^ ^- CF0000061480 Oivi'sj'on Bench IM THE HIGH COJKT OF JUDICATURE AT JABALRJR M.P. Crlminal Appe-al No. |-^53 of 1997* APP|E^L UNDA SB;TIpN 374^2J pF_CRIMINAIL^RQCEDyRE^COD^ AP?£LIANT. ^^^L.) 9S -^^ versus w NON-APPBULAMT » Convictlon U/S 302 of I<P.C« U/S 376 of I*P.C< Kamta Prasad aged about 25 years, -"_. . // son of Ajeet Jharla, resldent of Eaianuharpara, Purani Qasti, Tah. Korba Dlstrict Bilaspuir yrp* State of Nadhya Prade^h* ! Serrbence^ R»I» for llf^* R.I- for ien FiUon.....'..'..—"—""-^'^ ^Sl.....^..^^"-""— .^••....^^' ^dvc flne of Rs. 6o|0/- In default six flfe>nths'R»T< (Sentence ruri ^ft»S»B»M»^»^*"* ^y 8LA.R. ^PSALJU/S-374{2^^Cr^C^. lyears and . ( concurrent^ XI-HC-22 •3T^^T 'i^N'STT^l ^RW^ftn ^ '? Z^* ^rRRT?!. '^tW^, fN^TRiy C^/9- /^9'3/95 WS|?ITWTra?""'""°""""""'"" •3^T1^T^R^^ ^m^Rh'-HR^?i fe^ ^3TP^?3?TN DIVISION BENCH: HON'^LE SMRI L.C.BHADOO & HON'ILE SHRI DHIRENDRA MISHRA, JJ CRIMINAL APl'EAL N0.1293/1997 Appetlant Respondent Kjamta Prasad ^s. Sjtate of IVIadhya Pradesh Shri R.K. Jain leamedCounsJBl for the Shri Akhil Mishra PL with Sjhri .J> respondent/State. appellant. ihri M.P.S. Bhatia learned P.L. for the ORAL J (13. PerL.C. Bhadoo.J if sentence dated 8.5.1997 p^ 1. The accused/appellant has (2) of the Code of Criminal Pro^ec judgment of conviction and order the AdditionaJ Sessions Judge, KJorba in Sessions Trial, No. whereby learned Additional accused/appellant guilty for commijss of the IPC sentenced him to underjgo Rl for ten years and pay firl 500/- and in default of payment UDGMENT 2.2006) ^referred this appeal under secjtion 374 (^edure questioning the legalit^ of the issed by 61/1996 Sjessions Judge after holding the ijssion of the offence under seotion 376 offine to further undergo R e of Rs. for six [Tft^^fe^ XI-HC-22 @ -^- wss ^rr^R^. ^to^-. ^jrcry -"^it^r^ l^w^lt^? ^HN"?tf^ 'w^r'^^w1^^./2f3/^ ""ft^^r1 2- - mpnths. The appellant has also beer IPC and sentenced to undergo impri! sentences were directed to run concu|rently 2. Case ofthe prosecution, m br|ef, is that Sadhram (PW-1) loidged a report P-1 in the police station Korba the effect that he is residing near cobbter and there ss one Godown of one Durga was residing along with lon 22.8.1996 at about 15.05 hours to ipolice station Korba workjn^ as a lamba. In the corrid&r ofthat Qodown (ier two daughters namely Ur(ia and Punia aged about5 yearsand 3 yejars respectively, in the mQrnihg she used to leave forwork and return in t girts used to play jn the verandah. Or Umabai came and informed him ths crying, on which he along with Am^ peeped inside and saw that the ac|i posftion rubbing his penis on the va^i s^/yelling was present on her vagina registered the crime under section letterto the Assistant Surgeon poste| for giving his opinion whether rapej Report of doctor is P-5. Thereafter, 'sfOTfeNt^ "q^^ n'fe^ ^ 3rf^? ^r^? convjcted under section 302 of the onment for life. Both the sub^tanth/e fie evening and during that peij-iod the that day at about 2.1516 2.3^hours ^t one person had taken Punjia, her younger sister (sjnce deceased) in tjie Godown and she is weepi^g and r Singh went towards that si^le and cused Kamta Prasad was in nal part of Punia Bai. On callijng him he stood up and when they saw P^inia Bai, she was unconscioJLis and part. On receiving this reportj PoHce 76 ofthe IPC, left for the scene of naked occurrence and prepared the site p^in P-3. Investigating OfRcer ^jvrote a at a hundred bedded hospital on 25.8.1996 Punia Bai died in the hjospital and Investigating Officej has been committed on Punjia Bai. >unia Bai was hospitalized, Hciwever, Korba again [7^^fe^ XI-HC-22 3?T^?^? IX^^Ti^T ^RN'^if^ @) •s^^^Km. -^frspT?. 1^rs7?y ^..^.U.^.l/l^ •^R^Nh 'HJ^^ '^'s^m'^T^? .- asked for the opinion of the Assis^ant Surgeon under P-6 in wrfiich the doctor opined that the cause of ct^ath js head injury. The accus^d was also sent for medical examination uhder P-8 and after examining (lim the doctor gave his report P-5. Post tTJortem on the body of Punia Bai was conducted by Dr. D.K. Shrivastava fj>W-7and the post mortem report is P- 11. Panchnama P-18 was prepared |>y the Investigating officer after giving notice P-17 to the Panchas. After 4ompletion of the investigation sheet was filed in the Court of Judic|al Magistrate First Class Korba turn committed the case to the ^essions Judge, Bilaspur from learned Additional Sessions Judge r^ceh/ed the case on transferfortrial. 3. Learned Additional Sessionsl hearing the counsel for the partie^ bffences under sections 376 and 30J2 accused and therefore, framed chi and explained to him. The accusedjabjured the lcharge |who in where Judge after perusing the record and Was of the opinion that prim]a facie ofthe IPC are made out aga|nst the rges against the accused, re^d over charges. section 313 of the Cr.P.C. in whicl appearing against him. . 4. Prosecution in order to estat^lish the charges against the ajccused examined 17 witnesses. Statemenl of the accused was recorded under 5. Learned Additibnal Sessions he denied the prosecution eyidence Judge after hearing the argum^nts of the Additional Public Prosecufor afid counsel for the accused/aF(petlant convicted and sentenced the accuspd as mentioned Sn paragraph IJ^o.1 of this judgment. ^Ri^ XI-IIC-22 ^^m t^ri^^tTr ^•Rt^^fiPf 's^l ^TRM4, -^ilwre, R?mry .^.&.a....^..?.?./?^ ,„ •^;. '^n^? I^ITW ^rit^ <-f~ 6. Wehave heard learned coijinsel for th©parties and perused the evidence available on record. 7. Argument ofthe leamed cou|isel that in view of the medical evidenc^ and secondly that from the medicalj establish that the accused assaultject cause herdeath. 8. On the other hand leamedj impugned judgment of the trial Couijt ^ 3T^OT OT^i for the appellant is two fold - first the charge of rape is hot established evidence the prosecution has failed to the deceased wth an intention to counsel for the State supported the 9. As far asoffence under secljion 376 ofthelPC is concemed PW-1 Saadhram is theperson who lodg^d the FIR and has stated that on the fateful day in between 2 and 2.30 ^rl Uma came to him and informed that one person was sitting on the co which he along with Amar Singh v^nt tovrards that side and saw younger girl was missing and they fieard the screams ofthat giri fij-om the Godown side, therefore, they ente|-ed the Godown and after ligh vaginal part of the girl. They in^mediately left for the police informed the potice and lodged the 3 years vyho died subsequently. deceased informed Sadhram abou idor and was beating Punia match box they saw that the accjiised was rubbing his penis v^ith the ^tation, PW-3 Uma, the elder Sister I: the accused andshe has stai report P-1. Punia Bai was age^l about accused Kamta Prasad took Pijnia inside the Gocto\A/n. The|reafter, Saadhram went towards a hotel ar^d informed the incident to the j^ersons r^ Bai on hat the ing the of the ed that tfe^. XI-HC-22 •y5i •=5TFrRT^, '^N^5. ^T^ T^T<% J^-.£):J.^..^3.,^ 200 •^j^^S 1^N"a?n^T ^^w^tfi?r - s - TQW^ ^ •^f^R' •3?T^j who were present there. PW-13 Anjiar Singh has corroborated the above evidence of Saadhram as well as cjf Uma and has statedthat wrien they reached the Godown they saw thpt the accused \ftffiis committihg rape meaning thereby after placing Pur^ia on his lap theaccused wsis doing something and they saw that the b|ood was oozing out ofthe vaginal part of Punia Bai. Therefore, from the d that the accused took Punia Bai ins| cloths he was seen keeping Puni^ penis with her vaginal part. PW-^ ibove ocularevidence it is established de the Godown and after remcfving his Bai onhis lap and was rub|>ing his Dr. (Smt.) Rashmi Singh eijcamined Punia Bai and has statedthat on e|camination pfthe intemal part Wpunia Bai she foundthat there was a ci(t injury in the size of 1.5 cm at the 7 O'dock position which was on the (ower part ofthe vagina near penneum and there was a fresh wound and ^lood was present on the perin^um and [Dr.D.K. Bai has in her opinion attempt to commit ra| Shrivastava who conducted the po^ e was made on the giri.PW-7| mortem on the body of Punia| stated that the vaginal part of Puni^ Bai was torn in 7 O'clQck pos|tion. As per the explanation to section 37^ constitute rape penetration js sufficj ofthe Indian Penal Code in ient. As per the evidence ofthej perineum was found injured in 7 O'|;lock position and injury was in ^rder to doctors !the size of 1.5 cm and thus the above med|cal evidence shows that penetjration in the genital part ofthe victim was th^re, th^-efore, we are ofthe copsidered opinion that the findings of the trial Court convicting .the accus^d under section 376 ofthe IPC are based <|)n legal evidence and to that ektent we do not find any illegality or infirmity |in the impugned judgment. [^^i-Q^ XI-HC-22 3:n^i^r f^W S^! ^^i<^-^rf^T -3-sf ^[p?i^p?, ^rari^, f^iray ^ire^T^Hiob 3?T^T ^5^'sh ^^::./9..'..../..-2..?3./^..•^ 200 '1^^" l3TI^T ^^T^R ^rf^T 6- ^Plfe^T W^ff ^ 1^^ TM^Ji i ^^^R^ii¥r I iraph 6 of her evidence she has stated head injury on 25.8.1996. Dr. D.K. st mortem examination on the body of 10. So far as the offence undef section 302 ofthe IPC is concemed, as per the evidence djscussed abov^ it is established that the accused took the giri inside the Godown and jwhen the girl was recovered, she was found in an injured conditjon andjmedical examination was conducfed by Dr (Smt.) Rashmi Singh. Accord^ig to the doctor there was jnjury on the head and the deceased was in fr serious condition, therefore, she was admitted in the hospital. In para^ that Punia died on account ol) Shmastava PW-7 conducted poj Punia Bai and stated that there (rfvas hematoma in extra dural and intra dural part of occipital and basal p^rt of post brain suggestive of head injury with pale orggn suggestive of an^mia due to intracranial hemorrhage lead to shock, coma and death. Intra ^iural and extra duralhemorrhage shows that there was an intemal injury |and the death was on account of head injury as the accused was caughjt red handed while committing|rape on Punia Bai and in that process Pu^ia Bai received injuiy on her h^ad who was aged about 3-4 years at tjie relevant time. The intentiop of the accused can be gathered from jthe manner in which the offeipce was committed, the facts leading to tljie offence, the parts ofthe boc|y where the injury was inflicted and the na^ on a three-four years old girl in ^ while causingsuch injury on the intentjon to cause death of Puii ure ofthe injuries while committjing rape Godown, therefore, it is writ lelrge that head of Punia Bai the accused ia Bai, therefore, we do not ^nd any illegality or infirmity in the finding tjegarding conviction under secti^n 302 qf the IPC. [^tfe^ had the ^7 XI-HC-22 311^1^1 f^ri^a?T^i ^Rl^"^^^ ^ ^^ ^Tpn^p?, ^ft^re, ^Mray WH^IT^W^ 3^T _A:..;./?..;../3..?.. ^ 200 '.fN^s?' 3TI^T '^Tf^R ^W^ -^- 11. In the result the appeal is d|3void of merit and the same is llable to be dismissed. It is accordingly disrrtissed. Sd/-. L.C, Bhadoo Judge ^{^pft^j^^i ^ -rt^ TM^K I ^^1^?w^? issed. SdA ! Dhirendra Mishra Judge [Tit^]^fe^