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State Of M.P. vs Halke on 23 March, 2018

1
CRA.365/2001

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

(DB : SHEEL NAGU S.A.DHARMADHIKARI, JJ.)
Criminal Appeal No. 365/2001
State of M.P.
Vs.
Halke
__
For appellant
Shri Kamal Jain,Public Prosecutor for the appellant / State.
For Respondent
Shri K.S. Tomar, Senior counsel with Shri J.S. Kaurav, counsel for
the respondent.
_

JUDGMENT

( 23 .03 .2018)
Sheel Nagu, J.

1. In this present appeal, the State counsel assails the
judgment of acquittal rendered by Sessions Judge, Vidisha in S.T.
No. 123/2000 on 31st January, 2001 acquitting the sole respondent
of the charge u/s 376 (f) IPC for having committed rape against the
prosecutrix aged 10 years.

2. The facts in nutshell are that on 04.07.2000 in the evening
when prosecutrix aged 10 years was playing next to the house of
her uncle Nirpat, the accused / respondent caught hold of her hand
and took her to the roof of house of Nirpat where the respondent
committed rape and threatened her of dire consequence, if she
disclosed the incident to anyone. The prosecutrix being of tender
age out of fear do not disclose the said act of the respondent to any
one. Two days thereafter when the prosecutrix was having a bath
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along with her father Munshi Lal (PW-3), near the well, Munshi Lal
(PW-3) noticed the prosecutrix to be bleeding. Munshi Lal brought
the prosecutrix home and informed his wife Parwati Bai (PW-2)
about the injuries caused to the prosecutrix. Parwati Bai took the
prosecutrix to a private place and asked her the cause behind the
said injury. It was then that the prosecutrix informed her mother
about the incident which took place two days back. Mother of the
prosecutrix informed her husband about the incident, who in turn
informed Roop Singh Thakur. Due to dearth of money, the
prosecutrix could not be taken for treatment on the same day but
on the next day FIR Ex.P-2 was lodged on 07.07.2000 at 10:00 am
and the prosecutrix was subjected to medical examination on the
very same day at 12:15 pm vide Ex.P-3 where Doctor Kirti Madoiya
(PW-4) confirmed the incident of rape. The investigation was
conducted and necessary legal formalities were completed
including arrest of the accused on 13.07.2000. Vaginal swab and
other seized items were sent for forensic examination vide Ex.P-11.
Vide Ex.P-12 the FSL report was furnished on 04.09.2000 inter alia
opining that the article B underwear of the prosecutrix was found to
contain traces of semen. Vide Ex.P-4 respondent / accused was
subjected to medical examination opiniing that there is nothing to
suggest that the respondent is incapable of performing intercourse.
Statements u/s 161 Cr.P.C. of the prosecution witnesses were
recorded including that of the prosecutrix. The charge sheet was
filed and case was committed to the court of Sessions where
charge u/s 376(2)(f) IPC was framed against the respondent.

3. The prosecution produced 5 witnesses i.e. (PW-1), Parwati Bai
(PW-2),Munshi Lal(PW-3), Dr. Kirti Madoiya (PW-4), I.M. Quraishi
(PW-5). Prosecution also exhibited documents from Ex.P-1 to Ex.P-

13. On the other hand, defence has examined three witnesses
namely Bhuribai (DW-1), Shyam lal (DW-2) and Mahendra Singh
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CRA.365/2001

(DW-3).

4. Accused denied having committed the offence in his
statement statement u/s 313 Cr.P.C and alleged false implication
by revealing that it was Babla who infact had committed rape but
the respondent has been falsely implicated on account of animosity
between the two.

5. Learned trial judge after marshalling the evidence and other
material brought by the prosecution on record including the
evidence in support of defence, acquitted the accused / respondent
of the said charge primarily on the following grounds :-

(i) The injuries found on the private part of the prosecutrix
were opined by Dr. Kranti Madoiya (PW-4) to be caused
about 24 hours before the examination, whereas the
examination was conducted after three days of the incident.

(ii) Absence of cogent evidence to establish that how the
accused / respondent climbed the roof top when there were
no stairs and the accused is admittedly disabled.

(iii) The FIR dated 07.07.2000 was lodged after three days
of the incident which occurred on 04.07.2000.

(iv) Failure of the prosecution to examine Nirpat who was
owner of the house where the incident took place.

(v) The underwear of the prosecutrix which was seized
and sent to FSL for examination was not cogently proved to
be the one which was worn by the prosecutrix at the time of
incident.

6. The prosecutrix is a 10 year old girl who was examined as
PW-1 after confirming her mental maturity to be subjected to the
rigors of examination-in-chief and cross-examination. The
prosecutrix deposed in examination-in-chief that she was playing
near the house of Nirpat when respondent / accused came and
caught hold of her hand and took her to the roof top of the house of
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CRA.365/2001

Nirpat where he committed rape (Bura Kaam) with her. The
prosecutrix further disclosed that due to the act of the accused she
sustained injuries in her private parts which led to bleeding. The
threat of dire consequences if she reveals about the incident to
anyone was given by the accused as disclosed in her examination-
in-chief. Prosecutrix further states in examination-in-chief that
thereafter she fell ill and when after three days she was having
bath at the well along with her father, the injury sustained by her in
private part started bleeding which was noticed by her father. On
being inquired by her father PW-3, the prosecutrix disclosed about
the incident. The prosecutrix then deposes that she was taken
home by the father where she disclosed to her mother about the
incident. She further reveals that her father then lodged the FIR
and she was subjected to medical examination.
6.1. In cross-examination, the prosecutrix has admitted that to
reach the spot where the incident took place there are no stairs and
one has to take the assistance of ladder. Prosecutrix further
disclosed that she goes to school every day after having a bath. In
the cross-examination, the prosecutrix has been questioned about
certain omissions made in her earlier statement that she had
screamed but the accused prevent her from doing so by covering
her mouth, that she had bled at the time of the incident and that
she had informed her father after three days during bath that
accused / respondent had committed rape with her. Prosecutrix
has further admitted that the accused /respondent is lame and
cannot walk properly. She denied that she had told her friend Preeti
about the incident. Prosecutrix further deposed that she used to
have bath on the well with her father everyday after the incident.
She further disclosed that the day on which the incident took place
she had attended her school and on the very next day she had
been given bath by her mother but on that day she did not disclose
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CRA.365/2001

about the incident to her mother.

6.2. Prosecutrix further deposes that on the next day of the
incident there was no bleeding from the injury in her private part
and the prosecutrix has shown her ignorance when asked about
the meaning of expression ” Bura Kaam”. Importantly in para 17 of
her deposition prosecutrix has denied that Babla and Hari Singh
( with whom the accused had alleged passed animosity) did not
commit any such act with her as committed by the respondent /
accused. Prosecutrix further denied in this paragraph that she had
herself climbed the ladder. Prosecutrix on her own stated that the
accused respondent had taken her up on the ladder carrying her on
his shoulder. Pertinently the prosecutrix denies in this paragraph
that the accused / respondent finds it difficult to climb a ladder.
Lastly the prosecutrix has denied the suggestion that she has been
tutored by her parents before deposing in the court and further
denies the suggestion that accused had not committed rape with
her.

7. The medical evidence in shape of MLC Ex.P-3 was prepared
by Dr. Kirti Madoiya (PW-4) who examined the prosecutrix on
07.07.2000 at 12:15 pm and proved the said MLC by stating that
on external examination she did not find any injury on the private
part of the prosecutrix but on internal examination two injuries were
found. The first was a lacerated wound ¼ inch x ¼ inch in the
vagina of the prosecutrix while the other was a lacerated wound
admeasuring ¾ inch x ¼ inch x ¼ inch. PW-4 opined that both
these injuries appeared to be caused by hard and blunt object. Dr.
Madoiya further testified that the hymen was found ruptured with
bleeding present. PW-4 further disclosed that looking to the injuries
sustained by the prosecutrix in her private parts, possibility of rape
cannot be ruled out. This witness further deposed that blood found
in the said injury was fresh and did not rule out the possibility that
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the bleeding was because of some internal abrasion which was not
visible to naked eye. PW 4 also stated that the injuries found could
have been caused within 24 hours of the examination and did not
rule out the possibility that the injuries could have been caused by
some wooden twigs. This witness lastly denied absence of traces
of semen on the underwear of the prosecutrix. This witness also
clarified on being asked that by using the term hard and blunt
weapon in the MLC she meant “hard and blunt object” .

8. Statements of the mother of the prosecutrix Parwati Bai(PW-

2) and father Munshilal (PW-3) were recorded which when read in
unison do not belied the prosecution story except for certain minor
and insignificant contradictions, embellishments and omissions
when compared with the earlier version. The deposition of both
these witnesses inspire confidence and point towards the guilt of
the respondent of having committed rape against the prosecutrix.

9. The investigating officer I.M. Quraishi (PW-5) has stated that
he has followed the procedure for conducting investigation.
Investigating officer admitted that he had not taken the statement of
Nirpat, the owner of the house, where the incident took place and
the reason assigned by I.O was that the said Nirpat had no
knowledge about the incident.

10. The defence produced three witnesses namely Bhuri Bai
(DW-1), Shyam Lal (DW-2) Mahendra Singh (DW-3). The
defence tried to raise the bogey of inimical relationship between the
rival parties.

11. The above said evidence adduced by the prosecution as well
as defence, in particular the testimony of the prosecutrix and her
parents coupled with the testimony of Dr. Kirti Madoiya (PW-4)
establish beyond reasonable doubt the factum of rape having been
committed against the prosecutrix. Factum of rape has not been
disputed even by the trial court which though found absence of
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CRA.365/2001

cogent evidence to connect the respondent with the crime of rape.
In this regard the trial court has relied upon the fact of the
respondent being lame and there being absence of clinching
evidence that he could have climbed the roof top with the help of
ladder in the absence of any stairs and that the medical evidence in
shape of Ex.P-3 opining that injury to the private parts of
prosecutrix may have been caused within 24 hours of the
examination. The trial court found that since the examination was
done on 07.07.2000 at 12:15 pm injuries must have been caused
not before morning of 6th and 7th July,2000 whereas prosecution
came with the case that incident occurred on 04.07.2000.
11.1 A priori this is a case where medical evidence, which opines
approximation of period within which the injury must have been
caused, contradict the ocular and circumstantial evidence of rape in
the shape of testimonies of prosecutrix PW-1 and her parents PW-
2 and PW-3. However, this is not a case where the factum of rape
has not been proved. By the statements of prosecutrix, her parents
and the medical evidence, rape is proved beyond all reasonable
doubt. However, there is a weak or missing link between the
incident of rape and the respondent which to some extent creates
doubt as regards the complicity of the respondent.

12. The charge of Sec. 376(2)(f) is alleged against the
respondent which reads thus :-

“376. Punishment for rape – (1).Whoever, except in the
cases provided for in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either description for
a term which shall not he less than seven years, but which
may extend to imprisonment for life, and shall also be liable
to fine.

2. Whoever,–

a. xxx xxx xxx
b. xxx xxx xxx
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CRA.365/2001

c. xxx xxx xxx
d. xxx xxx xxx
e. xxx xxx xxx

(f). being a relative, guardian or teacher of, or a person in
a position of trust or authority towards the woman,
commits rape on such woman; or
g. xxx xxx xxx
h. xxx xxx xxx
…………

…………

(m) while committing rape causes grievous bodily harm
or maims or disfigures or endangers the life of a woman;
or

(n).commits rape repeatedly on the same woman, shall
be punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to
imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life, and shall also
be liable to fine.

Explanation.–For the purposes of this sub-section,–

(a) .”armed forces” means the naval, military and air
forces and includes any member of the Armed Forces
constituted under any Jaw for the time being in force,
including the paramilitary forces and any auxiliary forces
that are under the control of the Central Government!, or
the State Government;

(b). “hospital” means the precincts of the hospital and
includes the precincts of any institution for the reception
and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as
assigned to the expression “police” under the Police Act,
1861;

(d) “women’s or children’s institution” means an
institution, whether called an orphanage or a home for
neglected women or children or a widow’s home or an
institution called by any other name, which is established
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CRA.365/2001

and maintained for the reception and care of women or
children.”

12.1. At this stage it would be apt to reproduce the provision
defining rape u/s 375 IPC as follows :-

‘375. A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or anus of a
woman or makes her to do so with him or any other person;
or

(c). manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any ~ of
body of such woman or makes her to do so with him or any
other person; or

(d). applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following
seven descriptions:–

First.–Against her will.

Secondly.–Without her consent.

Third/y.–With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourth/y.–With her consent, when the man knows that he is
not her husband and that her consent is given
because she believes that he is another man to
whom she is or believes herself to be lawfully
married.

Fifth/y.–With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
Substance, she is unable to understand the nature
and consequences of that to which she gives
consent.

10

CRA.365/2001

Sixthly.–With or without her consent, when she is under
eighteen years of age.

Seventhly.–When she is unable to communicate consent.

Explanation I.–For the purposes of this section,
“vagina” shall also include labia majora.

Explanation 2.–Consent means an unequivocal
voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:

Provided that a woman who does not physically resist
to the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.

Exception I.–A medical procedure or intervention
shall not onstitute rape.

Exception 2.–Sexual intercourse or sexual acts by a
man with his own wife, the wife not being under fifteen
years of age, is not rape.”

13. The above definition of rape prescribes any kind of
penetration into the vagina to be sufficient to constitute rape
without consent of the prosecutrix. The definition further provides
that consent becomes inconsequential if the prosecutrix is below
18 years of age. In the instant case, the defence has not disputed
that prosecutrix is below 18 years of age and therefore, the only
aspect which requires consideration in the present case is whether
there was any kind of penetration into the vagina of the prosecutrix.
The medical evidence proves the factum of penetration and
therefore, the said ingredient of rape is satisfied.

14. Section 376 IPC deals with punishment wherein Sub-section
(2) relates to graver form of rape which inter alia include rape
committed by persons who are relative or guardian or hold position
of trust or authority over the prosecutrix as contained in clause (f),
which is the case herein. Indisputably the respondent was aged 20
years residing in close neighbourhood of prosecution, was held in a
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CRA.365/2001

relationship of trust by the prosecutrix. More so, the prosecutrix
has denied the suggestion that the respondent did not subject her
to rape. The prosecutrix has further denied that respondent could
not climb the ladder despite his physical disability. Infact the
prosecutrix has clearly stated that she was taken by the respondent
on his shoulder to the roof top with the help of ladder. The
respondent on the other hand has not brought any evidence to
establish that with the kind of disability he suffered, he was
physically incapable to climb the ladder. His medical examination to
which the respondent was subjected by MLC Ex.P-14 opined that
there is nothing to suggest that the respondent is incapable to
perform intercourse. However, it seems that Ex.P-14 has not been
proved by its maker. More so, the suggestion made by the defence
that due to past animosity between the parents of the prosecutrix,
respondent has been falsely implicated, has been clearly denied by
the prosecutrix as well as her parents.

15. As aforesaid, there seems to be some contradiction between
medical evidence of Dr. Kirti Madoiya (PW-4) opining that the
injuries found in the private parts of the prosecutrix could have
been caused within 24 hours of the examination on one hand and
the version of the prosecutrix and her parents in their testimony
needs to be addressed by this Court.

15.1 The above shown conflict between the medical evidence in
shape of MLC and testimony of prosecutrix on one hand and the
ocular and circumstantial evidence brought forth by prosecutrix
PW-1 and her parents PW-2 and PW-3, stems from the
approximate opinion expressed by Dr. Kirti Madoiya (PW-4) that
the injury may have been caused between 24 hours of the
examination. The said opinion of PW-4 in MLC Ex.P-3 is an
approximate opinion in regard to which no suggestion has been
made by the respondent to the said doctor that the injury found in
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CRA.365/2001

the private parts of the prosecutrix could not have been caused in
the evening of 4th July, 2000 when the incident is alleged to have
taken place. In the absence of any such suggestion made by the
defence, the said opinion cannot have binding effect and looses its
probative value and therefore, rendered inconsequential for the
defence to take advantage of. Thus the trial court committed error
of law in relying upon the said variance between the medical
evidence and ocular cum circumstantial evidence for acquitting the
accused / respondent.

16. Learned counsel for the respondent has submitted by citing
the decision of the Apex Court in the case of Mahavir Singh Vs.
State of M.P. reported in (2016) 10 SCC 220 ( para 12 to 14) that
the interference in verdict of acquittal is a course to be
exceptionally taken with great circumspection especially when the
view taken by learned trial judge of acquittal is one of the plausible
possible view which could have been taken in the given facts and
circumstances available on record. This Court has already held
(supra) that in the attending facts and circumstances available on
record that the only view which could have been taken was of
conviction since the prosecution has proved the offence of rape
against the respondent beyond all reasonable doubt. Thus, the
view taken by the learned trial judge was erroneous and needs to
be unsettled.

17. In the considered opinion of this Court and looking to the
clinching evidence presented by the prosecution in shape of
testimony of prosecutrix aged 10 yeas, her parents PW-2 and PW-
3 and Dr. Kirti Madoiya (PW-4), it is established beyond all
reasonable doubt that the respondent has subjected the
prosecutrix to rape and since the respondent, qua the prosecutrix
held a position of trust as defined in Clause 2(f) , the offence
punishable u/s 376(2)(f) is found proved.

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CRA.365/2001

18. Since we have held the respondent guilty of the offence
punishable u/s 376(2)(f) IPC in regard to which he had been
acquitted by the trial court, it is essential to hear the respondent on
the question of quantum of sentence.

19. Consequent upon conviction, the respondent be committed
to jail by way of jail warrant which be prepared forthwith by the
Registry and to produce the respondent in custody on 26.03.2018
for hearing on sentence.

20. Let the case be taken up for the said purpose on 26th March,
2018.

(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge
23/03/2018 23 /03 /2018
sarathe

Digitally signed by
NAVEEN KUMAR
SARATHE
Date: 2018.03.23
14:56:10 +05’30’

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