Radheshyam vs The State Of Madhya Pradesh
2021 Latest Caselaw 5903 MP

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                                                                            CRA No.811/2016

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
           S.B.: Hon'ble Shri Justice Subodh Abhyankar
                   Criminal Appeal No.811/2016
                          (Radheshyam s/o Jagannath Bairagi
                                         Versus
                              The State of Madhya Pradesh
               through Police Station Rajendra Nagar, District Indore MP)

                                      *****
Shri Khuzema Kapadia, learned counsel for the appellant.
Shri Pranay Joshi, learned Panel Lawyer for the respondent / State of Mad-
hya Pradesh.
                                      *****
                        JUDGMENT

(Pronounced on this 23rd day of September, 2021)

The appellant / accused has preferred this appeal under

Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, the

Code) against impugned judgment dated 12.05.2016 passed by learned

13th Additional Sessions Judge, Indore, District Indore (MP) in Special

Sessions Trial No.81/2015, whereby the appellant has been convicted

for commission of offence punishable under Section 376 (2) (D) of In-

dian Penal Code, 1860 and sentenced to undergo ten years rigorous im-

prisonment with fine of Rs.1,000/- (rupees one thousand); and in de-

fault of payment of fine, the accused was directed to undergo one year

additional rigorous imprisonment.

2. In brief, the facts of the case are that the prosecutrix was

studying in "Gramin Jivan Jyoti Shikshan Sansthan, Rau, District In-

dore MP" since Class 5th; and was residing in the Hostel of the Shik-

shan Sansthan along with other thirteen girls for around two years,

wherein on 27.09.2014, at around 09.30 PM, when the prosecutrix was

going to see Garba along with other girls, but as she was left behind by

CRA No.811/2016

her other companion girls, the appellant herein, who was the Guard of

the said Hostel, asked her to bring water, and when she went inside, the

appellant called her to English Medium Class Room where he was also

residing. He pulled her in, shut the doors and committed rape on her.

He also threatened her of dire consequences. She also did not inform

the incident for fear of her humiliation in public.

3. On 04.02.2015, the prosecutrix informed the aforesaid inci-

dent to Madam Gayatri Rana, Warden of the Hostel, that she is not hav-

ing her period; and was taken to hospital. Later on, at 06.30 PM in the

evening, some lady from Child Helpline, Indore came to meet her; and

on 05.02.2015 the First Information Report (FIR) was lodged by her

along with the office bearers of the Child Helpline regarding the com-

mission of rape at the Police Station Rajendra Nagar, District Indore

(MP).

4. After the matter was committed, the learned Judge of the

trial Court, after recording the evidence, passed the impugned judg-

ment, convicting the appellant, as aforesaid.

5. Being aggrieved, the present appeal has been preferred by

the appellant.

6. Counsel for the appellant has submitted that the appellant

has been falsely implicated in as much as there is no DNA Profiling of

the prosecutrix and the appellant despite the fact that the prosecutrix

carried four months pregnancy.

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7. Counsel has further submitted that the appellant has been

falsely implicated in the case by the prosecutrix who was having an af-

fair with some other person; and as the appellant used to stop him from

meeting the prosecutrix, they developed a grudge against the appellant.

It is further submitted that the prosecutrix was a major girl and has

falsely implicated the appellant, as she also did not inform any of her

friend regarding the incident which is not natural.

8. Counsel has further submitted that even according to the

prosecutrix, she informed the incident first time to Madam Gayatri

Rana, Warden of the Hostel but Gayatri Rana has not been examined by

the prosecutrix, which raises a serious doubt about the veracity of case

of the prosecution.

9. It is also submitted that the prosecutrix was earlier married

to one Saddam with whom she also had relations and used to go out of

the Hostel with him and that is why she has not informed about her

pregnancy to any other person.

10. Counsel for the respondent / State, on the other hand, has

opposed the prayer.

11. Having considered rival submissions and on perusal of the

record, this Court finds that FIR Ex.P/1 has been registered on

05.02.2015, and the date of incident is said to be 27.09.2014. The pros-

ecutrix's statement Ex.P/3 under Section 164 of the Code was recorded

on 06.02.2015; and the appellant, who was aged 53 years, has been ar-

rested on 05.02.2015 vide Ex.P/4.

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12. Record also reveals that vide Ex.D/2 (wrongly mentioned

as Ex.D/1) which is proved by PW/8 Taresh Kumar Soni, City Inspec-

tor, assessment of the prosecutrix was done when she was residing in

"Gramin Jivan Jyoti Shikshan Sansthan, Rau, District Indore MP", and

this assessment indicates that prior to she was brought to the said Hos-

tel, the prosecutrix, when she was thirteen years' old only, was married

to one Saddam by her step mother and father. This Saddam used to sex-

ually abuse her and ill-treat her (the prosecutrix) and when the incident

was reported by her neighbours, the prosecutrix was recovered and was

admitted in the Hostel. In such circumstances, it cannot be said that the

prosecutrix was again meeting with the said Saddam and that she was

also having any physical relationship with him especially when she had

such dark memories with him. This fact has also been denied by the

prosecutrix in her cross examination. And thus, the absence of any

DNA report is of no benefit to the appellant.

13. It is also found that PW/4 Trishla Thakur, the Councilor in

the Child Helpline Indore has also stated in her statement that after

coming to know of the incident she took the prosecutrix in her confi-

dence who told her that she was raped by the appellant around four

months ago during Navratri and had also threatened her of dire conse-

quences if she told anybody about the incident.

14. PW/6, Dr. Anubha Shrivastava examined the prosecutrix

on 05.02.2015 and found that she was 16/18 weeks pregnant.

CRA No.811/2016

This court also finds that the Trial court has rightly observed that the

appellant has also not produced any evidence in his defence that he had

objected to the prosecutrix's meeting with Saddam which led to filing

of a false complaint against him.

15. So far as non-examination of Gayatri Rana, the warden of

the Hostel, by the prosecution, is concerned, this court finds the same to

be inconsequential as the prosecution was otherwise able to prove its

case beyond reasonable doubt and the burden of proof shifted on the ac-

cused to prove his defence as he could also have called the warden of

the hostel in his defence but as he did not do so, its presumption would

also go against him.

16. In the facts and circumstances of the case, and the evidence

adduced by the prosecution, this court does not find any error having

committed by the learned judge of the trial court while passing the im-

pugned judgment and convicting the appellant.

17. Accordingly, the appeal fails and is hereby dismissed.

(Subodh Abhyankar) Judge Pithawe RC

RAMESH CHANDRA PITHWE 2021.09.23 18:34:51 +05'30'