Komal Singh vs State Of Madhya Pradesh

This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 15th July, 2008 passed by Sessions Judge, Mandla in

Sessions Trial No.139/2007, whereby the learned Sessions Judge found appellant guilty for the offences punishable under Sections 376 (2)(f) & 363 of

IPC and sentenced him to life imprisonment with fine of Rs.5000/with default stipulation and three years rigorous imprisonment respectively.

In brief the prosecution case is that on 21.08.2007 at 05:15 PM, Smt.Kalsi Bai (PW/1) lodged the report (Ex.P/1) at Police Station Newas averring

that she resided at Village Jangliya and did agricultural work. She was in the house with her grand daughter, age about 2 years (name and identity of

the prosecutrix granddaughter imposed by law contained in section 228A of IPC is not disclosed), and was gleaning the wheat while prosecutrix was

playing in the courtyard. At around 2 PM appellant Komal Singh came there and caught hold of the prosecutrix and took her with him. When he, did

not bring her back for quite some time, she went to look out for the prosecutrix. She saw that appellant was hidden at Sarpanch’s farm. On

seeing her he started running. On that she shouted so appellant left the prosecutrix and started running away. She picked up the prosecutrix and saw

that blood was oozing out from her private part. Appellant committed rape with prosecutrix. Her nephew Bhag Singh @ Ganesh (PW/7), Son

Rajesh (PW/3) and Prahlad Gaud (PW/2) chased the appellant so appellant fell down on stone, and they caught hold of the appellant. The incident

was also seen by Chinna Bai (PW/5) and Meera Bai (PW/6) who were weeding near the Sarpanch’s farm. On that report police registered

Crime No.100/2007 for the offence punishable under Sections 376 and 363 of IPC and investigated the matter. During investigation, the prosecutrix

was sent for medical examination to CHC Newas, where Dr. Smt. Reeta Shrivastava (PW/11) conducted medical examination of the prosecutrix and

gave report (Ex.P/18). She also prepared slide of vaginal swab of prosecutrix and also seized her undergarments and pubic hairs and sent it to Police

Station Newas in a sealed packet through Constable Ramdayal Maravi which was seized by O.P. Vinodiya (PW/10) and prepared seizure memo

(Ex.P/15). Dr Ashok Sharma (PW/10) also examined the prosecutrix and gave MLC report (Ex.P/19). During investigation, on 21.08.2007, O.P.

Vinodiya (PW/10) arrested the appellant and prepared arrest memo (Ex.P/12) and sent him for medical examination to CHC along with letter

(Ex.P/5) where Dr. Kavindra Singh Parte (PW/8) conducted the medical examination of the appellant and gave report (Ex.P/5). He also seized

underwear of accused-appellant and prepared slide of his semen and sent it to Police Station Newas through Constable Bhoopat Singh, in a sealed

packet where O.P. Vinodiya (PW/10) seized that packet from his possession and prepared seizure memo (PW/14). On 22/08/2007 O.P. Vinodiya

(PW/10)Â went to spot and prepared spot map (Ex.P/4) and he also recorded the statements of witnesses Rajendra, Seeta Bai (PW/4), Chinna Bai

(PW/5), Meera Bai (PW/6) Kamod, Bhag Singh (PW/7), Ramesh and Rajaram and also sent all seized articles for chemical examination to FSL

Sagar through Superintendent of Police along with draft (Ex.P/16) and from FSL Sagar report (Ex.P/20) was received. After investigation police filed

charge sheet against the appellant before Judicial Magistrate First Class Newas, who committed the case to the Court of Sessions. On that

S.T.No.139/2007 was registered which was tried by learned Sessions Judge Mandla and framed the charge against the appellant for the offences

punishable under Sections 324, 363 & 376 (2)(f) of IPC. The appellant/accused abjured his guilt and took the defence that he is innocent and has

falsely been implicated in the case. The family members of the prosecutrix borrowed money back from him which was due on them and when he

demanded that money the family members of the prosecutrix lodged false report against him. In this regard he also produced Ghanshyam Prasad Sahu

(DW/1) in his defence. However, after trial learned Sessions Judge found the appellant guilty for the offences punishable under Sections 363 & 376

(2)(f) of IPC and sentenced him as aforesaid. But he did not give any finding as to whether offence under section 324 of IPC was proved against

appellant or not and only gave finding for the offences punishable under Sections 376 (2)(f) & 363 of IPC. Being aggrieved from that judgment,

appellant filed this Criminal Appeal.

Learned counsel for the appellant submitted that there is no directevidence on record that anybody saw the appellant committing rape with the

prosecutrix. Even prosecution did not produce prosecutrix in the evidence before the trial court. The FSL report do not support the prosecution story.

Learned Trial Court only on the basis of statements of prosecution witnesses wrongly found the appellant guilty for the aforesaid offences while from

the statement of defence witness Ghanshyam Sahu (DW/1), it is proved that the family members of the prosecutrix borrowed money from the

appellant which was due on them and when the appellant demanded that money the family members of the prosecutrix lodged false report against the

appellant. Learned Trial Court without appreciating all these facts wrongly found the appellant guilty for the aforesaid offences. Hence, counsel

prayed that the impugned judgment be set aside and the appellant be acquitted of the said offences.

On the other hand, learned counsel for the respondent/State hasvehemently opposed the submissions of the learned counsel for the appellant and

fully supported the judgment of the Trial Court and submitted that from the prosecution evidence the guilt of the appellant is clearly proved. Learned

trial Court did not commit any mistake in holding the appellant guilty for the aforesaid offences and prayed for rejection of the appeal.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant for the offence punishable

under Section 363 and 376 (2)(f) of IPC are liable to be set aside for the reasons stated in the memo of appeal and argued before this court.

Regarding incident Kalsi Bai (PW/1) deposed that on the date of incident, she was at her house and her grand daughter (prosecutrix) was playing in

the courtyard. At 2 PM, appellant took her with him, thereafter, she searched for her grand daughter. During search, Chinna Bai (PW/5) and Meera

Bai (PW/6) told her that appellant had taken the prosecutrix across the river. On that she and Bhag Singh (PW/7) went across the river and saw that

appellant was in the field of Chinna Bai and on seeing them, appellant took the prosecutrix and ran away. Then she, Bhag Singh (PW/7), Rajesh

(PW/3) and Rajendra chased the appellant and caught hold him, and rescued prosecutrix from the possession of the appellant, at that time she saw

that blood was oozing out from her private part. Her statement is corroborated by the FIR (Ex.P/1) lodged by her soon after the incident which was

also proved by P.S. Dhurve (PW/9) who wrote that report.

Her statement is also corroborated by the statements of Chinna Bai (PW/5) and Meera Bai (PW/6). They clearly deposed that on the date of

incident at around 2 PM when they were working in the rice field, they saw that appellant was taking the prosecutrix with him, thereafter, Bhagsingh

@ Ganesh (PW/7) and Kalsi Bai (PW/1) came there. They rescued the prosecutrix from the possession of the appellant and also deposed that at that

time they saw blood was oozing out from her private part and the statements of Prahlad (PW/2), Rajesh (PW/3) and Bhagsingh @ Ganesh (PW/7)

who also deposed that they went in search of prosecutrix along with Kalsi Bai (PW/1) and saw prosecutrix with appellant and rescued the prosecutrix

from his possession and at that time blood was oozing out from the private part of the prosecutrix.

On the point that in the incident appellant also committed rape with the prosecutrix, the prosecution story is also supported by the statements of Dr.

Smt. Rita Shrivastava (PW/11) and Dr. Ashok Sharma (PW/12) who conducted medical examination of prosecutrix. Dr.Smt. Reeta Shrivastava

(PW/11) deposed that on 21.08.2017 she was posted as Assistant Medical Officer at District Hospital, Mandla and on that day, she conducted the

medical examination of the prosecutrix who was 22 months old and in the examination she found the following external injuries on her body:-

Multiple linear and pin point abrasions of negligible dimensions over face.

Semi circular tooth mark and abrasion over supra pubic area and pubic symphysis.

Swelling over left labia majora

On separating vulva hymen found to be torn, linear perineal tear from post fourchette perineal body oozing from wound and tenderness also present.

She further deposed that in her opinion recently intercourse or attempt of intercourse had been committed with the prosecutrix. Her statement is also

corroborated from the report (Ex.P/18) given by her.

Dr. Ashok Sharma (PW/12) also deposed that on 22.08.2007 at 12:30 PM, he examined the prosecutrix and found following external injuries on her

body:-

(i) Semicircular bite mark over supra pubic area and pubic symphysis.

Size 2.5 cm x 2.5 cm Thickness â€" 5 cm Showing teeth imprint of upper and lower teeth, Skin deep. Injury was grievous in nature.

His statement is also corroborated from the report (Ex.P/18) given by him.

There are no important contradictions and omissions in the statements of above mentioned witnesses, so there is no reason to disbelieve their

statements. Although, there is no direct evidence on record that anybody saw the appellant committing rape with the prosecutrix and in the FSL report

(Ex.P/20) also it is also not mentioned that sperm was found in slide of vaginal swab of prosecutrix. But from the statements of prosecution witnesses,

it is clearly proved that appellant took the prosecutrix and when Kalsi Bai (PW/1) and Bhagsingh @ Ganesh (PW/7) rescued prosecutrix from his

possession, blood was oozing out from the private part of the prosecutrix. Even Dr. Smt. Rita Shrivastava (PW/11) in her statement clearly deposed

that at the time of examination of prosecutrix, she found that her hymen was torn. In her opinion recently intercourse or attempt of intercourse had

been committed with the prosecutrix which clearly shows that sexual assault was committed with the prosecutrix.

Although, appellant took the defence that prosecutrix sustained injury due to falling on wooden pegs. In this regard he also produced Ghanshyam

Prasad Sahu (DW/1) in his defence who deposed that on the date of incident, when he reached Village Jangaliya for selling clothes, he saw some

persons assaulting the appellant and at that time somebody pushed the prosecutrix so she fell down and sustained injury in her private part due to

falling on wooden pegs. But appellant did not give any suggestion to prosecution witnesses in their cross-examination that at the time of incident this

witnesses were present on the spot. Dr. Smt. Rita Shrivastava (PW/11) in her cross examination clearly denied from the suggestion that the injury

found by her on the private part of prosecutrix could be caused due to falling on wooden pegs. Even Dr. Ashok Sharma (PW/12) who examined the

prosecutrix clearly deposed that he found one teeth bite injury size 2.5 cm x 2.5 cm x .5 cm deep on the upper side of vagina of prosecutrix. So the

defence of appellant and statement of Ghanshyam Prasad Sahu (DW/1) that prosecutrix sustained injury in her private part due to falling down

becomes false and clearly shows that somebody committed sexually assault with the prosecutrix. Thus, defence of appellant that prosecutrix

sustained injury due to falling on wooden pegs becomes false which can not be believed.

In the considered opinion of this Court from the statements of prosecution witnesses and medical examination report of the prosecutrix, it is

clearly proved that on 21.08.2007 at around 2 PM at Village Jangliya appellant abducted prosecutrix aged about 22 months and also committed rape

with her. So, learned trial court did not commit any mistake in finding appellant guilty for the offences punishable under sections 376 (2)(f) & 363 of

IPC.   Â

Learned Trial Court awarded the appellant with the sentence of life imprisonment with fine of Rs.5000/- with default stipulation and three year

rigorous imprisonment respectively looking to the gravity of offence that appellant committed rape with a minor girl aged about only 22 months. The

sentence awarded by the trial court is also appropriate and there is no need to interfere with the judgment. Hence, appeal filed by the

appellant/accused stands dismissed. The appellant, who is in the custody, shall serve the remaining part of the sentence, in accordance with law. Both

jail sentences shall run concurrently. The period already undergone shall be set off from the period of substantive jail sentence.

Accordingly, the appeal stands dismissed.