(1)

Criminal Appeal No. 2494/2006

THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

D.B. (1)Hon’ble Shri Justice Rajendra Mahajan.
(2)Hon’ble Shri Justice C.V. Sirpurkar.

CRIMINAL APPEAL NO.2494 of 2006

Ramnath S/o Ramprasad
Barman aged 37 years, R/o
village Bhaiswahi, P.S.
Vijayrahavgarh, District Katni
(M.P.).
Appellant.
Versus

State of M.P. through P.S.
Vijayrahavgarh, District Katni.
Respondent.
………………………………………………………………………….
For Appellant : Smt. Durgesh Gupta, learned counsel.
For Respondent : Shri Y.D. Yadav, learned Panel Lawyer
/State
………………………………………………………………………….
J U D G M E N T

(Pronounced on the 22 n d day of June, 2017)

Per: RAJENDRA MAHAJAN, J.

This appeal is directed against the judgment and order

dated 22.11.2006 passed by the Third Additional Sessions

Judge (FTC) Katni in Sessions Trial No.14 of 2006, by which

the appellant-accused stands convicted under Section 376 of

the IPC and sentenced to life imprisonment with a fine of

Rs.1000/- (one thousand) in default to suffer further

imprisonment for six months.

(2)

Criminal Appeal No. 2494/2006

(2) The following are uncontroverted and admitted facts

of the case -:

(1) The relation between the appellant and the

prosecutrix (PW-3) is the father and the daughter

respectively.

(2) At the relevant point of time, the age of the

prosecutrix was near-about 14 years.

(3) The prosecutrix’s mother had died before the

incident in question.

(4) Uma @ Salma (PW-4) and Shakun Bai (PW-5)

are Mousi (real sister of the prosecutrix’s mother) and Mami

(maternal aunt) of the prosecutrix respectively. At the

material point of time, they were neighbours in village Bilari.

(5) After the lodgement of the FIR by the

prosecutrix, she has been living with Uma.

(3) The prosecution case as unfolded at the trial, in brief,

is as follows:-

(3.1) On 21.08.2005, the prosecutrix accompanied by

Uma and Shakun Bai made an oral report at

Police Station Madhav Nagar of Katni town

stating that she is a resident of village Bhaiswahi

and she does house chores. Her mother had died
(3)

Criminal Appeal No. 2494/2006

five years ago. She and her two younger

brothers live with her father Ramnath, who is the

appellant-accused herein, in village Bhaiswahi.

Her father used to commit sexual intercourse

with her despite her strong protests. He did not

allow her to go outside the house. For the said

reason, she did not narrate his perverted sexual

acts to any person of her acquaintance. As a

result of the cohabitation, she became pregnant

and she is at present carrying a fetus aged about

four months in her womb. On 21.08.2008, her

father brought her to the house of Uma at

village Bilari for medical treatment as her health

is deteriorating on account of pregnancy. In the

absence of her father, she related the matter to

her Mousi Uma and Mami Shakun Bai. Upon their

suggestion, she has come to lodge the report.

Upon her oral report, Sub-Inspector C.K. Tiwari

(PW-10) recorded an FIR being Ex.P-3 and

registered a case against the appellant under

Section 376 IPC at Crime No.0 of 2005 as the

place of occurrence village Bhaiswahi falls under

the territorial jurisdiction of Police Station
(4)

Criminal Appeal No. 2494/2006

Vijayraghavgarh of Katni district.

(3.2) On 22.08.2005, C.K. Tiwari sent the prosecutrix

for medico-legal examination to the Government

Hospital Katni, where Dr. Sunita Verma (PW-6)

examined her and gave a report Ex.P-6 stating

that there is a fetus aged about 14 to 16 weeks

in the prosecutrix’s womb. She also collected

smear of her vaginal swab and prepared slides of

it for forensic tests.

(3.3) On 22.08.2005, C.K. Tiwari sent the FIR Ex.P-3

and the prosecutrix’s medical report Ex.P-6 to

Police Station Vijayraghavgarh. On the basis of

the FIR, Sub-Inspector Manjeet Singh (PW-11)

recorded FIR Ex.P-12 verbatim and registered a

case against the appellant at Crime No.150 of

2005.

(3.4) Sub-Inspector Manjeet Singh took over the

investigation. He prepared the site plan Ex.P-4,

recorded the case diary statements of the

witnesses who are conversant with the incident,

and arrested the appellant vide arrest memo

Ex.P-15. On 23.08.2005, he sent the appellant

for medico-legal examination to the Community
(5)

Criminal Appeal No. 2494/2006

Health Center, Vijayraghavgarh, where Dr. R.K.

Jharia (PW-2) examined him and gave a report

Ex.P-2 stating that the appellant is capable of

doing sexual intercourse. He also prepared slides

of semen of the appellant.

(3.5) Upon the conclusion of investigation, the police

filed a charge-sheet against the appellant for his

prosecution under Section 376 IPC.

(4) The learned trial Judge framed the charge against the

appellant under Section 376 IPC. He pleaded not guilty to the

charge and opted to contest the case. In the examination

under Section 313 of the Cr.P.C., the appellant denied all the

incriminating evidence and circumstances appearing against

him in the case except the admitted facts. His defence,

simpliciter, was of false implication by the prosecutrix at the

instigation of her Mousi Uma. However, he did not adduce

any oral or documentary evidence in support of his defence.

(5) The learned trial Judge having marshalled, analyzed

and evaluated the evidence on record has held the appellant

guilty of raping the prosecutrix several times. Having held so,

he convicted the appellant under Section 376 IPC and

sentenced thereunder as noted in para 1 of this judgment.
(6)

Criminal Appeal No. 2494/2006

(6) Feeling aggrieved by and dissatisfied with the

impugned judgment, the appellant has filed the appeal before

this court.

(7) Learned counsel for the appellant after referring

extensively to the contents of the FIR Ex.P-3 lodged by the

prosecutrix herself, her case diary statement Ex.D-1 and her

deposition, submitted that the prosecutrix has improved her

court statement on the material points to a great extent. This

improvements erode the credibility and trustworthiness of her

testimony. She further submitted that as per the provision of

Section 53-A Cr.P.C. in the course of investigation, the DNA

samples of the prosecutrix, her fetus and the appellant ought

to have been taken to get the DNA profiling done to ascertain

whether the appellant was biological father of the fetus who

was in the womb of the prosecutrix. She further submitted

that the compliance of Section 53-A Cr.P.C. is mandatory,

therefore, non-compliance of the provision of the Section

supports the defence of the appellant that he had never had

sexual intercourse with the prosecutrix and he has been

falsely implicated in the case. She further submitted that Dr.

Sunita Verma (PW-6) and Dr.R.K. Jharia (PW-2) have deposed

that they had prepared slides of smear of the prosecutrix and

semen of the appellant respectively for forensic tests, but
(7)

Criminal Appeal No. 2494/2006

there is no evidence on record whether the prosecution had

sent the slides to the forensic science laboratory for the tests

and whether the same sent the report(s) in this respect.

Moreover, the evidence of Investigating Officer Manjeet Singh

(PW-11) is completely silent on the point. She further

submitted that Uma (PW-4) and Shakun Bai (PW-5) have

deposed what they were told by the prosecutrix, therefore,

they are hearsay witnesses. As such, their testimonies have

no evidentiary value. Upon the aforesaid submissions, she

submitted that the prosecution has failed to prove its case

beyond reasonable doubt. Therefore, the impugned judgment

is liable to be set aside.

(8) In the alternative, learned counsel for the appellant

submitted that the appellant has been in jail in the case since

22.08.2005, the date of his arrest. Thus, the appellant has by

now suffered imprisonment of near-about 12 years. The

appellant has no previous conviction nor has he criminal

antecedents. Upon the aforesaid facts, she prayed that the

appellant’s jail sentence be reduced to the period he had

already undergone. In this respect, she placed reliance upon

a decision of this court rendered in Criminal Appeal No.1775

of 2000 titled Omkar Vs. State of M.P. the date of judgment

07.05.2009 (oral).

(8)

Criminal Appeal No. 2494/2006

(9) Per contra, learned Panel Lawyer submitted that as

per the FIR, case diary statement of the prosecutrix and her

court statement, the appellant committed rape upon her not

once but several times. That is why she has given the

evidence in detail as to the place, manner and conduct of the

appellant at the time of committing rape by him upon her. As

per record, the prosecutrix is of rural background and she is

an illiterate girl, therefore, it cannot be expected from her to

record the FIR and the case diary statement elaborately on

her own. Moreover, the FIR and the case diary statements are

not the encyclopedia. Therefore, recording evidence in detail

by the prosecutrix does not amount to improvement. He

submitted that the provision of Section 53-A Cr.P.C. came

into effect w.e.f. 23.06.2006, whereas the incident of the

present case was of the year 2005. Therefore, holding of the

DNA tests was not mandatory on the part of the prosecution

in the case. He further submitted that the prosecutrix lodged

the FIR when she was carrying the pregnancy of near-about

four months old. In the circumstances, the forensic

examinations of the smear of vagina of the prosecutrix and

the semen of the appellant have no bearing upon the case

even remotely. On the quantum of sentence, he submitted

that the prosecutrix has found solace from her father/the
(9)

Criminal Appeal No. 2494/2006

appellant after she had lost her mother at the age of about

10 years. In the circumstances, the sexual exploitation of the

prosecutrix by the appellant is the most abominable act.

Therefore, the learned trial Judge has rightly awarded the

sentence of life imprisonment to the appellant. Upon these

submissions, he supported the impugned judgment of

conviction and order of sentence and prayed for dismissal of

the appeal.

(10) We have earnestly considered the rival submissions

made across the Bar and perused the entire material before

us together with the impugned judgment.

(11) Prosecutrix (PW-3) has testified that she had lost her

mother near-about five years prior to the incident. She and

her two younger brothers lived with her father-appellant in

village Bhaiswahi. Near-about a year before the lodgement of

the FIR Ex.P-3 by her, the appellant used to come at night

after consuming liquor and Ganja. Thereafter, he stripped her

naked and undressed himself. He forcibly committed sexual

intercourse with her. Whenever, she complained to him

regarding pain in her private parts, he applied oil on her

thighs. As a result of sexual intercourse, she became

pregnant and started vomiting. She had also lost her

appetite. Seeing that, he took her to a doctor for treatment.
(10)

Criminal Appeal No. 2494/2006

After her clinical examination, the doctor told him that she

was carrying pregnancy of about four months. Since he had

no money to have her abortion, he approached her Mousi

Uma to get money from her on credit. At that time, he told

Uma that she had pregnancy with someone and to get her

pregnancy terminated, money is required. Uma asked him to

keep her present before her. Later, he took her to village

Bilari, the native place of Uma. One evening, she and Uma

went outside to attend the call of nature. At that time, Uma

enquired from her as to how she had become pregnant.

Thereupon, she narrated her that it was her father/the

appellant who had pregnanted her committing forcibly sexual

intercourse upon her several times. Thereafter, she lodged

the FIR Ex.P-3 with the police accompanied by Uma and Mami

Shakun Bai. We find that the prosecutrix has stated in the

FIR and her case diary statement that the appellant used to

commit sexual intercourse upon her in their house, whereas

she has stated in her evidence that the appellant ravished her

in a hut situated in an agricultural field. In our opinion, this

contradiction is of minor nature. We find that the prosecutrix

has not given details of the instances of rape in the FIR and

her case diary statement. As per record, the proseuctrix is of

rural background and that she is totally illiterate girl,
(11)

Criminal Appeal No. 2494/2006

therefore, it cannot be expected from her to give details of

the ordeals she had gone through when she was every time

subjected to rape by the appellant on his own unless and

until the police officials, who recorded the FIR and the case

diary statement of her, asked her in minute details. In this

backdrop, in our considered view, giving evidence in detail

regarding instances of rape by the prosecutrix does not

amount to improvement in her evidence. Our said view is

fortified by a decision of the Supreme Court rendered in the

case of M.G. Eshwarappa and others Vs. State of Karnataka ,

(2017) 4 S.C.C. 558.

(12) We have also found some contradictions and

inconsistencies in the contents of the FIR, case diary

statement of the prosecutrix and her deposition but they are

of very minor nature having no bearing on the case.

(13) It is pertinent to mention at this place that in para 15

of the cross-examination of the prosecutrix, the defence has

put some suggestions with an objective to elicit evidence

from her in their favour to shake the reliability of her

evidence. The suggestions are that she had pregnancy with

someone else not by her father-appellant, that he had

opposed the marriage of her Mousi Uma with a muslim man,

as a result the relation between Uma and her father are
(12)

Criminal Appeal No. 2494/2006

verymuch strained, that she had in fact a tumour in her

stomach but upon the instigation of Uma she had lodged the

false report against her father. The prosecutrix has

categorically denied all the aforestated suggestions.

(14) In our considered view, where a minor girl has

testified that her father raped her at the time when

she was in his company, the strong evidence in favour

of the father is required to disbelieve her testimony.

The underlying premise is that such accusation is in

the nature of rarest of rare because no girl would level

such charge in normal course against her own father.

Mere extracting out some minor contradictions and

inconsistencies in the cross-examination of the girl will

not be sufficed to discredit the veracity of her

evidence. From this point of view, we have perused the

evidence appearing in the cross-examination of the

prosecutrix and we find that nothing material evidence

has come out to cast a doubt upon the truthfulness of

her testimony leaving alone the discarding of it as

unreliable.

(emphasis is ours)

(15) In view of the preceded close scrutiny of the evidence

of the prosecutrix, we hold that the testimony of the
(13)

Criminal Appeal No. 2494/2006

prosecutrix inspires full confidence.

(16) From the perusal of the depositions of Uma (PW-4)

and Shakun Bai (PW-5), we find that they have corroborated

the evidence given by the prosecutrix in material particulars

except some minor inconsistencies and contradictions here

and there. We also find that the defence has failed to elicit in

their cross-examination any evidence in their favour to

discredit their evidence. As both the witnesses are close

relatives of the prosecutrix and that she had lost her mother

long back before the incident, therefore, it is natural that she

confided in them as to the person who was behind her

pregnancy. In this fact situation, we hold that their evidence

is admissible in terms of Section 6 of the Evidence Act, after

rejecting the contention raised by the learned counsel for the

appellant that the evidence of both the witnesses falls under

the category of hearsay evidence. We, therefore, hold that

their testimonies are reliable and lend full support to the

evidence of the prosecutrix.

(17) Dr. Sunita Verma (PW-6) has deposed that she had

done medico-legal examination of the prosecutrix on

22.08.2005 at the District Hospital Katni. She had found that

the prosecutrix was carrying pregnancy of 14 to 16 weeks. In

respect she gave report Ex.P-6. She has also deposed that on
(14)

Criminal Appeal No. 2494/2006

13.09.2005, the prosecutrix was brought by one Uma (PW-4)

for treatment. At that time, she and her colleague Dr. Anita

Singh (not examined) medically examined her and found that

she was heavily bleeding with short intervals via her vagina,

her uterus was half-opened, her blood pressure was 100-140

and hemoglobin level in blood was 9.4. In the circumstances,

the termination of pregnancy of the prosecutrix was

necessary to save her life, for which they got permission from

the then Civil Surgeon of the Hospital Dr. Baronia (not

examined). She has also deposed that upon her advice Dr.

Joystana (PW-1) had submitted obstetric sonography report

Ex.P-1 of the prosecutrix. On the basis of the report, she

terminated the pregnancy of the prosecutrix after admitting

her in the hospital. Upon the perusal of the cross-

examinations of both the witnesses, we find that nothing has

come out to disbelieve their evidence. Consequently, their

evidence is wholly reliable. Thus, it is medically proved that

the prosecutrix had pregnancy at the relevant point of time.

(18) Dr. R.K. Jharia (PW-2) has testified that on 23.08.2005,

he examined the appellant and found him capable of

performing sexual intercourse. He has proved his medical

report Ex.P-2. In his cross-examination, only one irrelevant

question is asked by the defence. On the basis of his
(15)

Criminal Appeal No. 2494/2006

evidence we, therefore, hold that the appellant was physically

capable of performing sexual intercourse at the material point

of time.

(19) The provision of Section 53-A Cr.P.C. was inserted in

the Cr.P.C. w.e.f. 23.06.2006, whereas the incident of the

present case is of the year 2005. Therefore, it was not

mandatory for the prosecution to get the DNA profiling of the

prosecutrix, her fetus and the appellant to ascertain that the

appellant was the father of the fetus. In Sunil Vs. State of

M.P., (2017) 4 S.C.C. 393, the Supreme Court has held that

the conviction of the accused under Section 376 IPC is also

possible on the basis of other available evidence, in case of

non-holding of the DNA test or failure to prove DNA test

report. In the light of the aforesaid ratio, we hold that non-

holding of DNA test will not affect the prosecution case

adversely.

(20) In the light of the aforesaid close scrutiny of the

evidence on record, we hold that the learned trial Judge has

rightly held the appellant guilty for sexually exploiting her

daughter/the prosecutrix.

(21) The next question before us is whether any lenience in

sentence is called for?

(16)

Criminal Appeal No. 2494/2006

(22) At this stage, it is pertinent to quote first the angst

and anguish voiced by the Supreme Court in the case of

Siriya @ Shri Lal Vs. State of M.P. [2009 (1) M.P.L.J. (Cri.)

98], wherein the father was held guilty for raping her minor

daughter by the trial court and this High court.

Para 1 :-

“There can never be more shocking,
depraved and heinous crime than when the
father is charged of having raped his own
daughter. He not only delicts the law but, it is
a betrayal of trust. The father is the fortress
and refuge of his daughter in whom the
daughter reposes trust to protect her. Charged
of raping his own daughter under his refuge
and fortress is worse than the gamekeeper
becoming a poacher and treasury guard
becoming a robber.”

Para 5 :-

“…The father is supposed to protect
the dignity and honour of his daughter. This is
a fundamental facet of human life. If the
protector becomes the violator, the offence
assumes a greater degree of vulnerability. The
sanctity of father and daughter relationship
gets polluted. It becomes an unpardonable act.
It is not only a loathsome sin, but also
abhorrent…”

On the basis of the aforesaid, the apex court has

upheld the life sentence awarded to the accused-appellant by

the learned trial Judge and affirmed by this High court,

stating that no sympathy or lenience is called for.

(23) This court had expressed almost similar sentiments in

para 12 of the decision rendered in the case of Anand Vs.
(17)

Criminal Appeal No. 2494/2006

State of M.P. 2013 (1) MPWN 94. In that case, this court

upheld the father guilty of committing rape upon her eight

years old daughter and affirmed the life imprisonment

awarded by the trial court to him stating that no lenience is

given in such type of cases. Recently, the Rajasthan High

Court in the case of Shiv Lal Uka Ji Vs. State of Rajasthan ,

2017 Cr.L.J. 1359 upheld the life imprisonment under Section

376(1) IPC awarded to the accused for having raped her

minor daughter.

(24) In the case of Omkar Vs. State of M.P. (supra) this

court has reduced the life imprisonment awarded to the

appellant-accused under Section 376 IPC to rigorous

imprisonment for 10 years. But the facts of the case are

entirely different. Therefore, the ratio of said case is not

applicable in the present case.

(25) In the case of Sevaka Perumal etc. Vs. State of Tamil

Nadu , 1991 (3) SCC 471, the Supreme Court had considered

the impact of imposition of inadequate sentence and

observed as under :-

Para 8 :-

“Therefore, undue sympathy to impose
inadequate sentence would do more harm to
the justice delivery system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
(18)

Criminal Appeal No. 2494/2006

serious threats. It is, therefore, the duty of
every court to award proper sentence having
regard to the nature of the offence and the
manner in which it was executed or committed
etc.”

In the light of aforesaid authorities and the facts and

circumstances of the present case, we find that the learned

trial Judge has rightly awarded life imprisonment to the

appellant. Therefore, we reject the prayer for granting

lenience in sentence as prayed for by learned counsel for the

appellant.

(26) For the forgoing reasons and discussions, we arrive at

the ultimate conclusion that this appeal is devoid of merits

and substance. We, therefore, dismiss this appeal, affirming

the conviction and sentence imposed upon the appellant by

the learned trial Judge vide the impugned judgment.

(Rajendra Mahajan) (C.V. Sirpurkar)
Judge Judge
haider*/-