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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.
—————————————————————————————
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