Madhya Pradesh High Court
Dhanraj vs The State Of Madhya Pradesh on 12 March, 2021
Author: Atul Sreedharan
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No.1984/2010
Dhanraj........................................................Appellant
Versus
The State of Madhya Pradesh...................Respondent
For the appellant : Mr. Jagat Kumar Dehariya, learned
counsel.
For the respondent : Mr. Rahul Deshmukh, learned
Panel Lawyer.
******
HONOURABLE MR. JUSTICE ATUL SREEDHARAN
HONOURABLE MR. JUSTICE RAJENDRA KUMAR
SHRIVASTAVA
******
JUDGMENT
(12.3.2021)
The present criminal appeal has been filed by appellant
Dhanraj aggrieved by the order dated 2.8.2020 passed in
Sessions Case No.105/2010 by the Court of Additional Sessions
Judge, Chhindwara by which the appellant was convicted for an
offence under section 376(2) of the Indian Penal Code and
sentenced to suffer imprisonment for life and a fine of
Rs.1,000/- or, in default of payment of fine, to undergo three
months rigorous imprisonment.
2. The case of the prosecution is that on 2.2.2010 around 8
or 9 p.m., the appellant went to the house of complainant
Savitri (P.W.2) at village Pathri and took the child prosecutrix
with him on the false pretext of giving her biscuits. When the
prosecutrix did not return after a while, her mother
(complainant herein) started searching for her but could not
find her. A short while thereafter the prosecutrix was seen
coming from the compound of Patel. She was crying and
shivering and the blood was flowing from her private part. Upon
the prosecutrix being asked by the complainant and other
people who had gathered there, she told them that appellant
Dhanraj took her towards the "Barra" and committed rape with
her.
3. A report of the incident was made on 3.2.2010 at Police
Station Bichua upon which a case was registered against the
appellant herein and taken into investigation. Post
investigation, the charge-sheet was filed and the case was
committed for trial. The appellant/accused pleaded not guilty.
4. P.W.1 is the child prosecutrix whose statement was
recorded on 28.6.2010 at which point of time the trial court has
recorded her apparent age as six years. She has identified the
appellant in the doc and has named him. She said that the
appellant took her from her home at night to the field belonging
to Patel and there he is stated to have disrobed the prosecutrix
and committed rape with her and thereafter she came alone
from there. She further says that there were lot of people at
home and she informed her parents about the incident. In
paragraph no.2 she says that on that night the appellant took
her away from home on the false pretext of giving biscuits and
that he did not give her the same. She further states that her
mother first took her to the police station and then to the
hospital where she was seen by the doctor. In her cross-
examination, she says that the appellant took her to give
biscuits and after that he left her. She also says that she had
told her mother that the appellant had taken her and done
something to her. She also says that she did not bleed from
anywhere. The court put a question to her in a question-and-
answer form. The question was whether she experienced pain
anywhere on account of the actions of the appellant. To this
question, the prosecutrix answers that she was feeling pain in
her vagina. In paragraph no.4 of the cross-examination, she
says that when the appellant was taking her she fell down and
injured herself on her private part.
5. Savitri (P.W.2), the mother of the prosecutrix, has also
identified the appellant in dock who says is known to her. She
says around 8:00 p.m. on the night of the incident the witness
and the prosecutrix were at home. At that time, the appellant
came there and asked the prosecutrix if she wanted to go along
with him to the shop. The witness says that she protested but
the same notwithstanding the appellant took the prosecutrix
with him on the false pretext of buying biscuits for her. She
further says that after an hour when her child did not return,
she went towards the shop but she did not find her child there.
She came back home and searched in the neighbourhood but in
vain. Thereafter, in the night around 9:00 p.m. she says that
her daughter came back and she found mud on her clothes and
hair. Upon asking the child, she was informed that the appellant
had taken her. She also says that blood was oozing from her
vagina and the same was smeared on her thighs. The
prosecutrix is stated to have told her that the appellant took
her, removed her clothes and thereafter removed his own
clothes also and inserted something in her vaginal passage.
Thereafter, she says that she along with her mother and the
Kotwar of the village, her brother, and others took the
prosecutrix to Police Station Bichua and got registered the first
information report (Ex.P1). In her cross-examination, she was
asked if she had told the police in her 161 statement about the
fact that she had voiced her opposition to the appellant taking
the child with him to the shop to which she answered in the
affirmative. However, she was confronted with her 161
statement (Ex.D1) in which the said portion is not there.
Besides that, nothing significant has been brought out in the
cross-examination of Savitri (P.W.2).
6. Udraj (P.W.3) is the grandfather of the prosecutrix. He
also discloses in his court statement as to how the appellant
had taken away the prosecutrix under the false pretext of
giving her biscuits and after an hour when she did not return,
how Savitri (P.W.2) and his wife Siyabai searched for the
prosecutrix and how she returned home at 9:00 p.m., crying.
He says that he saw the blood in her private parts and upon
asking her, the prosecutrix informed him that the appellant had
taken her towards the field of Patel and there inserted
something into her vaginal passage. Thereafter, he says that he
along with others went and got the first information report
registered. In cross-examination he says that the police never
recorded his statement and he is disclosing the factual aspect
of the case for the first time before the court.
7. Mrs. Pratibha Shrivastava (P.W.5) is the doctor. She says
that on 3.2.2020 she was posted at the District Hospital,
Chhindwara, in the Department of Obstetrics as a specialist.
The prosecutrix was brought to her from Police Station Bichua
and she carried out the examination. Upon examining the
prosecutrix, she found that her overall condition was healthy.
The blood pressure was normal and there were no external
signs of any injury on her body. She, however, states that in
her vagina and buttocks there was exudate mixed with blood.
She found that the vulva of the prosecutrix was red and
swollen. She also states that in her vaginal passage towards
the rear hymen and the posterior commissure were torn which
was in the anal passage from where fecal material was coming
out. She says that advise was given to sedate the prosecutrix
and apply stitches to treat the tear which was done by the
surgical specialist Dr. Dwivedi and the anesthetist Dr. Sonia. In
paragraph no.3 of her statement, she states that after sedating
the prosecutrix, the examination of her private parts revealed
that there were third degree tears, which was from the fornix
till the rectum on which the stitches were applied. To stop the
bleeding in the vaginal passage, medicines were administered
to the prosecutrix. In paragraph no.4 the doctor states that in
her opinion the nature of injuries suffered by the prosecutrix
were grievous caused by a hard and blunt object with the use
of force and that the injuries had taken place 24 hours before
her treatment. In her opinion, she states that there was forcible
rape with the prosecutrix. The witness states that for advance
medical treatment, the prosecutrix was referred to the District
Hospital. Nothing significant has been brought out in the cross-
examination to shake the testimony of this witness. The MLC
prepared by her is Ex.P4.
8. Dr. (Mrs.) Shamim Rehman (P.W.9) was posted at the
District Hospital, Chhindwara as the Medical Officer for Women.
She was the first doctor to examine the prosecutrix. She also
says that there was exudate mixed with blood coming out from
her vagina, which was spread till her rectum. In paragraph
no.6, she says that in her opinion rape was attempted on the
prosecutrix. Her MLC is Ex.P5. She also records the observation
of vaginal tear over the posterior commissure extending up to
the anus having a blood mixed discharge. In the opinion she
has given that intercourse must have been tried on her and
thereafter has referred the prosecutrix for expert opinion to the
Gynecologist who is Dr. (Mrs.) Pratibha Shrivastava (P.W.5)
whose statement has already been referred to herein above.
9. From a combined reading of the evidence of the
prosecutrix, her mother, her grandfather and the two doctors
who had examined her, it has been proved beyond reasonable
doubt that it was the appellant herein who had taken the
prosecutrix and committed the ghastly deed with her critically
injuring her requiring surgical intervention. The testimonies of
the eyewitnesses are consistent and no major contradiction has
been brought out by the defence in order to doubt their
veracity.
10. As regards the sentence imposed upon the appellant, we
are satisfied that in the facts and circumstances of the case,
the aggravating circumstances far outweigh the mitigating
circumstances of which there are none. The appellant has
committed the crime against a hapless child after betraying the
trust placed upon him by the prosecutrix and her family.
11. Under the circumstances, we find no reason to interfere
either with the conviction recorded by the learned trial court or
the sentence imposed upon the appellant.
12. The appeal is dismissed.
(Atul Sreedharan) (Rajendra Kumar Shrivastava)
Judge Judge
ps
PRASHA Digitally signed by PRASHANT
SHRIVASTAVA
DN: c=IN, o=HIGH COURT OF
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MADHYA PRADESH, ou=HIGH
COURT OF MADHYA PRADESH,
postalCode=482001,
st=Madhya Pradesh,
SHRIVAS 2.5.4.20=ece48d19937645a626
7b9b5ec6a49fcd15bfc04d16d2
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TAVA
cn=PRASHANT SHRIVASTAVA
Date: 2021.03.15 11:12:38
+05'30'
