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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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