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Radheshyam @ Mama vs The State Of Madhya Pradesh on 31 July, 2018

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
S.B: HON’BLE SHRI JUSTICE VIVEK RUSIA

CRIMINAL APPEAL NO.1275 of 2013

Radheshyam @ Mama
Vs.
State of Madhya Pradesh
-x-x-x-x-x-x-x-
Shri Ashish Sharma, learned counsel for the
appellant.
Shri Abhishek Soni, learned counsel for the
respondent/State.
-x-x-x-x-x-x-x-

ORDER

(Delivered on 31/07/2018)
This appeal is filed against the judgment and order
dated 03-06-2013, by which the appellant has been
convicted by 15th Additional Sessions Judge, Indore
under sections 376, 450 and 506 of the IPC and
sentenced to undergo 10 years RI with fine of
Rs.10,000/-, 5 years RI with fine of Rs.1,000/- and two
years RI with fine of Rs.1,000/- with default stipulation
respectively.

As per prosecution story, the prosecutrix aged
about 14 years studying in class 6th was residing with
her parents in village Arjun Baroda District Indore. On
23-06-2010 in the morning father and mother of the
prosecutrix being labour went for their job, she was
alone inside the house and near about 2:00 PM when
she was cleaning the utensils, accused/appellant
Radheshyam came inside the house silently and closed
the door. He took out the knife and threatened the
prosecutrix that if she screamed or make any issue, he
would kill her. He removed the clothes of the
prosecutrix and committed rape on her. He closed her
mouth by his hand, therefore, she could not shouted
and after committing rape on her, he left the house and
thereafter, the prosecutrix narrated the incident to
veenabai PW/04 and further narrated to her parents in
the evening when they returned to home. Thereafter,
they lodged FIR which was registered as crime
No.202/2010 (Ex P/1). After obtaining consent, she was
medically examined vide Ex P/4. Spot map Ex P/4 was
prepared, scholar register and mark sheet Ex P/9 and
P/10 were recovered. The accused was arrested vide Ex
P/6 and submitted memo under section 27 of the
evidence act vide Ex P/7. Clothes of the accused as well
as prosecutrix were recovered and were sent to FSL,
Rau district Indore The police recorded statement of the
prosecutrix-Reena Rajore PW-1, Sunita PW-2,
Laxminarayan PW-3, Veena PW-4, Rajesh PW-5, Kanta
PW-6, Seemabai PW-7 and after completing the
investigation, challan was filed under sections 376, 506,
323, 452, 376 (2)(cha), 450 of the IPC and 25 of the
Arms Act before the Additional Judicial Magistrate First
Class Since the offence was triable by Sessions Court,
therefore, trial was committed to the Sessions Court.

The Sessions Judged framed charges under
Section 376, 506, 323, 450 of the IPC.

The appellant abjured his guilt and pleaded for
trial.

The prosecution has examined as many as 12
witnesses namely prosecutrix-Reena Rajore PW-1,
Sunita PW-2, Laxminarayan PW-3, Veena PW-4, Rajesh
PW-5, Kanta PW-6, Seemabai PW-7, Dr A K Verma PW-8,
Rakesh Mishra PW-9, Dharmendra Ojha PW-10, Neeraj
Sarwan PW-11 and Dr Kalpana Patidar PW-12. The
prosecutrix PW-1 who was minor at the time of the
incident narrated the entire incident before the learned
Trial Court. Mother of the prosecutrix Sunita was
examined as PW-2, who stated that when she returned
from the job her neighbor Veena PW-4 gave her
information about the entire incident. The father of the
prosecutrix Laxminarayan was examined as PW-3.
Neighbor Veena was examined as PW-4 but she has
turned hostile. Seizure witness PW-5 has also turned
hostile. The prosecutrix examined Incharge Head
Master Kanta Jivne as PW-6, who came with the scholar
register and mark sheet and as per the school record
the date of birth of the prosecutrix is 04-09-1998.
Independent witness Seemabai examined as PW-7 has
turned hostile. Dr AK Verma PW-8 who examined the
accused found him capable of committing intercourse.
PW-9 Rakesh Mishra has also supported the seizure
made by the police. Neeraj Sarwan I.O. was examined
as PW-11 who conducted the investigation. DR Kalpana
Patidar PW-12 examined the prosecutrix and found that
the hymen was not torned and advised for sonography.
She has also not found any injury on her internal part of
the body. The accused has stated that only because of
the enmity and his dispute of property with the mother
of the prosecutrix, he has been falsely implicated in the
case.

Learned Sessions Judge vide judgment dated 03-
06-2013 has acquitted the accused under section 323
of the IPC and found the age of the prosecutrix 14 years
at the time of the incident and recorded finding that
appellant committed rape on her and convicted him
under sections 376, 506 and 450 of the IPC. Hence, the
present appeal before this Court.

The learned counsel for the appellant submitted
that as per the medical report and the statement of
doctor hymen was not found ruptured, therefore, it
cannot be said that any rape was committed on her.
The independent witnesses PW-4 Veena and PW-7
Seemabai who were examined as eye witnesses have
turned hostile, therefore, the accused has wrongly been
convicted. His conviction is based only on his criminal
antecedents as 20 cases have been registered against
him from 1995 to 2010. One of the independent eye
witness namely Teena was not examined before the
Court, therefore, the appellant is entitled for acquittal.

Learned Government Advocate in support of the
impugned judgment submitted that the Hon’ble Apex

Court in the case of Madan Gopal Kakkad Vs Naval

Dubey reported in (1992) 3 SCC 204 has held that even
slightest penetration of penis into vagina without
rupturing the hymen would constitute rape. The
testimony of the prosecutrix is corroborated by other
evidences and the same has to be placed on higher
pedestal which itself is sufficient to convict the
accused. Admittedly, she was minor at the time of the
incident and could not resist the force of the accused
who is having a criminal background, therefore, no
leniency is liable to be shown and the appeal be
dismissed
The age of the prosecutrix has been proved by
mark-sheet as well as scholar register, therefore, there
is no dispute that at the time of the incident, she was
minor. The learned Trial Court has convicted the
appellant on the basis of testimony of the prosecutrix
which is not supported by medical evidence and by the
independent witnesses. She was medically examined
on 23-6-2010 at 11:30 PM in the year 2010. As per
prosecution, when the prosecutrix was alone in the
house, the present appellant came inside the house
and closed the door from inside and committed rape on
her. According to the prosecutrix her friend Teena saw
the incident from the gap between the door but such a
material witness was not examined by the prosecution.
Even her statement under section 161 of the CR.P.C
was not recorded. According to the prosecutrix she
narrated the entire story to her neighbor Veena but she
has also turned hostile. The police has seized vaginal
underwear of the prosecutrix and sent to the FSL and
as per FSL report (Ex P/16) semen was found on the
clothes of accused as well as prosecutrix. Semen was
found on underwear of prosecutrix and accused vide
Article A and D were not sufficient to seriological
examination. Semen was not found on article E i.e.
pubic hair of the accused. The Hon’ble Apex Court in

the case of State of Karnataka Vs F. Nataraj reported in

(2015) 16 SCC 752 has held that it may be true that the
rupture of hymen would not occurred in all case of
sexual intercourse but it is the burden of the
prosecution to extract from the medical examiner,
examining the rape victim that the nature of the hymen
was such that take remain intact despite intercourse
with the girl. The Court must bear in mind that question
whether rape committed or not will depend on the facts
and circumstances of each case.

Para 11 to 17 of the judgment reads thus:-

“11- The medical examination of the
prosecutrix took place on 16.11.2003
and she was examined by Dr. M. Latha
(PW5) who was the Lady Medical Officer
at the Government Hospital, Hiryur. Her
deposition was that upon examination,
no injury was found on the private parts
of the prosecutrix and her hymen was
intact. She also stated that there were
no signs of recent sexual intercourse as
the prosecutrix was not subjected to
sexual intercourse during the past seven
days from the date of her medical
examination and she issued a certificate
Ext.P-7 to this effect. But she could not
say clearly as to whether the prosecutrix
was subjected to sexual intercourse
previously or not.

12- It is not elicited by the evidence of
PW5 as to what was the nature of the
hymen that was found intact in the
person of the prosecutrix. Though it may
be true that the rupture of the hymen
may not occur in all cases of sexual
intercourse, but it is the burden of the
prosecution to extract from the medical
examiner examining a rape victim, that
the nature of the hymen was such that it
could remain intact despite there being
intercourse with the girl on several
occasions within a period of 15 to 20
days. The medical examiner has merely
mentioned that there were no signs of
recent sexual intercourse which is
inadequate to establish that sexual
intercourse took place before that at all.

13- The appellant State relied upon the
case of Madan Gopal Kakkad v. Naval
Dubey, (1992) 3 SCC 204, wherein this
Court has held that even the slightest
penetration of penis into vagina without
rupturing the hymen would constitute
rape. The appellant contended that the
fact that the hymen of the prosecutrix
was not ruptured does not lead to the
inference that there was no sexual
intercourse. But we do not find any
weight in this submission as there is no
medical evidence even to suggest the
slightest of penetration.

14- Learned counsel for the
respondent relied upon the case of
Radhu v. State of M.P., (2007) 12 SCC
57, wherein this Court had laid down the
principle that a conviction of rape can
be based on the uncorroborated
testimony of the prosecutrix and even
the absence of injuries on the private
parts of the victim will not falsify the
case of rape, but at the same time, the
Courts must bear in mind that the
question whether there was rape or not
would depend ultimately on the facts
and circumstances of each case.

15- Learned counsel for the respondent
further relied upon Mohd. Ali v. State of
U.P., (2015) 7 SCC 272, wherein this
Court recently held as follows:

“30. True it is, the grammar of law
permits that the testimony of a
prosecutrix can be accepted
without any corroboration without
material particulars, for she has
to be placed on a higher pedestal
than an injured witness, but, a
pregnant one, when a court, on
studied scrutiny of the evidence
finds it difficult to accept the
version of the prosecutrix,
because it is not unreproachable,
there is requirement for search of
such direct or circumstantial
evidence which would lend
assurance to her testimony…”

16- In the present case, the gaps in the
evidences of the prosecutrix and the
medical officer make it highly
improbable that sexual intercourse took
place. It would be erroneous to rely
upon such discrepant testimonies and
convict the accused. It can thus be
stated with certitude that the solitary
evidence of the prosecutrix, in absence
of any corroboration by the medical
evidence, is not of such quality which
can be relied upon. The accused-

respondent is, therefore, entitled to
benefit of doubt.

17- Thus, in the light of the above
discussion, we are of the view that the
present appeal is devoid of merits, and
we find no grounds to interfere with the
judgment passed by the High Court. The
appeal is, accordingly, dismissed”

In the present case, only the statement of the
prosecutrix is against the accused and there is no
evidence by independent witnesses or by eye witnesses
who were present at the time of the incident. As per the
statement of the prosecutrix her younger brother and
sister were also playing outside the house. The
independent witnesses have turned hostile but the
Court has relied only on the ground that the accused is
having criminal antecedents and under the fear they all
have turned hostile. At the time of their evidence in
court, the accused was in jail, therefore, he had no
occasion to influence or terrorize the witnesses. The
prosecutrix made her improved version of evidence
before the Court and there is lots of omission and
contradiction in her statement. Dr Kalpana Patidar PW-
12 did not give any definite opinion of rape. That
biochemical report was required but that was not done
by the prosecution. Doctor Kalpana Patidar PW-12 has
not found any injury on the internal part of the
prosecutrix. Hymen was not found torned, therefore,
the accused/appellant is entitled for the benefit of
doubt. He has also completed more than seven years in
jail, hence, the present appeal is allowed
He be released forthwith, if not required in any
other offence. Fine amount, if deposited, be returned
to him. Order of the Court regarding disposal of the
property is maintained.

(Vivek Rusia)
sourabh Judge
Digitally signed by
SOURABH YADAV
Date: 2018.07.31 18:32:44
+05’30’

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