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Madhya Pradesh High Court · body

2004 DIGILAW 224 (MP)

Ganesh S/o Budha v. State of M. P.

2004-03-08

S.L.KOCHAR

body2004
JUDGMENT S.L. Kochar, J. 1. The appellant has preferred this appeal against the judgment dated 25-1-1999, delivered by the learned Sessions Judge, Dhar in Sessions Trial No. 205/1998, thereby convicting him under sections 366 and 376/511 of the Indian Penal Code and respectively sentencing him to suffer RI for 7 years with fine of Rs. 500/-, in default of payment of fine to suffer additional RI for three months, on each count. The substantive jail sentences have been directed to run concurrently. 2. Briefly stated the prosecution case before the trial Court was that on 31-5-1998, at about 1.00 PM in village Bidwal, District Dhar, prosecutrix, daughter of Bherulal, aged about 7 years (PW-5) was playing in front of her house. Appellant Ganesh came to their house and prosecutrix asked one rupee from him. The appellant asked the purpose of taking one rupee on which prosecutrix replied that she will purchase packet of Rubber band. At the juncture, appellant took the prosecutrix in his lap saying that he will go with her for purchasing the same. After some time prosecutrix returned back to house. She was weeping and her private part was bleeding. Her mother Sagarbai (PW-4) asked about all this on which she disclosed that appellant removed her underwear, also opened his pant chain, thereafter lay her down on the ground and committed some act with her. The vagina of the prosecutrix was severely torn and also bleeding. Mother of the prosecutrix disclosed immediately all these facts to Jagdish, Laxminarayan and her husband Bherulal. Thereafter they reported the matter in the police station. The First Information Report is Ex. P/6. The prosecutrix was sent for medical examination. Initially she was examined by PW-8 Dr. Ku. Laxmi Baghel at Bhoj Hospital, Dhar and found bleeding from private part of the prosecutrix and blood stains were present on her underwear. Her secondary sex characters were not developed. According to this witness prosecutrix was aged about 7 years. On internal examination, hymen was found torn. There was swelling on the margin and blood was coming out. Posterior foresheets of the hymen was also torn and all injuries were caused within 24 hours. She has referred the prosecutrix for further expert opinion to District Hospital, Indore. Her report is Ex. P/13. Thereafter PW-9 Dr. Suphiya Khan examined the prosecutrix in District Hospital, Indore. There was swelling on the margin and blood was coming out. Posterior foresheets of the hymen was also torn and all injuries were caused within 24 hours. She has referred the prosecutrix for further expert opinion to District Hospital, Indore. Her report is Ex. P/13. Thereafter PW-9 Dr. Suphiya Khan examined the prosecutrix in District Hospital, Indore. She was not allowed by the prosecutrix to check her because of pain. Therefore, general anesthesia was given to her. On her examination, blood was found on the private part. Hymen was ruptured and its margins were irregular. On touch the same was bleeding. The lower portion of the private part (vagina) was also torn and the same was admitting tip of small finger with a great difficulty. She prepared two slides of vaginal swab and again referred the prosecutrix for further expert opinion to M. Y. Hospital, Indore. In M. Y. Hospital PW-10 Dr. Smt. Meena Bhargava examined her after injecting compose injection. She was suffering from fever. She found bleeding from inside the vagina after removal of cotton pad. There was complete tear of the space in between vagina and anus. Thereafter again anesthesia was also given to her. She also found injury at the vaginal wall of hymen are ruptured. Another tear was found near the first tear and all these injuries were repaired by this doctor. However, doctor has not given positive opinion about rape upon the prosecutrix but at the same time she has opined that possibility of commission of rape with her could not be ruled out. 3. After necessary investigation, charge-sheet was filed against the appellant under sections 363, 366 and 376 of the Indian Penal Code and he was also charged with all these offences which were denied by the appellant. According to him he was falsely implicated. The prosecution has examined as many as 10 witnesses in its favour; whereas appellant has not examined any witness in his defence. After trial, the learned trial Court, finding the accused guilty of the offences punishable under sections 366 and 376/511 of the Indian Penal Code, convicted and sentenced him as indicated above. Hence, this appeal. 4. Having heard learned counsel for appellant Smt. Rashmi Pandit; and Deputy Advocate General Shri Girish Desai, for respondent/State, this Court is of the opinion that there is absolutely no scope in this appeal in favour of the appellant. 5. Hence, this appeal. 4. Having heard learned counsel for appellant Smt. Rashmi Pandit; and Deputy Advocate General Shri Girish Desai, for respondent/State, this Court is of the opinion that there is absolutely no scope in this appeal in favour of the appellant. 5. The appellant has committed a very heinous crime and already dealt leniently by the trial Court. On perusal of the statement of the prosecutrix PW-5, aged 8 years (at the time of her examination in Court;) her mother Sagarbai (PW-4); Laxminarayan (PW-6), it is amply proved that the appellant took the prosecutrix in his lap from her house and thereafter prosecutrix return back with severe injuries at her private part. She immediately disclosed the act of the appellant before her mother Sagarbai and Sagarbai (PW-4) has also given information to various persons including Laxminarayan (PW6). (PW-6) Laxminarayan has also supported the version of the prosecutrix and Sagarbai (PW-4). On the basis of the statements of these three witnesses, the act of the appellant is fully proved and there is nothing in cross-examination of the witnesses to discard their testimony regarding taking of prosecutrix by him in the forest and thereafter opened her underwear and pant, chain of his own pant, lay her down on the ground and he himself also lay on her, she received injury at her private part and immediately thereafter she returned back to her house. Prosecutrix disclosed about the incident before her mother and other persons. Her mother has informed Laxminarayan. The say of PW-6 Laxminarayan is that he was informed by mother and father of the prosecutrix regarding taking of the prosecutrix by appellant Ganesh and thereafter commission of rape with her. This witness went to the house of the prosecutrix and also saw bleeding from her private part. According to this witness, he was also informed by the prosecutrix about the incident but prosecutrix is not saying this fact. Therefore, pan of this statement is not admissible being hit by the law of "Hear - Say" evidence. Immediately PW-4 Sagarbai, mother of the prosecutrix, lodged First Information Report in police station vide Ex. P/6. Her statement is fully corroborated by this FIR which was recorded by PW-7 Sub-Inspector Anis Khan. 6. Version of the prosecutrix is also fully corroborated by the medical evidence of PW-8 Dr. Ku. Laxmi Baghel, PW-9 Dr. Suphiya Khan and PW-10 Dr. Smt. Meena Bhargava. P/6. Her statement is fully corroborated by this FIR which was recorded by PW-7 Sub-Inspector Anis Khan. 6. Version of the prosecutrix is also fully corroborated by the medical evidence of PW-8 Dr. Ku. Laxmi Baghel, PW-9 Dr. Suphiya Khan and PW-10 Dr. Smt. Meena Bhargava. All these three lady doctors had found serious injuries at vagina of the prosecutrix. In internal as well as external side, there was tear of hymen. On touching the same, bleeding was coming out. There was complete tear in between anus and vagina. Though PW-10 Dr. Smt. Meena Bhargava has not given positive opinion about commission of sexual intercourse or rape but in view of the Forensic Science Laboratory Report (Ex. P/27), which is disclosing the presence of semen on underwear and pant of the prosecutrix; on the full pant and underwear of the appellant and on vaginal smear. This FSL report is fully proving the case of rape against the appellant but unfortunately the learned trial Court did not put any question in accused statement recorded under section 313 of the Code of Criminal Procedure about FSL Report Ex. P/27. Therefore, the same could not be used against the appellant since he was not given opportunity to explain the circumstances fallen against him. 7. The learned trial Court has wrongly considered this report in favour of the prosecution in paragraph 44. The appellant was examined by PW-2 Dr. A. R. Dubey who found him competent and fit to perform sexual intercourse. His report is Ex. P/3. The learned trial Court in its judgment paragraph 42 has arrived at the conclusion, on the basis of the medical evidence, that the appellant attempted to commit rape. Though at the face of statement of the prosecutrix; her mother Sagarbai (PW-4) and Laxminarayan (PW-6) as well as FTR report and medical evidence of all the doctors, as referred hereinabove along with the Serologist Report (Ex. P/29), the offence of rape is not proved but since there is no State Appeal against the acquittal of the appellant for the offence under section 376 of the Indian Penal Code, nothing can be done and the appellant has escaped from punishment under section 376 of the Indian Penal Code because of glaring illegality committed by the trial Court. P/29), the offence of rape is not proved but since there is no State Appeal against the acquittal of the appellant for the offence under section 376 of the Indian Penal Code, nothing can be done and the appellant has escaped from punishment under section 376 of the Indian Penal Code because of glaring illegality committed by the trial Court. The prosecutrix PW-5 has not stated specifically that there was penetration of male organ and on the contrary in cross-examination in paragraph 6 she has deposed that she received injury at her private part by remaining part of the ripped wheat standing in the field (RADA). Her this version appears to be incorrect and she, being child, has admitted this fact in her cross-examination when suggestion was given to her by the defence. 8. The FSL report (Ex. P/27) in which the examiner has found human semen and spermatozoa on the underwear and full pant of the appellant; underwear, pant and vaginal smear of the prosecutrix that there was penetration or partial penetration of male organ otherwise the semen would not have been found in the FSL report. But the same cannot be relied upon as opined hereinabove. The prosecutrix has stated in para 1 that she was lay down on the ground and thereafter her pant and underwear were removed and the appellant after opening her full pant chain, lay himself on her thereafter she received injury at her private part. This evidence and the medical evidence is sufficient to establish the case of attempt to commit rape by the appellant. Therefore, his conviction and sentence under section 376/511 as well as under section 366 of the Indian Penal Code are maintained. 9. In the result, this appeal has no merit and is hereby dismissed. Record be returned.