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Subaksingh @ Subhash vs The State Of Madhya Pradesh on 28 March, 2018

-: 1 :- Criminal Appeal No.593 of 2013.

( Single Bench )
( Hon’ble Shri Justice Vivek Rusia )

Criminal Appeal No.593 of 2013.

Subaksingh @ Subhash s/o Sewaram @ Sewaji Balai
State of Madhya Pradesh
Shri Manish Sankhala, learned counsel for the appellant,
though Legal Aid.
Shri R. Joshi, learned Govt. Advocate for the


( Delivered on this 28th day of March, 2018 )

THE appellant has filed the present appeal
being aggrieved by judgment dated 18.03.2013 passed by
Sessions Judge, Shajapur in Sessions Trial No.191/2012, by
which he has been convicted under Sections 376, 323 and
506 Part-II of IPC and sentenced to undergo 7 years’ RI with
fine of Rs.1,000-00; 1 year’s RI with fine of Rs.250-00 and 6
months’ RI with fine of Rs.250-00 respectively, with default

[2] As per the prosecution story, the prosecutrix
(PW-6) is a resident of Sehore and her husband is a labour.
The appellant was her neighbour since last 5 years. On
27.11.2011 he took her to Nagjhiri by train and bus for the
purpose of Which-craft. Thereafter he took her to a forest in

-: 2 :- Criminal Appeal No.593 of 2013.

the night at 2.00 AM and committed rape on her. He has
also assaulted her by Iron Chimta and due to which she
received injuries on her head, hand and back. The
prosecutrix lodged the report Ex.P/8 in the Police Station
Mohan – Badodiya. She was sent for medical examination
and the usual investigation was completed and accused was
arrested and Iron Chimta was recovered from his possession.
The clothes were sent to FSL and after completing the
investigation, challan was submitted. The trial was
committed to the Sessions Court and the appellant was tried
under Sections 376, 323 and 506 Part-II of IPC. The
appellant has denied the charges, therefore, the trial
commenced. By judgment dated 18.03.2013 the learned
Sessions Court has convicted and sentenced him as stated
above. Hence, the present appeal before this Court.

[3] By order dated 24.062013 the appeal was
admitted for final hearing. In the year 2016 the appellant
filed an application for suspension of jail sentence. By order
dated 09.05.2016, this Court has rejected the application.
During pendency of this appeal, the appellant remained in
the jail and completed the sentence. Vide letter dated
21.03.2018 the Deputy Jail Superintendent, District Jail,
Shajapur has informed that the appellant has been released
on 18.07.2017 after undergoing the entire sentences
including the period of remission. Since the appellant has
already undergone the sentences, therefore, this appeal is not
required to be considered on the ground of sentences.

[4] So far as the conviction is concerned, Shri
Manish Sankhala, learned counsel for the appellant has

-: 3 :- Criminal Appeal No.593 of 2013.

argued that appellant and the prosecutrix were known to
each other and the appellant was giving treatment to her
husband. There was omission and contradiction in the
statement of the prosecutrix and she has not correctly
disclosed the name of her husband and color of her petticoat.
Independent witnesses have turned hostile. Therefore, the
appellant was entitled for the benefit of doubt.

[5] Shri R. Joshi, learned Govt. Advocate for
the Respondent/State argued in support of the judgment and
prayed for dismissal of the appeal.

[6] The prosecutrix was medically examined by
Dr. Sunil Sharma (PW-5) who gave his medical report
(Ex.P/7) and according to which the prosecutrix sustained
number of injuries on her body. The prosecutrix was
examined as PW-6 who has stated that the appellant took her
to Nagjhiri on the ground that he is having some medicines
for her husband. They reached Berchha near about 5.00 PM
in the evening by Taxi. The appellant consumed liquor and
took her to forest and gave a blow of Iron Chimta and
thereafter he committed rape on her entire night and
thereafter he ran away. Then she met with one stranger who
took her to the Police Station where she lodged the FIR and
thereafter medically examined by Dr. Geeta Rewadiya (PW-

7) who gave indefinite opinion about commission of rape.
Counsel for the appellant has failed to point out any
infirmity or illegality in the judgment. The learned Sessions
Court has duly appreciated the evidence which came on
record. The version of the prosecutrix remained unchanged.
There was no omission and contradiction in her statement

-: 4 :- Criminal Appeal No.593 of 2013.

which is sufficient to convict the appellant.

[7] So far as the conviction based on the sole
testimony of the prosecutrix is concerned and the issue of
consent, the Apex Court in the case of Deepak v/s State of
Haryana [(2015) 4 SCC 762] has considered the same in
paras 24 to 27 which are reproduced below :-

“25. In order to enable the court to draw presumption as
contained in Section 114-A against the accused, it is necessary to
first prove the commission of sexual intercourse by the accused on
the prosecutrix and second, it should be proved that it was done
without the consent of the prosecutrix. Once the prosecutrix states
in her evidence that she did not consent to act of sexual intercourse
done by the accused on her which, as per her statement, was
committed by the accused against her will and the accused failed to
give any satisfactory explanation in his defence evidence on this
issue, the court will be entitled to draw the presumption under
Section 114-A of the Indian Evidence Act against the accused
holding that he committed the act of sexual intercourse on the
prosecutrix against her will and without her consent. The question
as to whether the sexual intercourse was done with or without
consent being a question of fact has to be proved by the evidence in
every case before invoking the rigour of Section 114-A of the Indian
Evidence Act.

25. Coming now to the case in hand, we find that the prosecutrix,
in her sworn testimony, in clear terms has said that she did not give
her consent for commission of the act to the appellant and that he
committed the act of sexual violence on her against her will. The
appellant was not able to give any satisfactory explanation in his
statement recorded under Section 313 of the Code nor was he able
to adduce any defence evidence to rebut the presumption contained
in Section 114-A of the Indian Evidence Act, 1872 against him. So
far as commission of sexual intercourse is concerned, it is proved
with the medical evidence that it was performed by the appellant
with the prosecutrix.

26. We are alive to the law laid down by this Court wherein it is
ruled that in a case of rape, no self- respecting woman would ever
come forward in a court just to make a humiliating statement
against her honour such as is involved in the commission of rape on
her. The testimony of the prosecutrix in such cases is vital and
unless there are compelling reasons, which necessitate looking for
corroboration of her statement or where there are compelling
reasons for rejecting of her testimony, there is no justification on the
part of the court to reject her testimony.

27. In the instant case, our careful analysis of the statement of
the prosecutrix has created an impression on our minds that she is a
reliable and truthful witness and her testimony suffers no infirmity
or blemish whatsoever. That apart, as observed supra, even the
medical evidence supports the commission of sexual violence on her

-: 5 :- Criminal Appeal No.593 of 2013.

and we need not elaborate on this issue any more in the light of
concurrent finding of the courts below having been recorded
against the appellant holding in clear terms that sign of commission
of rape on her by the appellant stood proved by medical evidence
beyond reasonable doubt. Indeed, even the appellant had not
disputed the factum of commission of sexual intercourse by him on
the prosecutrix because as taken note of, the appellant’s only
defence was that since the prosecutrix had consented to the
commission of the sexual act, no offence of rape was made out
against him. This argument we have already rejected.”

[8] In the light of foregoing discussion, I do not
find any merit in this appeal and the same is accordingly

Sharma AK/*

Digitally signed by Anl Kumar
Date: 2018.04.02 11:53:48

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