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HIGH COURT OF MADHYA PRADESH: JABALPUR
SINGLE BENCH: Hon’ble Mr. Justice Subodh Abhyankar
CRIMINAL APPEAL NO.2380 OF 2013
Satish Kumar Uikey.
Vs.
State of Madhya Pradesh.
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Shri Narendra Nikhare, learned counsel for the appellant.
Shri D.K.Paroha, learned Govt. Advocate for the State.
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JUDGEMENT
(Delivered on this the 24th day of July, 2018)
This criminal appeal under Section 374 (2) of
the Code of Criminal Procedure has been preferred by
the appellant being aggrieved of the judgment dated
31/8/2013 passed by the Additional Sessions Judge,
Lakhnadon District Seoni in ST No.198/2011, whereby
the present appellant has been convicted and sentenced
as under:
Conviction Sentence Default clause
u/s
376 (g) of IPC RI for ten years RI for six months
with fine of
Rs.3,000/-.
2. In brief the facts of the case are that on
22.8.2011 at around 3:00 O’clock in the evening at
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Village Joba the prosecutrix was raped by the co-accused
Brajesh after closing the door of his house and
subsequently appellant Satish and co-accused Santosh
also raped her, thus it is a case of gang rape. Since
Santosh and Brajesh were minor below 18 years, their
case were separately tried by the Juvenile Court, however
the present appellant being major was tried by the
Additional Sessions Judge, Lakhnadon and was convicted
as aforesaid.
3. Learned counsel for the appellant has
submitted that no case of rape is made out against the
appellant, as according to the MLC (Ex.P-21-A), no
opinion of rape has been given by Dr.Chetna Wandre (PW-
10), who has opined that the prosecutrix had no external
injury and only a possibility has been expressed by her
about the intercourse, that she might have been
subjected to sexual intercourse. Learned counsel for the
appellant has further submitted that had it been a case of
gang rape, the doctor could have opined differently and
since even according to the doctor it was difficult to
insert two fingers in the vagina of the prosecutrix, it
cannot be said that she was subjected to sexual
intercourse. Learned counsel for the appellant has
further submitted that the appellant has been falsely
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implicated, although no defence witness has been
examined on his behalf. It is further submitted that the
FIR has been lodged after undue delay of 12 days and
there is no explanation in respect of such undue delay.
4. On the other hand, learned counsel for the
State has opposed the prayer of the appellant and has
submitted that the prosecution has proved its case
beyond reasonable doubt, even though the doctor’s
opinion is that sexual intercourse could have been
committed, the benefit of doubt cannot be given to the
accused specially in the light of the statement made by
the prosecutrix (PW-5) aged only 14 years and had no
reasons to falsely implicate the appellant.
5. Heard the learned counsel for the parties and
perused the record.
6. So far as the age of the prosecutrix is
concerned, from record, this Court finds that the
prosecutrix’s age was 14 years at the time of incident and
it is proved through her report card of Class-III in which
her age is mentioned as 15.5.1997. Apart from that, in
the ossification test PW-1 Dr. K.C.Meshram has also
opined that her age is between 13 to 15 years, hence it
can be safely held that at the time of incident i.e. on
22.8.2011 the prosecutrix was around 14-15 years old.
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The prosecutrix (PW-5) has clearly stated that on the day
of incident when she was going to buy the tea leaves, co-
accused Brajesh called her and asked her to bring Gutka
and when she went to his house, he dragged her inside
the room and closed the doors, and thereafter he
committed rape on her because of which she started
bleeding. Thereafter co-accused Santosh also raped her
and subsequently appellant Satish, who was hiding in the
house, also raped her. Co-accused Brajesh also
threatened the prosecutrix of dire consequences if she
tells to anybody. After the incident, the prosecutrix came
back to her house and due to fear she did not tell to
anybody and subsequently when her mother and brother
came to the house from other village she narrated the
entire incident to her mother and then on 3.9.2011 an
FIR was lodged of the incident which took place on
22.8.2011 i.e. on the 12th day. The prosecutrix (PW-5) has
been cross examined in detail, but nothing substantive
could be extracted from her statement and the omissions
and contradictions in her statement are minor in nature,
and hence are liable to be ignored.
7. In the considered opinion of this Court the
delay of 12 days in lodging the FIR cannot be said
unreasonable looking to the fact that the prosecutrix was
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merely 14-15 years old at the time of incident and soon
after the offence of rape was committed by the accused
persons, she was also threatened of dire consequences,
this is coupled with the fact that her mother also was not
available at home in whom she could confide and hence
the contention raised by the learned counsel for the
appellant that the FIR was lodged after undue delay
cannot be accepted as the delay has been properly
explained.
8. The deposition of the prosecutrix has also been
supported by her mother Muniya Bai (PW-6), who has
stated that on the date of incident, she was not at home
and had gone with her elder daughter and son to
Narsinghpur to work and when she came back, she found
her daughter-prosecutrix to be ill. She also tried to treat
her but when she asked as to what has happened, her
daughter narrated the entire incident to her. She has also
stated that after the incident the accused persons also
threatened her daughter of dire consequences. She has
also stated that after 10-12 days swelling on the private
part of the prosecutrix had continued and hence
subsequently she was also medically examined through
her consent (Ex.P-15). She also handed over the clothes
of her daughter to the police, which she was wearing at
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the time of incident. The omissions and contradictions in
her statement are minor in nature, and therefore the
same can be ignored. She also admitted that the clothes
of her daughter were washed by her daughter-in-law as
she was under impression that the blood was on account
of menstrual periods of her daughter. No question has
been asked to this witness in her cross examination as to
why she is falsely implicating the appellant in the
aforesaid case.
9. Dr. Chetna Vandre (PW-10) although has stated
that there was no external injury on the person of the
prosecutrix, however her hymen was ruptured and there
was redness around the uvula. She also found that it was
difficult to insert two fingers in the vagina of the
prosecutrix She has also stated that the hymen can be
ruptured for any other reason. However, from perusal of
her deposition, it appears she has not even been informed
about the date of incident on the date of her examination.
Thus the MLC has taken place on 04.09.2011 after the
period of around 12 days, as the date of incident is
22.8.2011 and the date of her examination is dated
4.9.2011, and as such in the meantime the prosecutrix
must have already recovered form injuries caused to her
but still the doctor has found redness around her vagina
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hence no advantage of the same can be taken by the
accused persons if there is some delay in conducting the
MLC.
10. After a close scrutiny of the evidence on record
this court has no reasons to disbelieve the testimony of
the prosecutrix aged just above 14 years. It is also
observed that as many as three persons have committed
the rape with the prosecutrix and there cannot be any
reason for her to falsely implicate three persons at a
time. There is noting on record brought by the appellant
to show that there was previous enmity between the
appellant and the prosecutrix’s family except a passing
question made to PW-6 Muniya Bai that appellant Satish
has been implicated due to dispute but this witness has
denied the same.
10. In view of the aforementioned discussion, this
Court is of the considered opinion that no illegality or
jurisdictional error has been committed by the learned
Judge of the trial Court in convicting the present
appellant for the aforesaid offence. Accordingly, the
conviction of the appellant is hereby confirmed and the
present appeal stands dismissed.
(Subodh Abhyankar)
Digitally signed by MANZOOR Judge
AHMED 24/07/2018
Date: 2018.07.24 15:17:31 +05’30’
Ansari