Gafoor Khan vs State Of M.P.
2021 Latest Caselaw 6354 MP

     1                                     Criminal Appeal No.528/2009

                THE HIGH COURT OF MADHYA PRADESH

                        BENCH AT GWALIOR

                           DIVISION BENCH

             ( Hon'ble Shri Justice G.S.Ahluwalia &
           Hon'ble Shri Justice Deepak Kumar Agarwal)
                     Criminal Appeal No.528/2009
                              Gafoor Khan
                                   Vs.
                              State of M.P.
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         Shri D.S.Niranjan and Shri Prakhar Dhengula, learned
counsel for the appellant.
         Shri    C.P.Singh,     learned      Panel      Lawyer       for    the
respondent/State.
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                              ***********
                           JUDGMENT

[Passed on this 4th day of October, 2021]

Per Justice Deepak Kumar Agarwal

This appeal has been filed by the appellant against the

judgment of conviction and order of sentence dated 10 th July,

2009 passed by the Court of First Additional Sessions Judge,

Mungawali, Distt. Ashoknagar, in S.T.No.82/2009 convicting the

appellant under Section 376(1) of IPC and sentencing him to

suffer life imprisonment which would mean till remainder of his 2 Criminal Appeal No.528/2009

natural life with fine of Rs.10,000/- with default stipulation.

2. In brief the case of the prosecution is that on 11.6.2008

grand-mother of the prosecutrix lodged a report that on 11.6.2008 at

about 1 pm she along with her family was at home and her grand-

daughter was playing outside the house and her daughter-in-law

Ruksana was washing clothes in the courtyard, at that juncture, her

daughter-in-law Ruksana heard sound of weeping of the prosecutrix

coming from adjacent house of Gafoor Khan. Thereafter she went

there and found that appellant Gafoor Khan in the upper portion of

his house was lying on the prosecutrix by closing her mouth. On

seeing her daughter-in-law appellant ran away from the house. She

noticed that blood was coming out from the private parts of the

prosecutrix. The prosecutrix informed that appellant took her inside

the room and by closing her mouth laid on her and committed Bura

Kam with her. Soon after the incident, grand-mother of the

prosecutrix by going to police Station, Bahadurpur, Distt.

Ashoknagar, lodged a report against appellant Gafoor Khan. On her

report, crime under Section 376 of IPC bearing crime No.127/2008

was registered. Prosecutrix was sent for medical examination. On

examination, the doctor found blood discharge from pubic part.

Slight whitish discharge was also seen on external genitalia. On

vulva region an injury of about 3 cm in length was found.

3 Criminal Appeal No.528/2009

Examination of the prosecutrix was painful. Hymen was found

ruptured. Injury inside vagina of about 2 cm in length was also

found. Blood discharge was found on undergarment and leg cloth.

Prosecutrix was admitted for further treatment in the hospital. From

the spot, one green colour Dupatta, blood stained soil and ordinary

soil were seized. Blood stained and ordinary soil, clothes of the

prosecutrix and vaginal smear slid of the prosecutrix were sent to

Regional Forensic Science Laboratory, Gwalior, for examination.

As per the report of Forensic Science Laboratory, Gwalior, (Ex.P/7),

human sperms were found on underwear and vaginal slide.

3. Afterwards during investigation appellant/accused was

formally arrested on 17.6.2008 and sent for medical examination.

As per medical report, appellant was found to be competent to

perform intercourse. After recording of statements of the witnesses

and completion of investigation, charge-sheet against the appellant

under the aforesaid section was filed. Thereafter, the case was

committed to the Court of Sessions and from where it was received

by the trial Court for trial.

4. The prosecution examined as many as 12 witnesses to prove

its case, however, the appellant did not choose to examine any

witness in his defence.

5. Learned counsel for the appellant submits that there was 4 Criminal Appeal No.528/2009

previous enmity between appellant and family of the prosecutrix,

and therefore, he has been falsely implicated in the case. It is further

submitted that in the present case prosecutrix could not tell anything

about the incident before the trial Court. Hence, he prayed for

allowing the appeal.

6. Learned counsel for the State supported the impugned

judgment.

7. Heard learned counsel for the parties and perused the record.

8. Complainant Barkat Bee (PW-4) has stated that prosecutrix is

her grand-daughter. She knows appellant Gafoor Khan. Before 8

months of recording of her statement, she was sleeping in her

house, her daughter-in-law Shabana went to bathroom and she

heard sound of crying of the prosecutrix and she told Ruksana that

sound of crying is coming from the house of appellant. Thereafter

Ruksana and Shabana went to the house of appellant and brought

back the prosecutrix, at that time, appellant was running away in

naked state. From the private parts of prosecutrix blood was coming

out. The prosecutrix became unconscious and came in senses after

half an hour. She stated that appellant inserted his finger in her

vagina and when he inserted his penis in her vagina, she cried, then

he closed her mouth. Before the incident, prosecutrix was playing

outside the house and appellant took her to his house. Shabana and 5 Criminal Appeal No.528/2009

Ruksana also informed the complainant that when they reached the

spot, the appellant was lying on the prosecutrix and on seeing them

he separated himself from the prosecutrix. Afterwards, complainant

along with his son and prosecutrix went to the police Station and

lodged a report which is Ex.P/2. The prosecutrix was thereafter sent

for medical examination to the hospital. During cross-examination,

complainant admitted that she did not go to the house of appellant

and she did not saw the appellant. For the last 4-5 years the

appellant was residing outside the village. She denied that a house

dispute is going on between them and due to which she lodged a

false FIR against the appellant. She denied that due to falling on

wood blood came out from the body of the prosecutrix. During

cross-examination of this witness nothing material came out so to

disbelieve on her testimony.

9. Shabana (PW-2) has stated that prosecutrix is daughter of her

elder brother-in-law (Jeth). She knows appellant Gafoor Khan.

Before 8 months of recording of her statement, on the date of

incident and time, she went to answer the call of nature, then she

heard sound of crying of the prosecutrix, aged 6 years, coming from

the house of appellant. She along with her Jethani Ruksana went to

the house of appellant and found that doors were opened. When

they came in the courtyard, they found that sound of crying was 6 Criminal Appeal No.528/2009

coming from the upstairs. When they reached at the upper portion,

they saw that appellant was lying on the prosecutrix in naked state

and blood was coming out from the private parts of the prosecutrix.

On seeing them, appellant ran away. They brought back the

prosecutrix to their house and informed the mother and grand-

mother of the prosecutrix about the incident. The prosecutrix

informed them that when she was playing outside, appellant took

her inside his house. Thereafter, her mother-in-law along with

prosecutrix and her husband went to police Station, Bahadurpur for

lodging the report. During cross-examination, she admitted that

house of appellant is adjacent to her house, but nobody resides in

the house. Appellant for the last many years is residing at Kheda.

She denied that appellant is not residing in his house due to house

dispute with her family. On hearing sound of crying of the

prosecutrix, she did not shout and only informed her Jethani. She

denied that before her reaching on the spot appellant ran away. On

the spot, they did not talk with the appellant. She admitted that she

did not see that appellant took away the prosecutrix. She denied that

prosecutrix due to falling on wood sustained injury and blood came

out. Further she denied that due to house dispute she is giving false

evidence. From her cross-examination the defence could not bring

out any discrepancy on which evidence of this witness could be 7 Criminal Appeal No.528/2009

disbelieved.

10. By supporting the evidence of Shabana (PW-2), another eye-

witnesses Ruksana (PW-1) stated that before 8 months of recording

of her statement at 1 pm she was washing clothes in the house, at

that juncture, her younger sister-in-law after returning from

answering the call of nature told her that sound of crying of

prosecutrix is coming from the house of appellant. Thereafter, they

reached in the courtyard of appellant and found that sound of crying

of prosecutrix is coming. When they went upstairs, they saw that

appellant was lying on the prosecutrix and was committing rape

with her. On seeing them, he stood up. He was wearing underwear.

From the vagina of the prosecutrix blood was coming out. They

brought back the prosecutrix to their house and intimated mother of

the prosecutrix. Afterwards prosecutrix also stated to them that

when she was playing outside, appellant took away her and laid on

her. During investigation, police came on the spot and prepared spot

map (Ex.P/1). During cross-examination, she admitted that because

of house dispute appellant was residing at another place. On seeing

them, appellant after wearing his underwear ran away. She denied

that when they reached on the spot appellant was wearing

underwear. She herself stated that in front of them he wore his

underwear. She denied telling in her police Statement (Ex.D/1) that 8 Criminal Appeal No.528/2009

on her shriek appellant ran away from the spot. She admitted that

she did not see the appellant taking the prosecutrix inside his house.

She along with Shabana came to the house of appellant. Prosecutrix

was lying down in naked state and her underwear was also lying

down nearby. Prosecutrix was playing alone outside the house. She

denied that prosecutrix fell down on wood and sustained injury. She

denied that due to house dispute false report has been lodged.

11. Supporting the case of prosecution, mother of the prosecutrix

(PW-3) has stated that prosecutrix is her daughter and she is aged 6

years. Before 8 months of recording of her statement at 1 pm she

was sleeping in her house, Ruksana was washing clothes and

Shabana had gone to answer the call of nature. Shabana heard

sound of crying of prosecutrix from the house of appellant.

Thereafter, Ruksana and Shabana went to the house of appellant for

bringing the prosecutrix. When she and her mother-in-law Barkat

Bee came outside the house, they saw Shabana and Ruksana coming

along with the prosecutrix. From the vagina of the prosecutrix blood

was coming out. Ruksana and Shabana told them that appellant was

lying on the prosecutrix and on seeing them he ran away.

Prosecutrix told them that appellant took her when she was playing

outside and put off his and her underwear and in naked state laid on

her. Afterwards, her brother-in-law and mother-in-law along with 9 Criminal Appeal No.528/2009

the prosecutrix went to lodge the report. In her cross-examination,

she admitted that appellant is not residing in that house and the said

house is lying vacant and he is residing in some other house for the

last three years. She admitted that she did not see appellant taking

away the prosecutrix. She admitted that when her sister-in-law

brought back the prosecutrix, appellant ran away. At that time she

became unconscious, but after gaining consciousness, they asked

about the incident. She denied that a house dispute is going on

between appellant and her family. She denied that due to fall on

wood, prosecutrix sustained injury. During cross-examination of

this witness, defence could not bring out any material contradiction

on which her evidence can be disbelieved.

12. Prosecutrix came for evidence before the trial Court on

19.2.2009. The trial Court asked some questions from the

prosecutrix to ascertain her understanding and thereafter looking to

the age and mental state of the prosecutrix, held that she is not in a

position to give evidence. Hence, her evidence could not be taken.

13. Dr. Neelima Singh (PW-6) has stated that on 11.6.2008 she

was posted as lady doctor at Community Health Center, Mungawali.

On that day, Constable of police Station, Bahadurpur, Meharban

Singh, brought prosecutrix aged 6 years for medical examination.

On examination, she did not find any external injury on her body.

10 Criminal Appeal No.528/2009

During internal examination, she found one injury of size 3 cm at

her private part and blood was coming out from that injury. Near

private part she also found white discharge. During examination,

the prosecutrix was feeling pain. Her hymen was ruptured. Inside

the vagina, there was a 2 cm deep injury. Her clothes were blood

stained. For further treatment, prosecutrix was admitted in the

hospital. Her clothes and vaginal smear slide were handed over to

the Constable. Her report is Ex.P/3. After investigation, she found

that rape has been committed with the prosecutrix. During cross-

examination, she admitted that if some wood is entered inside the

vagina, then such type of injury can be caused. On perusing the

evidence of this lady doctor, this is proved beyond doubt that rape

has been committed with the prosecutrix and she also sustained

injury on her private parts.

14. Vivek Sharma (PW-12), the then SHO of police Station,

Bahadurpur, has stated that on the report of Barkatbai (PW-4) on

11.6.2008 he registered a crime under Section 376 of IPC bearing

crime No.127/2008 vide Ex.P/2 and sent the prosecutrix along with

Head Constable Rajendra Singh for medical examination.

Afterwards on reaching the spot, he prepared spot map (Ex.P/1),

seized one Dupatta of green colour, blood stained and ordinary soil

by Ex.P/5, recorded statements of Ruksana and Shabana, arrested 11 Criminal Appeal No.528/2009

accused by Ex.P/11 and also recorded the statements of other

witnesses as narrated by them. During cross-examination he denied

that on the date of incident he did not enquire with the prosecutrix,

but admitted that on the said date he did not take the statement of

the prosecutrix as her condition was not good. He admitted that in

Talashi Panchnama (Ex.P/4) he did not mention about ownership of

the house. He explained that this fact is mentioned in the spot map

(Ex.P/1). He denied that he did not write the statements of Ruksana

and Shabana as narrated by them.

15. Mohammad Khan (PW-5) is the uncle of the prosecutrix. He

was informed about the incident by his mother Barkatbai.

Shivcharan (PW-7) has stated in his evidence that uncle of the

prosecutrix informed him about the incident. Dileepsingh (PW-8) is

the witness of spot map (Ex.P/1), Talashi Panchnama (Ex.P/4) and

seizure memo (Ex.P/5). P.P.Mudgal (PW-9) was posted as SHO of

police Station, Bahadurpur, on 14.8.2008 and he recorded the

statement of Mohammad Khan. He stated that seized articles were

sent to Forensic Science Laboratory vide Ex.P/6 and report of the

Regional Forensic Science Laboratory, Gwalior, is Ex.P/7 and

Ex.P/8. Rajendra Singh (PW-10), Head Constable, has prepared

seizure memo (Ex.P/9). Dr. Prashant Dubey (PW-11) has stated that

on 17.6.2008 he was posted as Medical Officer at Primary Health 12 Criminal Appeal No.528/2009

Center, Bahadurpur. On the said date, he examined appellant Gafoor

Khan and found him to be capable of intercourse. In cross-

examination, he denied that appellant was not capable of

intercourse.

16. It is true that testimony of the prosecutrix could not be

recorded because of her tender age, but looking to the evidence of

eye-witnesses Ruksana (PW-1) and Shabana (PW-2), which is

corroborated by the evidence of mother of the prosecutrix (PW-3) as

well as complainant Barkatbee (PW-4), and the evidence of Dr.

Nilima Singh (PW-6), this Court is of the considered opinion that

prosecution has proved its case beyond reasonable doubt that

appellant has committed rape with the prosecutrix who is a child

aged six years, and therefore, trial Court has not committed any

error in convicting and sentencing the appellant under Section

376(1) of IPC for life imprisonment with fine of Rs.10,000/-.

17. Learned counsel for the appellant at this stage submitted that

while convicting the appellant for offence under Section 376(1) of

IPC, the trial Court ought not to have sentenced the appellant for

remainder of his natural life and such powers could only be

exercised by this Court or Apex Court. In support of his submission,

learned counsel for the appellant has placed reliance on para 105

and 106 of the Constitution Bench judgment of Apex Court in 13 Criminal Appeal No.528/2009

Union of India v. V. Sriharan @ Murugan and others, (2016) 7

SCC 1 which for read reference is reproduced hereinbelow :

"105. We, therefore, reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other Court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court.

106.Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet v. State of Haryaya - (2013) 2 SCC 452 that the deprival of remission power of the Appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same."

18. In view of the aforesaid decision of the Apex Court, the

submission of learned counsel for the appellant that while

convicting the appellant for offence under Section 376(1) of IPC,

the trial Court ought not to have sentenced the appellant for

remainder of his natural life appears to be correct, and therefore,

sentence awarded by the trial Court is modified and appellant is 14 Criminal Appeal No.528/2009

sentenced to life imprisonment which would not mean

imprisonment for remainder of his natural life.

With the aforesaid modification in the sentence, the appeal is

disposed of. The appellant is in jail, he is directed to serve his

remaining jail sentence.

                        (G.S.Ahluwalia)                  (Deepak Kumar Agarwal)
                             Judge                                  Judge


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MADHU
SOODAN
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2021.10.04
16:55:55 +05'00'