KAILASH Vs STATE OF M.P.
Bench: A.K. PATNAIK,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-002260-002260 / 2009
Diary number: 23014 / 2007
Advocates: ASHOK KUMAR SHARMA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2260 OF 2009
KAILASH …APPELLANT
VERSUS STATE OF M.P. …RESPONDENT
J U D G M E N T
FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
1. This appeal by the sole accused is directed against the
Single Bench decision of the High Court of Madhya Pradesh,
Indore Bench dated 08.09.2006, passed in Criminal Appeal
No.1030 of 2003. The appellant, who was initially charged
under Section 306 and 376(2)(f) IPC, was convicted by the
trial Court only for the offence under Section 376(1) IPC and
was imposed with the punishment of 10 years rigorous
imprisonment, along with the fine of Rs.500/- and in default
of the payment of fine to undergo one more year’s rigorous
imprisonment.
2. The brief facts which are required to be stated are that on
23.07.2002, PW-2 - the mother of the deceased, when she
returned from her day’s work in the field at 6 p.m., found
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her daughter, the deceased Radha Bai, who had returned
back from the field at around 3 O’clock, inside the house
with the door locked from inside. One Parmanand climbed
the roof and found the deceased hanging from the roof with
a Saree. The said Parmanand stated to have opened the
door, cut the rope and brought the body down. PW-1
reported the matter to Aagar Police Station and thereafter,
PW-9 went to the place of incident and prepared the sketch
map Ext.P-8 and sent the dead body of the deceased for
postmortem. He also stated to have recovered the
Saree under seizure letter
Ext.P-10.
3. The postmortem was conducted by PW-4, Dr. Shashank
Saxena on 24.07.2002, at 3.45 p.m and in the postmortem
report the doctor noted that the deceased was aged about
15 years, that below the neck there was mark of bluishness
and on the ligetcher mark, there were marks of abrasion
and on one side of the ligetcher mark, ecmoyosis was
present. From the vagina of the body blood was found
oozed out, which was frozen and spread over in the midst of
the legs on the front side. On inspecting the vagina, it was
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found that it was reddish, congested and frozen blood was
present. Laceration on the wall of the vagina of 1 cm size
was also noted. The doctor in his opinion stated that the
cause of the death of the deceased was due to stoppage of
breathing, which was due to hanging and the injuries which
were present on the body of the deceased were
antemortem. The doctor stated to have collected blood
stained clothes of the deceased, viscera and pubic hairs, as
well as the liquid oozed out from the vagina on the role of
cotton, sealed and sent the same to the Station House
Officer. The postmortem report was marked as Ext.P-3.
According to the doctor, the age of the deceased was 15
years based on the age written in the application form. The
further opinion of the doctor was that due to hanging, no
injuries could have been caused on the private organs.
4. Based on the investigation, the prosecution came to the
conclusion that the deceased was raped and a case under
Section 306 and 376(2)(f) IPC was registered against the
appellant accused on 04.08.2002. The appellant was
arrested and was put to trial. The trial Court after
appreciating the evidence placed before it, acquitted the
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appellant from the charge under Section 306 IPC, but found
him guilty for an offence punishable under Section 376(1)
IPC and sentenced him as stated above.
5. The prosecution examined PW-1 to PW-10. PW-5 who is the
cousin of the deceased, was an eye-witness to the
occurrence and, therefore, his evidence became imperative.
According to PW-5, who was aged about 15 to 16 years on
the date of the occurrence, deposed that on the date of the
incident he went to the field around 11 a.m for discharging
excreta, when he heard the crying sound of his sister, the
deceased Radha Bai. On hearing the cries of his sister,
when he rushed to the place he found the deceased lying on
the ground and the appellant was mounted on her by
putting off his pant and the petticoat of the deceased was
also lifted, while the appellant was sitting over her. It was
also stated by him that the appellant was thrusting his penis
and was indulging in some shameful activity. According to
PW-5, when he questioned the appellant as to what he did
to his sister, the appellant stated to have slapped him twice
by catching hold of his shirt and asked him not to speak to
anyone about that or else he would be killed. PW-5 further
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deposed that his sister returned back home, while PW-5
went to Tanodiya and when he returned back from Tanodiya
he came to know that the deceased committed suicide by
hanging.
6. PW-5 stated to have narrated what he saw on the morning
of 23.07.2002 to PW-2 and PW-1 on the day after the
cremation of the deceased was over. Thereafter, PW-2
stated to have informed based on the version of PW-5 that
she came to know that it was the appellant who was
responsible for the commission of rape on the deceased
Radha Bai. The above fact was also supported by the
evidence of PW-7, Babulal who in his evidence stated that
the deceased Radha Bai was his niece, that on the date of
the occurrence he had also gone to the field, where he saw
PW-5, Pappu, going towards his house weeping and he also
saw the deceased Radha Bai going from the bushes
weeping towards her house. PW-7 stated to have seen the
appellant also going towards his house and that when he
asked the appellant as to what had happened, the appellant
stated to have silenced PW-7 or else threatened to beat
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him. Though, PW-7 was treated as hostile, some part of the
evidence did support the version of PW-5.
7. The medical evidence also to a large extent confirmed that
the deceased Radha Bai was raped prior to the suicide
committed by her. It has also come in evidence that the
seized articles of the deceased, which were sent to the
forensic laboratory, were returned back with the report
Ext.P-15. As per the report of the forensic laboratory the
slides of the deceased Radha Bai, her clothes, underwear,
petticoat and Saree contained spots of sperm and in the
slide of the deceased on her pubic hair, clothes etc., human
blood was found and such human blood was also found on
the underwear and petticoat, as well as Saree of the
deceased. As per the report, sexual intercourse committed
on the deceased Radha Bai was confirmed. The trial Court
has observed that though there was a lengthy cross-
examination of PW-5, nothing was brought out and his
evidence was natural and did not create any doubt as to the
veracity of his statement.
8. Keeping the above findings of the trial Court, as well as that
of the High Court on the commission of the offence of rape
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by the appellant on the deceased Radha Bai, when we
heard learned counsel for the appellant, the only
submission placed before us was that PW-5, stated to have
informed PWs-1 and 2, namely, the grand-mother and
mother of the deceased Radha Bai on the very next day
after the funeral had taken place, but yet the
statement of PW-5, was recorded by the police only on
04.08.2002. In so far as the said submission is concerned, it
was true that the evidence of PWs-1 and 2 disclose that PW-
5 informed them about the alleged rape committed by the
appellant on the deceased Radha Bai, on 24.07.2002 i.e. on
the very next day after the funeral had taken place.
However, there was nothing on record to suggest that the
said information was passed on to the prosecution agency
immediately after the receipt of the said information by
PWs1 and 2. In such circumstances, it can only be stated
that as soon as it was brought to the notice of the
prosecution agency as to the commission of the offence by
the appellant through PW-5, further action was taken by the
police by nabbing the appellant and proceeding with the
prosecution in accordance with law. Therefore, when we
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consider the submission of the learned counsel about the
abnormal delay in proceeding against the appellant up to
the alleged date of occurrence, the trial Court has also held
that the witnesses were all of rural background and illiterate
persons and, therefore, some allowance will have to be
given for their laxity in bringing the factum of the rape
alleged to have been committed by the appellant on the
deceased Radha Bai. When we consider the evidence of PW-
5, who was a child witness, who was stated to be between
13 to 14 years at the time of occurrence, we find that his
evidence was found to be natural and he withstood the
lengthy cross-examination, which did not bring out any
contradiction in his version apart from the fact that he had
no axe to grind against the appellant. Further when based
on the evidence of PW 5 and the medical reports, the
incriminating circumstances that existed against the
appellant were put in 313 questioning, he had no
explanation to offer. The medical evidence also fully
supported the crime alleged against the appellant.
Moreover, the evidence of PW-7, also corroborated the
version of PW-5 to considerable extent regarding the
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involvement of the appellant in the commission of the crime
on the deceased Radha Bai. Therefore, the ultimate
conclusion of guilt found proved against the appellant as
held by the trial Court as well as the High Court cannot be
faulted.
9. Having regard to our above conclusion, we do not find any
merit in the appeal. The appeal fails and the same is
dismissed.
10. The appellant is on bail. The bail bond stands cancelled and
he shall be taken into custody forthwith to serve out the
remaining part of sentence, if any.
………….……….…………………………..J. [A.K. Patnaik]
...……….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; July 24, 2013.
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