) of the
incident. On that report, police registered Crime No.6/2007 for the offence
punishable under Sections 376, 342 506-B of IPC against appellant and
investigated the matter. During the investigation, S.H.O. Police Station Orchha
Road, Chhatarpur, Jai Prakash (PW/12) went to the spot and prepared spot map
(Ex.P/3). He also seized simple soil and oily soil from the spot and prepared
seizure memo (Ex.P/5) and he also sent prosecutrix to District Hospital
Chhatarpur for medical examination along with the application (Ex.P/16) after
getting permission for her medical examination from SDM. In the Hospital, Dr.
Sushma Khare (PW/9) examined the prosecutrix and gave report (Ex.P/12) and
she also prepared slide of vaginal swab of prosecutrix and also seized one skirt
and underwear which were wore by the prosecutrix at the time of examination
and sent these articles to P.S. Orchha Road, Chhatarpur in a sealed packet
through constable Bhagwati Yadav which was seized by the HC Mizaji Lal
from his possession and prepared seizure memo (Ex.P/17). During
investigation Jai Prakash (PW/12) also recorded the case diary statements of
prosecutrix (PW/1), Ramswaroop (PW/2), Raju Ahirwar, Smt. Suman (PW/3),
Govind Ahirwar, Thakuriya Bai (PW/4), Sukhnandi Ahirwar, Rambai Ahirwar
and Mahadev. He also arrested the appellant on 18/01/2007 and prepared arrest
memo (Ex.P/19) and sent him to District Hospital, Chhatarpur for medical
examination along with the application (Ex.P/18) where Dr. R.P. Gupta (PW/8)
examined the appellant and gave MLC report (Ex.P/9) mentioning that
appellant is able to commit intercourse. Jai Prakash (PW/12) also sent all seized
article to FSL Sagar through Superintendent of Police, Chhatarpur along with
draft (Ex.P/21) for chemical examination fromwhere report (Ex.P/12) was
received in which it is mentioned that on Article A underwear skirt of the
prosecutrix and slide of her vaginal swab, semen was found. After the
3 Cr.A.No.2312 of 2007

investigation, police filed charge sheet against the appellant before Judicial
Magistrate First Class, who committed the case to the Court of Sessions. On
that S.T.No.50/2007 was registered and learned Sessions Judge framed charge
against the appellant under Sections 376, 342, 506-B of IPC and tried the case.
The appellant/accused abjured his guilt and took the defence that he is innocent
and has falsely been implicated in the case. He also took the defence that on the
date of the incident, a quarrel had occurred between Pushpa and prosecutrix so
he assaulted both of them due to which Ramswaroop (PW/1) lodged the false
report against him. In this regard, appellant also produced Ramkishun (DW/1)
Rameshwar Pateriya (DW/2) in his defence. However, after trial, learned
trial Court acquitted the appellant for the offence punishable under Section 506
Part II of IPC but found the appellant guilty for the offences punishable under
Sections 342 376 (2)(f) of IPC and sentenced him as aforesaid. Being
aggrieved from that judgment, appellant filed this Criminal Appeal.

3. Learned counsel for the appellant submitted that there are many
contradictions and omission in the statement of prosecution witnesses.
Prosecutrix (PW/1) admitted in her cross-examination that she was tutored by
her aunt and uncle to give false evidence against the appellant and also
admitted that appellant did not do anything with her. In the medical report of
the prosecutrix also, it is mentioned that no external injury was found on her
body. If the appellant had committed rape with the prosecutrix, (a minor girl)
then she might have sustained injuries on her body. The statements of
prosecutrix (PW/1), Ramswaroop Ahirwar (PW/2), Smt. Suman (PW/3) and
Thakuriya Bai (PW/4) are contradictory and also not supported by the medical
evidence. Learned Trial Court without appreciating all these facts wrongly
found the appellant guilty of the aforesaid offences.

4. On the other hand, learned counsel for the State opposed the prayer and
submitted that from the prosecution evidence it is clearly proved that appellant
committed rape with the prosecutrix who was minor girl aged about eight
years. Learned trial court after appreciating all the evidence rightly found 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 under Sections 342 and 376
4 Cr.A.No.2312 of 2007

of IPC is liable to be set aside for the reasons stated in the memo of appeal and
raised during argument.

6. Regarding incident Prosecutrix (PW/1) clearly deposed that on the date
of incident at about 04:00 PM when she was returning to her house after
throwing garbage, appellant came there and he caught hold her hands and took
her to his house thereafter he bolted the door of his house and then committed
rape with her. On that, she shouted so mother of Satish, Basanti came there and
got opened the door, thereafter, she went out from the appellant’s house and
went to her house with her aunt Suman (PW/3) and narrated the incident to her
and also narrated the incident to her uncle Ramswaroop Ahirwar (PW/2) at
night. In this regard her statement is also corroborated by the statements of
Ramswaroop (PW/2), Smt. Suman (PW/3) and Thakuriya Bai (PW/4). They
also deposed that prosecutrix narrated the incident to them that the appellant
committed rape with her and the statement of Dr. Sushma Khare (PW/9) who
examined the prosecutrix on 18.01.2007 i.e., next day of the incident and gave
the report (Ex.P/1) to the effect that at that time of her examination, she found
her hymen was torn. Prosecution story in this regard is also corroborated by the
FSL report (Ex.P/12) in which it is clearly mentioned that on the clothes of the
prosecutrix i.e., Article A skirt, underwear and her vaginal swab, semen was
found.

7. Although, the incident is said to have occurred at 4 PM, on 17/01/2007
while FIR was lodged at 07:15 AM on 18/01/07 but this delay is satisfactorily
explained by the prosecution. Ramswaroop (PW/2) uncle of the prosecutrix
clearly deposed that on the date of incident he was not at home, he had gone to
Jhansi. On receiving information of the incident, he returned to his house at 2
AM in the night and on the very next day, he lodged the report. So only on the
ground that incident occurred at 4 PM on 17/01/07, while the FIR was lodged
at 07:15 AM on 18/01/07, the prosecution story cannot be doubted.

8. Likewise although, prosecutrix (PW/1) in para 2 of her cross-
examination deposed that appellant did not do anything with her. But in this
regard her statement will read as a whole and not in a piecemeal. She is a minor
girl aged about eight years. It appears from her statement that due to not
understanding the question correctly, she gave such answer. The fact stated by
her in para one of her examination-in-chief regarding incident clearly shows
5 Cr.A.No.2312 of 2007

that in the incident, appellant committed rape with her. In this regard her
statement is also corroborated by her Medical Examination Report (Ex.P/1) in
which it is clearly mentioned that at the time of her examination her hymen was
found torn. That report was also proved by the Dr. Sushma Khare (PW/9) who
examined the prosecutrix on 18.1.2007 i.e., very next day of the incident. Dr.
Sushma Khare (PW/9) also deposed that at the time of examination of
prosecutrix she also prepared slide of her vaginal swab and also seized one skirt
and underwear which were wore by the prosecutrix at the time of examination
and sent these articles to P.S. Orchha Road, Chhatarpur in a sealed packet
through constable. In FSL report (Ex.P/12) of these articles, it is mentioned that
on the clothes i.e., Article A skirt, underwear and her vaginal swab, semen was
found which further strengthen the prosecution story that in the incident
appellant committed rape with the prosecutrix. In this regard her statement is
also corroborated by the statements of Ramswaroop (PW/2), Smt. Suman
(PW/3) and Thakuriya Bai (PW/4). So there is no reason to disbelieve the
prosecution story.

9. Although, appellant also took the defence of false implication and
produced Ramkishun (DW/1) Rameshwar Pateriya (DW/2) in his defence
who deposed that at the time of incident at noon quarrel was occurred between
Pushpa and prosecutrix on that appellant assaulted both of them due to which
Ramswaroop (PW/2) lodged false report against the appellant but appellant not
give any suggestion to prosecutrix (PW/1) and other witnesses i.e.,
Ramswaroop (PW/2), Smt. Suman (PW/3) and Thakuriya Bai (PW/4) in there
cross-examination that on the date of incident quarrel occurred between Pushpa
and prosecutrix and appellant assaulted both of them. Even appellant in his
examination under Section 313 of CrPC when trial court entered him in his
defence did not depose that fact. So the statements of Ramkishun (DW/1)
Rameshwar Pateriya (DW/2) and defence of appellant become afterthought
which cannot be believed. So in the considered opinion of this court, learned
trial court did not commit any mistake in finding appellant guilty for the
offences punishable under sections 342 376 (2)(g) of IPC. Hence conviction
of the appellant Pappu Aharwar under Sections 342 376 (2)(g) of IPC is
hereby upheld.

6 Cr.A.No.2312 of 2007

10. As far as sentence is concerned, the learned trial court has sentenced
appellant under Sections 342 and 376 IPC to undergo one year and ten years
rigorous imprisonment with fine of Rs.500/- with default stipulation, which is
quite adequate and this Court does not find any reason to interfere with the
sentence given by the trial court.

11. 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.

12. Accordingly, the appeal stands dismissed.

(Rajeev Kumar Dubey)
Judge
(ra)

Digitally signed by RANJEET
AHIRWAL
Date: 2018.05.29 16:21:21
+05’30’

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