Sharadchand @ Sahardi Gond vs State Of M.P.
2023 Latest Caselaw 11792 MP

IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                           BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 27th OF JULY, 2023
                   CRIMINAL APPEAL No. 2822 of 1998

BETWEEN:-

SHARDI GOND @ SAHARDI GOND, AGED ABOUT
30 YEARS, (MADHYA PRADESH)
                                                                     .....APPELLANT
(BY SHRI VIVEK BADERIYA - ADVOCATE)

AND

STATE OF M.P. (MADHYA PRADESH)
                                                                   .....RESPONDENT
(BY SHRI D. K. SHRIVASTAVA - GOVERNMENT ADVOCATE)

       Reserved on                 :      19.07.2023

       Pronounced on               :      27.07.2023

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

       This appeal having been heard and reserved for judgment, coming

on for pronouncement this day, the court passed the following:

                                   JUDGEMENT

The judgment passed by the first Additional Sessions Judge Seoni

on 27th of August 1997 in S.T. No.32/1997 has been challenged in this

criminal appeal. The appellant was convicted under it for the offence of Section 376 of IPC and was sentenced to 7 years rigorous imprisonment

along with fine of Rs.1,000/- with default clause in the event of non-

payment of fine.

2. The brief facts of the prosecution case are that the prosecutrix was

coming back from her agricultural field at around 5:00 p.m. on

03.03.1997. She was easing herself in a Nalla nearby her field when

suddenly the appellant came from behind and threw her on the ground.

He raped her despite her resistance. He also threatened her of life if she

told the incident to anyone. Prosecutrix came back home and in the

evening when her husband returned from his work, she narrated the

incident to him as well as to her sister and brother-in-law. They all then

went to the police station to lodge the FIR. On the basis of FIR made by

the prosecutrix, she was medically examined. Her clothes were seized;

her vaginal slide was made, which was sent for examination to FSL. The

report was received confirming the presence of sperm. Spot map was

prepared. Statements of witnesses were recorded. Appellant was arrested

and charge-sheet was filed. After conclusion of trial, the appellant was

convicted and sentenced as aforesaid.

3. This appeal was preferred from jail by the appellant himself hence, not

too many grounds have been raised in the appeal memo. It suggests that

appellant has claimed innocence and has prayed for acquittal.

4. The appeal has been opposed by the learned government advocate for

state. It has been argued that the appellant was rightly convicted on the

basis of evidence available on record and the finding of conviction

requires no interference at the appellate level. It is therefore prayed that

the appeal should be dismissed.

5. Arguments of both the parties have been heard in details. Record of the

trial court has been examined thoroughly.

6. In this case the appellant stands convicted of the offence of Section 376

of IPC on the basis of sole testimony of prosecutrix (PW/1). Looking to

the nature of crime, there could not have been any eyewitness to the

incident. The relevant statements corroborating the prosecution story are

of the husband of the prosecutrix (PW/2). He is a person to whom the

prosecutrix narrated the incident after he came back home in the evening.

7. According to prosecutrix, her family has an agricultural land and at the

time of incident the crop was standing on it. She has stated that at around 4:00 O'clock in the noon, she had gone to the field to look after it and

also to shoo away the parrots. The reason for going to the field has been

further explained by her claiming that her mother-in-law was ill and her

husband was away on his work. According to her, while coming back

from the field to home at around 5:00 p.m. she was easing herself on

Nalla, where the appellant suddenly came from behind and knocked her

down. He then raped her. According to prosecutrix, she shouted a lot,

but nobody came to rescue her. Thereafter the appellant while giving her

life threats, went away. According to her, she came back home and after

her husband returned home, she narrated the whole incident to him and

also to her sister and brother-in-law. Then they went to report the matter,

whereafter she was medically examined.

8. The incident as narrated by the prosecutrix has been challenged by the

appellant and in his statement recorded under Section 313 Cr.P.C. he has

claimed that while he was returning home from his field in the evening,

the husband of prosecutrix and some other persons stopped him and

started assaulting him. It is further claimed that he went unconscious on

account of this attack and his wife reported the matter to the police. The

appellant was taken for medical examination. It is also claimed by him that he was admitted in Chhapara hospital for two days whereafter he was

arrested in this case. He has accordingly claimed innocence.

9. The statements of prosecutrix have duly corroborated the facts

mentioned in the FIR (Ex.D/1) and her police statements (Ex.D/2). She is

confronted on the fact that she failed to mention in the FIR that her

bangles were broken and she had abrasion on her back. Similar omissions

have been highlighted in her police statements. It is very well explained

by the prosecutrix that the abrasion was observed by the doctor and it was

very natural that she could not have seen it by herself. Therefore,

omission to disclose the presence of abrasion in FIR or police statements

is not substantive in nature. Further the fact of broken bangles is only of

suggestive value and it does not itself constitute the crime. A woman

suffering from shock of rape cannot be expected to have narrated each

and every ancillary details. It should have been the effort of police to

collect the evidence. It is important to note that police did not prepare the

spot map nor went to the place of crime to collect the evidence of its

commission. The nazri naksha was prepared by Patwari, which is marked

as Ex.P/5 and it was prepared almost 5 days after the incident. Further, it

was not a part of duty of Patwari to collect the evidence from the spot relating to the commission of crime, or seize the pieces of broken

bangles.

10. On the basis of above analysis of statements of the prosecutrix, there

appears no reason to disbelieve her oral testimony.

11. It is claimed by learned counsel for the appellant that despite assertion

of forcible rape, no injury was found on the person of prosecutrix. For

this, he has referred to the MLC of prosecutrix, which is marked in

evidence as Ex.P/2. The examination of this document shows that

abrasion was found on the right side of the back of prosecutrix. Further,

the MLC report also suggests that the prosecutrix was a thin built lady.

She was married four years prior to the incident. Looking to these facts, it

can be inferred that though she did not have the strength to resist strongly,

still she suffered the injuries on her back. Doctor Neel Kusum (PW-4) has

although opined that this injury could have been sustained by felling

down on a rough surface, but no suggestion was given by the defence to

the proseuctirx that she had sustained this injury by falling down

accidentally. The FSL report (Ex.P/9) shows presence of sperm in the

vaginal slide of prosecutrix. Although, it is argued on behalf of appellant

that the prosecutrix was a married lady and the vaginal slide was prepared on the next day, but that argument is rebutted by the fact of injury on the

back of prosecutrix.

12. The appellant has taken defence in his examination under Section 313

of Cr.P.C. that he was stopped and attacked by the husband of prosecutrix

and companions while appellant was returning home from his field at

around 6:30 pm on the date of incident and he was brutally beaten by

them. For this, he has relied upon his MLC report (Ex.D/4) and the

complaint made by his wife registered in Rojnamcha Sanha. In her

complaint, the wife of appellant has reported that the husband of

prosecutrix and his companions came to her house and assaulted the

appellant with kicks, fists and lathi. It is further disclosed that due to this

assault, the appellant had suffered injuries and was taking rest at home.

13. The facts stated by the appellant in his cross-examination and the

facts mentioned in Ex.D/3 are compared. If this argument is accepted that

the incident occurred when appellant was coming to home, as alleged by

him, then it goes unexplained, why he did not report the matter to the

police immediately as per his version he instead went to home and took

rest there. The second possibility is that the incident occurred in the house

of appellant, as claimed in Ex.D/3, but then there is no explanation why a

group of more than 5-6 persons arrived at his house in the late evening and made an assault on him. Further the alleged incident occurred in the

night of 03.03.1997 while the report was made by the wife of appellant

on next day i.e. 04.03.1997 at 9:30 am. Why this delay was caused in

reporting the matter has again not been explained.

14. The medical examination form of appellant marked as Ex.D/4,

describes the incident of assault by stating that the villagers of village

Kadvi and Gorakhpur made an assault with lathi, danda etc. in the night

of 03.09.1997. These facts cast a duty on the appellant to explain why he

was attacked by the husband of prosecutrix. Neither in his examination

under Section 313 of Cr.P.C. nor by way of evidence the appellant has

given any reason for this assault. The prosecutrix (PW-1) has been given

suggestions in para no.10 of her cross-examination that her husband was

having an old animosity with the appellant, but she has denied this

suggestion. Further the reason of this animosity has not been disclosed,

even in this suggestion.

15. The husband of prosecutrix (PW-2) was confronted during his cross-

examination on the fact of this assault and he has admitted in para no.2

that he had a scuffle with the appellant in the evening after the incident

had occurred. He has further stated that he along with other persons went

to the house of appellant; they were told that appellant was in the jungle; the appellant came back home after a longtime; he was caught hold by the

husband of prosecutrix and his companions to question him about the

incident, but he fled away. These admissions reflect that husband of

prosecutrix was agitated and raged over the incident and he tried to

confront the appellant on the incident which led to some scuffle resulting

in injuries to the appellant.

16. The learned trial Court has rightly observed that this incident was the

aftermath of the crime of rape. As there was no previous enmity between

the appellant and the husband of prosecutrix, this re-active action on the

part of husband of prosecutrix supports the prosecution story. It may also

be observed here that Ex.D/4 suggests that there were only four

contusions, out of which three on the back and one on the knee joint of

the appellant, while he has claimed to have been allegedly assaulted by a

mob of more than 5-6 persons.

17. The foregoing analysis brings to the conclusion that the statements of

prosecutrix have reliably proved the commission of offence of rape on

her by the appellant, the abrasion found on her back and the FSL report

supports her testimony. The subsequent reaction of her husband having a

scuffle with the appellant gives further strength and corroboration to the

prosecution case. The defence raised by the appellant regarding previous enmity has not found to be proved and by offering a false explanation the

appellant has merely strengthened the prosecution story.

18. In the light of discussion of evidence and analysis of arguments of

both the parties, this Court is of the opinion that the prosecution has

convincingly proved its case against the appellant and no reason has been

highlighted by the appellant to raise suspicion on the prosecution story.

Accordingly, the conviction of appellant under Section 376 of IPC is

upheld and this appeal is dismissed on the point of conviction.

19. The appellant has been sentenced to undergo R.I. for 7 years and fine

of Rs.1,000/- by the trial Court for the offence punishable under Section

376 of IPC. The sentence awarded is the minimum period of

imprisonment under that provision and the fine amount imposed is also

reasonable. Therefore, this Court finds no reason to interfere in the

impugned judgment on the point of sentence.

20. The appellant appears to have been released on bail. His bail bonds

stand discharged. He shall immediately be taken into custody to suffer the

remaining sentence.

21. Accordingly, this criminal appeal is dismissed on the points of

conviction and sentence. Further the order of learned trial Court regarding

disposal of property is hereby confirmed.

22. Let a copy of this judgment be sent to concerned Court through

Sessions Judge, Seoni for necessary compliance.

(ANURADHA SHUKLA) JUDGE

rv/pnm

Digitally signed by POONAM MANEKAR Date: 2023.07.28 11:55:44 +05'30'