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2022 DIGILAW 489 (MP)

Narayan Singh v. State of Madhya Pradesh

2022-03-28

G.S.AHLUWALIA

body2022
JUDGMENT : G.S. AHLUWALIA, J. 1. This criminal appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 26.04.2013 passed by Additional Sessions Judge, Ambah District Morena in S.T. No. 80/2013, by which the appellant has been convicted under Section 376 of IPC and has been sentenced to undergo rigorous imprisonment of 10 years and a fine of Rs.25,000/-with default rigorous imprisonment of one year. 2. According to the prosecution case, on 31.01.2013, mother of the prosecutrix had a fast of Thursday and after performing prayers, she gave a dough to the prosecutrix for giving it to a Cow. Accordingly, at about 11:00 AM, the prosecutrix went near the house 2 CRA-469-2013 of Narayan Kushwah, where the Cow was tied. When the prosecutrix did not return back even after half an hour, then her mother went in search of her and found that her daughter/prosecutrix was coming out of the room of the present appellant and was crying. The appellant also came out of the house and after noticing the mother of the prosecutrix went back to his room. Mother of the prosecutrix brought the prosecutrix back to her house and inquired about the incident, then the prosecutrix informed that she has been raped. She further clarified that the appellant has also extended a threat that in case, if the incident is narrated to anybody, then he would strangulate her. When mother of the prosecutrix examined the body of the prosecutrix after removing her pant and undergarments, then she found that there was blood on the private part of the prosecutrix and her underwear was also stained with blood. The entire incident was narrated by the mother of the prosecutrix to her mother-in-law as well as sister-in-law (Devrani). Thereafter, the prosecutrix was given a shower. Her husband (father of the prosecutrix) came back in the evening and, accordingly, the FIR was lodged on 31.01.2013 at 17:00. The prosecutrix was sent for medical examination and it was opined that hymen could not be examined as the patient is not cooperating and is crying and, accordingly, an opinion was given that possibility of rape cannot be ruled out. However, it should be co-related with the circumstantial evidence and cerochemical examination. Vaginal stick, slide and underwear were seized. The appellant was arrested. The statement of the witnesses were recorded. Blood sample was collected for DNA examination. 3. However, it should be co-related with the circumstantial evidence and cerochemical examination. Vaginal stick, slide and underwear were seized. The appellant was arrested. The statement of the witnesses were recorded. Blood sample was collected for DNA examination. 3. The police after completing the investigation filed the charge-sheet for offence under Section 376 of IPC. The Trial Court by order dated 01.03.2013 framed the charges under Section 376 of IPC. 4. The appellant abjured his guilt and pleaded not guilty. The Trial Court by impugned judgment convicted and sentenced the appellant for the above-mentioned offences. 5. The prosecution in order to prove its case, examined the mother of the prosecutrix “A” (PW-1), prosecutrix (PW-2), grandmother of the prosecutrix “B” (PW-3), Kailadevi (PW-4), father of the prosecutrix “C” (PW-5), Rakesh (PW-6), Dr. G.C. Arya (PW-7), Arvind Singh Sikarvar (PW-8), Ramhet (PW-9), Dr. Shalini Mishra (PW-10), Umesh Singh (PW-11) and RNS Gaur (PW-12). 6. The appellant examined Ramesh (DW-1) in his defence. 7. The Trial Court by the impugned judgment convicted and sentenced the appellant for the offence mentioned above. 8. As none had appeared for the appellant, therefore, this Court has gone through the record and also heard the counsel for the State as well as considered the grounds raised in the memo of appeal. 9. The prosecutrix (PW-2) is a minor girl aged about 6 years. She has stated that the appellant is known to her as he is also residing in the same village. On the fateful day, she had gone to feed dough to the cow. The appellant committed rape on her after gagging her mouth. Thereafter, her mother came there and after noticing her, the appellant left the place. Thereafter, her mother brought her back to her house. She was crying. Her clothes were stained with blood. She was given shower by her mother and her clothes were changed. Thereafter, she alongwith her parents went to the police station. Her uncle was also accompanying her. From the police station they went to Morena where she was treated. Doctor had collected her clothes from where she was sent to Gwalior. At Gwalior also she was treated and she remained hospitalized for two days. She was interrogated by the police and she had narrated the same incident which she has stated before the Court. 10. From the police station they went to Morena where she was treated. Doctor had collected her clothes from where she was sent to Gwalior. At Gwalior also she was treated and she remained hospitalized for two days. She was interrogated by the police and she had narrated the same incident which she has stated before the Court. 10. The prosecutrix was cross-examined and in the cross-examination, she stated that she goes to the school in the morning and comes back at 4 PM. She denied that her father consumes liquor in every evening. She accepted that her father beats her mother, however, she was not in a position to state the reason for beating. She also admitted that one day prior to the incident, her father had beaten her mother. She admitted that while she was feeding the cow, she was thrown on the ground by the cow by using her horns. She admitted that she had sustained injuries. She also admitted that same injuries were shown by her to her mother. She admitted that she was taken to the police station on the next date of incident. 11. “A” (PW-1) has stated that she is the mother of the prosecutrix, who is aged about 6 years. On the date of incident she was having fast and, therefore, she had prepared dough for feeding the cow. The prosecutrix was sent to feed the cow and when she did not return back for half hour, then she went to the house of the appellant and saw that the prosecutrix was coming out of the house of appellant and was crying and she was violated by the appellant and after noticing this witness, the appellant went back. After coming back to the house, she enquired from the prosecutrix as to why she is weeping, then she informed that she was raped by the appellant. The prosecutrix was wearing pink colour pant and underwear of yellow colour and both were stained with blood. She gave shower to the prosecutrix. The incident was narrated to her mother-in-law. Her husband was not in the house and had gone to the market and came back at 4 PM and thereafter, she went to the police station to lodge the FIR. The FIR is Ex.P/1. After the FIR was lodged, they went to the hospital alongwith the prosecutrix in a government vehicle. The incident was narrated to her mother-in-law. Her husband was not in the house and had gone to the market and came back at 4 PM and thereafter, she went to the police station to lodge the FIR. The FIR is Ex.P/1. After the FIR was lodged, they went to the hospital alongwith the prosecutrix in a government vehicle. From Ambah hospital they were referred to Morena. At Morena the prosecutrix was medically examined. The MLC of the prosecutrix is Ex.P/2. From Morena, the prosecutrix was referred to Gwalior and accordingly, they went to Kamla Raja Hospital Gwalior. The prosecutrix remained hospitalized for 2-3 days. The clothes of the prosecutrix were seized vide seizure memo Ex.P/3. The appellant, who is present in the Court is known to his witness. She had given consent for medical examination of the prosecutrix Ex.P/4. This witness was cross-examined in detail. She admitted that her husband is in the habit of consuming liquor. However, she denied that under the influence of alcohol, her husband used to allege that this witness has illicit relationship. She denied that any fight had taken place between her and her husband on the date of incident. She denied that her husband had pressurized her to lodge a false report of rape against the appellant. She further stated that the prosecutrix is aged about 6 years and is a student of Class-1. She stated that she goes to the school at 12 PM. She denied that the prosecutrix was thrown by the cow by using her horns. She further denied that after sustaining injuries, the prosecutrix had raised an alarm. She denied that when she went to the spot, the prosecutrix was near the cow, but she stated on her own that she was coming out of the house of the appellant. She further stated that the incident was narrated to her by the prosecutrix and thereafter, she was given shower and the incident was narrated to her mother-in-law. She further admitted that she had also washed the clothes of the prosecutrix, but clarified that the blood stains remained on the clothes. She denied that the FIR was lodged after due deliberations. 12. The grandmother of the prosecutrix “B” (PW-3) has also supported the prosecution case. 13. Kailadevi (PW-4) has stated that it was about 11:30 in the afternoon and she was standing at the door of her house. She denied that the FIR was lodged after due deliberations. 12. The grandmother of the prosecutrix “B” (PW-3) has also supported the prosecution case. 13. Kailadevi (PW-4) has stated that it was about 11:30 in the afternoon and she was standing at the door of her house. The prosecutrix was crying. At that time, the mother of the prosecutrix came there and took the prosecutrix with her. The mother of the prosecutrix had informed her that the appellant had committed “wrong work” with the prosecutrix. Blood stained clothes, underwear of the prosecutrix were also shown to this witness. In cross-examination, she stated that the police had come in the evening. She further stated that she had seen that the prosecutrix was crying and her mother came and took the prosecutrix with her. She denied for want of knowledge that the prosecutrix was thrown on the ground by the cow by her horns. She further admitted that the prosecutrix had come out of the house of the appellant, who was followed by the appellant and thereafter, he went back. 14. “C” (PW-5), who is the father of the prosecutrix has also stated that when he came back, then he was informed by her wife about the incident. 15. Rakesh (PW-6) has stated that the appellant was arrested by the police in his presence vide arreset memo Ex.P/6. His memorandum was recorded under Section 27 of the Evidence Act, which is Ex.P/7. A bed-sheet which was stained with blood as well as blood stained shirt were seized vide seizure memo Ex.P/8. Muffler and a blood stained underwear were also seized vide seizure memo Ex.P/9. The spot map, Ex.P/5, was prepared. This witness was cross-examined in detail. He admitted that because of political rivalry, he has gone to jail for 4-6 times. He further admitted that he was prosecuted for an offence under Section 302 of IPC, but claimed that it was a political rivalry. He denied that no proceedings were conducted in his presence. He stated that the house of the appellant is of one room house. He denied that the mother of the prosecutrix has illicit relationship with the appellant. 16. Dr. G.C. Arya (PW-7) had medically examined the appellant and found that he is potent. His MLC is Ex.P/10. 17. Arvind Singh Sikarvar (PW-8) is the Patwari and has prepared the Nazri Naksa, Ex.P/11. 18. He denied that the mother of the prosecutrix has illicit relationship with the appellant. 16. Dr. G.C. Arya (PW-7) had medically examined the appellant and found that he is potent. His MLC is Ex.P/10. 17. Arvind Singh Sikarvar (PW-8) is the Patwari and has prepared the Nazri Naksa, Ex.P/11. 18. Ramhet (PW-9) had brought the vaginal slide, a sealed bottle and underwear of the prosecutrix, which were seized vide seizure memo Ex.P/12. On the same day, the clothes, semen and pubic hairs of the appellant were seized vide seizure memo.Ex.P/13. 19. Dr. Shalini Mishra (PW-10) has medically examined the prosecutrix. She has stated that the prosecutrix was aged about 6 years. The prosecutrix was crying, therefore, she could not examine her hymen. Signs of inflammation and blood were seen on the vaginal surface. Since the prosecutrix was crying, therefore, she cannot say with certainty whether she was raped or not, but the possibility of rape cannot be ruled out. In cross-examination, this witness specifically stated that the prosecutrix could have sustained the injury because of assault by the horns of a cow. She further stated with authenticity that in no circumstance the prosecutrix could have sustained the injuries due to attack by the cow. 20. The vaginal smear slide, vaginal stick, two underwear, pant of the prosecutrix as well as blood sample of the appellant and the clothes of the appellant were sent for DNA examination. In the DNA test, Y chromosome STR DNA profile was found on the underwear of the prosecutrix and it was found that appellant's Y chromosome STR DNA profile were present on the clothes of the prosecutrix. The clothes of the prosecutrix were sealed by Dr. Shalini Mishra (PW-10) on 31/1/2013 at 11:30 PM, whereas the appellant was arrested on 1/22013 vide arrest memo Ex.P/6. Thus, it is clear that the underwear of prosecutrix was already sealed much prior to the arrest of the appellant, therefore, there is no possibility, even the remotest, that the investigating agency might have smeared the underwear of the prosecutrix with the semen of the appellant. 21. In view of the specific assertion by Dr. Thus, it is clear that the underwear of prosecutrix was already sealed much prior to the arrest of the appellant, therefore, there is no possibility, even the remotest, that the investigating agency might have smeared the underwear of the prosecutrix with the semen of the appellant. 21. In view of the specific assertion by Dr. Shalini Mishra (PW-10) that the prosecutrix cannot sustain an injury on account of attack by the cow as well as inflammation was found on her private part coupled with the ocular evidence as well as DNA report, this Court is of the considered opinion that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt. Accordingly, his conviction under Section 376 of IPC is hereby maintained. 22. So far as the sentence is concerned, at the relevant time, minimum sentence for offence punishable under Section 376 of IPC was 10 years, therefore, it does not require any interference. 23. Ex consequenti, the judgment and sentence dated 26.04.2013 passed by Additional Sessions Judge, Ambah District Morena in S.T. No. 80/2013 is hereby affirmed. 24. Since the appellant has already been released after undergoing jail sentence awarded to him, accordingly, nothing more is required to be done. 25. The appeal fails and is hereby dismissed.