Madhya Pradesh High Court
Shankarsingh vs State Of M.P. on 26 July, 2021
Author: Vivek Rusia
Bench: Vivek Rusia
1 CRA No.1357/08
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(DIVISION BENCH: HON. MR. JUSTICE VIVEK RUSIA & HON. MR.
JUSTICE SHAILENDRA SHUKLA)
Criminal Appeal No.1357/2008
Shankar Singh S/o Kalu Singh .... Appellant
Aged - 27 years, Occu. - Labour,
R/o - Village Chimangarh,
P.S. Sitamau, District Mandsaur (M.P.)
Versus
State of Madhya Pradesh .... Respondent
through P.S. Sitamau,
District - Mandsaur (M.P.)
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Shri A.K. Saraswat, learned counsel for the appellant.
Ms. Mamta Shandilya, learned Govt. Advocate for the
respondent/State.
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Whether approved for reporting :
JUDGMENT
(Delivered on 26/7/2021) Per, Shailendra Shukla, J :-
1/ This appeal under Section 374 Cr.P.C. has been preferred against the judgment dated 6.9.2008 passed by the 3 rd Addl. Sessions Judge, Mandsaur in S.T. No.142/2007, whereby the appellant has been convicted and sentenced as under:-
Conviction Sentence Fine Imprisonment in
lieu of payment of
fine amount.
u/S. 366 IPC 10 years R.I. Rs.2,000/- 6 months R.I.
u/S. 376(2)(f) IPC Life Imprisonment Rs.2,000/- 1 years R.I.
u/S. 377 IPC Life Imprisonment Rs.2,000/- 1 years R.I.
All the aforementioned sentences have been directed to run concurrently.2 CRA No.1357/08
2/ Succinctly speaking, the prosecution story is that on 21.10.2007 complainant Gopal Singh lodged a report that he had gone to bus stand to see off his brother-in-law and when he came back at 1.30 P.M., he saw crowd at his house and women folk of the family were crying. His wife told him that their daughter aged two and half years had been playing along with the children in front of Ram Mandir and two of these children namely Jaspal Singh and a girl child namely Govind came to his house and told his wife and grand-mother Suraj Bai that appellant has picked up the victim girl of the complainant and has taken her towards Naala. The complainant thereafter set out to search his daughter along with his wife and found his daughter standing in front of the house of one Chander Singh Patel; she was crying, her undergarments were soaked in blood and blood was also oozing out of her private parts. They brought their daughter to the house and took her to hospital as the daughter's condition was worsening. A report was lodged in Police Station Sitamau. Investigation was initiated and charge sheet was ultimately filed under Section 363, 366, 376, 377 IPC. After committal the case was tried in the Court of 3rd ASJ, Mandsaur.
3/ Charges under Section 366, 376(2)(f) and 377 of the IPC were framed, which were denied by the appellant, who took the defence that he has been falsely implicated by Chandar Singh and the reason is that the appellant had taken loan of Rs.10,000/- from Chandar Singh for carrying last rites of his mother and this amount had increased to Rs.20,000/- due to interest and in order to pay off the loan, the appellant had started working in the agricultural field of Chandar Singh and after working for six months when appellant asked Chandar Singh to adjust the labour done by him in terms of money, Chandar Singh had fought with him and assaulted him and has implicated him in false case.
4/ The prosecution led evidence in this case and has examined 16 witnesses. No defence witness has been examined by the appellant.
3 CRA No.1357/085/ In the appeal which has been preferred against the impugned judgment, it has been mentioned that the treating doctor Priti Manawat (PW-16) has admitted that the injuries suffered by the victim girl could have been caused due to fall on a wooden stump, that there are no independent witnesses, that the appellant was innocent and he has been falsely implicated by Chandar Singh, that the trial Court was at fault in relying upon the evidence of Chayta Bai (PW-5), who is in fact a hostile witness and there are number of inconsistencies in her evidence.
6/ Submissions were heard.
7/ The prosecution story hinges upon circumstantial evidence.
The victim girl was barely two and half years old and has not been put to examination. The circumstantial evidence on which prosecution has relied is the last seen evidence, medical report and other surrounding circumstances.
8/ It would be appropriate to revisit the sequence of events which has occurred as per the prosecution story.
9/ The father of the victim girl namely Gopal Singh (PW-1) has stated that he has three children namely Jaspal Singh aged 7 years, Vishnu Kunwar aged 5 years and the victim girl aged two and half years. On the day of incident, he had gone to bus-stand to see off his visiting relative and when he came back, he saw the crowd gathered in-front of his house. His wife Sohanbai (PW-2) told him that the victim girl was playing with her brother and sister and with other children in front of Ram Temple. Jaspal Singh came and told the mother of witness as also to the wife of witness that appellant Shankar Singh had picked up the victim girl and carried her away. Thereafter the wife of witness and mother of victim girl went out for searching the victim girl and she was found to be sitting near water tank, her clothes were soaked in blood and the she was crying. The witness states that he saw his daughter in the house who had lost consciousness. A report was lodged by the witness which is Ex.P/1. Thereafter the witness had taken her daughter to District Hospital, Mandsaur and had given 4 CRA No.1357/08 permission for her examination as per Ex.P/2. This part of the evidence has not been countered in the cross-examination.
10/ Jaswant Singh Parmar (PW-10) who was ASI in Police Station-Sitamau, District-Mandsaur (MP) has stated that on 21.10.2007 Gopal Singh (PW-1) had brought his daughter aged two and half years and has lodged a report which is Ex.P/1. After receiving the permission of Gopal Singh for medical examination, which is Ex.P/2, the witness took the permission of SDM vide Ex.P/10 and prepared an application for medical examination vide Ex.P/11 and sent her to Sitamau Hospital, Mandsaur, where lady Doctor was not available and therefore she was sent to District Hospital, Mandsaur.
11/ Dr. Pramila Rathore (PW-12) states that on 21.10.2007, she was posted as Medical Specialist and CHMO at District Hospital, Mandsaur. The witness has stated that she had conducted the MLC of the victim girl and she had found second degree perineal tear and parts of muscle and skin on the surface of vagina were torn and there was slight fresh bleeding and blood was smeared on her clothes and also on perineal area. The haemoglobin count was found to be barely 06 grams as against 12 to 14 grams, she was admitted and discharged on 27.10.2007. As per the opinion of Doctor, there was an attempt of forceful sexual intercourse. The opinion/report is Ex.P/28. In cross- examination, she denies that earlier different opinion was given which was replaced with the aforesaid opinion.
12/ A perusal of Ex.P/28 shows that the word 'scored off' were quite insignificant. The earlier sentence reads as "it seems that she has undergone ............(two illegible words) - coitus". The last three words have been replaced and as against these words, the word "forceful anal intercourse in vaginal also" have been substituted. The substitution is not unnatural and is inconsonance with the detailed examination and the written report has been lodged earlier. The witness has also stated that it would have mattered if the whole sentence had been replaced with another sentence. She has been asked to read the "scored off'' but has stated that below these words, signatures of Doctor Preeti Manavat are appended. She states that the 5 CRA No.1357/08 whole report of Ex.P/28 is in the hands of Dr. Preeti Manavat who had examined the patient in her presence. She denies that such injuries could have been caused due to fall on a pointed object. She however agrees to suggest that if a girl is hurled forcefully on such sharp object, then such injuries can be caused.
13/ Dr. Priti Manawat (PW-16) has examined the victim girl aged two and half years on 21.10.2007 in District Hospital at Mandsaur, when the witness was posted as Medical Officer. The witness has noted the demeanour of child and found her to be frightened and dull. On examination following injuries were found:-
(1) The anus was badly lacerated and pealed.
(2) There was blood mark on perineum.
(3) There was second degree midline tear on vagina and no fresh blood was oozing from it.
14/ As per this witness, she prepared the slides from perineal tear and also from anal region. The witness states that the underwear worn by the victim girl carried blood stains and other stains as well. The same was sealed and handed over to lady constable along with slides. It has been opined that forceful anal and vaginal sexual intercourse had been committed upon the victim girl. This witness also states that she subsequently had perused the FSL report, which is Ex.P/29, in which spermatozoa and semen stains were found on the slides, which affirms sexual intercourse with the victim girl. The report is Ex.P/28. In cross-examination she has been asked as to whether such injuries could be caused by falling on a pointed stump? The witness has answered in negative and she then again asked as to whether such injuries could be caused due to falling on a stump having two separate pointed ends? The witness replies that there could be such possibility provided both pointed ends are situated closed by.
15/ It is clear that on the spot map (Ex.P/19) there is no wooden stump or pointed shrub. Further, the slides drawn from the private parts contained human sperms as per FSL report (Ex.P/29) and, therefore, the possibility of the victim girl falling on stump and 6 CRA No.1357/08 suffering injuries is ruled out and no doubt remains that she was subjected to brutal and forceful vaginal and anal sexual intercourse.
16/ The question now is whether it was the appellant Shankar Singh who had committed the offence on the minor girl child ?
17/ As already stated earlier, the prosecution has relied upon the last seen theory and other circumstantial evidence.
18/ Coming to the last seen theory, the prosecution has produced three witnesses. Vishnu Kunwar daughter of Gopal Singh and another girl is also named as Vishnukunwar, who is daughter of Shyam Singh and these are PW-13 & PW-14 respectively. Both are 4 and 5 years old and have been asked initial questions to determine their capability of understanding. The presiding officer has opined that they are not in a position to depose and, therefore, they have not been asked any question regarding the incident.
19/ The third witness of last seen is Chaytabai (PW-5). This witness has stated that on the date of the incident she had seen the accused Shankar Singh, who was going from in front of her house and he was alone at that time. This witness has been declared hostile and then she admits that she had seen children namely Vishnukunwar, Govindi and victim girl playing in front of Ram Mandir, which is situated near her house. She further admits that she had also seen appellant Shankar Singh lifting the victim girl and taking her away. Witness states that she thought that victim girl was being carried by the appellant to play with her. Witness further states that half an hour later on hearing the noise she had arrived at the spot and saw victim girl who was taken to Suvasra hospital by her father. This witnesses has been asked in cross-examination as to whether she had given such statements to the police that the victim girl was playing along with the other children near Ram Mandir? The witness denies to have given such statements stating that she was in her house and, therefore, she had not told the police. She again reiterates that she did not see the victim girl playing with other children. She further states that Shankar Singh did not carry the victim girl before her. She again states that Shankar Singh was alone and then immediately thereafter she states that Shankar Singh 7 CRA No.1357/08 was carrying the victim girl for playing with her and surprisingly she in very next sentence states that she did not see the victim girl being carried by Shankar Singh. Thus, this witness does not stick to her statements. She supports the prosecution story regarding appellant carrying away the victim girl and immediately thereafter resiles from such statement and then again re-affirms the same. Hence, this witness is not reliable completely. The evidence of Chaytabai (PW-5) however cannot be discarded totally. What has remained uncontradicted in her statements is that she had seen the accused/appellant Shankarsingh going in front of her house at about the time of incident. It is well settled that such portion of a hostile witness may be relied upon, which has not been contradicted and which supports the prosecution story. The principle of falsus in uno, falsus in omnibus is not applicable in India. There are number of relevant citations, one of which is Nisar Ali Vs. State of U.P. reported in AIR 1957 SC 366.
20/ The significance of the aforesaid evidence assumes importance in view of sequence of events which had occurred. The prosecution in its investigation has found that the incident had occurred when the victim girl child was playing along with other children in front of Ram Temple, that the appellant Shankarsingh had picked her up and took her to a place which was near the water tank. Investigation was carried out to prove that after committing rape with the girl child, the accused/appellant had left her at the same place (near water tank) and from there, he moved northwards and on the way, the house of Chaytabai lies and the same path had been taken by the accused. Chaytabai (PW-5) had seen the accused at that point of time. As per prosecution story, the accused/appellant then moved further and arrived at the government well. He tried to wash off his clothes which were smeared in blood and thereafter he talked to some persons who have been made witness and then came back and lied beneath a tree, from where he was caught.
21/ The prosecution has led evidence to prove such sequence of events which would now be considered.
8 CRA No.1357/0822/ As already stated, the first circumstance is that the victim girl had been gone missing from the playground where she was playing, situated near Ram Temple and the fact that she was found near the water tank, where the offence had been committed against her.
23/ Sohanbai (PW-2) is the mother of victim girl who states that on the day of incident she was present in her house and her two children i.e. victim girl and Vishnu Kunwar were playing with other children near the village temple. All these children came at about 11:00 am and the witness told her that her younger daughter had been picked up by the accused/appellant and as per this witness, her elder daughter was also called out by the accused but she did not go out due to fear. She states that on getting this information, she set out with others in search of her missing daughter and she then found her daughter lying near water tank and blood was coming out of her vaginal/urine passage and she had defecated and lying unconscious. These statements of witness have not been contradicted in cross- examination. The statements of witness regarding she being given such information by children are relevant under Section 7 of Indian Evidence Act, 1872 and her statements regarding going out in search and finding of her daughter near water tank are relevant under Section 9 of Indian Evidence Act, 1872. Thus, it is proved that the victim girl was kidnapped from in front of Ram Temple.
24/ The spot-map Ex.P/19 has been prepared by Omprakash Trivedi (PW-11) who is SHO of Police Station - Sitamau, Mandsaur and as per Ex.P/19, the Ram Temple has been depicted as Sr. No.7 in front of which playground has been shown which was depicted as Sr. No.1, from where the victim girl was lifted and she was found near the water tank which is shown as Sr. No.13. Thus, it is proved that the offence was committed near water tank. Omprakash Trivedi (PW-11), who has drawn spot map Ex.P/19, has made a remark that at the spot of offence lantana grass was found to have been growing, however 4x4 ft. area was found to have been cleared up, ostensibly by accused to facilitate the commission of ghastly offence.
9 CRA No.1357/0825/ The prosecution story is that after committing rape on the minor girl, the accused/appellant had passed by the house of Chaytabai (PW-5) and then went to the well. The witness Sodansingh (PW-7) is the relevant witness of this incident. He states that on the date of incident, it was the day of Dussehra and he had gone to the agricultural field, where Nepal Singh was ploughing his field. He reached the field at about 11:00 am and at about 11:30 am he went to the well and he saw accused/appellant Shankarsingh sitting over there. There was blood smeared on the lower part of his shirt and the blood was also present on the part of trouser which covers private organ. As per the witness, the accused/appellant Shankarsingh came over to his agricultural field and requested Nepalsingh to plough his agricultural field as well. In cross-examination, he has been confronted with police statements Ex.D/4, in which there is no mention regarding the witness seeing the blood on that part of trouser which covers the private organ. The witness on being confronted states that if such statements are not there, he cannot explain the reason thereof. However, there is no omission or contradiction in his court statements and police statements regarding the witness seeing the shirt and trouser of the accused/appellant smeared in blood.
26/ This witness admits that on the date of incident, the accused was employed in his agricultural field as labourer but states that the accused was on leave on that day and there are no other contradictions or omissions in the statements of this witness.
27/ Shyamsingh (PW-15) has stated that on coming to know that it was the accused who had picked up the victim girl, he set out along with others in search of accused and as per the witness, he came to know that the accused had gone towards the Well of Chandar Singh. As per the witness, when he arrived at the Well of Chandar Singh, he saw accused/appellant lying in a drain meant for irrigating the field. The drain was originating from the Well. As per the witness, he saw half of the body of the accused in the drain and half outside it. There was blood seen on his shirt. The witness states that the accused had tried to wash off the blood stains and even then the blood could be 10 CRA No.1357/08 seen. Although, in his police statements, Ex.D/5, there are no statements to the effect that half of the body of the accused was lying in the drain and other half outside it. However, there is no other contradiction or omission in his court statements vis-a-vis police statements and he has been supported by witness Ramsingh (PW-3) who has stated that the accused was found beneath a tree of 'Khakhara' and his clothes were wet. This witness states that he saved the accused/appellant from being beaten up by the villagers. Some stray omissions are there in the police statements Ex.D/2 of the witness and his court statements. However, there is no contradiction as far as the statements of Ramsingh (PW/3), as narrated above are concerned. The contradiction pertains to some statements made by Ramsingh in his cross-examination.
28/ Thus, it is found proved that after the incident, the accused/appellant was seen by Sodan Singh (PW-7) who found that the blood was smeared on his clothes and thereafter by Ramsingh (PW-3) and Shyamsingh (PW-15) whose statements reveal that the clothes of accused/appellant were wet and he has ostensibly tried to wash off the blood stains on the clothes and also that he was in complete inebriated condition.
29/ Doctor S.G. Suryavanshi (PW-8) has stated that on 22.10.2007 (next day of incident) he conducted the medical examination of the accused/appellant and found abrasion over the tip of nose having size one and half inch and 1cm x 1cm abrasion on the lower lip having size 1.25cm x 1cm. Both injuries were caused by some hard and blunt object. This witness also collected the semen of accused and thus found the accused to be capable of intercourse.
30/ Omprakash Trivedi (PW-11) has stated that before sending the accused/appellant to the Doctor, he had obtained the permission of accused/appellant, which is Ex.P/15. The witness also states that from the Hospital, the trouser, the pubic hair and semen of accused were produced before this witness in a sealed condition, regarding which seizure memo Ex.P/17 was drawn. The FSL report Ex.P/29 shows spermatozoa on Article-'E' which is the trouser of accused and also the 11 CRA No.1357/08 slides 'B' and 'C' which have been drawn from the private organs of the prosecutrix. Further, the human blood has been found on the trouser of accused as also on the underwear of the victim girl (Article 'A').
31/ The citation of Hon'ble Apex Court in the case of Kansa Behera vs State of Orissa reported in AIR 1987 SC 1507 has been referred to by learned counsel for the appellant in which it was held that if the blood group does not match, the offence could not be proved.
32/ This submission was considered.
33/ The Hon'ble Apex Court in the case of Gurasingh vs State of Rajasthan reported in 2001 VOL.-2 SCC 205 has laid down that it was not possible to accept that in the absence of blood group matching, the accused cannot be convicted. The Apex Court distinguished the Kansa Behera's case (supra) on the ground that the facts of the case were on different footing wherein Kansa Behera was not having any rivalry with the victim and he was employed as contract killer.
34/ There is a contention on behalf of the appellant that the human blood on the trouser could be of the appellant himself who has been found to have suffered injuries. This submission was considered. The appellant has been found to have suffered injuries on the tip of nose and the lower lip but it has been found proved that there was substantial blood on the shirt and trouser and along with this there was presence of spermatozoa and semen stains also on the trouser. Further, it has been found that appellant had tried to wash off the blood stains. Had it been his own blood stains, he would not have tried to wash it off. Thus, the overwhelming possibility is that the blood stains were originated from the victim girl and not the appellant.
35/ In this case the onus was upon the accused to explain the presence of human blood on his trouser as also semen stains and spermatozoa has not been explained by the accused. The defence of the accused is that he has been falsely implicated by Chandar Singh in whose field he was working as labourer and was not paying his dues 12 CRA No.1357/08 and due to this dispute, he has been falsely implicated. Chandar Singh (PW-6) has been examined in this case who admits that appellant Shankarsingh had been employed by him for one year and Shankarsingh was required to pay Rs.13,500/- to him. However, the appellant-Shankarsingh had taken leave on account of 'Dussehra'. This witness has been examined as the one who had seen the appellant- Shankarsingh being produced by villagers after the incident. In cross- examination, he denies that he has been falsely implicated by the witness over non-payment of labour charges to accused Shankarsingh. The above defence of accused Shankarsingh falls flat in view of the overwhelming evidence available against him. The chain of circumstances here are consistent enough so as to rule out the possibility of any other hypothesis except the guilt of accused so as to satisfy the standards laid down in the case of Sharad Birdhichand Sarda vs State of Maharashtra reported in 1984 (4) SCC 116.
36/ Thus, after appreciating the evidence and taking into account the submissions of both the learned counsel, we are of the considered view that the appellant-Shankarsingh had kidnapped the victim girl child aged below 12 years of age, in order that she may be forced to illicit intercourse, that he committed rape upon the minor girl child and also committed carnal intercourse with the victim girl against the order of nature and thereby committed offence under Sections 366, 376(2)(f) and 377 of IPC. The conviction having been affirmed, on considering as to question of sentence, we find that the brutality with which two and half years old girl child was subjected to rape and anal intercourse by the accused/appellant, calls for most stringent punishment, as the depravity of mind of appellant has surpassed all limits of perceivable human conduct. Consequently, we affirm the sentence imposed by the trial Court in respect of each of the offences proved against the appellant which shall run concurrently. Accordingly, the appeal fails on the question of conviction as well as on the point of sentence. The appeal is accordingly dismissed.
37/ Let a copy of this judgment along with original record be sent to the trial Court.
13 CRA No.1357/0838/ The disposal of the property shall be as per the orders of the Trial Court.
(Vivek Rusia) (Shailendra Shukla)
Judge Judge
Trilok/-
Digitally signed by TRILOK SINGH
SAVNER
Date: 2021.07.30 17:46:12 +05'30'