Madhya Pradesh High Court
Gendalal @ Heeralal @ Mohanlal Vanshkar vs The State Of Madhya Pradesh on 8 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-1700-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 8 th OF AUGUST, 2024
CRIMINAL APPEAL No. 1700 of 2014
GENDALAL @ HEERALAL @ MOHANLAL VANSHKAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Suresh Kumar Chohtel - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
This criminal Appeal under Section 374(2) of Code of Criminal
Procedure, 1973 is filed by the accused/convict Gendalal @ Heeralal @
Mohanlal Banshkar S/o Shri Mishrilal Banskar being aggrieved of the
judgment dated 17.05.2014 passed by the learned Sessions Judge, Bhopal in
Sessions Trial No. 454 of 2013, whereby the appellant has been convicted
and sentenced as under:
Conviction Sentence
Section Act Imprisonment Fine (if deposited Imprisonment in
details) lieu of fine
363 of IPC R.I. for 03 years Rs.3000/- R.I. for 03 months
366 of IPC R.I. for 5 years Rs.5000/- R.I. for 05 months
376 of IPC R.I. for 10 years Rs.10,000/- R.I. for 10 months
2 CRA-1700-2014
376 of IPC R.I. for 10 years Rs.10,000/- R.I. for 10 months
376(I) of IPC R.I. for life (which will last -- --
for the remaining natural
lifetime of that person)
3(A)/4 of POCSO R.I. for 07 years Rs.7000/- R.I. for 07 month.
ACT
(All the sentences to run concurrently)
2 . Shri Suresh Kumar Chohtel, learned counsel for the appellant
submits that he has been appointed through Legal Aid. He submits that, the
appellant is innocent.
3 . As per the prosecution story, incident took place on 16.05.2013
when complainant lodged a report that his minor daughter aged about 2½
years was taken away from his custody without his consent so to commit
violation of privacy and for commission of rape and therefore a missing
person report (Ex.P-1) was lodged on 16.05.2013. Thereafter, FIR (Ex.P-33)
was lodged on 17.05.2013. Girl was recovered and was restored to her
parent.
4 . It is submitted that, complainant was residing with his wife and two
children including the prosecutrix who was 2½ years of age. Complainant
was engaging in the work of laying of tiles. On the date of the incident, he
had gone to lay the tiles. His wife and children were at home. His wife had
gone to take some 'Kirana' in the neighborhood and when she returned she
did not find the prosecutrix. She asked in the neighborhood, she could not get
any information on where about of the child then she called her husband and
asked him to look for the child. Thereafter, complainant and his wife had
taken photograph of the child and had reported the matter at the Police
3 CRA-1700-2014
Station, where missing person report was lodged at Sl. No. 30/2013.
5 . It has come on record that a colony namely Ruchi Lifescape was
being constructed at a distance of 04 k.m. from Bagmugalia, from where they
received information on the next night that child was recovered from said
Ruchi Lifescape colony. Then the complainant reached the spot and brought
his child to home.
6 . The child reported some trouble at the place of urination, then she
was taken to Police Station Bagsewaniya, from where she was referred to the
Doctor for Medical Examination. Dr. Neera Choudhary (PW-13) examined
the child and found that it was a case of attempt of sexual assault as posterior
vaginal wall was inflated and the injury was caused within 12 to 24 hours of
the examination. Medical report of Dr. Neera Choudhary (PW-13) is Ex.P-6.
7 . It is submitted that since there was no finding of commission of
rape by the Doctor, therefore, conviction of the appellant is based on
surmises and conjectures and is liable to be set-aside.
8 . It is submitted that, appellant is innocent he is a middle aged person
of 43 years of age and he has been falsely convicted.
9 . Since appellant abjured his guilt, trial was conducted and conviction
was recorded with the sentence as aforesaid.
10. Shri Manasmani Verma, learned Public Prosecutor, in his turn
submits that appellant is a habitual criminal. He had earlier committed rape
on a 75 years old woman for which criminal trial was conducted bearing ST
No. 154/2001, by the learned Sessions Judge, Hoshangabad and he was
convicted with life imprisonment and fine of Rs.2000/- vide judgment dated
4 CRA-1700-2014
11.09.2002.
11. It is submitted that this judgment was affirmed in Cr. Appeal No.
1570 of 2002 vide judgment dated 03.07.2012 passed by a Division Bench of
this High Court. Thus, it is submitted that conduct of the appellant is through
out doubtful and shady.
12. It is further submitted that DNA report (Ex.P-25) is positive and it
has come on record that on the vaginal smear slide (Ex.A(R-8294)) and
lower and top of the prosecutrix Ex. B(R-8295) contained male DNA
Profile.
13. It is further mentioned that when the male DNA Profile was
matched with that of the blood sample of the appellant, then all the genetic
markers and ailele which were found on the blood sample of the appellant
were same and they matched with the vaginal smear slide of the clothings of
the prosecutrix. In view of such reporting, it is submitted that conviction is
just and correct.
14. At this stage, learned counsel for the appellant Shri Suresh Kumar
Chohtel submits that identification of the appellant at the instance of Rakesh
Kumar Sahu (PW-21) is not appropriate in as much as that identification was
made with the help and aid of CCTV footage in which though the
prosecutrix was seen traveling on a cycle but face of the appellant is not
clear.
15. After hearing learned counsel for the parties and going through the
record. Certain facts needs to be put in a correct sequence. Ex.P-5 is the
Panchnama in which on the basis of CCTV Footage available at Ruch
5 CRA-1700-2014
Lifescapes Colony, Rambabu Mahto, Krishna Mahto and Naina Mahto had
identified the victim. Same CCTV Footage was shown to the witness Rakesh
Kumar Sahu (PW-21) who had identified the appellant Mohan as the person
carrying the child. Rakesh Kumar Sahu (PW-21) has deposed that Mohan is
known to him. His identification Panchnama is Ex.P-39. This appellant was
identified by Lalsahahb Yadav (PW-22) also. Clothing of the prosecutrix
were recovered from the possession of the mother, so also that of the
appellant on his production from his hutment where he had given his
underwear and had informed that he had burned his paint and shirt.
16. In his memorandum (Ex.P-9) appellant admitted taking the
prosecutrix with him and getting biscuits for her from the shop of Ashok
Ingle (PW-4). PW-4 Ashok Ingle had identified the appellant in the TIP
which was conducted at jail vide Ex.P-11. Thus, the first chain of event that
appellant had taken the prosecutrix to his shop for buying a packet of biscuit
to lure the prosecutrix is made out from the evidence of Shri Ashok Ingle
(PW-4).
17. Lalsahab Yadav (PW-22) too identify the appellant and said that he
was knowing the appellant because he was working as a Security Guard on
the main gate of the colony namely Ruchi Lifescapes. He also identified the
appellant in the Court. He further deposed that father of the child is also
known to him as he was working as Security Guard in another colony.
18. It is true that in his statement (Ex.D-6) Lalsahab Yadav (PW-22)
has not made any mention of the present appellant but Rakesh Sahu (PW-21)
in his statement recorded under Section 161 Cr.P.C. has categorically
6 CRA-1700-2014
mentioned that the person who had taken the prosecutrix on his bicycle is
Mohan as he was working as Raj Mistri under him. Thus, evidence of PW-21
is credible and reliable in as much as he not only identified the present
appellant but had also given statement to this effect in his statement recorded
under Section 161 Cr.PC. vide Ex.P-5.
19. Then the most important chain of circumstance is matching of
DNA . Dr. Pankaj Shrivastava Scientific Officer from DNA Finger Print
Unit FSL Sagar has been examined as PW-12 and has proved the report
(Ex.P-25). Thus, matching of DNA profile obtained from the blood sample
of the appellant with the vaginal slide of the prosecutrix and DNA profile
obtained from the clothing completes the chain of circumstances when as per
Dr. Pradeep Shrivastava (PW-10) who has prepared report Ex.P-25, it has
come on record that appellant was capable of intercourse.
20. Prosecution witness PW-1 & PW-2 proves abduction of the
prosecutrix for which missing person report was lodged in the police station.
Thereafter, they received intimation in regard to recovery of missing child
and this report was given by PW-22 who was knowing the father of the
prosecutrix and he was also working as the security guard. Then third
circumstances that the prosecutrix who was 2½ of age reported trouble in her
urinary track. Thereafter, from the CCTV camera of Ruchi Lifescapes
Colony appellant was identified by PW-21 taking the prosecutrix on a
bicycle.
21. Ashok Ingle (PW-4), Sourabh Vishwakarma (PW-5) and Geeta
Patel (PW-11)all deposed that they had seen the victim alongwith the
7 CRA-1700-2014
appellant. Appellant was arrested. Subjected to medical examination.
Prosecutrix was medically examined. Vaginal slide was prepared, sent for
FSL reporting and it was found that DNA profile obtain from the blood
sample of the appellant matched with the male profile obtained from the
vaginal slide of the prosecutrix as well as the clothing of the prosecutrix and
thus, that completes the chain of circumstances to implicate the present
appellant.
22. Thus, when all the circumstances point out towards the guilt of the
present appellant alone and there are no other circumstances to take any
other view then the view of guilt of the present appellant then there cannot
be any other finding except that of guilt of the appellant which has been
recorded by the learned trial Court.
23. There is no material to take any other view then the view taken by
the learned trial Court. Appeal fails and is dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
