BBSI?i^Si:l^%ll^il?^^^l?y% 8BStiy:::^'^^'y'L;r;?^'-.;''.'-^^^^ ^^;^;:4<^;^.;^\^.^ ..^1.^'-''"''" ' -1XII-189/(Jail) C.J.P.R. 11/94/2,000 CF0000061621 NO............X Father's name Oivision Benc'n (rfimmai) ^.S^...............Name4'--S^..--.&....^ ^T ^> ^ ^^^'^""^^ •••X-'ri-gf^ Residence^^•^^^^^^sw^ge^^^ Sentenced to ,^-^^.^^^^^^.yp. On......^.^.^^ ............... . ......... ,,^r^\.' £'P<:?O"^^^- ,,p^^^^\. ^^-^ ^v^ ^ ^, ^__.• ,^^^^^_/-^ ..._.. ^....^___._ • • •^-^^-•^.•jt^^Sy -T?^"^ • •^;:-"-^.'^^•^ •* ".y^:* ""^ "^"'7^"^"^?" ('%""""""" "Jr ^^" '^1:?"'^9T;3??F 'Q^Q-^^^F^^: It is explained to the prisonerthat if he states or wishes to be represented by jlegal ^ practitioner the.Appellate Court will notproceed withthe base for seyen days i^nless ;: the legal practitioner appears . If the legal practitioner does not appear within seven iays hemay not heard at all . Jfthe prisoner states thathe does not wish to be i|epre- ented by legal practitioDer the court may proceed at once with the case andwill not be obliged to give a hearing to any legal practitioner vvho shouldappear . v 1 2 3 4 Date ofApplication fbr copy of Judgement Uateon wtiich copyreceived ••...•.•............. .... ..^^|<?^ . . . . Dateon whichAppeal sent...... . ... ............o^j^..'!C? ... . Whether the prisoner wishes to be represented or not - Yes / No Name^ No.... ............,. .. ..^ .'^....,...;...... Nam.^^.^.^^...^ Confined »^..^....^^....,............Ja^...^.^^.^^....: No.......^^o)^.QT^7^SY-Dated"---%/.£^.^i99^.. •^r7 ^UefefAfc^fAOfSTRATfi ^5 _Y,_ -=^ Forwarded to the -eBffiF^-UefefAfc^fAOfSTRAT^ togather which a copy of judgement or order passed in the case fbr favour of tJran^:v ^-^$^^ lion to the proper Appellate Court. ' <;^T^^ ••- (^^ov^ <^r-' ^ ^s^ ^^^ 3'^\\^\d~^^ •^r'^\^ Datepfreceiptin........... ..............,.:.. office D^te of,receiptrecard to accompaoythe .. Memo ofAppeal to ihe Appellate court No^ Forvvarded to the Date of receipt in Appellate Court '^^dlSS ^yw^] £&^wtf^M^W 1 XI-HC-78 <IIHCTI^<IT^ vt-wi '<ii<<iw<i, tyTTl1<i<i<o, Rlril^M^ . ...Qx...6.:..i.!.±^..^.....^l^oo^ 3TT^5Tq3q? (yil^citg) an^^T^Tf^rN? ?T8?T3TI^^T^ri^ -^- . 2. B^cTTWtiRa OT^^T <p(<<io<Ili ^i^ioli'^ffe^€txRit^i^ ^3yf^T31T^5T DIVISION BENCH: HON'feLE SHRI LC.BHADOO &HONl'BLE SHRI DHIRENDRA MISHRA. JJ CRIMINAL ApPEAL N0. 1114 of 1997 Appellant : |Gaur Singh @ Khorva |Vs. |State of Madhya Pradesh Respondent Shri Abhijeet Sarkar, learn^ Shri U.N.S. Deo, learnedl M.P.S. Bhatia, fearned P.L. for th4 ORALj L.C.Bhadoo. J (1 By this appeal under Se| Code, the accused/appeliant ha| correctness of the judgment of 12.03.97 passed by learned Ad| dcounse! for the appellant. Additional Public Prosecutor with Shri respondent/State. JUDGIVIENT 9.04.2006) ^tion 374(2) of the Criminal Procedure ^ questioned thelegality, propriety and bonviction and order of sentence dated aitional Sessions Judge, Baloda Bazar, District Raipur in S.T. No. 241/94|whereby the learned Additional Sessions Judge after holding the accuse<|/appellant guilty for the commlssjon of offence under Section 376 (2) (fl) of the IPC sentenced him to ur^dergo imprisonment for iife and to pay ^ of fine to further undergo Rl for or| Case of the prosecution neces^ary narrated in the First Informatiort between 3.00 to 5.00 p.m.,pro4 fine of Rs. 5,000/-, in default of pa^ment eyear. for the disposal of this appe^i, as Report P-1 was that on 10.01.p4, in ecutrix namely Ku. Toman Bai wj^nt to ^%. m^ -I XI-HC-78 WTOTa^'TT^ ^oSf '^tJtWlfXt, t»TTltl<l<S,Rwi^iy .^....6:.j.u.lly.3.. ^wa 31T^9Tq^?(«jcit^6|<g) 31I^9TwRnicp ?T8JT3niST9RN? B^TSH^rf^T 3TI^^T ^ -^ - wi^iw'yli Wrat'^'fe1^ ^FJI^I^ ^3lRl<l3TT^^T >n Khaar. When she was collectingicow |d/appeJlant, the accused came nea^ the collectcow dung in village Devga| dung of the animals of the accus^ prosecutrix and persuaded her fc( refused on which the accuse(|/appeliant in order to have forcible intercourse with her caught hold c|f her and dashed her in the field. Atthis, r the sexual intercourse. However, she intothe field on account ofwhichI. she raised screams whereupon /|ie accused/appeJlant dragged her iegs the accused/appellantdosed h^ >he sustajnedinjuries on nose, eyes and head and blood was oozing out o|f the injuries. When she raised screams r mouth with his hands and ins^rted Dukalu, who took her to Palari fo| police station. On receiving this r| . Thereafter he removed her undervi/ear The prosecutrix became unconsci<pus. leaves on her mouth. pressed he^ neck by both the hands and sajd tl^at if she raise cries then he will kill hel' and had intercourse with her. Considering her as dead, the regained consciousness, in the e\|i about the incident to her mother accused/appellant left her, when ]she ening, she came to her house, inforrlned Ur/ashi & grand mother Manmouti. next day, in the morning, she in|Formed about the incident to her U^cie treatment and lodged the report in the kport Ex. P-1, the SHO of police sta^ion Paiari registered the crime undeij Sections 376 and 307 of the IPC ^nd Section 3 (12) ofthe SC/ST (Prev^ntion of Atrocities) Act, 1989 and left for the scene of occurrence. Under fromthe place of occurrence we|re taken jnto possession. He also t^ok into possession two ear rings of tl| blood. He took into possession Primary Health Centre, Palari f<| examined her and prepared repor) x. P-2, plain soil and blood stained |e prosecutrix and one doth stained \ l^ne petticoat and Terri cot shirt of prosecutrix under P-3. The prosjecutrix was sent to the lady docto r examinatjon where Dr. Nihar Ba P-4 in whichshe noticed jnjuries on •he isoil ^ith Ithe of (pai e IFJ \i:s i?f •^^^•^^ XI-HC-78 »fT*TC5TW11^ ^wi'<<iqicl)<i,tPT?l^i<i<a, l^riKI^ ..G^..^....^^.^.^.?.. sn^^Tti^ (yii^q<g) wiwo an^^T^pTf^FTW ^wayT^^Tw^icp B^ITWfttRa OT^^T -3 ~ cheek, nose, mouth and lower liFi hymen was ruptured and there There was sign of intercourse. S| aged seven years with upperat examined the petticoat and shirt j semen like stains present and accused was sent for examinati<|>r have intercourse to D.K. Hospit^l examination prepared the report capable for intercourse. The were sent for examination to th{ from where report Ex.P-12 investigation, charge sheet was First Class, Raipur who in turn co( Raipur from where the leame( received the case on transfer for t| recjovered articles, ciothes and soii s1 The prosecution in order to| accused/appeilant examined as rr( of the accused was also record^d which he denied the prosecutjoi| stated that he has been falselyj animosity. Leamed Additional Sessions parties convicted and sentenced paragraph one ofthisjudgment. cpl<4TCT<S1l *1MC)T^' fe^l xRl^l^ ^3<Rt*l3n^^T of the prosecutrix. She also found that were lacerations in the vaginal canal. ie also opined that the prosecutrixjwas ge limit relaxable by threeyears. |She of the prosecutrix and found blood| and she prepared the report Ex.P-5.|The i )H in order to ascertain the potency to I, Raipur where Dr. IVI.P. Pujari after ^x. P-11 and opjned that the accus^d js ides ^ Forensic Science Laboratory, Raipur w^s received. After comptetion of| filed in the Court of Judidal Magisf ^imitted the case to the Sessions Ju,yge, ^ Additional Sessions Judge, R^ipur ^ial. establish the charge against |any as seventeen witnesses.Stateilnent under SectiQn 313 of the Cr.P.C. in ^ evidence appearing against him | and implicated in the crime on accoui^t of Ju|dge after hearing the counsel for| the |the accused/appellant as mention€(d in the rate the XI-HC-78 *IPTcn<P<1iq» vtwej »<|iqicl)q,tPTTlwKo/RlOltiy .(^.^.:JJ.1±/..^.. 3H^^TI1SR? (<jcll'36l<a) ^20^ an^^T^Tf^FTR? W?T3n^^Tfp*ii<p 5. 6. 8. S^ffWf^rf^T 3TI^^T We have heard Shri Abhijeet Sari and Shri U.N.S.Deo with Shri M.P.l <PI*lIo<Tll <1MC>t'^I«^xRlt^l^ ^3Tf^T3n^^T ^ar on behalf of the accused/appellant >. Bhatia on behalf ofthe State. P.W.-1 Toman Bai i.^. the prosec^trix has stated that on the fateful day she went to collect the cow dung |i the filed where accused met her and caught hoid of her, dashed her ir| the field and after that he committed rape on her as a result of which ^he received injuries on the mouth and other parts. When she retumed to |the house, she informed about the fact ^to his mother, grand mother and hi: uncle on which report P-1 was lodged. In the cross examination of this withess, the defence has not been abl|e to elicit any circumstance which nr| unreliabie. The evidence of this rf statement of P.W.-2 Khemlal Sah^ Toman Bai to the police station a| lakes this evidence untrustworthy or Irosecutrix stands corroborated by | the who has stated that he accompanied ^d saw that there was swelling on|her face. He has further stated that <he ear rings, petticoat and the bl^od stained soil were taken into posses| P.W.-5 DukaJu, uncle of the pr( (Toman Bai) was residing with hir|ri informed about the rape by fh^ prosecutrix. He has also stated th4 ofthe prosecutrix and blood was 04 Similar is the eyidence of P.W.-6 injuries on the body ofToman Baij the aboveevidence. P.W.-13, Un/4 corroborated the evidence ofP.W.4 sion underP-2. ^as Ithe )secutrix has stated that proseci^trix as her father was dead and he ^as mother and grand mother of [t he saw injuries on the neck and fjace »zjngout ofthe injuries. <amal who has stated that he sawlthe P.W.-7 Dharam has also corroborsjted ishi, mother of the prosecutrix has ^lso 1. lii'l G^ XI-HC-78 *ll*trtl^1T^ ^9^WTI^T, tp^tt«i<»,^ril<1^< .^x.:.^.....^/±.^^. ^Ff200 3TI^$T q5R? (yil^qcg) 3i1^^T^Tf^FTRF ?!RIT3IT$$TaWRF ^<? 10. 11, \.- 12. ^RTTWNi^T CT^^T ~~ S^ — <pi*atw<i1Ti *iMot"^f fe^l ^Rl^l^ ^3lRl*l3TT^?T P.W.-4 Dr. Nihar Bajpai has sljated that on 11.01.94 she examined prosecutrix Toman Baj and foun marks of injuries around the fac^ stated that on examination ofth^ labia were in swollen condition, there was bleeding from the vagir) seven years and the hymen of th| that the injuries which were foun) committingthe rape. P.W.-9 Sundar Das, Kotwar has| register P-8 in which the date of ^ that there was abrasion on the right cheek in the size of 5 x 2 cm., or|e abrasion on the nose and there were examined the accused/appellant, competent to have intercourse an the above evidence it is establishl and on the lower lip. She has further vaginal part, she found thatboth the |here were injuries on the hymen and ^. The age ofthe prosecutrix was about ^ prosecutrix was ruptured. She opined Sl on the vagina could be caused while stated that he is maintaining the birth t)irth of the prosecutrix was recorded as 3.11.86 and as per the eviden|ce of P.W.-14 Dr. M. P. Pujari who found that the accused was potent and d his report is Ex.P-11. Therefore, from 3d that the age of the prosecutrix or^ date of mcident was about s^ven years and the evidence of )m|mr the the prosecutrix that the accused com|mitted rape on her stands corrobor^ted of PJW. by the medicai evidence witnesses who saw her in injured into possession from the place of -4 Dr. Nihar Bajpai as aiso ql In view ofthe above, there is amp| the accused/appellant committin^ we do not find any illegality or infir|mity condition. Even her ear rings were ts(ken >ccurrence. le evidence regarding the involvemerjit rape on prosecutrix Toman Bai. in the judgment of the trial Court|. :her :of Thus, -A'lA,! •^^^s^ XI-HC-78 WTOT^Trai ^wir6|i<<ic>«^yT¥li|<|<A,i^riWy^ .^.y....6:../!iy..^.. 3n^5TtRq?(ijc|i^6|<£;) ^200 ^I^^T^T^TR? WrT3n^fTri»*lJcb 13. 14. 15. 16. ^L B^ITSR^Tf^TOT^^T - 6 — '^ Learned counsel for the provisions of Section 376 (2) (f) been prescribed at ten years and fine. The accused/appeliant is in <j already undergone almost twelve the undergone sentence. accus^d/appetlant argued that as per the <tf the IPC, the minimum sentence has t/hich may be extended to life and also |ustody Since 13.02.94 thereby he has 1/ears and as such he be let off under On the other hand Shri U.N.S.Deo the State opposes the above accused/appellant. Having heard the counsel for circumstances of the case and cpi<<Io<?l'ri*iMoli'^f I^L<S)^Rli^l^ ^3<Kl<l3n^<T with Shri M.P.S. Bhatia on the behalfof argument of the counsel for the 1 the parties, having regard to the having regard to the fact that the accused/appellant hasalmostun<|lergone tweive years of sentence and the accused was aged 22 years] offence, we are ofthe considered to undergo the sentence which he| endsofjustice. In the result, while maintaining th^ the IPC, the appeal is partly allow^ the appellant to undergo life imri rtis^entenced tothe perio| Sd/.. L.C. Bhadoo Judge |old at the time of commission of the ^pinion that if the accused is sentencod has already undergone it will meet the conviction under Section 376 (2) (f)|of ^d. The jmpugned judgment sentenci|ig Irisonment is set aside. However, the ^ already undergone by him. Sd/- Dhirendra Mishra Judge lry