SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Shriram Urav vs The State Of Madhya Pradesh Now … on 25 April, 2019

1

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 16 -4-2019
Pronounced on 25- 4-2019
CRA No. 1267 of 1999
(Arising out of judgment of conviction and order of sentences dated 22-
04-1999 passed by the 2nd Additional Sessions Judge, Ambikapur –
Sarguja (MP) (now in CG) in ST No. 16/1998).
Shriram Urav son of Kendaram Urav, aged 30 years, by caste Urav,
Cultivator, Resident of village Ghutarapara, Police Station Batoli, Distt.
Sarguja (Ambikapur) (MP)( now CG)
—- Appellant
Versus
State of Madhya Pradesh (now Chhattisgarh)
—- Respondent

For Appellant : Mr. Manoj Mishra, Adv.
For State : Mr. S.R.J. Jaiswal, Panel Lawyer.

Hon’ble Shri Sharad Kumar Gupta, J
C.A.V. JUDGMENT

1. Challenge in this appeal is levied to the judgment of conviction
and order of sentences dated 22-04-1999 passed by the 2nd Additional
Sessions Judge, Ambikapur – Sarguja (MP) (now in CG) in ST No.
16/1998 whereby and whereunder he has convicted and sentenced the
appellant as under :-

Conviction u/S. Sentence RI. Fine In default of
payment of fine
363, SectionIPC 3 Years – –
366, SectionIPC 5 Years – –
376, SectionIPC 7 Years Rs.200/- R.I. for 2 years

All the jail sentences have been directed to run concurrently.

2. In brief, the prosecution story is that at the time of alleged
incident prosecutrix was 15 years old. She was resident of village
Sarmana-Bhandardand. On 27-10-1997 prosecutrix was returning back
from her uncle’s house to village Bhandardand. On the way at about 11
am at Tongri, the appellant met her and asked her to come with him
otherwise he will assault her by stone. He forcefully took her by pulling
to the house of his sister co-accused Kaloti @ Kalawati. Next day, he
2

took her in the house of his related uncle co-accused Aamir Sai at
Mainpat. He committed repeatedly sexual intercourse with her at
Mainpat. On 02-11-1997 she fled away and reached in her parental
house. On 05-11-1997 she lodged an FIR against him at Police Station
Batouli. After completion of the investigation, a charge sheet was filed
against him and co-accused Kaloti @ Kalawati and Amir Sai for the
offences punishable under Sections 363, Section366, Section368, Section376 Section506 of the
Indian Penal Code (in brevity ‘SectionIPC’). The trial Court framed the charges
against him under Sections 363, Section366, Section376 of the IPC and co-accused
Kaloti @ Kalawati and Amir Sai for the offence punishable under
Section 368 of IPC. They abjured the charges and faced the trial. To
bring home the charges against them, the prosecution examined total 7
witnesses. They did not examine any witness in their defence. After
conclusion of trial, the trial Court convicted and sentenced the appellant
as mentioned above. However, the trial Court acquitted co-accused
Kaloti @ Kalawati Amir Sai for the offence punishable under Section
368 of IPC.

3. Being aggrieved by the aforesaid judgment of conviction and
order of sentences, the appellant has preferred this criminal appeal.

4. Counsel for the appellant submits that the appellant has been
falsely implicated. No rape has been committed by him with the
prosecutrix. Trial Court has not properly appreciated the evidence
available on record in proper perspective. The prosecution failed to
prove that at the time of alleged incident, she was below 16 years of
age. The FIR is delayed and no reasonable explanation has been
given by the prosecution. Therefore, the impugned judgment of
conviction and order of sentences may be set aside and he may be
acquitted of the charges.

5. On the other hand, the Panel Lawyer appearing for the State
supported the impugned judgment and submitted that the trial Court
has rightly convicted and sentenced the appellant. Hence the appeal
may be dismissed.

6. First and foremost question for adjudication before this Court is
as to whether prosecutrix was below 16 years of age on 27-10-1997.

7. P.W.-3 Lakheshwar, who is the father of prosecutrix says in para
5 in his statement given on oath on 23-04-1998 that now the age of
3

prosecutrix is 15 years. He got written the date of birth of prosecutrix in
school as 07-08-1982.

8. As per alleged certificate Ex. P-12 the date of birth of prosecutrix
is 07-08-1982.

9. As per alleged photocopy of Dhakil Kharij Register Ex.P-13-C,
the date of birth of prosecutrix is 07-08-1982.

10. There is no such evidence on record on the strength of which it
can be said that the aforesaid statement of P.W.-3 Lakheshwar is not
simple, not natural, not normal. Moreover, it gets support from Ex. P-12
Ex. P-13-C. Thus, this Court believes on the aforesaid statement of
P.W.-3 Lakheshwar.

11. After the appreciation of the evidence discussed herebefore, this
Court finds that prosecution has succeeded to prove that on 27-10-
1997, prosecutrix was below 16 years of age.

12. Now second question for consideration before this Court is as to
whether appellant had kidnapped prosecutrix with intent that she may
be forced or seduced to illicit intercourse or knowing it to be likely that
she will be forced or seduced to illicit intercourse and he had committed
rape with her.

13. As per the alleged MLC report Ex. P-9, P.W. 5 Dr. Smt. Chhipra
Shrivastava had examined prosecutrix and found that no external injury
was present on her body, her hymen was old raptured and healed, no
injury was present over her private part. She opined that prosecutrix
was habitual to intercourse thus no definite opinion can be given about
recent intercourse.

14. There is no such evidence on record on strength of which it can
be said that Ex. P-9 is not believable. Thus, this Court believes on Ex.
P-9.

15. As per alleged seizure Ex.P-3, P.W.-7 Sub Inspector B.S.
Khuntiya had seized one underwear from the possession of the
prosecutrix.

16. There is no such evidence on record on strength of which it can
be said that Ex. P-3 is not believable. Thus, this Court believes on Ex.
P-3.

4

17. As per alleged seizure Ex. P-14, P.W.-7 Sub Inspector B.S.
Khuntiya had seized one underwear from the possession of the
appellant.

18. There is no such evidence on record on strength of which it can
be said that Ex. P-14 is not believable. Thus, this Court believes on Ex.
P-14.

19. As per alleged seizure Ex. P-20, P.W.-7 Sub Inspector B.S.
Khuntiya had seized two slides in one sealed packet from constable
Suresh Prasad.

20. There is no such evidence on record on strength of which it can
be said that Ex. P-20 is not believable. Thus, this Court believes on Ex.
P-20.

21. As per alleged RFSL report report Ex. P-25, on Article A
underwear of prosecutrix, Article B underwear of appellant, Article C-1
and C-2 slides of prosecutrix, sperm and semen were present.

22. There is no such evidence on record on strength of which it can
be said that Ex. P-25 is not believable. Thus, this Court believes on Ex.
P-25.

23. P.W.-1 prosecutrix says in paras 2 and 4 of her statement of
given on oath that when she was returning back to her house from the
house of her uncle, on the way, appellant took her in the house of his
sister by pulling. Thereafter, he took her at Mainpat and committed
sexual intercourse with her.

24. P.W.-3 Lakheshwar says in paras 1 and 3 of his statement, that
prosecutrix had told that appellant took her forcibly by pulling, he had
committed repeatedly sexual intercourse with her.

25. In the matter of State of H.P. -v- Shree Kant Shekari [2004(8)
SCC 153]), the Hon’ble Supreme Court has dealt with the false
implication, the relevant portion of para 22 which reads as under :-

“22. “…………………. In any event no girl of a tender age and her
parents would like to jeopardise her entire future by falsely
implicating a person alleging forcible sexual intercourse”

26. In the matter of Puran Chand -v- State of H.P. [(2014) 5 SCC
689] Hon’ble supreme Court has dealt with the false implication, the
5

relevant portion of para 14 is as under :-

“14……In fact, we are prone to infer with reason that if the
prosecution had an intention of really planting a false story of
rape, it is highly improbable that they would have created a story
having a huge time gap between the date of incident and the date
of lodgment of the FIR leaving the scope for weakening the
prosecution case. If it were a well thought out concocted story so
as to lodge a false case, obviously the prosecution would not
have taken the risk of giving a time gap of more than 20 days
between the incident and the lodgement of the FIR. This clinching
circumstantial evidence demolishes the defence version and
inspires much confidence in what has been stated by the victim
girl.”

27. There is no such evidence on record on strength of which it can
be said that P.W.-1 prosecutrix had lodged alleged FIR Ex. P-1, she had
stated aforesaid statement of para 2 and 4, and P.W.-3 Lakheshwar had
stated aforesaid statement of para 1 and 3, only because there was
allegedly animosity between family of the prosecutrix and appellant on
account of any reason.

28. There is no such evidence on record on strength of which it can
be said that P.W.1 prosecutrix had lodged alleged FIR Ex. P-1, she had
stated aforesaid statement of para 2 and 4, and P.W. 3 Lakheshwar
had stated aforesaid statement of para 1 and 3, only because that there
was allegedly love affair between prosecutrix and appellant.

29. In the case in hand, the prosecutrix is a tender aged girl. Looking
to the aforesaid facts and circumstances of the case, and, looking to the
aforesaid judicial precedents laid down by Hon’ble Supreme Court in
the matters of Shree Kant Shekari (supra) and Puran Chand (supra),
this Court finds that there is no possibility of false implication of the
appellant in the case in hand.

30. Hon’ble Supreme Court in the matter of Radhu Vs. State of M.P.
[(2007)12, SCC 57], laid down following judicial precedent :-

“A finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix and her testimony
should not be rejected on the basis of minor discrepancies and
6

contradictions. Absence of injuries on the private parts of the
victim will not by itself falsified the case of rape, nor can be
construed as evidence of consent nor the opinion of a doctor that
there was no evidence of any sexual intercourse or rape,
sufficient to disbelieve the victim. However, courts should, at the
same time, bear in mind that false charges of rape are not
uncommon, and there are some rare instances where a parent
has persuaded a gullible or obedient daughter to make a false
charge of a rape either to take revenge or extort money or to get
rid of financial liability. Whether there was rape or not would
depend ultimately on the facts and circumstances of each case.”

31. Hon’ble Supreme Court in the matter of Munna -v- Sate of M.P.
[(2014) 10 SCC 254 ] observed in para 11 as under :-

“11. Thus, while absence of injuries or absence of raising alarm
or delay in FIR may not by itself be enough to disbelieve the
version of prosecutrix in view of the statutory presumption under
Section 114-A of the Evidence Act but if such statement has
inherent infirmities, creating doubt about its veracity, the same
may not be acted upon. We are conscious of the sensitivity with
which heinous offence under Section 376 IPC has to be treated
but in the present case the circumstances taken as a whole
create doubt about the correctness of the prosecution version.
We are, thus, of the opinion that a case is made out for giving
benefit of doubt to the accused.”

32. Looking to the aforesaid judicial precedents laid down by Hon’ble
Supreme Court in the matter of Radhu (supra), and Munna (Supra),
this Court finds that in the absence of injury on body of the prosecutrix,
due to aforesaid opinion given in Ex. P-9, the aforesaid statement of
para 2 and 4 of prosecutrix, para 1 and 3 of P.W. 3 Lakheshwar cannot
be disbelieved.

33. In Ex. P-1 it has been mentioned that appellant had threatened
prosecutrix that he will assault her by stone. He had also given
threatening to beat her. On 2-11-1997 she had fled away from Mainpat.
P.W. 1 Prosecutrix says in para 2 and 5 that appellant had threatened
her to assault by stone, she had fled away. She says in para 15 that
appellant had threatened her that if she will narrate the incident to
7

anyone then he will beat him. P.W. 3 Lakheshwar says in para 2 that
prosecutrix had told him that appellant had given threatening to beat
her, she had fled away from Mainpat. There is no such material
available on record on strength of which it can be said that, said facts
mentioned in Ex. P-1, said statement of para 2, 5 and 15 of P.W. 1
Prosecutrix, said statement of para 2 of P.W. 3 Lakheshwar are not
simple, not natural and not normal. Thus, this Court finds that said facts
mentioned in Ex. P-1, said statement of para 2, 5 and 15 of P.W. 1
Prosecutrix, said statement of para 2 of P.W. 3 Lakheshwar are simple,
normal and natural. Moreover, prosecutrix was tender aged girl,
appellant was allegedly in a position to dominate her wish and will. In
these circumstances this Court finds that due to non-alarming by her,
not complaining to any other person, it cannot be said that prosecutrix
was allegedly not taken by appellant.

34. In Ex. P-1 it has been mentioned that when prosecutrix was
returning back appellant met her on the way, he took her by pulling. He
had committed repeatedly sexual intercourse with her in Mainpat.

35. In the matter of Shree Kant Shekari [supra], Hon’ble Supreme
Court has held in para 18 as under :-

“18. The unusual circumstances satisfactorily explained the delay
in lodging of the first information report. In any event, delay per se
is not a mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic formula for
discarding the prosecution case and doubting its authenticity. It
only puts the court on guard to search for and consider if any
explanation has been offered for the delay. Once it is offered, the
court is to only see whether it is satisfactory or not. In case if the
prosecution fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor. On the
other hand, satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or vulnerability of the
prosecution case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had befallen her. That
being so, the mere delay in lodging of the first information report
8

does not in any way render the prosecution version brittle. These
aspects were highlighted in SectionTulshidas Kanolkar v. State of Goa
[(2003) 8 SCC 590 : 2004 SCC (Cri) 44] .”

36. The relevant portion of para-13 in Puran Chand (supra) wherein
the hon’ble Supreme Court has observed as under :-

“13. ……………The delay in lodging the FIR has been clearly
explained by the prosecution relating the circumstance and the
witnesses supporting the same have stood the test of scrutiny of
the cross-examination as a result of which the version of the
victim girl cannot be doubted. The delay in lodging the FIR thus
stands fully explained.”

37. Ex. P-1 was lodged on 05.11.1997 on 9th day of alleged incident
27.10.1997.

38. This has been earlier decided that aforesaid facts mentioned in
Ex. P-1, aforesaid statement of para 2, 5 and 15 of P.W. 1 Prosecutrix,
para 2 of aforesaid statement of P.W. 3 Lakheshwar are simple, normal
and natural. Moreover. It has been observed earlier that Prosecutrix
was a tender aged girl, the appellant was in a position to allegedly
dominate her wish and will. These circumstances are just and sufficient
for causing inordinate delay in lodging Ex. P-1. Thus, this Court finds
that the inordinate delay in lodging Ex. P-1 has been sufficiently
explained by the prosecution. Thus, looking to the judicial precedents in
the matters of Shree Kant Shekari (supra), Puran Chand (supra),
and Munna (supra), this Court finds that the inordinate delay in lodging
Ex. P-1 is not fatal to the prosecution case.

39. Looking to the above-mentioned facts and circumstances, this
Court finds that Ex. P-1 is normal, natural, simple and is not concocted,
not fabricated, regarding aforesaid facts.

40. No material omissions and contradictions have been dealt by
appellant during the cross-examination of P.W.-1 prosecutrix and P.W. 3
Lakheshwar which may adversely affect the aforesaid testimony of para
2 and 4 of P.W. 1 prosecutrix, Para 1 and 3 of P.W.-3 Lakheshwar.

41. There is no such material available on record on strength of
which it can be said that aforesaid statement of para 2 and 4 of
prosecutrix, para 1 and 3 of P.W.-3 Lakheshwar are not simple, not
9

natural, not normal, thus, this Court finds that aforesaid statement of
para 2 and 4 of prosecutrix, para 1 and 3 of P.W. 3 Lakheshwar are
simple, natural and normal.

42. As per the provisions of Section 375 of the IPC, Sixthly [as per
the SectionCriminal Law (Amendment) Act, 2013 came into force on 3 rd day of
February, 2013] a man is guilty of the offence of rape who commits
sexual intercourse with or without consent of the prosecutrix who is
under 18 years of age. Before this amendment for the offence of rape
the age of prosecutrix was below 16 years.

43. In the matter of Harpal singh -v- State of Himanchal Pradesh
[(1981) 1 SCC 560], which was a matter of sexual intercourse with a
girl below 16 years of age, Hon’ble Supreme Court held that consent of
girl below 16 years of age for sexual intercourse is of no consequence.
The fact that no injury was detected on the private part of the girl and
that she was found to have been used to sexual intercourse is
immaterial.

44. In Shree Kant Shekari (supra), Hon’ble Supreme Court while
dealing the sexual intercourse with minor girl has observed in para 14
of which the relevant portion is extracted herebelow :-

“14. …….Therefore, on the date of occurrence and even when
the FIR was lodged on 20-11-1993 she was about 14 years of
age. Therefore, the question of consent was really of no
consequence”

45. This has been earlier decided that on 27.10.1997 prosecutrix was
below 16 years of age. Thus looking to the above-mentioned judicial
precedents laid down by the Hon’ble Supreme Court in Harpal Singh
(supra) and Shree Kant Shekari (supra), this Court finds that the
question of consent of the prosecutrix does not arise in the case in
hand regarding the offence punishable under Section 376, SectionIPC.

46. Hon’ble Supreme Court in the matter of Raju and others -v-
State of MP [(2009) 3 SCC(Cri) 751)], held that testimony of the
prosecutrix is believable on a par with that of an injured witness, her
testimony cannot always be presumed to be gospel truth. Possibility of
exaggeration or embellishment or false implication where several
persons are accused cannot be ruled out. Possibility of immoral past of
10

prosecutrix based on evidence can be considered.

47. In the matter of Mohd. Ali -v- State of UP [2015 (7) SCC 272],
Hon’ble Supreme Court observed in para 30 as under :-

“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.”

48. This has been earlier decided that aforesaid statement of para
2 and 4 of prosecutrix, aforesaid statement of Para 1 and 3 of P.W.-3
Lakheshwar are simple, natural and normal thus, on the basis of
aforesaid judicial precedents laid down by Hon’ble Supreme Court in
the matters of Radhu (supra), Mohammad Ali (supra), Raju and
others (supra) and Munna (supra) this court finds that this Court can
act upon aforesaid sole testimony of prosecutrix.

49. In the case in hand, the aforesaid testimony of prosecutrix gets
corroboration from Ex. P-1, Ex. P-3, Ex. P-9, Ex. P-14, Ex. P-20 and
Ex. P-25.

50. After the appreciation of the evidence discussed herebefore this
Court believes on aforesaid testimony of para 2 and 4 of P.W. 1
prosecutrix, aforesaid statement of Para 1 and 3 of P.W. 3 Lakheshwar.

51. After the appreciation of the evidence discussed herebefore, this
Court finds that prosecution succeeded to prove beyond reasonable
doubt the charges punishable under Sectionsections 363, Section366 and Section376 of the
IPC against the appellant. Thus, trial Court did not commit any illegality
in convicting the appellant as aforesaid. Hence, aforesaid conviction is
affirmed.

52. The ingredients of Section 363 IPC are included in the
ingredients of Section 366 IPC. In other words Section 366, SectionIPC
includes the provisions of Section 363, SectionIPC. Thus, appellant cannot be
sentenced in both Sections. Thus trial Court committed illegality in
sentencing appellant for the offence punishable under Section 363 IPC
11

because trial Court had already sentenced him for the offence
punishable under Section 366 IPC. Thus his conviction for the offence
punishable under Section 363 IPC is hereby set aside.

53. The sentences for the offences punishable under Sections 366
and Section376 IPC are just and sufficient thus the sentences for the offences
punishable under Section 366 and Section376 IPC, awarded by trial Court are
affirmed.

54. Appeal is partly allowed.

55. Appellant is reported to be on bail. His bail and bonds are
canceled. He is directed to surrender immediately before the trial Court
for undergoing remaining part of sentences. The Trial Court is also
directed to take the appellant in custody immediately for undergoing
the remaining part of sentences.

Sd/-

(Sharad Kumar Gupta)
Judge

pathak/laxmi

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine


All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation