Narayan Singh vs State Of M.P.
2022 Latest Caselaw 4264 MP

                                            1                         CRA-469-2013

               HIGH COURT OF MADHYA PRADESH
                      BENCH GWALIOR


                        SB : Justice G.S. Ahluwalia


                     Criminal Appeal No. 469 of 2013

                                Narayan Singh
                                     Vs.
                           State of Madhya Pradesh

------------------------------------------------------------------------------------
None for the appellant.
Shri Rohit Mishra, Additional Advocate General for the State.
------------------------------------------------------------------------------------

Date of hearing                              : 21/03/2022
Date of judgment                             : 28/03/2022
Whether approved for reporting               :


                              JUDGMENT

28th - March, 2022

This criminal appeal under Section 374 of CrPC has been filed

against the judgment and sentence dated 26.04.2013 passed by

Additional Sessions Judge, Ambah District Morena in S.T.

No.80/2013, by which the appellant has been convicted under Section

376 of IPC and has been sentenced to undergo rigorous imprisonment

of 10 years and a fine of Rs.25,000/- with default rigorous

imprisonment of one year.

2. According to the prosecution case, on 31.01.2013, mother of

the prosecutrix had a fast of Thursday and after performing prayers,

she gave a dough to the prosecutrix for giving it to a Cow.

Accordingly, at about 11:00 AM, the prosecutrix went near the house 2 CRA-469-2013

of Narayan Kushwah, where the Cow was tied. When the prosecutrix

did not return back even after half an hour, then her mother went in

search of her and found that her daughter/prosecutrix was coming out

of the room of the present appellant and was crying. The appellant

also came out of the house and after noticing the mother of the

prosecutrix went back to his room. Mother of the prosecutrix brought

the prosecutrix back to her house and inquired about the incident,

then the prosecutrix informed that she has been raped. She further

clarified that the appellant has also extended a threat that in case, if

the incident is narrated to anybody, then he would strangulate her.

When mother of the prosecutrix examined the body of the prosecutrix

after removing her pant and undergarments, then she found that there

was blood on the private part of the prosecutrix and her underwear

was also stained with blood. The entire incident was narrated by the

mother of the prosecutrix to her mother-in-law as well as sister-in-law

(Devrani). Thereafter, the prosecutrix was given a shower. Her

husband (father of the prosecutrix) came back in the evening and,

accordingly, the FIR was lodged on 31.01.2013 at 17:00. The

prosecutrix was sent for medical examination and it was opined that

hymen could not be examined as the patient is not cooperating and is

crying and, accordingly, an opinion was given that possibility of rape

cannot be ruled out. However, it should be co-related with the

circumstantial evidence and cerochemical examination. Vaginal stick,

slide and underwear were seized. The appellant was arrested. The 3 CRA-469-2013

statement of the witnesses were recorded. Blood sample was collected

for DNA examination.

3. The police after completing the investigation filed the charge-

sheet for offence under Section 376 of IPC. The Trial Court by order

dated 01.03.2013 framed the charges under Section 376 of IPC.

4. The appellant abjured his guilt and pleaded not guilty. The Trial

Court by impugned judgment convicted and sentenced the appellant

for the above-mentioned offences.

5. The prosecution in order to prove its case, examined the mother

of the prosecutrix "A" (PW-1), prosecutrix (PW-2), grandmother of

the prosecutrix "B" (PW-3), Kailadevi (PW-4), father of the

prosecutrix "C" (PW-5), Rakesh (PW-6), Dr. G.C. Arya (PW-7),

Arvind Singh Sikarvar (PW-8), Ramhet (PW-9), Dr. Shalini Mishra

(PW-10), Umesh Singh (PW-11) and RNS Gaur (PW-12).

6. The appellant examined Ramesh (DW-1) in his defence.

7. The Trial Court by the impugned judgment convicted and

sentenced the appellant for the offence mentioned above.

8. As none had appeared for the appellant, therefore, this Court

has gone through the record and also heard the counsel for the State

as well as considered the grounds raised in the memo of appeal.

9. The prosecutrix (PW-2) is a minor girl aged about 6 years. She

has stated that the appellant is known to her as he is also residing in

the same village. On the fateful day, she had gone to feed dough to

the cow. The appellant committed rape on her after gagging her 4 CRA-469-2013

mouth. Thereafter, her mother came there and after noticing her, the

appellant left the place. Thereafter, her mother brought her back to

her house. She was crying. Her clothes were stained with blood. She

was given shower by her mother and her clothes were changed.

Thereafter, she alongwith her parents went to the police station. Her

uncle was also accompanying her. From the police station they went

to Morena where she was treated. Doctor had collected her clothes

from where she was sent to Gwalior. At Gwalior also she was treated

and she remained hospitalized for two days. She was interrogated by

the police and she had narrated the same incident which she has

stated before the Court.

10. The prosecutrix was cross-examined and in the cross-

examination, she stated that she goes to the school in the morning and

comes back at 4 PM. She denied that her father consumes liquor in

every evening. She accepted that her father beats her mother,

however, she was not in a position to state the reason for beating. She

also admitted that one day prior to the incident, her father had beaten

her mother. She admitted that while she was feeding the cow, she was

thrown on the ground by the cow by using her horns. She admitted

that she had sustained injuries. She also admitted that same injuries

were shown by her to her mother. She admitted that she was taken to

the police station on the next date of incident.

11. "A" (PW-1) has stated that she is the mother of the prosecutrix,

who is aged about 6 years. On the date of incident she was having fast 5 CRA-469-2013

and, therefore, she had prepared dough for feeding the cow. The

prosecutrix was sent to feed the cow and when she did not return back

for half hour, then she went to the house of the appellant and saw that

the prosecutrix was coming out of the house of appellant and was

crying and she was violated by the appellant and after noticing this

witness, the appellant went back. After coming back to the house, she

enquired from the prosecutrix as to why she is weeping, then she

informed that she was raped by the appellant. The prosecutrix was

wearing pink colour pant and underwear of yellow colour and both

were stained with blood. She gave shower to the prosecutrix. The

incident was narrated to her mother-in-law. Her husband was not in

the house and had gone to the market and came back at 4 PM and

thereafter, she went to the police station to lodge the FIR. The FIR is

Ex.P/1. After the FIR was lodged, they went to the hospital alongwith

the prosecutrix in a government vehicle. From Ambah hospital they

were referred to Morena. At Morena the prosecutrix was medically

examined. The MLC of the prosecutrix is Ex.P/2. From Morena, the

prosecutrix was referred to Gwalior and accordingly, they went to

Kamla Raja Hospital Gwalior. The prosecutrix remained hospitalized

for 2-3 days. The clothes of the prosecutrix were seized vide seizure

memo Ex.P/3. The appellant, who is present in the Court is known to

his witness. She had given consent for medical examination of the

prosecutrix Ex.P/4.

This witness was cross-examined in detail. She admitted 6 CRA-469-2013

that her husband is in the habit of consuming liquor. However, she

denied that under the influence of alcohol, her husband used to allege

that this witness has illicit relationship. She denied that any fight had

taken place between her and her husband on the date of incident. She

denied that her husband had pressurized her to lodge a false report of

rape against the appellant. She further stated that the prosecutrix is

aged about 6 years and is a student of Class-1. She stated that she

goes to the school at 12 PM. She denied that the prosecutrix was

thrown by the cow by using her horns. She further denied that after

sustaining injuries, the prosecutrix had raised an alarm. She denied

that when she went to the spot, the prosecutrix was near the cow, but

she stated on her own that she was coming out of the house of the

appellant. She further stated that the incident was narrated to her by

the prosecutrix and thereafter, she was given shower and the incident

was narrated to her mother-in-law. She further admitted that she had

also washed the clothes of the prosecutrix, but clarified that the blood

stains remained on the clothes. She denied that the FIR was lodged

after due deliberations.

12. The grandmother of the prosecutrix "B" (PW-3) has also

supported the prosecution case.

13. Kailadevi (PW-4) has stated that it was about 11:30 in the

afternoon and she was standing at the door of her house. The

prosecutrix was crying. At that time, the mother of the prosecutrix

came there and took the prosecutrix with her. The mother of the 7 CRA-469-2013

prosecutrix had informed her that the appellant had committed

"wrong work" with the prosecutrix. Blood stained clothes, underwear

of the prosecutrix were also shown to this witness.

In cross-examination, she stated that the police had come

in the evening. She further stated that she had seen that the

prosecutrix was crying and her mother came and took the prosecutrix

with her. She denied for want of knowledge that the prosecutrix was

thrown on the ground by the cow by her horns. She further admitted

that the prosecutrix had come out of the house of the appellant, who

was followed by the appellant and thereafter, he went back.

14. "C" (PW-5), who is the father of the prosecutrix has also stated

that when he came back, then he was informed by her wife about the

incident.

15. Rakesh (PW-6) has stated that the appellant was arrested by the

police in his presence vide arreset memo Ex.P/6. His memorandum

was recorded under Section 27 of the Evidence Act, which is Ex.P/7.

A bed-sheet which was stained with blood as well as blood stained

shirt were seized vide seizure memo Ex.P/8. Muffler and a blood

stained underwear were also seized vide seizure memo Ex.P/9. The

spot map, Ex.P/5, was prepared.

This witness was cross-examined in detail. He admitted

that because of political rivalry, he has gone to jail for 4-6 times. He

further admitted that he was prosecuted for an offence under Section

302 of IPC, but claimed that it was a political rivalry. He denied that 8 CRA-469-2013

no proceedings were conducted in his presence. He stated that the

house of the appellant is of one room house. He denied that the

mother of the prosecutrix has illicit relationship with the appellant.

16. Dr. G.C. Arya (PW-7) had medically examined the appellant

and found that he is potent. His MLC is Ex.P/10.

17. Arvind Singh Sikarvar (PW-8) is the Patwari and has prepared

the Nazri Naksa, Ex.P/11.

18. Ramhet (PW-9) had brought the vaginal slide, a sealed bottle

and underwear of the prosecutrix, which were seized vide seizure

memo Ex.P/12. On the same day, the clothes, semen and pubic hairs

of the appellant were seized vide seizure memo.Ex.P/13.

19. Dr. Shalini Mishra (PW-10) has medically examined the

prosecutrix. She has stated that the prosecutrix was aged about 6

years. The prosecutrix was crying, therefore, she could not examine

her hymen. Signs of inflammation and blood were seen on the vaginal

surface. Since the prosecutrix was crying, therefore, she cannot say

with certainty whether she was raped or not, but the possibility of

rape cannot be ruled out.

In cross-examination, this witness specifically stated that

the prosecutrix could have sustained the injury because of assault by

the horns of a cow. She further stated with authenticity that in no

circumstance the prosecutrix could have sustained the injuries due to

attack by the cow.

20. The vaginal smear slide, vaginal stick, two underwear, pant of 9 CRA-469-2013

the prosecutrix as well as blood sample of the appellant and the

clothes of the appellant were sent for DNA examination. In the DNA

test, Y chromosome STR DNA profile was found on the underwear of

the prosecutrix and it was found that appellant's Y chromosome STR

DNA profile were present on the clothes of the prosecutrix. The

clothes of the prosecutrix were sealed by Dr. Shalini Mishra (PW-10)

on 31/1/2013 at 11:30 PM, whereas the appellant was arrested on

1/22013 vide arrest memo Ex.P/6. Thus, it is clear that the underwear

of prosecutrix was already sealed much prior to the arrest of the

appellant, therefore, there is no possibility, even the remotest, that the

investigating agency might have smeared the underwear of the

prosecutrix with the semen of the appellant.

21. In view of the specific assertion by Dr. Shalini Mishra (PW-10)

that the prosecutrix cannot sustain an injury on account of attack by

the cow as well as inflammation was found on her private part

coupled with the ocular evidence as well as DNA report, this Court is

of the considered opinion that the prosecution has succeeded in

establishing the guilt of the appellant beyond reasonable doubt.

Accordingly, his conviction under Section 376 of IPC is hereby

maintained.

22. So far as the sentence is concerned, at the relevant time,

minimum sentence for offence punishable under Section 376 of IPC

was 10 years, therefore, it does not require any interference.

23. Ex consequenti, the judgment and sentence dated 26.04.2013 10 CRA-469-2013

passed by Additional Sessions Judge, Ambah District Morena in S.T.

No.80/2013 is hereby affirmed.

24. Since the appellant has already been released after undergoing

jail sentence awarded to him, accordingly, nothing more is required to

be done.

25. The appeal fails and is hereby dismissed.

(G.S. Ahluwalia) Judge

Abhi ABHISHEK CHATURVEDI 2022.03.28 11:06:08 +05'30'