Sultan Lodhi vs The State Of Madhya Pradesh
2022 Latest Caselaw 58 MP

                                                                                      1                   Cr.A.No.231 of 2013




                                                     HIGH COURT OF MADHYA PRADESH
                                                          PRINCIPAL SEAT AT JABALPUR

                                   Single Bench :        Hon'ble Shri Rajeev Kumar Dubey, J.


                                                                      Cr.A.No.231/2013
                                                                         Sultan Lodhi
                                                                                vs.
                                                                The State of Madhya Pradesh
                                   --------------------------------------------------------------------------------------------

                                   Shri Amit Dubey, learned counsel for the appellant.

                                   Shri Sunil Gupta, learned PL for the respondent/State.

                                   --------------------------------------------------------------------------------------------

                                                                           ORDER

Reserved on : 15/12/2021 Delivered on : 03/01/2022

This criminal appeal has been filed under Section 374(2) of the Cr.P.C. against the judgment dated 09/01/2013 passed by Sessions Judge, Raisen, in S.T.No.129/2012, whereby learned Sessions Judge found appellant guilty for the offence punishable under Section 376(2)(g) of the IPC and sentenced him to undergo 10 years R.I. with fine of Rs.2,000/- in default of payment of fine amount further one-year R.I.

2. As per the prosecution case, on 27/03/2012 prosecutrix (PW-4) (name

and identity of the prosecutrix imposed by law contained in section 228A of

IPC is not disclosed) along with her, father (PW/8) came to Police Station

Kotwali, District Raisen and lodged a report (Ex.P/6) averring that her in-

laws' house is situated at village Baheriya. She had come to her father's house

at village Naand for the festival of Holi, 2 days before. On 26/03/2012, in the

night, Balwan Singh called her and planned to visit Khandera Devi Temple Signature Not Verified SAN for Devi Darshan and they would return soon after having darshan. On this, Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

she agreed to go with Balwan Singh without informing her parents. Balwan

Singh took her on his motorcycle to Khandera temple. After darshan, while

returning to village Naand, the motorcycle got punctured when they were

near village Sanchet. Balwan Singh told her to stay there till he returned after

getting the bike repaired and left with the motorcycle. She stood there for

long but when Balwan Singh did not return till 5:00 am, she started on foot

from there. Meanwhile, Lakshmi Panthi (PW9) came from behind on a

motorcycle. She stopped Lakshmi Panthi (PW9). He told him that he was the

son of the watchman of village Sanchet. She asked Lakshmi Panthi to drop

her till Khandera, then Lakshmi Panthi took her on his motorcycle to

Khandera. In Khandera two persons (later their names were revealed as

appellant Sultan Singh and co-accused Santosh) met coming on a motorcycle.

Lakshmi Panthi asked them where they were going, they told him that they

were going to village Naktara. Then Lakshmi Panthi told them to drop her at

the Naktara police post. Thereafter she sat on the motorcycle with appellant

Sultan and co-accused Santosh but instead of taking her to the Police Post

Naktara, they took her 1 kilometre inside the forest. There appellant Sultan

and co-accused Santosh raped her. After that, they took her from the forest,

left her on the road and ran towards Naktara. They also threatened to kill her

if she narrated the incident to anybody. From there, she started walking on

foot towards Raisen. In Raisen she met her father (PW/8) and narrated the

whole incident to him and thereafter came to the Police Station Kotwali,

District Raisen. On the report, Surendra Tiwari (PW-12) Sub Inspector,

Police Station Sanchi, District Raisen, registered Crime No.171/2012 for the

offence punishable under Sections 376(2)(g), 506B of the IPC against the

appellant Sultan Lodhi and co-accused Santosh Lodhi and investigated the

matter. During the investigation, he went to the spot and prepared a spot map

(Ex.P/7). He also sent the prosecutrix to District Hospital, Raisen for medical Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

examination along with the letter (Ex.P/1-A), where Dr Archana Pundor

(PW/1) examined her and gave the report (Ex.P/1). She also prepared a slide

of a vaginal swab of the prosecutrix, seized Salwar which was worn by her at

the time of her examination and sealed it in a packet and handed it over to the

constable, who produced that packet at P.S. Raisen. Head Constable Kamal

Singh (PW/3) seized that packet from his possession and prepared a seizure

memo (Ex.P/4). Surendra Tiwari (PW-12) also recorded the statement of the

prosecutrix (Ex.D/1), her mother (PW/4), father Mahraj Singh (PW/8) and

Lakshmi Panthi (PW/9). He also arrested co-accused Santosh and appellant

Sultan and prepared arrest memos (Ex.P/9 & 10) respectively and sent them

to District Hospital, Raisen for medical examination, where Dr

A.S.Kushawah (PW/10) examined them and gave the reports (Ex.P/13 & 14)

respectively. He also prepared slides of their semens, seized their briefs

which were worn by them at the time of their examination and sealed it in a

packet and handed it over to the constable, who produced that packet at P.S.

Raisen. Head Constable Raja Singh (PW/7) seized that packet from his

possession and prepared a seizure memo (Ex.P/11). On 10/04/2012

Prosecutrix informed Surendra Tiwari (PW-12) that on the date of the

incident Balwan also committed rape with her. On that he recorded her

supplementary case diary statement (Ex.D/2), arrested Balwan and prepared

arrest memo (Ex.P/5), sent him for medical examination to District Hospital

Raisen, where Dr P.S. Thakur examined him and gave the report (Ex.P/15)

He also prepared a slide of his semens and sealed it in a packet and handed it

over to the constable, who produced that packet at P.S. Raisen. Head

Constable Kamal Singh (PW/3) seized that packet from his possession and

prepared a seizure memo (Ex.P/5). Surendra Tiwari also sent all seized

articles to FSL, Sagar for chemical examination from where the FSL report

(Ex.P/17) was received. After investigation, police filed the charge sheet Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

against the appellant and other co-accused Santosh and Balwan before

Judicial Magistrate First Class, Raisen. On that charge sheet,

R.T.No.469/2012 was registered. Learned JMFC, Raisen committed the case

to the Court of Sessions, where S.T. No.129/2012 was registered.

3. Learned Sessions Judge, Raisen framed charges against appellant

Sultan and co-accused Santosh and Balwan under Section 376(2)(g), 506-B

of the IPC and tried the case. Though appellant and co-accused abjured their

guilt and took the defence that they have falsely been implicated in the case,

learned trial Court after trial acquitted co-accused Balwan Singh from all the

charges and also acquitted the appellant Sultan Lodhi and co-accused Santosh

Lodhi for the charge punishable under Section 506 B of IPC, but found

appellant Sultan Lodhi and co-accused Santosh Lodhi guilty for the offence

punishable under Section 376(2)(g) IPC and sentenced appellant and co-

accused Santosh as mentioned above. Being aggrieved from that judgment

appellant Sultan filed this appeal.

4. Here it is pertinent to note that co-accused Santosh Lodhi had also filed

the criminal appeal Cr.A.No.289/2013 against the judgement. But during the

pendency of the appeal he suffered the whole sentence awarded by the trial

court and his appeal was dismissed by the coordinate Bench of this Court

vide order dated 20/09/2021.

5. Learned counsel for the appellant submitted that there are many

contradictions and omissions in the statements of the prosecutrix (PW-4)

regarding the involvement of the appellant in the crime. Prosecutrix (PW/4)

herself admitted that at the time of the incident she did not know the name of

appellant Sultan and co-accused Santosh. She was told the name of appellant

Sultan and co-accused Santosh by the watchman's son Lakshmi Panthi (PW-

9), while in this regard the statement of prosecutrix does not corroborate with

the statement Lakshmi Panthi (PW-9). He clearly denied the fact that Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

appellant Sultan Lodhi and co-accused Santosh met him on the date of the

incident and he sent the prosecutrix with them on a motorcycle. Police did not

get a test identification parade of the appellant conducted. However, the

prosecutrix identified the appellant, in the court, that dock identification of

the appellant cannot be relied upon. So it cannot be said that in the incident

appellant committed rape with the prosecutrix. Appellant has not committed

any offence and a false story was concocted by the prosecutrix. On the

strength of aforesaid learned counsel submitted that the learned trial Court

without appreciating the prosecution evidence properly, wrongly found the

appellant guilty for the aforesaid offence.

6. On the other hand, learned counsel for the State submitted that guilt of

the appellant is clearly proved beyond reasonable doubt from the prosecution

evidence. So, the learned trial Court did not commit any mistake in finding

the appellant guilty for the aforesaid offence.

7. The point of determination in this appeal is whether the conviction and

sentence awarded by the trial Court to the appellant under Section 376(2)(g)

of IPC are liable to be set aside for the reasons stated in the memo of appeal

and raised during the argument.

8. In this regard prosecutrix (PW-4) deposed that at the time of the

incident she was at her father's house. She had come there on the festival of

Holi because her grandfather had died. On the date of the incident Balwan

Singh told her Let's go to visit Khandera Devi Temple for Devi Darshan, on

this, she agreed to go with Balwan Singh. He took her to visit Khandera

temple on his motorcycle. After darshan, when they were returning to the

village Naand, on the way Balwan Singh raped her. Thereafter he told her

that the motorcycle got punctured., he came after getting the puncture

repaired and Balwan Singh left from there with a motorcycle. She stayed

there and waited for Balwan Singh for two and half hours but he did not Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

return till 5-6:00 am, then she started on foot from there. At that time

Lakshmi Panthi (PW/9) came on a motorcycle. She asked Lakshmi Panthi to

drop her till the police post, then Lakshmi Panthi took her on his motorcycle.

In Khandera two-person appellant Sultan Singh and Santosh met on a

motorcycle. Lakshmi Panthi told them to drop her at the Naktara police post.

Thereafter she sat on the motorcycle with appellant Sultan and co-accused

Santosh. Instead of taking her to the Police Post Naktara, they took her to the

valley of Amaraval through a forested road. There first co-accused Santosh

raped her then appellant Sultan raped her. After that, they left her and went.

From where she started walking on foot, on the way her father met her. She

narrated the whole incident to her father and lodged the report. In this regard,

her statement is also corroborated by the F.I.R.(Ex.P/6) lodged by her. Which

was also proved by Surendra Tiwari (PW/12), who wrote that report and the

statement of the prosecutrix is also corroborated by the statement of her

mother (PW/6) and father (PW-8) from whom the prosecutrix narrated the

incident.

9. The failure of the investigating agency to hold a test identification

parade does not have the effect of weakening the evidence of identification in

the Court. As to what should be the weight attached to such an identification

is a matter which the Court will determine in the peculiar facts and

circumstances of each case. Inappropriate cases, the Court may accept the

evidence of identification in the Court even without insisting on

corroboration.

10. In this case the Prosecutrix at the time of her Court statement clearly

identified the appellant and co-accused Santosh as an accused. Even she also

deposed in her Court statement that at the time of the incident appellant

Sultan Lodhi and co-accused Balwan Singh and Santosh Lodhi committed

rape with her. This fact is also corroborated by the FIR, in which it is Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

mentioned that the appellant and co-accused took there name as Sultan and

Santosh, due to which prosecutrix knew their names, so only on the basis that

Lakshmi Panti (PW/9) turned hostile and did not support the prosecution

story, the statement of prosecutrix, who deposed that the appellant and co-

accused committed rape with her, cannot be disbelieved.

11. The statement of prosecutrix also corroborated by her medical

examination report conducted by Dr. Archana Pundor (PW-1), who clearly

deposed that at the time of examination of prosecutrix she found bruises on

her back and she also submitted that she prepared slide of her vaginal swab.

Surendra Tiwari (PW-12) deposed that he sent that article to FSL, Bhopal for

chemical examination from where report (Ex.P/17) has been received. In that

report also it is mentioned that in the slide of her vaginal swab and on her

salwar sperm was found. Appellant cross-examined the prosecutrix at length,

but nothing has come out in her cross-examination which cast a shadow of

doubt over her veracity. If the appellant had not committed rape with the

prosecutrix, why would have she given a false statement against the

appellant?

12. Learned trial court in his judgement elaborately discussed the

prosecution evidence and the point raised by that appellant as well and after

appreciation of all the prosecution evidence found the statement of

prosecutrix trustworthy. In the considered opinion of this Court learned trial

Court did not commit any mistake in believing the prosecutrix statement and

finding the appellant guilty of the offence punishable under Section 376 (2)

(g) of the IPC.

13. As far as the sentence is concerned, the learned trial Court convicted

the appellant for the offence punishable under Section 376(2)(g) of the IPC

and sentenced him to undergo R.I. for ten years, which is the minimum

Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST

sentence prescribed under the I.P.C. for the offence. So this Court does not

find any reason to interfere with the sentence given by the trial Court.

14. Hence, the appeal stands dismissed. The appellant is in Jail so the period of custody during trial shall be adjusted towards the period of substantive sentence of imprisonment.

(Rajeev Kumar Dubey) Judge vs

Signature Not Verified SAN

Digitally signed by VARSHA SINGH Date: 2022.01.04 17:40:38 IST