Madhya Pradesh High Court
Naseem vs The State Of M.P. on 16 June, 2022
Author: Anjuli Palo
Bench: Anjuli Palo
CRA-2145/1997
CRA-99/1998
Page 1 of 6
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 16th JUNE, 2022
CRIMINAL APPEAL No. 2145 of 1997
Between:-
PREMSHANKAR S/O JAMNA PATEL, AGED ABOUT 25 YEARS,
OCCUPATION : AGRICULTURIST, R/O VILLAGE - SUNWANI, POLICE
STATION SUNWANI, TEHSIL PAWAI, DISTRICT PANNA (M.P.)
.....APPELLANT
(BY MS. PRIYANKA JAIN - AMICUS CURIAE)
AND
THE STATE OF MADHYA PRADESH
.....RESPONDENT
(BY MR. VIJAY SONI - GOVERNMENT ADVOCATE FOR THE STATE)
AND
CRIMINAL APPEAL No. 99 of 1998
Between:-
NASEEM S/O HABBU @ HABIB KHA, AGED ABOUT 27 YEARS, R/O
VILLAGE - TIKARIYA, POLICE STATION SUNWANI, DISTRICT PANNA
(M.P.)
.....APPELLANT
(BY MS. PRIYANKA JAIN - AMICUS CURIAE)
AND
THE STATE OF MADHYA PRADESH
.....RESPONDENT
(BY MR. VIJAY SONI - GOVERNMENT ADVOCATE FOR THE STATE)
CRA-2145/1997
CRA-99/1998
Page 2 of 6
Both these appeals are coming on for final hearing this day, the Court
passed the following:
JUDGMENT
As these appeals have been filed under Section 374(2) of the Code of Criminal Procedure by the appellants/accused persons being aggrieved by the impugned judgment dated 11.08.1997 passed by Sessions Judge, Panna in Sessions Trial No.31/1995, they were heard analogously and are being decided by this common judgment.
2. Appellants have been convicted under Section 376(2)(g) of Indian Panel Code and sentenced to undergo R.I. for 10 years (each) and fine of Rs.2000/- (each), with default stipulation.
3. As per prosecution case, it is alleged that on 02.02.1995, when the prosecutrix went to her agricultural field, at that juncture both the appellants committed gang rape with her. Thereafter, the prosecutrix went to her house and at night she was having continuous spells of vomiting. On being asked by her aunt - Shyambai, she narrated about the incident and disclosed that due to shame and guilt she had consumed poisonous substance. Resultantly, on the next date of incident, she died. Thereafter, Shyambai lodged the FIR on 04.02.1995. Police registered Crime CRA-2145/1997 CRA-99/1998 Page 3 of 6 No.76/1995 against the appellants for offence punishable under Sections 376(2)(g), 306 read with Section 34 of the Indian Panel Code. After investigation, charge-sheet was filed before the concerned Court.
4. After committal of the case, learned trial Court duly conducted the trial and found the appellants guilty for committing the offence under Section 376(2)(g) of the Indian Panel Code and sentenced them as mentioned above.
5. The impugned judgment has been challenged by the appellants before this Court on the ground that the trial Court has failed to appreciate the prosecution evidence in its right perspective and convicted the appellants on contradictory evidence. It is contended that Purushottam (PW-6) and Radhika Prasad (PW-7), who are the eye-witnesses have not supported the case of the prosecution. Further, the allegation is not corroborated by the medical evidence. Appellants have also taken the defence that they have been falsely implicated by the complainant due to previous enmity.
6. Learned Amicus Curiae submitted that there is no evidence available on record against the appellants. It is contended that eye-witnesses of the case have turned hostile before the trial Court. The Doctor did not find any CRA-2145/1997 CRA-99/1998 Page 4 of 6 external and internal injury on the body of the prosecutrix/deceased, therefore, the conviction and sentence recorded by the trial Court may be set aside and the appellants may be acquitted from the aforesaid charges .
7. Learned Government Advocate for the State has supported the findings given by the trial Court and submitted that judgment given by the trial Court is based on proper appreciation of evidence on record.
8. Heard learned counsel for the parties. Perused the record.
9. Admittedly, the deceased/prosecutrix committed suicide and died on the next date of incident i.e. 03.02.1995. In the present case, material witness Shyam Bai (PW-1) who is the close relatives of the deceased stated that on the date of incident the deceased went to the field and at evening she returned back to the house but she did not eat food and she was having continuous spells of vomiting and on being asked, she narrated her about the incident in detail that when she went to the field both the appellants forcefully committed sexual intercourse with her and, therefore, she wants to die.
10. The above statement of the deceased comes under Section 32 of Evidence Act and also under the purview of dying declaration and it cannot be ignored. Evidence of Shyambai (PW-1) cannot be disbelieved on the CRA-2145/1997 CRA-99/1998 Page 5 of 6 ground that eye-witnesses namely, Purushottam (PW-6) and Radhika Prasad (PW-7) have turned hostile and they have not supported the prosecution case. From perusal of record, it is clear that the deceased died on 03.02.1995 and Shyam Bai lodged FIR on the next date i.e. 04.02.1995 at about 12:45p.m. without any undue delay against the appellants with all the particulars narrated by the deceased to her.
11. The prosecutrix was 17 years old unmarried girl. Although, in her postmortem Doctor did not give any opinion regarding symptoms of commission of gang rape. But in the FSL report Exhibit P-35, sperms were found on her undergarment which establish that sexual intercourse was committed with her. Hence, this Court does not find any ground to disbelieve the statement of deceased/prosecutrix which was given by her to Shyambai (PW-1) about gang rape committed by the appellants with the her. As per Chemical report Exhibit P-34, sulphas was found in her visra. The contention of the appellants that the appellants have been falsely implicated due to previous enmity does not form any basis to acquit them.
12. The learned trial Court appreciated the evidence on record in right perspective and found the appellants guilty for offence punishable under Section 376(2)(g) of the IPC and awarded proper sentence as mentioned in the judgment. Hence, in the opinion of this Court, the appellants are not CRA-2145/1997 CRA-99/1998 Page 6 of 6 liable to be acquitted from the aforesaid offence on the grounds taken by them.
13. Accordingly, both appeals being devoid of any merit, are hereby dismissed.
14. Appellants are on bail. Their bail bond are hereby canceled. They are directed to surrender immediately before the trial Court for serving the remaining part of the sentence.
15. Before parting with the case, I would like to record words of appreciation for the assistance provided by learned Amicus Curiae, who assisted this Court in disposal of these cases. Her assistance is duly acknowledged.
16. Let a copy of this judgment along with the record be sent back to the learned trial Court for compliance and necessary action.
(SMT. ANJULI PALO) JUDGE shahina SHAHINA KHAN 2022.06.20 10:16:46 +05'30'