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Friday, July 26, 2013

The medical evidence also to a large extent confirmed that the deceased Radha Bai was raped prior to the suicide committed by her. = The appellant, who was initially charged under Section 306 and 376(2)(f) IPC, was convicted by the trial Court only for the offence under Section 376(1) IPC and was imposed with the punishment of 10 years rigorous imprisonment, along with the fine of Rs.500/- and in default of the payment of fine to undergo one more year’s rigorous imprisonment.= Having regard to our above conclusion, we do not find any merit in the appeal. The appeal fails and the same is dismissed.

           reported in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40590                                                 

  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2260 OF 2009

KAILASH                                            …APPELLANT

                             VERSUS
STATE OF M.P.                                      …RESPONDENT

                             J U D G M E N T

FAKKIR MOHAMED IBRAHIM KALIFULLA, J.

   1. This appeal by the sole accused is directed against the  Single  Bench
      decision of the High Court  of  Madhya  Pradesh,  Indore  Bench  dated
      08.09.2006, passed in Criminal Appeal No.1030 of 2003.
The  appellant,
 who was initially charged under Section 306  and  376(2)(f)  IPC,  was convicted by the trial Court only for the offence under Section 376(1) IPC  and  was  imposed  with  the  punishment  of  10  years  rigorous  imprisonment, along with the fine of Rs.500/- and in  default  of  the  payment of fine to undergo one more year’s rigorous imprisonment.

   2. The  brief  facts  which  are  required  to  be  stated  are  that  on
      23.07.2002, PW-2 - the mother of the deceased, when she returned  from
      her day’s work in the field  at  6  p.m.,   found  her  daughter,  the
      deceased Radha Bai, who had returned back from the field at  around  3
      O’clock, inside the house  with  the  door  locked  from  inside.  
One
      Parmanand climbed the roof and found the  deceased  hanging  from  the
      roof with a Saree. 
The said Parmanand stated to have opened the  door,
      cut the rope and brought the body down. 
PW-1 reported  the  matter  to
      Aagar Police Station  and  thereafter,  PW-9  went  to  the  place  of
      incident and prepared the sketch map Ext.P-8 and sent the dead body of
      the deceased for postmortem. 
He also    stated   to   have   recovered
      the  Saree   under   seizure  letter
Ext.P-10.

   3.  The  postmortem  was  conducted  by  PW-4,  Dr.  Shashank  Saxena  on
      24.07.2002, at 3.45 p.m and in the postmortem report the doctor  noted
      that the deceased was aged about 15 years, that below the  neck  there
      was mark of bluishness and on the ligetcher mark, there were marks  of
      abrasion and on one side of the ligetcher mark, ecmoyosis was present.
     
From the vagina of the body blood  was  found  oozed  out,  which  was
      frozen and spread over in the midst of the legs on the front side.  On
      inspecting the vagina, it was found that it was reddish, congested and
      frozen blood was present.
 Laceration on the wall of the vagina of 1 cm
      size was also noted. 
The doctor in his opinion stated that  the  cause
      of the death of the deceased was due to stoppage of  breathing,  which
      was due to hanging and the injuries which were present on the body  of
      the deceased were antemortem. 
The  doctor  stated  to  have  collected
      blood stained clothes of the deceased, viscera  and  pubic  hairs,  as
      well as the liquid oozed out from the vagina on the  role  of  cotton,
      sealed and sent the same to the Station House Officer.
The  postmortem report was marked as Ext.P-3.
According to the doctor, the age of  the
      deceased was 15 years based on the  age  written  in  the  application
      form.
The further opinion of the doctor was that due  to  hanging,  no
      injuries could have been caused on the private organs.

   4. Based on the investigation, the prosecution  came  to  the  conclusion
      that the deceased was raped and a case under Section 306 and 376(2)(f)
      IPC was registered against the appellant accused  on  04.08.2002.
The
      appellant was arrested and was put to trial.
The  trial  Court  after
      appreciating the evidence placed before it,  acquitted  the  appellant
      from the charge under Section 306 IPC, but found  him  guilty  for  an
      offence punishable under Section  376(1)  IPC  and  sentenced  him  as
      stated above.

   5. The prosecution examined PW-1 to PW-10.  PW-5 who is the cousin of the
      deceased, was an eye-witness to the  occurrence  and,  therefore,  his
      evidence became imperative.
According to PW-5, who was aged  about  15
      to 16 years on the date of the occurrence, deposed that on the date of
      the incident he went to  the  field  around  11  a.m  for  discharging
      excreta, when he heard the crying sound of his  sister,  the  deceased
      Radha Bai.
On hearing the cries of his sister, when he rushed  to  the
      place he found the deceased lying on the ground and the appellant  was
      mounted on her by putting off  his  pant  and  the  petticoat  of  the
      deceased was also lifted, while the appellant was sitting over her.
It
      was also stated by him that the appellant was thrusting his penis  and
      was indulging in some shameful activity.
According to  PW-5,  when  he
      questioned the appellant  as  to  what  he  did  to  his  sister,  the
      appellant stated to have slapped him twice by  catching  hold  of  his
      shirt and asked him not to speak to anyone about that or else he would
      be killed.
PW-5 further deposed that his sister  returned  back  home,
      while PW-5 went to Tanodiya and when he returned back from Tanodiya he
      came to know that the deceased committed suicide by hanging.

   6. PW-5 stated to have narrated what he saw on the morning of  23.07.2002
      to PW-2 and PW-1 on the day after the cremation of  the  deceased  was
      over.
Thereafter, PW-2 stated to have informed based on the version of
      PW-5 that she  came  to  know  that  it  was  the  appellant  who  was
      responsible for the commission of rape on the deceased Radha Bai.
The
      above fact was also supported by the evidence of PW-7, Babulal who  in
      his evidence stated that the deceased Radha Bai was his niece, that on
      the date of the occurrence he had also gone to the field, where he saw
      PW-5, Pappu, going towards his house  weeping  and  he  also  saw  the
      deceased Radha Bai going from the bushes weeping  towards  her  house.
      PW-7 stated to have seen the appellant also going  towards  his  house
      and that when he asked the appellant as  to  what  had  happened,  the
      appellant stated to have silenced PW-7 or else threatened to beat him.
      Though, PW-7 was treated as hostile, some part  of  the  evidence  did
      support the version of   PW-5.

   7. The medical evidence  also  to  a  large  extent  confirmed  that  the deceased Radha Bai was raped prior to the suicide committed by her. 
It
      has also come in evidence that the seized articles  of  the  deceased,
      which were sent to the forensic laboratory, were  returned  back  with
      the report Ext.P-15. As per the report of the forensic laboratory  the
      slides of the deceased Radha Bai, her  clothes,  underwear,  petticoat
      and Saree contained spots of sperm and in the slide of the deceased on
      her pubic hair, clothes etc., human blood was  found  and  such  human
      blood was also found on the underwear and petticoat, as well as  Saree
      of the deceased. As per the report, sexual  intercourse  committed  on
      the deceased Radha Bai was confirmed. The  trial  Court  has  observed
      that though there was a lengthy cross-examination of PW-5, nothing was
      brought out and his evidence was natural and did not create any  doubt
      as to the veracity of his statement.

   8. Keeping the above findings of the trial Court, as well as that of  the
      High Court on the commission of the offence of rape by  the  appellant
      on the deceased Radha Bai, when  we  heard  learned  counsel  for  the
      appellant, the only submission placed before us was that PW-5,  stated
      to have informed PWs-1 and 2, namely, the grand-mother and  mother  of
      the deceased Radha Bai on the very next day after  the   funeral   had
      taken   place, but   yet   the  statement  of  PW-5, was  recorded  by
      the police only on 04.08.2002. In so far as  the  said  submission  is
      concerned, it was true that the evidence of PWs-1 and 2 disclose  that
      PW-5 informed them about the alleged rape committed by  the  appellant
      on the deceased Radha Bai, on 24.07.2002 i.e. on  the  very  next  day
      after the funeral had taken  place.  However,  there  was  nothing  on
      record to suggest that the said  information  was  passed  on  to  the
      prosecution  agency  immediately  after  the  receipt  of   the   said
      information by PWs1 and 2. In  such  circumstances,  it  can  only  be
      stated that as soon as it was brought to the notice of the prosecution
      agency as to the commission of the offence by the appellant through PW-
      5, further action was taken by the police by nabbing the appellant and
      proceeding with the prosecution in  accordance  with  law.  Therefore,
      when we consider the submission  of  the  learned  counsel  about  the
      abnormal delay in proceeding against the appellant up to  the  alleged
      date of occurrence, the trial Court has also held that  the  witnesses
      were all of rural background and illiterate  persons  and,  therefore,
      some allowance will have to be given for their laxity in bringing  the
      factum of the rape alleged to have been committed by the appellant  on
      the deceased Radha Bai. When we consider the evidence of PW-5, who was
      a child witness, who was stated to be between 13 to 14  years  at  the
      time of occurrence, we find that his evidence was found to be  natural
      and he withstood the lengthy cross-examination, which  did  not  bring
      out any contradiction in his version apart from the fact that  he  had
      no axe to grind against the  appellant.  Further  when  based  on  the
      evidence  of  PW  5  and  the  medical  reports,   the   incriminating
      circumstances that existed against  the  appellant  were  put  in  313
      questioning, he had no explanation to offer. The medical evidence also
      fully supported the crime alleged against the appellant. Moreover, the
      evidence  of  PW-7,  also  corroborated  the  version   of   PW-5   to
      considerable extent regarding the involvement of the appellant in  the
      commission of the crime on the deceased  Radha  Bai.   Therefore,  the
      ultimate conclusion of guilt found proved  against  the  appellant  as
      held by the trial Court as well as the High Court cannot be faulted.

   9. Having regard to our above conclusion, we do not find any merit in the
      appeal. The appeal fails and the same is dismissed.

  10. The appellant is on bail. The bail bond stands cancelled and he  shall
      be taken into custody forthwith to serve out  the  remaining  part  of
      sentence, if any.




                                                     ………….……….…………………………..J.
                                    [A.K. Patnaik]




                                                    ...……….…….………………………………J.
                                  [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 July 24, 2013.

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