Madhya Pradesh High Court
Shivraj Singh vs State Of M.P. on 20 January, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE HIRDESH, JJ
ON THE 20TH JANUARY, 2025
CRIMINAL APPEAL NO. 622 OF 2013
SHIVRAJ SINGH AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Ashok Kumar Jain- Counsel for appellant No.1 Shivraj Singh.
Shri Vibhor Kumar Sahu- Counsel for appellant No.2 Sheru.
Shri A. K. Nirankari- Public Prosecutor for respondent- State.
Shri M.L. Yadav- Counsel for complainant.
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JUDGMENT
Per Hirdesh, J:
Today, this case is listed for hearing on IA No.15440 of 2023, 12th application under Section 389(1) of CrPC moved on behalf of appellant No.2 Sheru & IA No.24326 of 2024, second application under Section 389(1) of CrPC moved on behalf of appellant No.1- Shivraj for suspension of jail sentence and grant of bail on the ground of period of custody, as they have already suffered more than 11 years of jail incarceration, but with the consent of parties, this Court deems it proper to hear this appeal finally. (2) The present criminal appeal under Section 374 of CrPC has been filed by appellants challenging the judgment of conviction and order of sentence dated 20-07-2013 passed by Fourth Additional Sessions Judge, Morena (MP) in Sessions Trial No.92 of 2013, whereby the appellants have been convicted Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 2 under Section 376(2)(g) of IPC and sentenced to undergo life imprisonment with fine of Rs. 10,000/- each and in default of payment of fine to further undergo six months' rigorous imprisonment.
(3) In brief, the prosecution is that complainant/prosecutrix(PW-1) while being admitted in the emergency ward of Kamla Raja Hospital along with her mother and father, in an injured condition, wrote a verbal report (Dehati Nalishi) vide Ex.P1, stating therein that on 1-02-2013, around 06:30 pm in the evening, Rachna Jatav and Bharti Jatav of her village came to her house and said to go and give a gift on the occasion of Wedding of Girja. After this, both of them left. Thereafter, she had gone to give a gift for Girja's wedding and after giving gift to Girja, while she was returning to her home from the wedding ceremony, around 07:00 pm in the night, accused Shivraj (herein appellant No.1) caught her in front of his house and took her to the Chhapra (hut) built there. It is further alleged that accused Sheru (herein appellant No.2) and co-accused Shivshankar were already in Chhapra (hut). When she started screaming, Shivraj covered her mouth, took off her clothes and thew her on the ground. Then, Sheru covered her mouth, Shivshankar held her legs and Shivraj committed rape with her. Sheru also committed rape with her. After committing rape, all of them fled away. On hearing her scream, her mother and uncle (tau) Banwarilal came there and saw the accused running away.
(4) On the basis of such allegations, FIR at Crime No.10 of 2013 for offence punishable under Sections 376(2)(g) and 342 of IPC was registered at PS Mata Basaiya vide Ex.P12. During investigation, medico-legal examination of prosecutrix was conducted. Spot map was prepared. Sketch map of scene of crime was also prepared by Patwari. Statements of witnesses including mother and uncle of prosecutrix were recorded. Accused were arrested. Clothes, swab and slides of prosecutrix were collected. Clothes, semen and slides, etc of accused were seized. All articles were sent to Forensic Science Laboratory for examination.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 3
(5) After completion of investigation and other formalities, challan was filed in the Court of JMFC, Morena under Section 376(2)(g) and 342 of IPC from where the case was committed to the Sessions Court, Morena for trial.
Charges were framed against the accused. Accused denied committing the offence and pleaded trial. During trial, the prosecution in order to prove its case examined as many as 13 witnesses including prosecutrix, mother and uncle of prosecutrix as PW1, PW4 and PW2 respectively. Evidence of accused were recorded under Section 313 of CrPC in which, they abjured their guilt and pleaded complete innocence. In defence, the accused did not produce any witness.
(6) The Trial Court, after evaluating the documentary as well as oral evidence convicted and sentenced the appellants, as aforesaid. (7) It is argued on behalf of appellants that the impugned judgment passed by learned Trial Court is bad in law and contrary to facts and evidence available on record. All the accused are cousin brothers and they have been falsely implicated in the case. Prosecutrix was a consenting party and she had illicit relations with accused Shivraj. Evidence of uncle of prosecutrix did not support the evidence of prosecutrix, who in his deposition, stated that accused Shivraj was seen with prosecutrix in a compromising position. When her mother and uncle on the date of incident saw the prosecutrix in an objectionable position with accused Shivraj, therefore, a false allegation was made in order to avoid defamation. Referring to Paragraph 12 of statement of prosecutrix, it is argued that prosecutrix has not narrated presence of accused Sheru and co-accused Shivshankar. At the time of incident, neither accused Sheru was present nor did he commit rape with prosecutrix and he has been falsely implicated on the basis of enmity. At the time of conduction of MLC of prosecutrix, her mother narrated that one person had committed rape in the presence of another person. There are material contradictions and omissions in the evidence of prosecutrix because of the fact that she has exaggerated her Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 4 statements in the Court under the pressure of her mother and uncle, therefore, her evidence is not wholly reliable.
(8) It is further argued that the report of incident was not lodged immediately and there was a delay in lodging the report for which, no explanation has been given by prosecution. Incident took place around 07:30 in the evening whereas, Dehati Nalishi (Ex.P1) was lodged around 07:30 in the morning on the next day which is fatal to the case of prosecution. It is further argued that prosecutrix and her family members have misled the investigation by falsely representing prosecutrix as minor girl aged around 14 years. The prosecutrix's version about presence of accused appears to be doubtful as on the one hand, prosecutrix in her dehati nalishi stated that after rape accused fled away and on hearing her scream, her mother and uncle came and they saw accused running outside, on the other hand, in her Court statement, prosecutrix deposed that after hearing her scream, her mother and uncle came and after committing the crime, accused fled away. The prosecution failed to establish a connection between the contents of the Forensic Science Laboratory (FSL) report and appellants, either through DNA analysis or by other means as the DNA report was not found proved against accused. The prosecution has failed to prove its case beyond reasonable doubt. Therefore, the prosecution story appears to be doubtful and appellant deserves to be acquitted by setting aside the impugned judgment.
(9) On the other hand, it is argued by learned Counsel for the State ably assisted by learned Counsel for complainant that there is no infirmity in the impugned judgment of conviction and order of sentence passed by the trial Court. It is neither perverse nor contrary to the record. Minor contradiction or discrepancy should not be a ground for throwing out the prosecution case unreliable. Even otherwise, the statement of prosecutrix is more reliable than any other witnesses and is sufficient for recording conviction of accused. Looking to the nature of allegation, manner of commission of rape and gravity Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 5 of offence, the sentence imposed by the trial Court is just and proper and appellants do not deserve any leniency. Hence, he prayed for dismissal of appeal.
(10) Heard the learned counsel for the parties. Perused the record as well as impugned judgment of trial Court.
(11) Section 376(2) (g) of IPC (before substitution by Act 13 of 2013) read as under :-
"376. Punishment for rape- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,-
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(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1.- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section.
(Emphasis underlined) (12) Now, it would be worth-coming to material witnesses of prosecution, as under:-
(13) Prosecutrix (PW-1) in her examination-in-chief deposed that she knows accused and 31st of January was the date of wedding of daughter of uncle of accused and she had gone because of calling her to attend the wedding ceremony by sisters of uncle of accused around 06:30 pm in the evening.
While she was returning from there, accused Shivraj met her in front of his house and took her to Chhapra (hut) after gagging her mouth. Accused Sheru Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 6 and another juvenile co-accused Shivshankar were already present in Chhapra (hut). Prosecutrix further stated that they threw her on the ground, accused Sheru gagged her mouth and accused Shivraj took off her clothes and juvenile co-accused Shivshankar held her legs. Then, accused Shivraj raped her and accused Sheru also raped her. When she screamed, her mother and uncle came and accused fled from there.
(14) Statement of this witness has also been supported by her uncle Banwarilal (PW2) and mother (PW4). Uncle of prosecutrix Banwarilal (PW2) in his evidence deposed that prosecutrix is a daughter of his younger brother and on 31-01-2013 around 07:00 pm in the evening, he was at home. On hearing shouts, he came out and saw accused running away. He reached the spot and found that the clothes of prosecutrix were pulled down and blood was coming out of her body. On being asked, the prosecutrix told that accused committed rape with her. Thereafter, he brought the prosecutrix to Morena Hospital and from there, she was referred to Gwalior and recorded her report (dehati nalishi). Besides this, mother of prosecutrix (PW4) has also stated in her evidence that she knows the accused persons and on the date of incident, Bharti and Rachna had come to call her daughter (prosecutrix) around 06:00- 07:00 pm. On being told, her daughter had gone to give gift. The mother of prosecutrix further deposed that on hearing scream, she and her brother-in-law came out and saw the accused running away and when she went inside the Chhapra (hut), her daughter-prosecutrix was lying there and her clothes were torn and blood was oozing out. On being asked about the matter, she told that accused had forcefully raped her. Thereafter, she dressed her daughter and brought to hospital and as her worsened condition, she was referred to Gwalior. (15) So far as contention of appellants that their semen was not found in the source material of prosecutrix i.e. Articles A, B, C, D and E (underwear and salwar, pubic hair, vaginal smear slide, vaginal swab and nail clipping) as per DNA report (Ex.D7) is concerned, it is settled principle of law that if a positive Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 7 result of DNA comes about against accused, it would constitute a clinching evidence against them for further proceeding. If result is negative i.e., favouring accused, then weight of other materials and evidence on record will still have to be considered for corroboration and the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and weight accorded to other evidence on record. The same principle has been laid down in catena of decisions by Hon'ble Apex Court in Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, (2009) 14 SCC 607; Santosh Kumar Singh v. State; (2010) 9 SCC 747; State of Tamil Nadu v. John David, (2011) 5 SCC 509; Krishan Kumar Malik v. State of Haryana; (2011) 7 SCC 130; Surendra Koli v. State of Uttar Pradesh; (2011) 4 SCC 80; Sandeep v. State of Uttar Pradesh, (2012) 6 SCC 107; Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353 and Anil v. State of Maharashtra, (2014) 4 SCC 69.
(16) Dr. Salini Mishra (PW-5) in her evidence deposed that on 31-01-2013, she was posted as Medical Officer in District Hospital, Morena. On external examination of prosecutrix, she found that there were scratch marks around her waist which could of nails and during internal examination, blood was coming from the vagina and her hymen was freshly torn and there was swelling and burning sensation in vagina. Prosecutrix was in extreme pain and was not allowing test to be conducted. This witness further deposed that therefore, she referred prosecutrix to Kamla Raja Hospital, Gwalior for test. The statement of above witness is also supported by statement of Dr. Yashodhara (PW-13), who in her evidence deposed that on 01 st of February, 2013 she was posted as Assistant Professor in JA Hospital, Gwalior and on the said date, the prosecutrix was sent for expert opinion and examination on the basis of anaesthesia. Both the lips of prosecutrix was swollen and she was put into unconscious state with consent of her mother. This witness further deposed that there were scratches on the vagina of prosecutrix and her hymen was freshly Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 8 torn and swollen and there was sexual assault on the prosecutrix. Discharge ticket is Ex.D7.
(17) So far as contention of accused that prosecutrix and her family members have misled the investigation by falsely obtaining prosecutrix as minor girl aged around 14 years is concerned, the prosecutrix herself has stated that she had passed Vth standard examination in the year 2005, then certainly she would have been about 11-12 years old in year 2005 and age will be 18-19 years in the years 2013. Apart from this, the prosecutrix herself has accepted that her date of birth was written at the time of admission as per document Ex.D1. During investigation, age of prosecutrix was found 19 years on the basis of her primary mark-sheet where her date of birth was mentioned as 12.09.1993 and this fact has been admitted by Investigating Officer. Therefore, the prosecution failed to prove that the age of prosecutrix was less than 18 years at the time of incident. The trial Court has discussed in detail while passing the impugned judgment of conviction and sentence against the appellants-accused. Therefore, such argument is of no help to the appellants-accused.
(18) So far as contention of learned Counsel that the appellants have been falsely implicated in the case as on the date of incident prosecutrix reached Chhapra of accused Shivraj on her own will to meet him because she was a consenting party and when uncle and mother saw her embracing Shivraj due to which, a false case has been registered is concerned, prosecutrix (PW1) in her examination-in-chief has specifically deposed that accused Shivraj had taken her to Chhapra by gagging her mouth and threw her on the ground and then accused Sheru gagged her mouth. Apart from this, prosecutrix in Para 12 of her cross-examination deposed that she was not allowed to scream at the of time of commission of rape and in Para 10 of her cross-examination deposed that she never visited the house of accused Shivraj and nor there was any love affair between them. This witness has also denied the suggestion of accused that she had fixed a time to meet Shivraj on the date of incident. Prosecutrix in her Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 9 evidence has specifically deposed that while she was returning from wedding, accused Shivraj gagged her mouth and took her to Chhapra in front of his house and accused Sheru and juvenile co-accused Shivshankar were already present there and she was thrown on the ground and appellants Shivraj and Sheru committed rape with her. On hearing her shout, her mother and uncle Banwarilal came to scene of occurrence and saw accused fled away from there. The witness has been cross-examined in detail on behalf of accused and there has been no refutation of testimony of prosecutrix in her cross-examination. (19) The Hon'ble Apex Court in the case of State of Maharashtra vs. Chandraprakash Kewalchand Jain (1990) 1 SCC 550, has held as under:-
''A prosecutrix of a sex- offence cannot be put on par with an accomplice. She is in fact a victim of the crime. She is undoubtedly a competent witness under Section 118. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. If the Curt keeps it in mind that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Therefore, ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Ordinarily an Indian woman would be most reluctant to level false accusation of rape involving her own reputation unless she has a very strong bias or reason to do so'' Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 10 (20) The Hon'ble Supreme Court further in the case of State of HP vs. Asha Ram reported in (2005) 13 SCC 766, has observed as under:-
''It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement. The Courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliance prosecution case.'' (21) From the evidence of Doctor, it also appears that possibility of rape or sexual assault with prosecutrix could not be ruled out. It cannot be said that absence of DNA evidence would lead to an adverse inference, especially other cogent and reliable evidence are available on record. The evidence of prosecutrix is duly corroborated by evidence of her mother and uncle. Mother of prosecutrix (PW4) and uncle Banwarilal (PW2) in their evidence have specifically deposed that when they reached spot, prosecutrix was screaming and there was bleeding. Prosecutrix narrated the incident that accused Shivraj and Sheru forcefully raped her. Apart from this, Banwarilal has stated in his statement that he had seen Sheru running away along with accused Shivraj.
The said witness has been cross-examined in detail on behalf of accused, but evidence of these witnesses has been refutable. The totality of circumstances appearing on record disclosed that prosecutrix does not have a strong motive to falsely implicate the accused in the alleged crime. Further, accused could not produce any concrete evidence to establish that due to previous enmity or bad blood between the two families, the appellants have been falsely implicated in Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 11 the case of alleged crime. Evidence of prosecutrix (PW1) was duly corroborated by Doctor Shalini Mishra (PW5), who examined the prosecutrix and found injury in her private part.
(22) So far as contention of appellants that there is delay in lodging the report is concerned, Dr. Shalini Mishra (PW5), who was posted as Medical Officer at District Hospital Morena, in her statement deposed that prosecutrix was in extreme pain and was not allowing the test to be conducted, therefore, she was sent to Kamla Raja Hospital and it was around 11:00 pm in the night. Apart from this, Ashok Kumar Bhagat, ASI (PW-10) in his statement deposed that on 31-01-2013, he was posted as Head Constable in PS Mata Basaiya and on the said date, he had prepared application Ex.D2A for treatment of prosecutrix and due to critical condition of prosecutrix, she was referred to Kamla Raja Hospital and on 01-02-2013 around 07:30 am in the morning, he recorded Dehati Nalishi (Ex.P1) and on the basis of such Dehati Nalishi, FIR was lodged vide Ex.P12.
(23) The Hon'ble Apex Court in the case of Ramdas and others Vs. State of Maharasthra, [Appeal (Criminal) 1156-1158 of 2005 decided on 07.11.2006] has held as under:-
"mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution.However, the fact that report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the Court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of totality of the evidence, the Court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge he report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the Police Station immediately. The time of occurrence, the distance to the Police Station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that may not even be aware of their right to report the matter to the Police and seek legal action, nor Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 12 was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the min of the Court i.e. the initial hesitation of the victim to report the matter to the Police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the Police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another."
(24) Thus, mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact. From evidence of Dr. Salini Mishra (PW-5) as well as of Police Constable Shri Ashok Kumar Bhagat (PW-
1), it appears that there is no delay in lodging the report. (25) Learned counsel appearing for appellant No.1- Shivraj submitted that the prosecutrix was a consenting party. When her uncle Banwarilal (PW2) and mother (PW5) saw the prosecutrix with accused Shivraj, he has been falsely implicated for the reason of infamy or defamation.
(26) From the evidence of Accused- Shivraj recorded under Section 313 of CrPC, on being asked Question No.94, accused Shivraj admitted that prosecutrix had come in the Chappara (hut) herself and the mother and uncle of the prosecutrix saw them with each other, therefore, due to defamation, he has been falsely implicated in the case. The burden of proof lies upon the accused Shivraj to prove that the prosecutrix is a consenting party. Although on perusal of the entire evidence of prosecutrix (PW-1), her mother (PW4) and uncle (PW-2), it is not proved that the prosecutrix was a consenting party. (27) Learned counsel appearing for appellant No.2 Sheru submits that at the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 13 time of incident, neither the accused was present on spot nor did he commit rape with the prosecutrix and he has been falsely implicated in the case due to previous enmity.
(28) It is well established principle of law that enmity is a double-edged weapon and the evidence of such witnesses cannot be discarded on the basis of mere enmity and if an accident is taken place on the basis of enmity, then the evidence should be taken into account in its entirety and the evidence of the witnesses cannot be considered to be inadmissible. From the evidence of material witnesses i.e. prosecutrix (PW1), her mother (PW4) and uncle (PW2), it is apparent that accused Sheru was involved in commission of alleged crime by associating the main accused Shivraj. Therefore, he was also found guilty of crime which falls within the scope of Section 376(2)(g) of IPC and the prosecution has rightly established the case against him beyond reasonable doubt. (29) In view of above conspectus of the case, especially in view of evidence of the prosecutrix (PW1), her mother (PW4) and her uncle Banwarilal (PW2) duly supported by medical evidence and other evidence available on record, this Court is of the opinion that prosecution has succeeded in establishing the appellants guilty of alleged offence. There is no infirmity or illegality in the impugned judgment of conviction and order of sentence passed by the trial Court. Appeal being devoid of merits, is hereby dismissed. (30) At this stage, learned Counsel for appellants submitted that the appellants have already served incarceration of more than 11 years without remission whereas, as per provision of Section 376(2)(g) of IPC, minimum punishment is 10 years and, therefore, a leniency may be adopted for modification of their jail sentence to the period already undergone by them. However, looking to the nature of offence and the manner in which, appellants have committed the offence and considering the maximum period of jail sentence of life imprisonment as specified for the aforesaid offence at the relevant point of time, no leniency could be given to appellants. Accordingly, the prayer is rejected. (31) In the result, the judgment of conviction and order of sentence dated 20- Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 24-Jan-25 10:43:30 AM 14 07-2013 passed by Fourth Additional Sessions Judge, Morena (MP) in Sessions Trial No.92 of 2013 is hereby affirmed. The appellants are already in jail. They are directed to serve the remaining part of jail sentence, as awarded by the trial Court.
(32) A copy of this judgment along with record be sent to the Trial Court concerned as well as jail authorities for information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 24-Jan-25
10:43:30 AM