Madhya Pradesh High Court
Bheemsen Singh Gond vs The State Of Madhya Pradesh on 22 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:19364
1 CRA-7971-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 22nd OF APRIL, 2025
CRIMINAL APPEAL No. 7971 of 2018
BHEEMSEN SINGH GOND
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sanjeev Kumar Singh - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the respondent-
State.
JUDGMENT
Per: Justice Devnarayan Mishra
With the consent of learned counsel for the parties, the appeal is heard
finally.
2. This appeal is filed by the appellant under Section 374 of Cr.P.C.
being aggrieved of the judgment dated 24.09.2018 passed by learned Special
Judge, POCSO Act, Shahdol, District-Shahdol (M.P.) in S.C.
No.300256/2015 whereby the appellant has been convicted for the offences
punishable under Section 6 of POCSO Act and sentenced to undergo R.I. for
life with fine of Rs.5,000/- and Section 306 of IPC (on four counts) and
sentenced to undergo R.I. for 10 years (on each count) with fine of
Rs.5,000/- (on each count) with default stipulations.
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3. The prosecution case before the trial Court was that the deceased R.
was the only son of J. Singh Gond. He was having two sons and one
daughter. In the intervening night of 18-19.06.2015 at 02:00 am, the
deceased's son PW-3 in weeping condition alongwith Sitaram Gond came to
him and informed that the deceased R. alongwith his wife, daughter victim
and son have gone towards Malmathar Dam and S. (PW-3) had ran away
from the spot as deceased R. was saying on death and when they visited the
dam, they saw slippers and no one was found there. He came to village and
informed his neighbours Siyaram Gond, Kamlesh, Pooran, Sunder Singh and
Mahesh. At 05:00 am in the morning, he again visited the spot but the
deceased persons were not visible or they have drown in the water dam.
Police visited the spot and the victim alongwith her parents and brother were
searched and their dead bodies were found and they have tied themselves in a
rope. Dead bodies were taken out and Dehati Merg Intimation was registered
under Section 174 of Cr.P.C.
4. After Laash Panchnama (Ex.P-9, P-10, P-11 and P-12) were
prepared. The dead bodies of the four deceased persons were sent for post
mortem. In the post mortem of the victim, it was found that she was having
32-34 weeks' pregnancy. From the fetus, the samples of hairs of victim were
taken. The house of the deceased persons was searched where two notebooks
(Ex.P-38, Ex.P-45 and Ex.P-46) were recovered.
5. The appellant was arrested and his blood sample was collected. The
answer sheets of half yearly exam of victim were recovered and seized from
her school and sent for handwriting expert PHQ, Bhopal whereas the sample
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of fetus and blood collected from the appellant and hairs of the victim were
sent to FSL for DNA examination. As per the DNA examination, it was
opined that the appellant was the father of the fetus found in the womb of the
victim and the suicide notes were written by the victim and her father. It was
found that the appellant has committed rape upon the victim and a social
panchayat was gathered. The appellant denied to keep the victim with him as
a wife and due to that, her family members under the social pressure
committed the suicide. Thus, the appellant has abetted the deceased person to
commit the suicide.
6. The criminal case was registered in Police Station-Gohparu,
District-Shahdol under Sections 376, 306, 34 of IPC and under Section 5/6 of
POCSO Act as a crime no.162/2015. The charge sheet was submitted before
the Judicial Magistrate, I Class, Shahdol. After commitment and transfer, the
case was sent for trial before the trial Court.
7. The trial Court framed the charges against the appellant under
Section 376(2)(n) of IPC and Section 306 of IPC alongwith Section 5(L)/6 of
POCSO Act and against the appellant's father Dhauli Singh, charges under
Section 306 of IPC was framed and read over to them. They abjured the guilt
and prayed for trial.
8. The trial Court recorded the prosecution evidence and examined the
appellant under Section 313 of Cr.P.C. The appellant and his father have
pleaded that they have been falsely implicated in the case. They are innocent
but they have not examined any defence witness.
9. After hearing both the parties, the trial Court passed the impugned
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judgment by which Dhauli Singh has been acquitted and the appellant has
been convicted and sentenced as stated in para no.1 of the impugned
judgment. Hence, this appeal has been filed.
10. Learned counsel for the appellant has submitted that the
prosecution failed to prove the age of the victim and at the time of the
incident, she was minor. The trial Court has convicted the appellant only on
the basis of DNA report (Ex.P-47). The prosecution also failed to prove that
the appellant has committed sexual assault on child as well as the prosecution
utterly failed to prove that the appellant anyhow has instigated, abetted or
aided in the suicide or he has made any conspiracy with any other persons by
which the deceased persons have committed suicide.
11. Learned counsel for the appellant has further submitted that in the
so-called dying declaration, there is no mention of any incident by the father
of the victim. As per so-called dying declaration recorded as Ex.P-45, there
is material differences in the writing skill of the person as there is no spelling
mistake in answer sheets (Ex.P-44). In that answer sheets, there is no
mention of the name of the victim. Furthermore, the prosecution has not
produced any document by which it can be concluded that roll number
written on the answer sheets was allotted to the deceased. On that basis, it is
submitted that the so-called dying declaration did not belong to the victim.
Furthermore, it has been argued that as per the prosecution case itself, the
fetus found in the womb of deceased was of 32-34 weeks. After that, the
victim has committed suicide that is not the result of the so-called violation
of the privacy of the deceased. The prosecution also failed to prove that any
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social panchayat was organised by the father of the deceased. The family
members of the deceased themselves have not supported the prosecution case
in this regard. The trial Court has wrongly convicted the appellant. Hence,
this appeal be allowed.
12. Learned Government Advocate for the State has submitted that
there is clear cut scientific evidence regarding the sexual intercourse with a
minor and the dying-declaration as proved by the handwriting expert and for
the age of the deceased, the prosecution has produced the high school
certificate examination mark sheet (Ex.P-39) in which the date of birth of the
victim has been clearly stated as 06.06.1997. Thus, the victim at the time of
incident was minor and the trial Court has rightly convicted the appellant.
Hence, no interference is called for.
13. Heard learned counsel for the parties and perused the record.
14. On the first part of the conviction regarding the violation of the
privacy of a child/minor as her parents had committed suicide so the oral
evidence on age is not available on record. School Teacher Rambabu
Kachnariya (PW-8) has stated that he is the Principal of Government Higher
Secondary School of village Shahdol. He has brought the scholar register of
his school which is Ex.P-26. As per Ex.P-26/C, the victim/daughter of R.Y
has got the admission in his school on 04.07.2014. As per the scholar
register, her date of birth is marked as 06.06.1997 (her date of birth is also
mentioned in numbers as well as in words). In entry register, bears his
signature and seal of his Office and he has verified the entry in Ex.P-26/C.
He has issued the certificate (Ex.P-27) in which he has stated that the date of
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birth of the victim was 06.06.1997.
15. This witness has also submitted that he has handed over mark
sheet (Ex.P-30) to the Police which was verified by him and denied the
suggestion that in the mark sheet, the date of birth of the victim has falsely
been mentioned. This witness is supported by Mahesh Prasad Dwivedi (PW-
9) and Rajesh Kumar Vaishya (PW-10) who are teachers in that school and
stated that Police Gohparu visited their school and seized the scholar register
and prepared the seizure memo.
16. We have gone through the scholar register (Ex.P-26/C) in which
the date of birth of deceased-victim is mentioned as 06.06.1997 and her
parent's name and address have also been mentioned in the column of
parents and guardian details. In marksheet (Ex.P-30), the same date of birth
has been mentioned and in high school examination mark sheet (Ex.P-39)
that was issued by Board of Secondary Education Madhya Pradesh, Bhopal,
the date of birth of the victim has been mentioned as 06.06.1997. As per the
provision of Rule 12 of Juvenile Justice Rules, 2007 and Section 94 of
Juvenile Justice Act, 2015, this document comes in the priority of the
documents. As per that, the date of birth of the deceased has been mentioned
as 06.06.1997.
17. From the statement of Dr. R.K. Shukla (PW-7), who conducted the
autopsy over the dead body of the deceased-victim, has clearly mentioned
that on post mortem of the victim, there was an undeveloped female child of
32-34 weeks (female fetus) in the dead condition in her uterus and he sealed
the fetus for the DNA test and hairs of head of the deceased-victim were also
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preserved for the DNA test. As per the DNA examination conducted by
CDFD, Hyderabad (Ex.P-47), the appellant is the biological father of the
fetus of the deceased-victim.
18. Thus, it is clear that the physical relation was established between
the deceased-victim and the appellant. As a result, the victim got the
pregnancy and on her womb, 32-34 weeks' fetus was found. On that basis, if
the time of sexual intercourse is determined, it comes near about 18-
19.10.2014. On that date, if her date of birth is calculated, the age of the
victim comes 17 years 04 months and 12 days.
19. As per the Section 2(d) of POCSO Act, the child means any person
below the age of 18 years and Section 5 (j)(II) of POCSO Act provides that
in case of female child makes the child pregnant as a consequence of sexual
assault will be punished under Section 6 for aggravated sexual assault. As
per the amended provision of Section 375 of IPC, the age of consent for
sexual intercourse has been raised from 16 years to 18 years. As per Section
9 of the Amending Act 13/2013 is 18 years and as per Section 376(1) of IPC
that is punishable. Thus, from the scientific evidence, it is clear that the
appellant committed penetrative sexual assault/sexual intercourse on a child
whose age was below the 18 years and made her pregnant.
20. On the point of abetment for the suicide of the victim and her
family members, the witness S. (PW-3) has stated that on 17.06.2015, his
father called him in village Malmathar and on that, he visited his village. On
18.06.2015 at night about 01:00 am, his parents made awoken him and also
awoken his brother and his sister. After locking the house, all were going
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towards Malmathar dam. When he asked his father where they are going, his
father tied his face by Gamchha and when they reached in bank of
Malmathar dam unfastened his mouth from Gamchha and asked that let we
die. He was afraid and he ran towards village and informed his grand father
(PW-2) and also went towards Sitram Gond and told the entire story and
when they returned to the dam, they did not find any person there and in
morning at about 05:00 am, he again visited the dam and informed the
Police. The Police have taken out the dead bodies of his father, brother, sister
and mother. All bodies were tied in a rope. His father tied the rope alongwith
him. He did not know why his father alongwith his family members has
committed suicide.
21. This witness (PW-2) was cross-examined by the prosecution
himself. This witness has only admitted that her sister's stomach was
bloating but he has never asked reason of bloating. This fact has been
supported by J. (PW-2), Santosh Singh Gond (PW-3), Savitri Singh (PW-6),
Samaylal Singh Gond (PW-11). From the statements of these witness, it is
clear that the victim and his parents and brother committed suicide in
initiation of his father and the dead bodies were found in the dam.
22. The dead bodies were carried out on 19.06.2015. The Investigating
Officer Rakesh Mishra (PW-17) has clearly stated that on 18-19.06.2015, he
was posted as ASI in Police Station-Gohparu. The relatives and villagers
filed an application (Ex.P-1) that in Malmathar dam, four persons have
drowned and four sets of slippers were found near the dam. On that, he
recorded the information in general diary (Ex.P-35) and reached the dam
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about 09-10:00 am where he recorded Dehati Merg Intimation on initiation
of J. (PW-2). As per that, S. (PW-3) has informed that the victim, her parents
and her brother has drowned in the dam. The dam was searched with the help
of the villagers and four dead bodies were recovered. Shav Panchnamas
(Ex.P-5 to Ex.P-18) were prepared and the dead bodies were sent for the post
mortem as per Ex.P-24 to Ex.P-24/A and recovered the slippers and prepared
seizure memo (Ex.P-14) and recovered mobile phone from the dead body of
the father of the deceased and prepared spot map (Ex.P-17).
23. Dr. R.K. Shukla (PW-7) has clearly stated on 19.06.2015, he was
posted as Medical Officer in Community Health Centre, Gohparu. He
conducted the post mortem over the four dead bodies that were brought by
constable Indra Pratap Singh. First body was of a male boy of 13 years,
second was of the father of the victim aged about 40 years, third was of
victim and fourth was of her mother. The post mortem over the body of
women was conducted alongwith Ms. Pooja Dubey Medical Officer, Shahdol
and found that all the dead bodies were tied in the nylon rope together and all
the persons have died due to drowning.
24. Thus, from the above discussion, it is clear that in intervening
night on 18-19.06.2015, the father of the victim, brother, mother and the
victim committed the suicide.
25. The question is whether the appellant abetted the suicide? On this
point, J. (PW-2) has stated that a panchayat was organised on 16.06.2015 in
the house of the father of the victim but he did not know on which subject
the panchayant was organised. He attended the panchayat for a while then he
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went to his home.
26. In the cross-examination of prosecution, he has denied the
suggestion that the panchayat was organised on the point that the victim got
the pregnant and the father of victim has arranged the panchayat to solve that
issue.
27. Witness S. (PW-3) has also not supported on what topic the
panchayat was organised. Siyaram (PW-4) has also denied the suggestion
that on 16.06.2015, a panchayat was organised and in that panchayat, the
appellant was called and clearly stated that he has not given the statement to
the Police. The same situation is of Mahesh Sharma (PW-5). Savitri Singh
(PW-6) has also not supported the prosecution case.
28. The witness Amarshah Singh (PW-1) and witness Samaylal Singh
Gond (PW-11) has not supported the fact of panchayat.
29. Thus, the prosecution failed to prove that on 16.06.2015, the
panchayat was organised that the victim got pregnant from the relation of the
appellant and the appellant was called but he has not visited the panchayat
and denied to marry with the deceased. Due to that, the victim's father and
family members alongwith victim had committed suicide due to social
stigma attached with the unmarried pregnancy of the victim.
30. Considering the suicide note as stated by the prosecution recovered
from the house of the victim and relied by the trial Court, handwriting expert
Rajesh Ahuja (PW-23) has stated that the person, who has written the answer
sheets (Ex.P-44), has also written the question document and also verified
from the notebook.
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31. We have gone through the question documents Q.13 to Q16, firstly
it is not signed by any person and there is much spelling mistakes and if it
compares from the answer sheets (Ex.P-44) that has been marked by the
handwriting expert (Ex.A-14 to Ex.A-31), there is no match regarding the
spelling. It is called that it was written on 16.06.2015. In so-called dying
declaration recorded by the father of the victim, there is no mention of the
appellant. Thus, there is no clinching evidence regarding the panchayat and it
has not been proved by Y that any instigation was given prior the incident.
The appellant has anyhow abetted the death of these four persons.
Furthermore, if the victim and her family members were annoyed by the
conduct of the appellant, they would file the FIR and have taken the legal
recourse. If any person has committed suicide due to previous act that is 8
months prior the incident, it cannot be held that the appellant had instigated
or abetted the deceased person to commit the suicide.
32. With the above discussion, the conviction of the appellant under
Section 376 of IPC and Section 5/6 of POCSO Act is maintained and the
sentence imposed upon the appellant under Section 6 of POCSO Act that is
for rigorous imprisonment of life with the fine of Rs.5,000/- is also affirmed
but the conviction of the appellant for the offence punishable under Section
306 of IPC (on four counts) and sentenced for that offence is set aside. Thus,
the appeal is partially allowed.
33. The case property be disposed of as per the order of the trial
Court.
34. Excessive fine amount, if any deposited, be refunded to the
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appellant.
35. With the copy of this judgment, the record of trial Court be sent
back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
HK
