Madhya Pradesh High Court
Ramgarib Choudhary vs The State Of Madhya Pradesh on 1 February, 2022
Author: Virender Singh
1
Criminal Appeal No.08/2017
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
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BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
st
ON THE 1 OF FEBRUARY, 2022
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Criminal Appeal No.08/2017
Between:-
Ramgarib Choudhary, son of Lalva Choudhary
aged about 32 years, resident of Balrampur,
Police Station Maihar
Distt. Satna (M.P.) ... Appellant
AND
State of M.P. through SHO of
P.S. Maihar Distt. Satna ...Respondent
Shri Devendra Kumar Shukla, counsel for the appellant.
Shri Shailendra Mishra, Panel Lawyer for the State.
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(Heard through Video Conferencing)
JUDGMENT
(01-02-2022)
This appeal has been preferred against judgment and order
dated 17.12.2016 passed by the First Additional Sessions Judge,
Maihar District Satna (M.P.) in Special Case No.3400073/2016,
whereby the appellant has been convicted under Sections 376(1)
of IPC and 3/4 of Protection of Children from Sexual Offences
Act, 2012 (for short 'POCSO Act') and awarded punishment for
10 years' R.I. for each offence and to pay fine of Rs.2000/- each
with default stipulation, with a further direction that the sentences
were directed to run concurrently.
Criminal Appeal No.08/2017
2. The prosecution case may be summed up as under :
(i) On 27.05.2016 at about 7 a.m. the victim had
gone to attend the nature's call to a nearby jungle.
The appellant was hiding himself behind a Palash
tree. He discreetly came near the victim, caught hold
of her and started dragging towards the jungle. In the
jungle, he pushed her on the ground under the tree,
removed her salwar & panty and raped her. The
victim made a clamour but there was no one to hear
her voice or to save her. After committing rape, the
appellant ran away from the spot leaving behind the
victim crying. Somehow she managed herself and
wore the clothes and came back home where she
revealed the entire incident to her mother (PW4) and
Bhabhi (PW5) and approached the police with them.
On the same day at 6.13 p.m., the victim lodged an
FIR (Ex.P/4) which was registered at Police Station
Maihar District Satna for the offence under Section
376 of IPC and 3/4 of the POCSO Act.
(ii) During the course of investigation, the
Investigating Officer visited the place of incident and
prepared a spot map (Ex.P/7), recorded the statement
of the victim and other witnesses and produced the
victim before Magistrate to record her statement
under Section 164 CrPC and also sent her for medical
examination. The appellant was arrested vide arrest
memo (Ex/P/10).
Criminal Appeal No.08/2017
(iii) After obtaining the consent (Ex.P/5), Dr Ekta
Shrivastava (PW8) examined the victim and
submitted her report which is at Ex.P/6. The police
seized clothes of the victim received from the
hospital vide seizure memo (Ex.P/9), collected
entries of the Scholar Register (Ex.P/2C) to ascertain
the age of the victim. Her date of birth was found
mentioned as 10.07.2001. The appellant was also sent
for medical examination. Vide Ex.P/1, he was found
capable in performing sexual intercourse. His semen
slide was prepared and was handed over to the police.
The police sent slides of the victim and the accused
for chemical analysis.
(iv) After completion of the investigation, charge-
sheet was filed against the appellant for the offence
under Sections 376 of IPC and 3/4 of POCSO Act.
3. On being charged with the offence under Sections 376(1) of
IPC and 3/4 of the POCSO Act, the appellant abjured the guilt
and pleaded for trial. In the examination, under Section 313 of
CrPC, he further pleaded that he has been falsely implicated due
to prevailing animosity.
4. To bring home the charges, the prosecution examined as
many as 8 witnesses including the victim and her mother &
Bhabhi. No evidence was led in defence.
5. Upon a critical appraisal of the evidence on record, the
learned trial Judge, for the reasons recorded in the impugned
Criminal Appeal No.08/2017
judgment, held the appellant guilty and awarded punishment as
stated in paragraph 1 above.
6. The appellant has preferred this appeal on the grounds that
the impugned judgment of the trial Court is contrary to the record
and judgments of Hon'ble the Supreme Court. The appellant is
innocent and has been falsely implicated in the case due to
enmity. He neither committed nor participated in the alleged act.
The trial Court has erred in law and facts in convicting the
appellant. The prosecution examined several witnesses whose
statements are contrary to each other. Dr. Ekta Shrivastava (PW8)
who had examined the victim (PW3) clearly stated that she did
not observe any internal or external injury on the body of the
victim. Further, she stated that no definite opinion can be given
regarding rape. She estimated the age of the victim between 15-
18 years. The conviction is based on the solitary statement of the
victim. It is neither proper nor sustainable in the eyes of law. The
trial Court has not appreciated the evidence properly. The
prosecution could not establish the date of birth of the victim.
Neeraj Nigam (PW2), the Principal, admitted that he had
recorded date of birth of the victim on the basis of transfer
certificate and the transfer certificate was not produced by the
prosecution with the charge sheet. The victim stated that she had
studied upto Class 9 but only mark sheet of Class 6 has been
produced with the charge sheet. The slides of the appellant as
well as of the victim were sent to FSL, Sagar for chemical
examination but no report was filed. Therefore, the appellant is
entitled for acquittal.
Criminal Appeal No.08/2017
7. During arguments, the ld. counsel for the appellant has
limited himself to the point of prevailing animosity between the
appellant and the family of the victim. He referred to para 25 of
the impugned judgment and contended that the appellant has
been falsely implicated in the present case on account of old
enmity, therefore, he be acquitted.
8. The ld. Panel Lawyer for the State opposed the submission
advanced by the ld. counsel for the appellant. It is submitted that
the issue of enmity has been raised by the appellant as his
defence. Some suggestions have been given to the witnesses in
their cross-examination in this regard but they have denied such
allegation that they have implicated the appellant due to enmity.
It is further submitted that the appellant himself has never tried to
establish any animosity by producing evidence in his defence.
Therefore, on the basis of mere suggestion of the appellant
which, too have been denied by the witnesses, no conclusion can
be arrived at in favour of the appellant. He further submitted that
the prosecution has established that on the date of incident, the
victim was below 16 years of age and she was raped by the
appellant. There is nothing to disbelieve the statement of the
victim or other witnesses examined by the prosecution. He
supported the impugned judgment and prayed for dismissal of the
appeal.
9. Heard the ld. counsel for the parties and have perused the
record.
10. The trial Court has considered the age of the victim and
relying on her own statement as well as that of her mother and
Bhabhi as also the testimony of ASI H.L, Mahtel (PW7) and
Criminal Appeal No.08/2017
Neeraj Nigam, the Principal (PW2), entries of scholar register
(Ex.P/2C) and certificate (Ex.P/3), has rightly concluded in
paragraph 12 of the impugned judgment that her date of birth was
10.07.2001 and on the date of the incident i.e. 27.05.2016, the
victim was 14 years 10 months and 17 days' old and this finding
has not been assailed by the appellant.
11. Before the trial Court, the victim (PW3) deposed on oath
that on the date of incident, she had gone to nearby jungle to
attend the nature's call and the appellant was hiding himself
behind a tree, therefore, she could not see him. Suddenly, he
pounced on her, threw her on the ground, forcibly removed her
clothes, raped her and fled away. Thereafter, the victim returned
home while crying and revealed the entire incident to her mother
and Bhabhi. They took her to the police station where FIR has
been lodged. Statements of these witnesses have remained intact
in their cross examination and have also not been challenged
before this Court. Therefore, their evidence cannot be doubted or
disbelieved.
12. The only ground taken by the appellant before this Court is
that he has been falsely implicated due to enmity but the ld. Panel
Lawyer has rightly pointed out that the suggestions given to the
witnesses to the effect have been denied by them and the
appellant himself has never tried to establish this defence. There
is nothing on record to hold that there was some enmity between
the appellant and the family of the victim or that they have falsely
implicated the appellant due to such animosity. The trial Court
has appreciated this defence of the appellant in para 25 and 27 of
Criminal Appeal No.08/2017
the impugned judgment and has rightly discarded the allegation
of appellant.
13. Further, the trial Court has rightly appreciated and
evaluated the entire evidence produced by the prosecution.
Before the trial Court, the victim (PW3) has narrated the entire
incident. Her mother Duasiya Bai (PW4) and Bhabhi Radha Bai
(PW5) have corroborated her statement, stating that immediately
after the incident, the victim came back home and revealed the
entire incident before them. Dr Ekta Shrivastava (PW8) deposed
that on examination, she found that blood was present on vagina
of the victim. Before her also, it was revealed that the appellant
had raped her. ASI Shyamkumari Singh (PW6) has proved
registration of FIR immediately after the incident. ASI H.L.
Mahtel (PW7) stated regarding the steps taken during the
investigation. All this is sufficient to reach on a conclusion which
has been arrived at by the trial Court.
14. There is nothing to disbelieve or doubt the statements of the
witnesses examined before the trial Court, therefore, there is no
reason to interfere with the findings recorded by the trial Court,
convicting the appellant for the offences charged with. The
appellant was 32 years of age at the time of incident. In
villages/rural areas, everybody is aware about the fact that the
people go to nearby fields/jungle all alone to attend nature's call.
On the date of incident, the appellant first hid himself behind a
tree and then suddenly appeared, caught hold of the victim who
had gone to attend nature's call, threw her on the ground, pushed
a piece of cloth in her mouth and forcibly committed rape on her.
The victim was 14 year-old girl. In such a situation and the
Criminal Appeal No.08/2017
manner and method in which the offence has been committed, the
sentence awarded to the appellant does not seem to be
disproportionate. Nothing has been pointed out to alter, modify or
reduce the sentence. Hence, this Court does not find any reason
to interfere with the sentence awarded to the appellant also.
15. Consequently, the appeal fails and is dismissed.
(Virender Singh)
JUDGE
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2022.02.04 15:46:38
+05'30'
