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Prathi @ Prati vs State Of M.P. on 27 July, 2018

1
Cr.A.No.871/2009

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

CRIMINAL APPEAL NO. 871 OF 2009

Prathvi alias Prati
-Vs-
State of Madhya Pradesh

For the appellant: Shri A.K. Jain, Advocate
For the State: Shri Ashish Saraswat, Public Prosecutor.

PRESENT: HON’BLE MR. JUSTICE ANAND PATHAK, J.

JUDGMENT

(Delivered on 27 th of July, 2018)
1- The appellant has preferred the present appeal being
aggrieved with the judgment dated 07-12-2009 passed by
learned Special Judge (SC/ST Act), Guna in S.S.T.No.30/2009
whereby the appellant has been convicted of the offence under
Sections 376, 342 and 450 of IPC and sentenced to 7 years RI
with fine of Rs.2,000/-, 6 months RI and 3 years RI with fine of
Rs.500/- and in default of payment of fine 6 month’s additional
imprisonment.

2- Case of the prosecution in short is that on 12-02-2009
when prosecutrix (PW-10) was at her home along with her
sisters and brother and her parents were out of the home
because of labour work, at about 2:00 pm appellant/accused
came and committed rape over the prosecutrix (PW-10) who
was deaf and dumb and mentally retarded. According to
prosecution case, the appellant was caught hold by mother of the
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Cr.A.No.871/2009

prosecutrix Pana Bai (PW-2) on spot when she reached at her
house but he by pushing her, ran away from the spot. After such
incident, mother of the prosecutrix Pana Bai (PW-2) informed her
husband Ishwar on cellphone. Thereafter, they went to Police
Station Bamouri to lodge the report of the matter but the officials
of aforesaid Police Station asked them to come with prosecutrix.
Thereafter, they went to AJK Police Station, Guna where the FIR
was registered at crime No.02/2009 for the offence under
Sections 376, 454, 342 of IPC and under Section 3(1)(xii) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989. Prosecutrix was sent for her medico legal examination.
Dr. Sharda Bhola (PW-1) examined the prosecutrix and gave her
report Ex-P/1. She found no internal or external injury over the
body of prosecutrix. Doctor prepared two slides of vaginal swabs
and also obtained clothes of the prosecutrix. After seizing such
articles, those were given to the concerned constable for the
purpose of forensic science examination. Those articles were
sent to the Forensic Science Laboratory, which gave a report Ex-
P/15 and opined that sperm and semen particles were found on
the slide as well as on undergarments. After due investigation,
the charge-sheet was filed before the Court of JMFC, Guna who
committed the case to the Court of Sessions and ultimately it was
transferred to Special Judge (SC/ST Act), Guna.
3- After filing of charge-sheet, case was committed to
the Court of Session. The appellant/accused abjured his guilt. The
trial was conducted. On behalf of prosecution, 13 witnesses were
examined and on behalf of defence no witness was examined.
Trial Court after considering the evidence convicted the
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Cr.A.No.871/2009

appellant as referred above, therefore, this appeal.
4- The learned counsel for the appellant submitted that
the appellant was falsely implicated in the matter due to enmity
and FIR has been lodged with three days delay. There was no
cogent and plausible reason assigned by the complainant in
lodging the FIR with such delay, therefore either prosecutrix
was the consenting party or the appellant is falsely implicated
due to enmity. It is further submitted that since there was land
dispute between the family members of prosecutrix and the
appellant as the lands of both the persons are at one place and on
that dispute, some quarrel took place between the father of
prosecutrix and appellant, therefore, intentionally, the appellant
has been falsely implicated in the present crime. The prosecutrix
was examined by Dr. Sharda Bhola (PW-1) and opined that there
is no external or internal injury over the body of prosecutrix and
no definite opinion in relation to recent intercourse was given.
According to the doctor, hymen of prosecutrix was found
ruptured and she was habitual for intercourse. For the purpose of
confirming the alleged rape she also collected the vaginal swab of
prosecutrix and clothes on which semen particles and sperm
were found by FSL in its report EX-P/15.

5- The learned counsel for the appellant further submits
that Sushila Bai (PW-3) who was stated to be present on the
spot, did not support the prosecution story, therefore, declared
hostile. There are several discrepancies and inconsistencies in
the statement of Pana Bai (PW-2) who is almost the sole witness
of the incident as the prosecution case is roaming around the said
witness. In all, only witness Pana Bai (PW-2) was the witness
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Cr.A.No.871/2009

from whom all the witnesses got the information. Sushila Bai
(PW-3), the lady who was present on the spot, did not support
the prosecution story. The children with whom prosecutrix was
playing, just prior to commission of rape, out of them, Malti (PW-

6) was examined and this child witness did not state that the
accused/appellant had forcibly taken the prosecutrix into the
house or prosecutrix resisted for that. Dr. Sharda Bhola (PW-1)
who medically examined the prosecutrix, opined that no sign of
recent intercourse is present and prosecutrix was found habitual
for intercourse and her hymen was found ruptured much
earlier.

6- Uncle of the deceased Kallu (PW-4) was examined by
the prosecution and said witness seems to be an hearsay witness
and this witness did not confirm the allegation of rape committed
by the appellant. He only stated that he listened about
commission of rape by the appellant over her niece -prosecutrix
(PW-10).

7- Learned counsel for the respondent/State opposed
the prayer made by the appellant and submitted that the
prosecution has proved its case beyond reasonable doubt and
there was sufficient material available against the appellant,
therefore, he was rightly convicted by the trial Court. Thus,
prayed for dismissal of appeal.

8- Heard learned counsel for the parties at length and
perused the evidence available on record.

9- The first and foremost question in the present is that
whether appellant -Prathvi alias Prati committed rape on the
prosecutrix (PW-10) or not. For the purpose of proving such
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Cr.A.No.871/2009

charge, prosecution examined the prosecutrix herself (PW-10),
her mother Pana Bai (PW-2) and child witness Malti (PW-6) and
all the witnesses categorically stated that appellant -Prathvi alias
Prati had committed rape on the prosecutrix (PW-10). Even the
prosecutrix (PW-10), who was deaf and dumb and mentally
retarded, examined through an expert before the trial Court,
given the indications in relation to commission of rape by the
appellant -Prathvi alias Prati. Merely because in medical
evidence, no sign of scuffle was there and no external injury was
found, it cannot be said that the prosecutrix (PW-10), who was a
deaf and dumb and mentally retarded girl, was a consensual
party, hence, no benefit can be given to the appellant . The
Hon’ble Apex Court in the matter of Thaman Kumar Vs. State of
Union Territory of Chandigarh, (2003) 6 SCC 380, laid down
the law in relation to prevailing of oral evidence over the medical
evidence as under:

“The conflict between oral testimony and medical
evidence can be of varied dimensions and shapes.
There may be a case where there is total absence
of injuries which are normally caused by a
particular weapon. There is another category
where though the injuries found on the victim are
of the type which are possible by the weapon of
assault, but the size and dimension of the injuries
do not exactly tally with the size and dimension of
the weapon. The third category can be where the
injuries found on the victim are such which are
normally caused by the weapon of assault but they
are not found on that portion of the body where
they are deposed to have been caused by the eye-
witnesses. The same kind of inference cannot be
drawn in the three categories of apparent conflict
in oral and medical evidence enumerated above.
In the first category t may legitimately be inferred
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Cr.A.No.871/2009

that the oral evidence regarding assault having
been made from a particular weapon is not
truthful. However, in the second and third
category no such inference can straightway be
drawn. The manner and method of assault, the
position of the victim, the resistance offered by
him, the opportunity available to the witnesses to
see the occurrence like their distance, presence of
light and many other similar factors will have to
be taken into consideration in judging the
reliability of ocular testimony.”

10- Appellant took the plea in his statement under Section
313 of Cr.P.C. relating to enmity, however, some suggestions were
given to the witness about the enmity. It was suggested to the
mother of prosecutrix Pana Bai (PW-2) and child witness Malti
(PW-6) that there was quarrel took place between the accused
appellant and father of prosecutrix (PW-10), however, none of
the witnesses accepted such suggestions. No defence evidence is
adduced to show that enmity. Once the plea of enmity between
the parties has not been established by the defence, therefore, no
benefit under the said head can be given to the accused
appellant.

11- Learned counsel for the appellant invited the
attention of this Court that FIR was delayed but on the basis of
such delay, no benefit can be given to the appellant. Mother of
the prosecutrix Pana Bai (PW-2) categorically stated that when
she came back to her house from jungle, she found that the doors
of her house was closed from inside and on knocking, the
appellant -Prathvi alias Prati came out and ran away from the
spot. The aforesaid story was supported by the child witness
Malti (PW-6) who stated that when she along with her other
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Cr.A.No.871/2009

sisters and brother including prosecutrix (PW-10) were playing,
at that time accused appellant -Prathvi alias Prati came and
dragged the prosecutrix (PW-10) into the house and on asking
him that what he is doing, he threatened her to leave the place.
This witness in para 3 of her statement, stated that she saw the
appellant -Prathvi alias Prati committing rape on the prosecutrix
(PW-10) from window.

12- As far medical evidence is concerned, Dr. Sharda
Bhola (PW-1) examined the prosecutrix (PW-10) and opined in
regard to sexual intercourse. This doctor further averred that the
prosecutrix (PW-10) was mentally retarded and she was deaf and
dumb. The mention of pregnancy of three months also find place
in the statement of this witness.

13- From all the statements and evidence produced on
record, it is clear that the prosecutrix (PW-10) was deaf and
dumb and she was mentally retarded and the appellant -Prathvi
alias Prati by taking the advantage of this, committed rape over
her. Although there is no evidence on record in relation to
carrying pregnancy by the prosecutrix (PW-10) but the evidence
led by the prosecution indicates that for past long time, the
appellant -Prathvi alias Prati was indulged in such criminal act.
14- On the basis of aforesaid discussions no enmity
between the father of prosecutrix and the appellant could be
established. The prosecutrix (PW-10) being mentally retarded
does not appear to be the consenting party (and she cannot be
in any manner) and FIR has been lodged with some delay but
reasonable explanation has been given for that, therefore, there
is no reason to disbelieve the testimony of mother of
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Cr.A.No.871/2009

prosecutrix. Under these circumstances, it cannot be said that
the testimony of prosecutrix and her mother Pana Bai (PW-2)
was not corroborated by medical evidence.

15- It is settled view of the Apex Court that testimony of
prosecutrix does not require any medical corroboration. Her
testimony can be accepted if it is not doubtful otherwise. The
Hon’ble Apex Court in the case of “Prahlad Singh Vs. State of
Madhya Pradesh” {1998 (1) JLJ 84} and “State of
Maharashtra Vs. Chnadra Prakash Kewalchand Jain” (AIR
1980 SC 658) held that single testimony of the prosecutrix
may be accepted if it is not otherwise doubtful, no corroboration
is required to accept the testimony of prosecutrix. In the
present case, since the prosecutrix was deaf and dumb therefore,
by indications she narrated about commission of rape and even
otherwise mother of prosecutrix Pana Bai (PW-2) herself caught
hold the appellant -Prathvi alias Prati in her house. The mental
condition of the prosecutrix as described clearly indicates that
she was not a consenting party. She told about the incident to
her mother by indications and a mother can very well gather
from such indications and thereafter she had lodged the FIR.
Under these circumstances, there is sufficient corroborative
evidence. No reason is established to discard the testimony of
prosecutrix otherwise. Under these circumstances, it is proved
beyond doubt that the appellant had committed rape upon the
prosecutrix and hence the trial Court has rightly convicted the
appellant for the offence under Sections 376, 450 and 342 of IPC.
16- So far as the sentence part is concerned, the trial Court
has recorded minimum sentence prescribed for the offence,
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Cr.A.No.871/2009

therefore, there is no possibility to reduce that sentence
recorded against the appellant.

17- On the basis of aforesaid discussions, the appeal filed
by the appellant is not acceptable, hence, the appeal filed by the
appellant is hereby dismissed. The conviction as well as sentence
recorded by the trial Court is confirmed.

18- As per record, appellant has not been admitted to bail
and his jail sentence has not been suspended by this Court but
since the judgment of conviction was passed on 07-12-2009 and
it is almost 9 years, therefore, most probably appellant -Prathvi
alias Prati would have been released by the Jail Authorities.
Looking to such confusion, the District Judge, Guna is directed to
look into the fact that whether appellant -Prathvi alias Prati has
served his jail sentence or not and if he has served his jail
sentence and not required in any other matter, then he be set free
from jail and if he is still in jail in the present matter, then he be
released forthwith. If some how bail order of appellant escaped
attention of this Court or is not available in record and some
sentence is still left to be served then appropriate proceeding
be ensured for serving remaining part of jail sentence of
appellant.

19- Copy of the judgment be sent to the trial Court without
any delay so that the judgment of this Court may be complied
with as early as possible.

(Anand Pathak)
Judge
27/07/2018

Anil*

Digitally signed by ANIL KUMAR
CHAURASIYA
Date: 2018.07.28 11:43:09 +05’30’

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