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Madhya Pradesh High Court · body

2017 DIGILAW 788 (MP)

Mangal Bhumia v. State of M. P.

2017-06-30

SUSHIL KUMAR PALO

body2017
JUDGMENT : Sushil Kumar Palo, J. Law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment but by cross-checking the reasoning of the evidence on record. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the Code of Criminal Procedure on a plain reading of sections 385-386 of Cr.P.C. 2. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. In the case of Bani Singh and Others v. State of U.P., AIR 1996 SC 2439 , the Apex Court while dealing with Section 386 of Cr.P.C held that when appellant and his lawyer are absent on appointed for hearing, the Court is not bound to adjourn the case, but should dispose of appeal on merits. The dismissal of appeal simpliciter for non-prosecution is not contemplated. 3. In a similar case of K.S. Panduranga v. State of Karnataka, 2013 Cr.L.J 1665 the Apex Court has held that it cannot be said that the Court cannot decide a criminal appeal in the absence of the counsel for the accused, even if the counsel does not appear deliberately or shows negligence in appearing. 4. This criminal appeal is pending since 1997, but none appeared on behalf of the appellant. Therefore, in view of aforesaid enunciation of law, the appeal is being decided. 5. This criminal appeal has been filed under Section 374 of the Cr.P.C challenging the judgment and sentence dated 17.04.1997 passed by 2nd A.S.J, Jabalpur, in Session Trial No. 193/1991, wherein the appellant has been convicted for offence under Section 376 and 506 (2) of I.P.C and sentenced to imprisonment for ten years with fine of Rs.100/- in default of fine additional rigorous imprisonment for two months and three years respectively. 6. The prosecution story in brief is that on 01.01.1991 in the afternoon, the minor prosecutrix (PW/4) had gone to collect wood from the forest at village Mohas. Nearby the same a man was herding the cattle. Finding the prosecutrix (PW/4) alone, the accused forcibly fell her on the ground by holding her hand and threatening her that if she shouts, she would be cut by axe. Nearby the same a man was herding the cattle. Finding the prosecutrix (PW/4) alone, the accused forcibly fell her on the ground by holding her hand and threatening her that if she shouts, she would be cut by axe. Putting her on fear of death and removing her clothes, the accused committed sexual intercourse with the minor prosecutrix. Because of which the minor prosecutrix bleeded. The accused fled away from the spot. After the appellant left the spot, the prosecutrix shouted. Her father Laxman Singh, Ramhit and Oji lal and others came to the scene of crime. After it was verified, people informed that it was a person of village Muhas who committed the crime. Accused Mangal was the person who perpetrated the crime with the prosecutrix. Report Ex. P/4 lodged at Police Station Bargi. Crime No. 2/1991 was registered. 7. During the investigation, the prosecutrix was sent for medical examination with application Ex. P/1. On the reverse of the application, Dr. Kusum Jain (PW/1) has given the M.L.C report. Vaginal slide was prepared and sealed. Her inner garments were also seized and handed over to the police. The same was given at Police Station Bargi and seized by Ex. P/4 A. Spot map P/6 was drawn. Statements of the prosecutrix was recorded. Subsequently, accused was arrested. His medical examination was conducted by application Ex.P/2. Dr. V.K. Jain, (PW/ 2) examined the accused and seized his stained undergarments. The said undergarment was seized by police vide seizure memo Ex. P/3. The seized article was presented before the police station where the same was again seized by drawing seizure memo Ex. P/5. The axe which was used for threatening the prosecutrix was seized by seizure memo dated 04.01.1991 Ex. P/8 from the accused, on the basis of the memorandum Ex. P/7, given by the accused. The age of the prosecutrix was determined by radiological test Ex. P/12 and P/13 are the x-ray plates and Ex. P/11 is the report. The slide and clothes seized were sent to forensic laboratory by memorandum Ex. P/10. Report received from forensic laboratory is Ex. P/14 and P/15. 8. After due investigation, charge sheet was filed. Charges have been framed for offence under Sections 376 and 506 (2) of I.P.C. The appellant/accused abjured guilt and claimed that he has been falsely implicated. The slide and clothes seized were sent to forensic laboratory by memorandum Ex. P/10. Report received from forensic laboratory is Ex. P/14 and P/15. 8. After due investigation, charge sheet was filed. Charges have been framed for offence under Sections 376 and 506 (2) of I.P.C. The appellant/accused abjured guilt and claimed that he has been falsely implicated. Mangal son of Shankar and Mangal son of Pancham were examined in support of the defence. 9. Learned 2nd A.S.J, Jabalpur after adducing evidence pronounced the impugned judgment and held the appellant convicted for offence under Sections 376 and 506 (2) of I.P.C and sentenced as mentioned above. 10. On behalf of the appellant, it is pleaded that the appellant is innocent. He has been falsely implicated. The prosecutrix has not identified the appellant which is very vital for the criminal trial. The accused has been identified by other persons stating that a person resident of village Muhas was perpetrator of crime. Whereas the prosecutrix has not definitely identified the appellant. No identification parade was conducted. Witnesses identified the appellant on the basis of identification by third persons. Therefore, the appellant has been implicated in the crime on the basis of circumstantial evidence and is, therefore, entitled for acquittal. 11. Learned P.L for the respondent/State opposed the contentions. Referring the pieces of evidence, he has claimed that the minor prosecutrix was ravished by the accused. The accused has been identified by the prosecutrix, during the evidence. Accused was medically examined. At the time of examination also, certain stains of blood was found in his cloths, which indicates the involvement of the accused. Hence, there is sufficient evidence on record. The learned trial Court has properly examined the evidence and held the appellant convicted. The judgment impugned does not call for any interference. 12. Perused the record and the judgment impugned. 13. At the outset, it would be appropriate to analyse the medical evidence gathered by the prosecution. The prosecutrix was radiologically examined by Dr. M. Agrawal, PW/8. According to him, the x-ray plates of the prosecutrix was taken and examined. It was found that the age of the prosecutrix is in between 8 to 13 years. The x-ray plates are Ex. P/12 and 13. The written report given by Dr. M. Agrawal (PW/8) is Ex. P/11. In the cross-examination, no question has been put to him. His statement remained unchallenged. It was found that the age of the prosecutrix is in between 8 to 13 years. The x-ray plates are Ex. P/12 and 13. The written report given by Dr. M. Agrawal (PW/8) is Ex. P/11. In the cross-examination, no question has been put to him. His statement remained unchallenged. Hence, no reason to disbelieve that the prosecutrix was aged between 8 to 13 years at the time of incident. Even if, the variation of age likely to be two years, the prosecutrix would be 15 years at the most, at the time of incident. Therefore, it can be safely held that the prosecutrix was below 16 years at the time of incident. 14. Dr. Kusum Jain, PW/1 has examined the prosecutrix on 01.01.1991 at about 9 am. She found the prosecutrix aged 10 years. Prosecutrix had no external injury but her sexual organs were not developed. Her monthly menstruation period was not begun. The prosecutrix was taken to the operation theatre and after she was administered anesthesia. The clotted blood present on the lower extremity and vulva, both thighs were removed. Her hymen was torn and found bleeding. There was tear about 0.5 present over the left parayrethral region. The small laceration was present over the left vaginal wall and second decree paraneal tear present size about 2 cm x 0.5 cm. x muscle deep. The doctor opined that rape was committed with her. For confirmation vaginal slide was prepared and petticoat was sent for medical examination. 15. Doctor V.K. Jain examined the appellant/accused on 03.01.1991 at civil dispensary, Bargi. He found that the appellant Mangal Singh was about 25 years. On examination, it was found that his pubic hair present. In his cloths blood like stains and semen spots were present. Respondent had no external injury but he was habitual to sexual intercourse. His undergarment was seized and was handed over to the police for examination. The blood stain and the semen stain were dried. The slide was seized by police. Constable Nandi Lal (PW/5) has affirmed the same. Rajendra Dubey, (PW/6) also corroborates the seizure of undergarment of the accused vide Ex. P/5 and the undergarment of the accused received from the hospital was seized at the police station. J.B. Singh Sub-Inspector, (PW/7) states that both the packets received from the police station and seized by Ex. P/4. Constable Nandi Lal (PW/5) has affirmed the same. Rajendra Dubey, (PW/6) also corroborates the seizure of undergarment of the accused vide Ex. P/5 and the undergarment of the accused received from the hospital was seized at the police station. J.B. Singh Sub-Inspector, (PW/7) states that both the packets received from the police station and seized by Ex. P/4. According to him the slide and the undergarments were sent to the FSL, Sagar for examination through memorandum P/10. Ex. P/15 is the report received from the serologist which shows that Item No. 26 was the petticoat stains of human blood. But in the Item No. 27 the undergarment, the blood stained is disintegrated and their origin cannot be determined. Therefore, the reason is not conclusive. But Ex. P/15 the report received from the F.S.L., Sagar shows that Packet (A) is the vaginal slide of the complainant. Article (A) is the petticoat of the complainant and (B) is the undergarment of the accused were found to be stained of human blood. But in Article (C) the undergarment of the accused semens stains were found. This report was admissible in evidence under Section 293 of the Cr.P.C. 16. All this medical evidence shows that the prosecutrix (PW/4) was subjected to sexual intercourse and there has been confirmation of blood stands on her private part as well as on her feet and garments. She also sustained injuries on her private part as mentioned by Dr. Kusum Jain PW/1. Bleeding from the private part and torn of highmen clearly indicates that she was subjected to forcibly sexual intercourse. 17. It would be appropriate to analyse whether the accused was responsible for the commission of sexual intercourse. 18. According to the prosecutrix PW/4 she was at the forest when the accused her. The accused caught her hair and fell her on the ground. He then placed the axe on her neck threatening her and committed sexual intercourse, after removing her cloths. She could not shout for she was under threat. She was about 11 years old when the incident took place. She has also stated that after the commission of the offence, the accused fled and she shouted. Her father Laxman Singh, Ramhit and Oji Lal came to the scene of crime. PW/3 has not supported the prosecution story. Father of the prosecutrix Laxman Singh died, therefore, could not be examined. She has also stated that after the commission of the offence, the accused fled and she shouted. Her father Laxman Singh, Ramhit and Oji Lal came to the scene of crime. PW/3 has not supported the prosecution story. Father of the prosecutrix Laxman Singh died, therefore, could not be examined. Under this circumstances, the statement of the prosecutrix who sustained the injuries and her evidence is corroborated by the medical evidence seems to be of sterling quality. There is no reason to disbelieve her. The axe by which the accused/appellant threatened the prosecutrix was seized from the accused by seizure memo Ex. P/8 on the basis of memorandum Ex. P/7. 19. The accused/appellant was also examined medically immediately after his arrest. Report of doctor V.K. Jain Ex. P/2 shows that he is capable of committing sexual intercourse and he is habituated to sexual intercourse. His cloths, undergarment were found stained with blood by the report of Ex.P/15. No explanation has been offered by the accused. As the blood was dried and disintegrated, therefore, the origin could not be determined. Yet, the circumstances prevailed clearly indicates that the accused has committed the offence. 20. As regarding the identification, the prosecutrix was not knowing the accused previous to the incident. But she has clearly, unambiguously identified the accused in the Court. In her cross-examination she has not only identified the accused but she has been very clear that it was the accused who pointed the axe and threatened her and it was the accused who committed the crime. 21. It is the established principle of legal jurisprudence that unless there are compelling reasons which necessitated for corroboration of the statement, the court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be believable. The prosecutrix has given vivid account of the entire episode as to how the accused has committed the sexual assault on her. The prosecutrix narrated the incident to the police immediately after the incident. When she was taken to the police station, F.I.R was lodged. The prompt F.I.R, the corroboration of the medical evidence with opinion of the medical offences indicating that hymen of the victim was torn and she was ravished and her virginity had been taken away. She had no enmity with the appellant. When she was taken to the police station, F.I.R was lodged. The prompt F.I.R, the corroboration of the medical evidence with opinion of the medical offences indicating that hymen of the victim was torn and she was ravished and her virginity had been taken away. She had no enmity with the appellant. No chance of her falsely implicating the appellant. 22. This Court do not see any reason to disbelieve her statement. If the prosecutrix is believed to be truthful, no further corroboration is required. Corroboration is admittedly only a rule of prudence. 23. With the evidence available on record, I do not find any illegality, irregularity or perversity in the judgment impugned. 24. So far as the sentence is concerned, the learned trial Court awarded the minimum sentence, therefore, this Court do not think it a proper to interfere with the judgment impugned. The appeal, therefore, is dismissed. The appellant is directed to surrender before the trial Court within 30 days from today. Failing which the learned trial Court would be at liberty to secure his presence by coercive means for serving the receiving jail sentence. The period undergone by the appellant from 03.01.1991 to 07.02.1991 i.e. for one month, six days, and 11.07.1995 to 17.04.1997 i.e. one year, nine months, seven days in all one year, ten months, thirteen days be set off as per Section 428 of Cr.P.C. The seized articles are valueless, therefore, be destroyed. 25. Copy of the judgment be sent to learned trial Court immediately, along with the original record.