Pappu Aharwar vs State Of Madhya Pradesh

This criminal appeal has been filed under Section 374 (2) of CrPC against the judgment dated 06.10.2007 passed by Sessions Judge, Chhatarpur in

Sessions Trial No.50/2007, whereby learned Sessions Judge found appellant guilty for the offence punishable under Sections 342 & 376 (2)(f) of the

IPC and sentenced him to undergo one year rigorous imprisonment and ten years rigorous imprisonment with fine of Rs.500/-, in default of payment of

fine amount further three months simple imprisonment respectively.

Brief facts of the case are that on 17/01/2007 at around 5 PM when prosecutrix (PW/1) (her name and identity imposed by law contained in

Section 228A of IPC is not disclosed) who was living with her uncle Ramswaroop (PW/2) at Village Thilapur was returning to her house after

throwing garbage, on the way appellant came there and caught hold her hands and took her to his house. Thereafter, he bolted the door of his house

from inside and committed rape with the prosecutrix. On hearing her shouting, the neighbour of appellant Sukhnandi, Rammalai, Thakuri Bai (PW/4)

and Mahadev came to appellant’s house and told to the appellant to open the door. On that appellant opened the door, then prosecutrix went out

from appellant’s house and narrated the incident to Thakuri Bai (PW/4), Sukhnandi and Rammalai and came to her house and also narrated the

incident to her aunt Smt. Suman (PW/3). At that time her uncle Ramswaroop (PW/2) was not at home. He went to Jhansi, when at 3 am, he returned

from Jhansi prosecutrix also narrated the incident to him. On that on 18/01/2007 Ramswaroop (PW/2) went to P.S. Orchha Road, Chhatarpur along

with prosecutrix and lodged the report (Ex.P/1) of the incident. On that report, police registered Crime No.6/2007 for the offence punishable under

Sections 376, 342 & 506-B of IPC against appellant and investigated the matter. During the investigation, S.H.O. Police Station Orchha Road,

Chhatarpur, Jai Prakash (PW/12) went to the spot and prepared spot map (Ex.P/3). He also seized simple soil and oily soil from the spot and prepared

seizure memo (Ex.P/5) and he also sent prosecutrix to District Hospital Chhatarpur for medical examination along with the application (Ex.P/16) after

getting permission for her medical examination from SDM. In the Hospital, Dr. Sushma Khare (PW/9) examined the prosecutrix and gave report

(Ex.P/12) and she also prepared slide of vaginal swab of prosecutrix and also seized one skirt and underwear which were wore by the prosecutrix at

the time of examination and sent these articles to P.S. Orchha Road, Chhatarpur in a sealed packet through constable Bhagwati Yadav which was

seized by the HC Mizaji Lal from his possession and prepared seizure memo (Ex.P/17). During investigation Jai Prakash (PW/12) also recorded the

case diary statements of prosecutrix (PW/1), Ramswaroop (PW/2), Raju Ahirwar, Smt. Suman (PW/3), Govind Ahirwar, Thakuriya Bai (PW/4),

Sukhnandi Ahirwar, Rambai Ahirwar and Mahadev. He also arrested the appellant on 18/01/2007 and prepared arrest memo (Ex.P/19) and sent him

to District Hospital, Chhatarpur for medical examination along with the application (Ex.P/18) where Dr. R.P. Gupta (PW/8) examined the appellant

and gave MLC report (Ex.P/9) mentioning that appellant is able to commit intercourse. Jai Prakash (PW/12) also sent all seized article to FSL Sagar

through Superintendent of Police, Chhatarpur along with draft (Ex.P/21) for chemical examination fromwhere report (Ex.P/12) was received in which

it is mentioned that on Article A underwear & skirt of the prosecutrix and slide of her vaginal swab, semen was found. After the investigation, police

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

S.T.No.50/2007 was registered and learned Sessions Judge framed charge against the appellant under Sections 376, 342, 506-B of IPC and tried the

case. The appellant/accused abjured his guilt and took the defence that he is innocent and has falsely been implicated in the case. He also took the

defence that on the date of the incident, a quarrel had occurred between Pushpa and prosecutrix so he assaulted both of them due to which

Ramswaroop (PW/1) lodged the false report against him. In this regard, appellant also produced Ramkishun (DW/1) & Rameshwar Pateriya (DW/2)

in his defence. However, after trial, learned trial Court acquitted the appellant for the offence punishable under Section 506 Part II of IPC but found

the appellant guilty for the offences punishable under Sections 342 & 376 (2)(f) of IPC and sentenced him as aforesaid. Being aggrieved from that

judgment, appellant filed this Criminal Appeal.

Learned counsel for the appellant submitted that there are many contradictions and omission in the statement of prosecution witnesses. Prosecutrix

(PW/1) admitted in her cross-examination that she was tutored by her aunt and uncle to give false evidence against the appellant and also admitted

that appellant did not do anything with her. In the medical report of the prosecutrix also, it is mentioned that no external injury was found on her body.

If the appellant had committed rape with the prosecutrix, (a minor girl) then she might have sustained injuries on her body. The statements of

prosecutrix (PW/1), Ramswaroop Ahirwar (PW/2), Smt. Suman (PW/3) and Thakuriya Bai (PW/4) are contradictory and also not supported by the

medical evidence. Learned Trial Court without appreciating all these facts wrongly found the appellant guilty of the aforesaid offences.

On the other hand, learned counsel for the State opposed the prayer and submitted that from the prosecution evidence it is clearly proved that

appellant committed rape with the prosecutrix who was minor girl aged about eight years. Learned trial court after appreciating all the evidence rightly

found 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 under Sections 342 and 376

of IPC is liable to be set aside for the reasons stated in the memo of appeal and raised during argument.

Regarding incident Prosecutrix (PW/1) clearly deposed that on the date of incident at about 04:00 PM when she was returning to her house after

throwing garbage, appellant came there and he caught hold her hands and took her to his house thereafter he bolted the door of his house and then

committed rape with her. On that, she shouted so mother of Satish, Basanti came there and got opened the door, thereafter, she went out from the

appellant’s house and went to her house with her aunt Suman (PW/3) and narrated the incident to her and also narrated the incident to her uncle

Ramswaroop Ahirwar (PW/2) at night. In this regard her statement is also corroborated by the statements of Ramswaroop (PW/2), Smt. Suman

(PW/3) and Thakuriya Bai (PW/4). They also deposed that prosecutrix narrated the incident to them that the appellant committed rape with her and

the statement of Dr. Sushma Khare (PW/9) who examined the prosecutrix on 18.01.2007 i.e., next day of the incident and gave the report (Ex.P/1) to

the effect that at that time of her examination, she found her hymen was torn. Prosecution story in this regard is also corroborated by the FSL report

(Ex.P/12) in which it is clearly mentioned that on the clothes of the prosecutrix i.e., Article A skirt, underwear and her vaginal swab, semen was

found.

Although, the incident is said to have occurred at 4 PM, on 17/01/2007 while FIR was lodged at 07:15 AM on 18/01/07 but this delay is satisfactorily

explained by the prosecution. Ramswaroop (PW/2) uncle of the prosecutrix clearly deposed that on the date of incident he was not at home, he had

gone to Jhansi. On receiving information of the incident, he returned to his house at 2 AM in the night and on the very next day, he lodged the report.

So only on the ground that incident occurred at 4 PM on 17/01/07, while the FIR was lodged at 07:15 AM on 18/01/07, the prosecution story cannot be

doubted.

Likewise although, prosecutrix (PW/1) in para 2 of her cross-examination deposed that appellant did not do anything with her. But in this regard her

statement will read as a whole and not in a piecemeal. She is a minor girl aged about eight years. It appears from her statement that due to not

understanding the question correctly, she gave such answer. The fact stated by her in para one of her examination-in-chief regarding incident clearly

shows that in the incident, appellant committed rape with her. In this regard her statement is also corroborated by her Medical Examination Report

(Ex.P/1) in which it is clearly mentioned that at the time of her examination her hymen was found torn. That report was also proved by the Dr.

Sushma Khare (PW/9) who examined the prosecutrix on 18.1.2007 i.e., very next day of the incident. Dr. Sushma Khare (PW/9) also deposed that at

the time of examination of prosecutrix she also prepared slide of her vaginal swab and also seized one skirt and underwear which were wore by the

prosecutrix at the time of examination and sent these articles to P.S. Orchha Road, Chhatarpur in a sealed packet through constable. In FSL report

(Ex.P/12) of these articles, it is mentioned that on the clothes i.e., Article A skirt, underwear and her vaginal swab, semen was found which further

strengthen the prosecution story that in the incident appellant committed rape with the prosecutrix. In this regard her statement is also corroborated by

the statements of Ramswaroop (PW/2), Smt. Suman (PW/3) and Thakuriya Bai (PW/4). So there is no reason to disbelieve the prosecution story.

Although, appellant also took the defence of false implication and produced Ramkishun (DW/1) & Rameshwar Pateriya (DW/2) in his defence who

deposed that at the time of incident at noon quarrel was occurred between Pushpa and prosecutrix on that appellant assaulted both of them due to

which Ramswaroop (PW/2) lodged false report against the appellant but appellant not give any suggestion to prosecutrix (PW/1) and other witnesses

i.e., Ramswaroop (PW/2), Smt. Suman (PW/3) and Thakuriya Bai (PW/4) in there cross-examination that on the date of incident quarrel occurred

between Pushpa and prosecutrix and appellant assaulted both of them. Even appellant in his examination under Section 313 of CrPC when trial court

entered him in his defence did not depose that fact. So the statements of Ramkishun (DW/1) & Rameshwar Pateriya (DW/2) and defence of

appellant become afterthought which cannot be believed. So in the considered opinion of this court, learned trial court did not commit any mistake in

finding appellant guilty for the offences punishable under sections 342 & 376 (2)(g) of IPC. Hence conviction of the appellant Pappu Aharwar under

Sections 342 & 376 (2)(g) of IPC is hereby upheld.

As far as sentence is concerned, the learned trial court has sentenced appellant under Sections 342 and 376 IPC to undergo one year and ten

years rigorous imprisonment with fine of Rs.500/- with default stipulation, which is quite adequate and this Court does not find any reason to interfere

with the sentence given by the trial court.

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.