Dhampe Singh vs The State Of Madhya Pradesh
2022 Latest Caselaw 1150 MP

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             HIGH COURT OF MADHYA PRADESH,
                        BENCH AT GWALIOR
                            CRA-3912-2018
                     (Dhampe Singh Vs. State of M.P.)



Gwalior, Dated : 25/01/2022

      Heard through Video Conferencing.

      Shri Prasannajeet Chauhan, learned counsel for the appellant.

      Shri Rajesh Kumar Shukla, learned Deputy Advocate General

for the respondent/State.

Shri Pradeep Katare, learned counsel on behalf of father of

the complainant- Man Singh has filed Criminal Appeal

No.8861/2018 under Section 372 read with section 378 of Cr.P.C.

for conviction of the respondents- No.2 and 3 herein under Section

376(D) of the IPC and sentence of twenty years instead of

conviction under omitted Section 376(2)(g) of the IPC and sentence

of ten years (omitted vide amended Act No.13 w.e.f. 03/02/2013).

As such, judgment is legally incorrect and due to ignorance of

deletion of Section 376(2)(g) of the IPC.

The Criminal Appeal No.3942/2018 has been preferred by the

State Government under Section 377 of Cr.P.C. for enhancement of

conviction of respondents No.2 & 3- Dhampe & Munesh herein.

I.A. No.73/2022, 7th application under Section 389(1) Cr.P.C.,

seeking suspension of sentence and grant of bail filed on behalf of

the sole appellant- Dhampe S/o Shri Shiv Sagar Rajawat is taken

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CRA-3912-2018 (Dhampe Singh Vs. State of M.P.)

up for consideration.

Appellant alongwith co-accused- Munesh has been convicted

under Section 366 of IPC and sentenced to suffer three years' R.I.

with fine of Rs.2,000, under Section 342 of IPC and sentenced to

one year's RI with fine of Rs.1,000/-, under section 326(K)/34 of

IPC and sentenced to suffer Ten years RI with fine of Rs.10,000/-,

under Section 376(2)(g) of the IPC and sentenced to suffer Ten

years' RI with fine of Rs.10,000/- with default stipulations vide

judgment dated 22/03/2018 passed in Case No.127/2016 by 5 th

Additional Sessions Judge, Bhind, District- Bhind (M.P). The

appellant is undergoing jail sentence since 01/01/2016.

As per the prosecution story, on 30/12/2015 at about 8:30 PM

while prosecutrix was going out to answer the call of nature, she

was intercepted by the present appellant- Dhampe and co-accused-

Munesh. They gagged her mouth and forcefully took her to an

adjacent teen shade covered with clay tiles (Pator) where she was

first raped by the appellant- Dhampe and thereafter, Munesh

repeatedly. They forced her to remain there whole night . In the

morning, she was threatened with dire consequences if she reported

the incident to the police. When she protested and asserted that she

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CRA-3912-2018 (Dhampe Singh Vs. State of M.P.)

would file the complaint, the appellant took out acid bottle and

splashed acid on her body which fell down the waist line, due to

which, she got burnt seriously. Thereafter, they fled away from the

spot. Her family members reached the spot searching for her and

thereafter, with the help of her mother Sushma and uncle- Dinesh,

she had gone to the police station to file the FIR.

As many as 18 witnesses were examined by the prosecution

including the prosecutrix (PW-1), her father (PW-4), mother (PW-8)

and uncle (PW-3).

Upon critical evaluation of evidence placed on record, the

appellant stands convicted as aforesaid. As a matter of fact, learned

Judge convicted him under Section 376 (2)(g) of the IPC which

stood omitted from the Indian Penal Code.

Learned counsel for the appellant referred to the order of

Hon'ble Apex Court dated 21/10/2019 passed in Special Leave

Petition (Criminal) Diary No.(s).30660/2019 where the liberty was

granted to the appellant to move the High Court if there was delay

in disposal of the appeal. Learned counsel for the appellant argued

the application on merits.

Learned counsel for the appellant referring to the deposition

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CRA-3912-2018 (Dhampe Singh Vs. State of M.P.)

of PW-2- Dr. Anshu Mishra, contends that while she had examined

the prosecutrix, she did not find any dust either on her clothes or on

her body. She also expressed uncertainty as regards period of

rupture of hymen. She had not given any opinion whether rupture

was due to alleged incident or of the past incidence. Therefore,

prosecution story is not supported by the doctor as it is alleged that

she was dragged in the teen shade where she was raped.

Learned counsel also refers to para 24 of the judgment to

contend that PW-5- Mukesh Singh has turned hostile and did not

support the prosecution story and that in fact there was a political

rivalry, as indicated in the said para, and present case is the outcome

thereof. With the aforesaid submission, learned counsel prays that

execution of the jail sentence of appellant may be suspended and he

may be enlarged on bail.

Per contra, Shri Rajesh Shukla, Deputy Advocate General

and Shri Pradeep Katare, learned counsel on behalf of the

complainant submit that in para 10 of the judgment, learned judge

had discussed the MLC report Ex. P/3 in detail for ready reference

para 10 is reproduced below:-

" 10. jk?kosUnz flag ¼v0lk0&16½ us bl ckr dk leFkZu fd;k

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CRA-3912-2018 (Dhampe Singh Vs. State of M.P.)

gS fd og fnukad&31-12-2015 dks Fkkuk mejh esa Fkkuk izHkkjh ds in ij inLFk Fkk] rc mDr fnukad dks vfHk;ksfD= viuh ekW ,oa ifjokj ds lkFk vkbZ FkhA mlds crk;s vuqlkj fjiksVZ iz0ih0&1 ys[k dh FkhA vfHk;ksfD= dk eqykfgtk QkeZ Hkjdj eqykfgtk gsrq Hkstk FkkA MkW0 va'kw feJk ¼v0lk0&2½ ds vuqlkj og fnukad&31-12-2015 dks 'kke 04%30 cts ftyk vLirky fHk.M esa bejtsalh M~;wVh ij inLFk Fkh] rc la/;k nhf{kr efgyk vkj{kd ua0&326 mejh Fkkus ls mlds le{k vfHk;ksfD= dks esfMdy ijh{k.k gsrq ykbZ Fkh] rc mlus mldk fpfdRlh; ijh{k.k fd;k FkkA mlds nksuksas iSj] xqIrkax ,flM }kjk tys gq;s FksA itkek ij Hkh ,flM ls tys ds fu'kku FksA mlds isV ds fupys fgLls ij ,flM }kjk tys ds fu'kku FksA ckg~; xqIrkax] tka?k] iSj ij Hkh ,flM ds fu'kku FksA ck;sa iSj ds fupys fgLls ij gM~Mh rd ,flM }kjk tyk gqvk Fkk] gM~Mh fn[k jgh FkhA xqIrkax ds vkarfjd vaxksa ij vanj dh vksj lwtu dh otg ls ykykeh Fkh ,oa ,d lQsn inkFkZ ml ij yxk gqvk FkkA nks oStkbuy lykbM] nks oStkbuy Lokc] I;wfcd gs;j] ,d uhys jax dh pM~Mh lhy djds efgyk iqfyl dks ns nh FkhA fQftdy ,lksYV ,oa lSD;w;y ,lksYV dh iqf"V fgLVksdsfedy ijh{k.k ds ckn fuf'pr dh tk ldrh gSA mlds }kjk nh x;h fjiksVZ iz0ih0&3 gS] ftlds , ls , Hkkx ij mlds gLrk{kj gSA "

A careful perusal thereof indicates the extent to which the prosecutrix suffered burn injuries due to acid attack and swelling on her private parts with redness; a heinous crime committed on a minor girl.

Learned Deputy Advocate General for the State further

submits that incident is that of 30/12/2015 at about 8:30 PM and on

the very next date FIR has been lodged on 31/12/2015, as such,

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CRA-3912-2018 (Dhampe Singh Vs. State of M.P.)

there is no delay in filing the FIR. That apart, the ocular evidence of

PW-1-prosecutrix completely supports the story of the prosecution

and has withstood cross-examination. Based on clinching evidence

on record, learned judged recorded a clear finding of gang-rape in

para 52 of the judgment. As such, it is a clear case of merciless gang

rape and splashing of acid on the lower part of the body of

prosecutrix, not only causing burn injuries but also causing

exposure of bones as discussed in para 10 of the judgment. As such,

no case for suspension of sentence to the appellant is made out .

Heard, learned counsel for the parties.

This Court finds substantial force in the submissions

advanced by learned counsel for the State and learned counsel for

the father of the complainant/appellant in Criminal Appeal

No.8861/2018. The findings of the trial court rest upon critical

evaluation of the evidence on record. The ocular evidence of

prosecutrix (PW-1) is consistent and in conformity with the

prosecution case with regard to complicity of the appellant in the

crime with specific attributes of overt act of commission of rape and

splashing of acid on the body of the prosecutrix after commission of

rape. Consequently, this Court declines to order for suspension of

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CRA-3912-2018 (Dhampe Singh Vs. State of M.P.)

sentence. Accordingly, IA No.73/2022 stands dismissed.

At this stage, learned Deputy Advocate General and learned

counsel on behalf of complainant submit that this Court may

consider for listing of the appeal for final hearing as prayed by the

counsel for the appellant in this appeal inter alia contending that

conviction under Section 376(2)(g) of the IPC is based on deleted

provision; instead the conviction for gang-rape ought to have been

under Section 376(D) of IPC wherein minimum sentence is 20 years

whereas the appellant has been convicted only for ten years.

Prayer accepted.

List this matter in last week of April, 2022.

Observations, on facts, if any, are only for the purpose of

disposal of I.A. No.73/2022.

 (ROHIT ARYA)                            (SATISH KUMAR SHARMA)
    JUDGE                                        JUDGE


rahul
                                                Digitally signed by RAHUL SINGH PARIHAR

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cd e4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4A B9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2022.01.27 14:58:43 +05'30'