Madhya Pradesh High Court
Bhuvneshwar @ Abbu Singh vs The State Of Madhya Pradesh on 16 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:17627
1 CRA-3640-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 16th OF APRIL, 2025
CRIMINAL APPEAL No. 3640 of 2020
BHUPENDRA @ BHOJRAJ SHUKLA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ram Prakash Yadav - Advocate for the appellant.
Shri Nitin Kumar Gupta - Public Prosecutor for the respondent-State.
WITH
CRIMINAL APPEAL No. 4044 of 2020
BHUVNESHWAR @ ABBU SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prakash Kumar Gupta - Advocate for the appellant.
Shri Nitin Kumar Gupta - Public Prosecutor for the respondent-
State.
ORDER
Per: Justice Vivek Agarwal
Dictated in the open Court
These criminal appeals under Section 374(2) of the Code of Criminal
Procedure, 1973 are filed by the convicted appellants - Bhupendra @ Bhojraj
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Shukla S/o Shri Arun Shukla and Bhuvneshwar @ Abbu Singh S/o Late Shri
Ramkhelawan Singh being aggrieved of the judgment dated 28.01.2020
passed by the learned Special Sessions Judge under SC/ST (Prevention of
Atrocities) Act, 1989, Shahdol, District Shahdol (M.P.) in Special case
No.61/2019 (State of Madhya Pradesh Vs. Bhupendra @ Bhojraj Shukla and
another), whereby the appellants have been convicted for offence under
Sections 341, 323 of Indian Penal Code, 1860 and sentenced to undergo S.I.
for 1 month (fine of Rs.500/-) and R.I. for 1 year (fine of Rs.1,000/-) with
default stipulation of R.I. for 15 days, R.I. for 1 month, respectively. The
appellants are also convicted under Section 376D of Indian Penal Code,
1860 as well as under Sections 5(g)/6 of the Protection of Children from
Sexual Offences Act, 2012 and sentenced to life imprisonment which shall
not be less than 20 years (fine of Rs.10,000/-) with default stipulation of R.I.
for 1 year.
2. It is submitted by Shri Ram Prakash Yadav and Shri Prakash Kumar
Gupta, learned counsels for the appellants that appellants are innocent. Age
of the prosecutrix could not be proved. It is submitted that accused persons
were shown to the prosecutrix in the police station and, therefore,
identification at her behest is of no importance. Reading from the evidence of
PW-1 Dr. Mukund Chaturvedi, learned counsel for the appellants further
submit that there are glitches in the collection of the blood sample which will
render the FSL report ineffective and, thus, it is submitted that it is a fit case
to extend benefit of acquittal in favour of the appellants.
3. Shri Nitin Kumar Gupta, learned Public Prosecutor, in his turn, submits
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that DNA report (Ex.P-34) is categorical. It shows that from the 'Y'
chromosomal profile obtained from source 'A' of the prosecutrix i.e. the
vaginal slide matched with the 'Y' chromosomal profile obtained from the
blood sample of appellant Bhojraj @ Bhupendra Shukla and that of appellant
Abbu @ Bhuvneshwar Kanwar and, therefore, identification is biologically
and scientifically proved. Therefore, no further indulgence is called for.
4. After hearing learned counsel for the parties and going through the
record, it is evident that the prosecutrix had given an application to the SHO,
Police Station Jaitpur, District Shahdol as contained in Ex.P-4, alleging that
she was subjected to rape on 28.11.2016 by two unknown persons. On the
basis of this report, on 29.11.2016 at 00:46 hours, FIR was lodged registering
case crime No.335/2016 under Sections 341, 376D, 323, 506 of I.P.C. and
Section 6 of the Protection of Children from Sexual Offences Act, 2012.
Copy of FIR is Ex.P-5. With the consent of the mother of the prosecutrix,
prosecutrix was subjected to medical examination. Her medical examination
report is Ex.P-12 which has been proved by doctor PW-7.
5. PW-7 Dr. Reena Gautam has stated that there were 28 teeth in the jaw of
the prosecutrix, 14 above and 14 below. She has found several injuries on the
body of the victim. On internal examination, it was found that there was
redness in the vulva which was swollen and was paining on touch. Perineal
area was red and swollen which was also paining on touch. There was slight
blood diffusion from the internal parts of the body. She had prepared two
slides from the vaginal discharge of the prosecutrix. On asking, prosecutrix
had informed that she had her last period 20 days back and Budhar police
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had seized her clothes which she had wore at the time of the incident. PW-7
Dr. Reena Gautam had given an opinion that on examination she had found
complete penetration through vulva in the vagina within 24 hours of medical
examination of the prosecutrix. She further admitted that no examination in
regard to age of the prosecutrix was carried out by her.
6. PW-2 is the prosecutrix. She has supported the prosecution case and
narrated the same facts which were mentioned in the FIR and in her written
complaint. Her version is corroborated through medical report (Ex.P-12)
proved by doctor PW-7. There is one contradiction that in paragraph 12 of
her cross-examination, prosecutrix admitted that accused persons were
shown to her at the police station. However, that loses its importance because
PW-3 another girl who was accompanying the prosecutrix while they were
returning from the school has categorically stated in paragraph 8 of her
cross-examination that she had identified the accused persons in the jail by
keeping her hand on their heads. There is no contradiction in her
identification. Even otherwise, identification stands completed through DNA
report (Ex.P-34).
7. As far as submissions made by Shri Prakash Kumar Gupta, learned
counsel in regard to collection of blood sample is concerned, we have gone
through the evidence of PW-1 Dr. Mukund Chaturvedi S/o Shri K.B.
Chaturvedi, Medical Officer, District Hospital, Shahdol and on going
through his cross-examination, it is evident that except for certain minor
glitches, there is no major inconsistency so to render the process of sampling
to such a stage so to make it necessary to discard it. In fact DNA report does
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not make any reference to defective sampling or the blood samples of the
accused persons being spoiled as is the suggestion given by the learned
counsel to PW-1 Dr. Mukund Chaturvedi.
8. As far as PW-4 is concerned, he too has supported the case of the
prosecutrix and there is no material contradiction in his evidence.
9. As as far age of the prosecutrix is concerned, father of the prosecutrix
PW-5 has categorically stated that at the time of the incident, age of the
prosecutrix was 17 years. A suggestion was given to him that her age was 19
years, but that has been denied by him in paragraph 6 of his cross-
examination. Similarly, PW-6 mother of the prosecutrix has supported the
prosecution case and has also stated that age of the prosecutrix was 16 to 17
years at the time of the incident. Even otherwise, in a case under Section
376D of IPC, age is not material. What is to be seen is the conduct of the
accused persons. There is no element of consent.
10. In view of such facts, when Section 376D of IPC is taken into
consideration, then it is evident that the prosecutrix was raped by more than
one person constituting a group acting in furtherance of a common intention
and, therefore, each of them having their DNA sample being matched with
'Y' chromosomal DNA profile obtained from vaginal slide of the prosecutrix,
deserves to be and have been rightly convicted under Section 376D of IPC.
When tested, it is evident that the trial Court has appropriately appreciated
the facts and evidence on record and that does not call for any interference.
Therefore, appeals fail and are dismissed.
11. In the result, both the appeals filed by the appellants are dismissed. The
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case property be disposed off in terms of the judgment of the trial Court.
Record of the trial Court be sent back. Pending application(s), if any, also
stand disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
pp
