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Shalikram Kushwaha vs The State Of Madhya Pradesh on 5 April, 2018

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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No.492/2008

BEFORE DIVISION BENCH JUSTICE J.K.MAHESHWARI

JUSTICE J.P.GUPTA

Shalikram Kushwaha
S/o.Jamuna Kushwaha
Aged about 40 years
R/o.Village Padkhuri
Police Station Rampur Naikin
District-Sidhi (MP) APPELLANT

VERSUS

State of Madhya Pradesh
Through Police Station Rampur Naikin
District-Sidhi (MP) RESPONDENT

******
For the Appellant : Shri Sudesh Kumar Mishra, Advocate.
For the respondent: Shri Anubhav Jain, Government Advocate.
******
JUDGMENT

5.4.2018

This appeal under Section 374(2) of the Code of Criminal
Procedure (hereinafter shall be referred to as ”Cr.P.C”) has been filed
being aggrieved by the judgment of conviction and the sentence dated
11.1.2008 passed by the 1st Additional Sessions Judge, District Sidhi in
Sessions Trial No.23/2007 convicting the appellant Shalikram Kushwaha
for the charge of Section 376(2)(cha) of the Indian Penal Code
(hereinafter shall be referred to as ”I.P.C”) and sentencing him to
undergo imprisonment for life and to pay a fine of Rs.500/- and in
default of payment of fine to further undergo rigorous imprisonment
for three months.

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2. The case of the prosecution in brief is that on 24.11.2006 at
about 5:00 pm, the prosecutrix, aged about 3 years, was playing with
her sister Rupna (PW.2) on a cement pipe in the garden near her house
at Village Padkhuri Kothar. The accused Shalikram Kushwaha came
there and after lifting the prosecutrix committed rape with her inside
the cement pipe. On hearing the alarm raised by Rupna (PW.2), her
grand mother Kemli (PW.4) rushed there and at that juncture, the
accused ran away from the spot. Kemli (PW.4) brought the prosecutrix
at home and in the evening when Motilal (PW.3) Mamta (PW.1)
[father and mother of the prosecutrix] returned from the field, they
have been informed about the incident. The incident is of 24.11.2006 but
the first information report was lodged on the next date i.e.25.11.2006
by Motilal (PW.3) vide Exhibit P/2. The medical examination of the
prosecutrix was conducted by Dr.Smt.Pushpa Bhagat (PW.7) vide
Exhibit P/6, who opined regarding commission of rape with the
prosecutrix. The medical examination of the accused was also
conducted by Dr.Sandeep Bhalla (PW.8) vide Exhibit P/9.

3. After completion of the investigation, the Challan was filed
in the Court of Judicial Magistrate First Class Churhat, District Sidhi but
as the case was triable by the Court of Sessions, therefore, it was
committed to the Court of Sessions from-where it was received by the
1st Additional Sessions Judge, District Sidhi for trial where the charge of
Section 376(2)(cha) of the I.P.C was framed against appellant/accused
Shalikram Kushwaha.

4. The appellant/accused Shalikram Kushwaha has abjured his
guilt and taken a defence of false implication on the pretext that as the
land was in the name of his uncle Kemla, who is the grand father of the
prosecutrix and they did not want to give the land, therefore, he has
been falsely implicated in this case. The prosecution examined as many
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as ten witnesses in support of their case but the accused did not
examine any witness in support of his defence.

5. The Trial Court relying upon the testimony of Mamta
(PW.1), Rupna (PW.2), Motilal (PW.3), Kemli (PW.4) corroborating the
same with the medical evidence of Dr.Smt.Pushpa Bhagat (PW.7), who
performed the medical examination of the prosecutrix vide Exhibit P/6
so also the F.S.L. report (Exhibit P/17) convicted the appellant Shalikram
Kushwaha for the charge of Section 376(2)(cha) of the I.P.C and
directed him to undergo the sentence as hereinabove described.

6. Learned counsel for the appellant has strenuously urged
that the conviction of appellant is not based on due appreciation of the
evidence brought on record by the prosecution. The Trial Court has
considered the testimony of the prosecution witnesses particularly
Rupna (PW.2), who was playing alongwith the prosecutrix at the
relevant point of time but this witness has not supported the
prosecution story. Kemli (PW.4), who came on spot after hearing the
cry of Rupna (PW.2), has also not supported the prosecution story.
However, merely on the basis of the circumstances gathered from the
prosecution narration and relying upon the testimony of Motilal (PW.3),
who is a hearsay witness and has also not supported the prosecution
story later and the testimony of Mamta (PW.1) who in the later part of
her statement, has also not supported the prosecution story
corroborating the same with the medical evidence, the Trial Court
convicted the accused/appellant Shalikram Kushwaha for the charge of
Section 376(2)(cha) of the I.P.C and sentenced him as hereinabove
described.

7. It is contended by learned counsel for the appellant that
looking to testimony of the aforesaid prosecution witnesses, the
prosecution has failed to establish its case beyond reasonable doubt. If
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the aforesaid testimony of the prosecution witnesses is correlated with
the F.S.L.report (Exhibit P/17) then it is apparent that on slight ”B”, the
sperm was not found but in the undergarment, the sperm was found
otherwise the report is inconclusive. Under such circumstances, it is
urged that the conviction of appellant for the charge of Section 376(2)
(cha) of the I.P.C may be set aside. In addition to the aforesaid, it is
prayed that the appellant is in jail with effect from 25.11.2006. Thus, he
has served more than eleven years of the jail sentence and the sentence
already undergone by him would be sufficient in the facts
circumstances of this case. However, this appeal may be allowed
reducing the jail sentence of the appellant to the period already
undergone by him.

8. On the other hand, learned Government Advocate
representing the respondent/State has argued in support of the finding
as recorded by the Trial Court and urged that the conviction of appellant
is based on due appreciation of evidence brought on record by the
prosecution. Under such circumstances, the finding recorded by the
Trial Court does not suffer from any perversity or illegality warranting
interference in this appeal.

9. After hearing learned counsel for the parties and taking
into consideration the prosecution narration, it is apparent that the
incident has taken place on 24.11.2006 when the prosecutrix was playing
with her sister Rupna (PW.2) in a garden nearer to her house. The
accused came there and after lifting the prosecutrix went inside the
cement pipe and committed rape with her. It is true that Rupna (PW.2)
has not supported the prosecution story but on hearing the hue and cry
of Rupna (PW.2), the grand mother of the prosecutrix Kemli (PW.4)
reached on the spot.

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10. Perusal of the testimony of Kemli (PW.4) goes to indicate
that when she returned from the field, she saw the prosecutrix weeping
there. The prosecutrix gave an indication towards the accused
regarding commission of rape with her. Her undergarment was full of
bloodstains. She was brought at home by Kemli (PW.4) where she
narrated the incident to her parents thought later on she has not
supported the prosecution story but the aforesaid fact indicates the
presence of the accused and commission of rape as said by the
prosecutrix to Kemli (PW.4).

11. Similar is the statement of complainant Motilal (PW.3)
Mamta (PW.1), who are father mother of the prosecutrix respectively.
If the testimony of Dr.Smt.Pushpa Bhagat (PW.7), who performed the
medical examination of the prosecutrix vide Exhibit P/6, is taken into
consideration then it is apparent that external as well as internal injury
was found on the private part of the prosecutrix and the doctor has
clearly opined that it is a case of commission of rape with the
prosecutrix. In our considered opinion, the finding of commission of
rape as recorded by the Trial Court while convicting the appellant does
not warrant any interference in the facts circumstances of this case.

12. Insofar as the alternative argument of learned counsel for
the appellant for reducing the sentence upto the period already
undergone is concerned, it is apparent that the appellant is in jail with
effect from 25.11.2006. Thus, he has served more than eleven years of
the jail sentence. The minimum sentence of ten years is prescribed for
the offence under Section 376(2)(cha) of the I.P.C and the appellant has
already served the actual jail sentence of more than eleven years and
including the period of remission, it would be about fourteen years. In
that view of the matter, in our considered opinion, the sentence already
undergone by him would be sufficient in the facts circumstances of
this case.

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13. Accordingly, this appeal filed by the appellant Shalikram
Kushwaha is devoid of merit and hence it is dismissed maintaining the
finding of conviction recorded by the 1st Additional Sessions Judge,
District Sidhi vide judgment dated 11.1.2008 in Sessions Trial No.23/2007
but his sentence is reduced to the period already undergone by him.
The appellant is in jail with effect from 25.11.2006. He be set
at liberty forthwith if he is not required in any other case.

(J.K.Maheshwari) (J.P.Gupta)
Judge Judge
amit

Digitally signed by AMIT JAIN
Date: 2018.04.06 18:39:33
+05’30’

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