2. The present appeal (Cr.A.No.832/2013) under Section 374(2) of
Cr.P.C. is preferred by the appellant against the judgment of
conviction and order of sentence dated 20-07-2013 passed by the
Court of Special Judge (Dacoity), Datia in Special Session Trial
No.08/2013 whereby appellant has been convicted as under:
S.No. Offence u/s Imprisonment Fine Default
Stipulation
Rishi alias Baba, 395 of IPC r/w 13 Life Imprisonment Rs.10,000/- 2 years' RI
Brijesh alias Gaja, of MPDVPK Act
Bhoota, Nitin and 376(D) of IPC Life Imprisonment Rs.10,000/- 2 years' RI
Vishnu
Ramprok 395/397 of IPC Life Imprisonment Rs.10,000/- 2 years' RI
r/w 13 of
MPDVPK Act
25(1)(1B)(a) of 3 years' RI Rs.500/- 2 months' RI
Arms Act
27 of Arms Act 3 years' RI Rs.1,000/- 2 months' RI
3. Precisely stated facts of the case are that on 15-03-2013 foreign
tourists namely Jost Xaver Bussmann along with his wife
(prosecutrix) made a complaint to the effect that they are tourists and
travelling India through bicycle and when they camped in their tent
installed in the forest at village Jharia District Datia, at about 8:00
pm, five to seven persons of age group 20 to 30 years came and
demanded money from Jost Xaver and prosecutrix. Jost Xaver and
prosecutrix gave some money to them but they started beating Jost
Xaver and pushed him on the ground. Four of them committed rape
with prosecutrix. They looted their laptop, battery, two pairs of
earphone and a cellphone. Thereafter, prosecutrix and her husband
reached to main highway of Datia-Seondha, where they took help of
Deepak Trivedi and his friend Devendra Tiwari to reach at Police
Station Civil Line, Datia. Thereafter, FIR has been registered by the
concerned Police Station with the help of a translator Dr. Ratan
Suryavanshi.
4. Investigation was set at motion. Shri R.K. Singh (PW-30), Station
House Officer of concerned Police Station reached the place of
incident along with prosecutrix and her husband but since it was
night, therefore, they again visited the place of incident next morning.
At the instance of Deepak Trivedi site plan was prepared and seized
a black colour purse containing voter identity cards of accused Nitin
and Vishnu and two currency notes of rupees 500 in presence of
Devendra Tiwari and Deepak Trivedi.
5. Jost Xaver was medically examined at District Hospital, Datia,
however prosecutrix was examined by a team of three doctors
consisting of Dr.Renu Jain, Dr. Shobhya Laxmi and Dr.Urmila
Tripathi at Gwalior. Slides of vaginal smear and swab of prosecutrix
were prepared and pubic hair was collected. On 16-03-2013,
statements of prosecutrix and her husband were recorded under
Section 161 of Cr.P.C. and on 17-03-2013 accused Ramprok, Rishi
alias Baba Kanjar, Vishnu Kanjar, Bhoota alias Ghanshayam, Nitin
and Brijesh alias Gaja were arrested by police.
6. At the instance of accused persons, robbed property have been
recovered and Jost Xaver Bussmann identified his laptop, battery,
earphone and cellphone. Finger prints examination was done by the
expert and chance finger prints were found to be similar as that of
accused Ramprok, Bhoota and Nitin.
7. Blood samples of accused persons and prosecutrix were taken.
Thereafter, these samples along with slides of vaginal swab, smear
and pubic hair of prosecutrix were sent to Forensic Science
Laboratory, Sagar for D.N.A. According to D.N.A. report, except
accused Rishi alias Baba, body fluids of accused Ramprok, Vishnu,
Bhoota, Brijesh alias Gaja and Nitin were found on the body/slides of
prosecutrix. After completion of investigation, police filed the
charge-sheet before the competent Court against the accused persons.
8. Case was committed to the Sessions Court. Trial Court framed the
charges and proceeded with trial. Before the trial Court, appellants
abjured their guilt and prayed for trial. On behalf of prosecution,
31 witnesses were examined whereas defence has not examined
any witness. Prosecution also produced 120 exhibits before the trial
Court in order to prove the prosecution case. After recording of
evidence, ocular as well as documentary and hearing the
submissions of counsel for the parties, trial Court convicted and
sentenced the appellants/accused persons as referred above.
Therefore, appellants are before this Court.
9. It is the submission of learned counsel for the appellants that trial
Court erred in convicting the appellants for the offence referred
above. There is material contradictions and omissions between the
statements of prosecution witnesses. The version of prosecutrix is
not properly vetted by the trial Court as she herself told that due to
darkness she could not see the face of accused persons and rape
was committed by four persons while trial Court convicted five
accused persons for commission of rape. Such aspects have not
been considered by the trial Court. There is no eye-witness of the
case and all the witnesses are hearsay witnesses or police officers.
Only on the basis of conjecture and surmises, appellants have been
held guilty by the trial Court which is not correct. Thus, the trial
Court committed grave error in convicting the appellants under
Sections 376(D), 395/397 of IPC read with Section 13 of the
MPDVPK Act and Sections 25(1)(1B)(a) and 27 of Arms Act.
10. The process adopted for examining the specimen finger prints of
the accused persons is in violation to the provisions of Sections
4&5 of the Identification of Prisoners Act, 1920. Prior permission
of the Magistrate was not obtained by the prosecution to take
specimen finger prints of the accused persons and Ramesh Chandra
(PW-26) was not authorized to take specimen finger prints of the
accused persons.
11. It is further submitted that appellants belong to poor families and
they are in custody from the date of their arrest itself i.e. 17-03-
2013. Only on the basis of recovery of some articles, appellants
have been convicted while there is no other connected evidence
available on record so as to prove the culpability of appellants.
Thus, prayed for setting aside of impugned judgment of conviction
and order of sentence passed by the trial Court. Alternatively,
counsel for the appellants submits that since appellants suffered 13
years of incarceration and are first offenders, therefore, some
lenient view be adopted.
12. On the other hand, learned counsel for the respondent/State
opposed the prayer and prayed for dismissal of the appeal. It is
further submitted that appellants and other co-accused persons'
DNA report was positive, looted properties were recovered from
the possession of appellants and other accused persons.
Prosecution witnesses supported the story of prosecution and
remained unshaken. Therefore, trial Court did not err in convicting
the appellant and other accused persons for the offence as referred
above.
13. Heard learned counsel for the parties and perused the record.
14. The trial Court after considering the evidence surfaced and
submissions advanced by counsel for the parties, framed following
questions for determination:
"1. Whether, on 15-03-13 at around 08:00 pm inside the
forest of village Jhariya district Datia M.P. accused
committed rape with prosecutrix P.W.28
2. Whether on above mentioned date, time and place accused
persons voluntarily caused injuries to Jost Xaver Bussmann
P.W.29 and prosecutrix P.W.28
3. Whether on above mentioned date,time and place accused
persons robbed Laptop Art.A, Battery Art.B, Ear Phone
Art.C and Two pair of ear phone Art.G from possession of
Jost Xaver Bussmann P.W.29 and prosecutrix P.W.28
4. Whether on above mentioned date, time and place accused
persons robbed Jost Xaver Bussmann P.W.29 and
Prosecutrix P.W.28 by using gun."
15. Regarding question No.1:
In order to prove its case, so far as allegation of rape is concerned,
the prosecution relied upon following evidence:
i. Testimonial evidence of prosecutrix (PW-28) and her husband
Jost Xaver Bussmann (PW-19).
ii. Medical evidence by way of Dr. Renu Jain (PW-21), Dr. Neelesh
Chandel (PW-10) and Dr. P.P. Pandya (PW-14). Medical
documents including injuries sustained by prosecutrix, following
documents were material:
i. Ex-P/68 prosecutrix was referred to JAH Groups of Hospital
for medical examination.
ii. Ex-P/79 MLC of prosecutrix.
iii. Ex-P/73 MLC of husband of prosecutrix.
iii. DNA reports of all accused persons (except accused Rishi alias
Baba) which matched with the fluid/sample of prosecutrix.
Recovery of battery Art.B, one earphone Art.C, one stick Art.D
and two currency notes of Rs.500/- each from the possession of
Rishi alias Baba Ex-P/7. Dock identification was done by
prosecutrix (PW-28) and her husband (PW-29).
iv. Identification of other recovered articles from other accused
persons by Jost Xaver Bussmann.
16. In examination in chief, prosecutrix referred the course of incident as
unfolded. She narrated the incident in detail. She referred accused
Vishnu in her testimony and identified him. Examination in chief
was held in detail and she narrated the incident how she and her
husband were touring India by bicycle and on 15-03-2013 when they
passed Datia and after visiting the village, they looked for a place to
stay over night. They camped and made a tent for themselves in a
small open place in the forest. Around 8:00 pm when she and her
husband were in the tent they heard some noise and thereafter
narration of incident was made. She categorically mentioned that they
were about 5-7 persons who raped her by taking turns. She narrated
the fact that the persons who were earlier holding my husband came
and raped me and the persons who were holding me changed the
place and held my husband. In her cross-examination, she stood
affirmed and no cogent material came on surface in cross-
examination to raise doubt about deposition of prosecutrix. She
admits that because of dark she is not able to gather how many
persons had demanded cash/money from her and her husband.
However, she makes statement that they were about 5 persons
holding her husband.
17. So far as Dr. Renu Jain (PW-21) is concerned she narrated the
injuries sustained by the prosecutrix and found that introitus of
prosecutrix was red, inflamed and abraded. Dr. Renu Jain (PW-21)
gave specific opinion about forcible rape and injuries were caused
within 6-9 hours before her examination. In fact suggestion was
given to the doctor by defence that whether these injuries can be
caused by riding a bicycle for continuously fifteen days, then Dr.
Renu Jain (PW-21) categorically denied such suggestion and in
specific terms opined that because of forcible penetration injuries can
be caused and these injuries can only be caused by using force.
Similarly, when suggestion was given regarding injuries which might
come to the victim if victim falls over wooden logs, used for tiding
the tent, then she specifically denied such suggestion and mentioned
that no such contusion/abrasion may come by this article.
18. Para 17, 18, 26 and 28 of Dr. Renu Jain are specific and implicative
and establishes the fact that injuries can only be caused by
commission of offence of rape.
19. So far as DNA reports are concerned following are the DNA reports
of different accused persons:
i. Ex-P/43 & 49 DNA report of accused Rishi @ Baba.
ii. Ex-P/44 & 50 DNA report of accused Ramprok.
iii. Ex-P/45 & 51 DNA report of accused Vishnu
iv. Ex-P/46 & 52 DNA report of accused Bhuta @ Ghanshyam
v. Ex-P/47 & 53 DNA report of accused Brijesh @ Gaja
vi. Ex-P/48 & 54 DNA report of accused Nitin.
DNA reports matched with the samples taken, except accused
Rishi @ Baba.
20. So far as custody of samples are concerned they remained intake.
Blood samples of accused persons were taken by Dr. Jay Bharat
(PW-6) and Investigating Officer N.S. Rawat (PW-31). Custody of
samples was not put to doubt and evidence of Dr. Neelesh Chandel
(PW-10) remained unshaken in cross-examination regarding his
handing over of report to Constable (364) Ramesh.
21. Judgment of Apex Court in the case of Hemudan Nanbha Gadhvi
Vs. State of Gujarat, (2019) 17 SCC 523 followed recently in State
of Rajasthan Vs. Chatra, (2025) 8 SCC 613 is worth consideration.
The Apex Court gave much emphasis over forensic report (DNA
report). Here, injuries sustained by the prosecutrix, her testimony,
testimony of Jost Xaver Bussmann (PW-19) corroborates and
establishes offence of rape in respect of all accused persons.
22. So far as co-accused Rishi alias Baba is concerned, blood sample did
not match to the extent that no such fluid was found over the vaginal
smear and swab but recovery is made from the accused Rishi alias
Baba vide Ex-P/7 which includes battery Art.B, one earphone Art.C,
one stick Art.D and two currency notes of Rs.500/-. These articles
were identified by prosecutrix and Jost Xaver. Even otherwise it is a
case of gang rape and in gang rape where a woman is raped by a
person or persons, all these persons shall be liable for conviction as
held by the Apex Court in Pramod Mahto Vs. State of Bihar, AIR
1989 SC 1475 and recently in Raju Vs. State of M.P. (2025) 8 SCC
281. In case of gang rape proof of completed act of rape by each
accused on the victim is not required. It is not necessary that
prosecution has to adduce clinching proof of completed act of rape by
each one of the accused on the victim where they are more than one
accused. Here, not only they were together but recovery is made at
the instance of accused Rishi alias Baba of the articles mentioned
above. Accused Rishi alias Baba is identified by Jost Xaver
Bussmann (PW-29) in dock identification.
23. In cross-examination, no such clinching evidence surfaced in
favour of all the accused persons including Rishi alias Baba to
suggest that false case has been registered at the instance of police
or it was a case of no rape. Whenever accused declined to avail
himself of the opportunity to put his case in cross-examination, then
evidence tendered by prosecution is ought to be accepted (See:
Sarwan Singh Vs. State of Punjab, 2003 Cr.L.J. 21, P. Sanjeeva
Rao Vs. State of A.P. (2012) 7 SCC 56).
24. From different articles recovered from the possession of different
accused as mentioned in the trial Court, it is proved that
commission of offence was carried out by the accused persons
along with other offences committed by them.
25. Question No.2to4:
So far as these allegations are concerned, evidence of prosecutrix
(PW-28) and Jost Xaver Bussmann (PW-29) are worth consideration
besides the evidence of Investigating Officer N.S. Rawat (PW-31).
FIR was prompt and without delay and if complaint is given on
which FIR is registered immediately then it rules out possibility of
deliberation by complainant to falsely implicate any person.
Promptness in lodging FIR shows that there was no time for
manipulation. This further shows that the allegation may not be an
afterthought or having tainted version of the incident {See: Krishnan
Vs. State (Rep. by Inspector of Police), AIR 2003 SC 2978,
Rakesh Vs. State of M.P., (2011) 9 SCC 698 and Bhagchandra Vs.
State of M.P., (2021) 18 SCC 274}.
26. Therefore, promptness in lodging FIR Ex-P/27 makes the document
reliable and medical evidence corroborates statements of witnesses.
Deepak Kumar Trivedi (PW-5) and SHO R.K. Singh (PW-30) both
the witnesses went to the place of incident with the prosecutrix
(PW-28). At the instance of Deepak Kumar Trivedi (PW-5) spot map
was prepared. Testimony of Deepak Kumar Trivedi (PW-5) and SHO
R.K. Singh (PW-30) remained unshaken and the statements stated to
be admitted as forming part of res gestae because it made
contemporaneously applied act or immediately thereafter. Therefore,
testimony of these witnesses was found to be relevant under Section
6 of the Indian Evidence Act {See: Bishna alias Bhiswadeb Mahato
& Ors Vs. State of West Bengal, AIR 2006 SC 302, in Susanta Das
Vs. State of Orissa, (2016) 4 SCC 371}.
27. From the place of occurrence voter identity cards of accused Nitin
and Vishnu were seized vide Ex-P/30. Said document in relation to
seizure has been proved by SHO R.K. Singh (PW-30) and Deepak
Trivedi (PW-5). Following articles/things were seized from the
possession of each accused:
Name of appellant Property seized Exhibits
Rishi alias Baba Battery of Laptop, Stick, two Currency P/7
notes of 500/-, earphone.
Vishnu Five currency notes of 500/- P/8
Ramprok 315 bore gun, one live cartridge, four P/9
currency notes of 500/-
Bhoota One Cellphone and SIM P/12
Nitin Four currency notes of 500/- P/13
Brijesh alias Gaja Laptop. P/3
28. SHO R.K. Singh (PW-30) and Investigating Officer N.S. Rawat
(PW-31) proved seizure of articles, arrest of all accused persons and
subsequent recovery. N.S. Rawat (PW-31) also stood firmed in his
testimony. Evidence of Police Officer cannot be ignored if it is
reliable and worth believing.
29. The Apex Court in the case of Aher Raja Khima Vs. State of
Saurashtra, AIR 1956 SC 217 held that presumption that a person
acts honestly applies as much in favour of a police officer as of other
persons, and it is not a judicial approach to distrust and suspect police
officers without good grounds. Here, police officers remained firm in
their testimony.
30. Not only this, finger prints from Laptop Art.A, Cellphone Art.G were
taken by Anvesh Budholiya (PW-22) in presence of Jitendra Prajapati
(PW-1) and Bhagwat Gurjar (PW-2). Those finger prints were taken
as per Section 4 and 5 of Identification of Prisoners Act and rule
821 of M.P. Police Regulations. No such cross-examination was
held which could have rendered the taken finger prints doubtful.
Therefore, prosecution proved its case beyond reasonable doubt.
Following facts as mentioned by the trial Court are proved by the
prosecution, same are reiterated as under:
"1- On 15-02-13 at around 8:00 pm prosecutrix PW-28 and
Jost Xaver Bussmann PW-29 were camping inside the forest
of village Jhariya district Datia M.P.
2- All accused were present at place of incident.
3- Prosecutrix PW-28 was subjected to rape.
3- Prosecutrix PW-28 and Jost Xaver Bussmann PW-29
were beated.
4- Laptop ArtA, Battery Art.B, Earphone Art.C, Cellphone
Art.G Headlamp and currency notes were robbed from
possession of prosecutrix PW-28 and Jost Xaver Bussmann
PW-29 after causing injuries to them.
5- DNA profile of accused RamProk, Brijesh @ Gaja,
Bhoota, Nitin and Vishnu matched with DNA profile of
prosecutrix PW-28. DNA report Ex-55 shows the body fluid
of accused RamProk, Brijesh@ Gaja, Bhoota, Nitin and
Vishnu on the clothes and slide vaginal smear and swab of
prosecutrix PW-28.
6- Robbed property i.e. Laptop Art.A Battery Art.B&
Earphone Art.C, Cellphone Art.G were recovered in pursuant
of information given by accused Brijesh @ Gaja, Rishi @
Baba, Bhoota.
7- Gun Art.E and a live cartridge Art.F were recovered in
pursuant of information given by accused Ramprok.
8- Finger prints of accused Ramprok, Brijesh@ Gaja and
Bhoota were found on Laptop' Art.A and CellPhone Art. G.
9- Voter identity cards Art. H and I were seized from place of
incident.
10- Accused have been identified by prosecutrix P.W.28 and
Jost Xaver Bussmann P.W.29.
1l- Accused have not explained the incriminating evidence in
their statements recorded u/s.313 of Cr.P.C."
31. Every rape is a heinous offence because it is an attack not over the
body but over the spirit of a woman. It becomes all the more
heinous because it is committed with a female tourist visiting
country to explore Cultural, Social and Historical heritage of our
country. Therefore, the point raised by counsel for the appellants in
relation to showing leniency deserves rejection in the facts and
circumstances of the case.
32. So far as the conviction of accused Ramprok under Sections 25(1)
(1B)(a) and 27 of Arms Act is concerned from the record it
transpires that the accused Ramprok in his memo prepared under
Section 27 of the Indian Evidence Act stated about use of gun in
robbery committed by him with the Jost Xaver and prosecutrix.
Further at the instance of accused Ramprok the gun was seized by
the prosecution vide Ex-P/9. Thus, trial Court rightly convicted the
accused - Ramprok under Sections 25(1)(1B)(a) and 27 of Arms
Act.
33. Therefore, in the considered opinion of this Court, prosecution
proved its case beyond reasonable doubt for not only commission
of offence of rape but also for dacoity and offence under Arms Act.
They shall have to suffer Life Imprisonment. All accused are in
judicial custody since 17-03-2013. They shall remain in
confinement to suffer remaining part of jail sentence. Record of the
trial Court be sent back.
34. Accordingly, both the appeals (Cr.A.No.832/2013 and
Cr.A.No.833/2013) stand dismissed. Copy of this judgment be kept
in both the files.
35. Copy of this judgment be sent to the trial Court and jail authority for
necessary information.
(ANAND PATHAK) (PUSHPENDRA YADAV)
Anil* JUDGE JUDGE
ANIL KUMAR CHAURASIYA
2026.02.13 18:46:24
+05'30'
