KAILASHversusSTATE OF M.P.

                        [2013] 7 S.C.R. 780


A                            KAI LASH
                                 v.
                          STATE OF M.P.
                (Criminal Appeal No. 2260 of 2009)
                           JULY 24, 2013
B
            [A.K. PATNAIK AND FAKKIR MOHAMED
                 , IBRAHIM KALIFULLA, JJ.]

        PENAL CODE, 1860:
c
          s.376(1) - Rape of a girl aged about 15 years - Suicide
    committed by her - Conviction by courts below uls 376(1) with
    sentf3nce of 10 years RI - Held: Keeping in view the evidence
    of the eye-witness, supported by other witnesses, the medical
    report and the forensic laboratory report, the conclusion of
0
    guilt found proved against appellant by trial court as well as
    High Court cannot be faulted - Code of Criminal Procedure,
    1973 - s.313.

       The daughter of PW-2, aged about 15 years,
E committed suicide by hanging herself in her house. The
  trial court considering the post-mortem report, forensic
  laboratory report and the evidence of witnesses,
  particularly, the eye-witness, (PW-5), convicted the
  appellant uls 376(1) IPC and sentenced him to RI for 10
F years. He was, however, acquitted of· the offence
  punishable u/s 306 IPC. The High Court affirmed the
  conviction and the sentence.
       In the instant appeal, it was contended for the
G appellant that there was abnormal delay on recording the
  statement of PW-5 by the police, who was stated to have
  disclosed about the occurrence to the grand-mother and
  mother of the deceased on the following day of the
  incident.
H                               780
              KAILASH v. STATE OF M.P.                   781

     Dismissing the appeal, the Court                           A

       HELD: 1.1 It is true that the evidence of PWs-1 and 2
  discloses that PW-5 informed them about the rape
  committed by the appellant on the deceased on the very
  next day after the funeral had taken place. However, there    8
 ·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           C
  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. With regard
  to the abnormal delay in proceeding against the
  appellant, the trial court has held that the witnesses were   D
  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 committed by the
  appellant on the deceased. [para 8) [785-F-H; 786-A-C]
                                                                E
      1.2 The evidence of PW-5, who was aged about 13
 to 14 years at the time of occurrence and was the eye-
 witness of the incident, 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      F
 fact that he had no axe to grind against the appellant.
 Moreover, his evidence was also corroborated by PW-7
 to considerable extent regarding the involvement of the
 appellant in the commission of the crime on the
 deceased. The medical evidence also fully supported the        G
 crime alleged against the appellant. As per the report of
 forensic laboratory with regard to articles seized and the
 clothes of the deceased, sexual intercourse committed on
 the deceased, was confirmed. Further, when based on
 the evidence of PW 5 and the medical reports, the
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    782      SUPREME COURT REPORTS                 [2013) 7 S.C.R.


A incriminating circumstances that existed against the
  appellant were put in 313 questioning, he had no
  explanation to offer. 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.
B [para 7-8) [785-A-C; 786-C-F)
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2260 of 2009.
      From the Judgment and Order dated 08.09.2006 of the
C High Court of Madhya Pradesh at Indore Bench, in Criminal
  Appeal No. 1030 of 2003.
          Ashok Kumar Sharma for the Appellant.
          The Judgment of the Court was delivered by
D        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
E · 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.
F      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 her
  daughter, the deceased Radha Bai, who had returned back
  from the field at around 3 O'clock, inside the house with the
G 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
H and prepared the sketch map Ext.P-8 and sent the dead body
            KAILASH v. STATE OF M.P.                         783
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of the deceased for postmortem. He also stated to have               A ·
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           B
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 found that it    C
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 c~use 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        D
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-            E
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      F
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 appellant from the          G
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
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    784     SUPREME COURT REPORTS                 [2013) 7 S.C.R.

A 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
B 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
c 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
D be killed. PW-5 further 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.
E       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
F 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
G 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 fo beat him.
  Though, PW-7 was treated as hostile, some part of the
H
            KAILASH v. STATE OF M.P.                         785
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

evidence did support the version of PW-5.                            A
     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      B
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,           C
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         D
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
by the appellant on the deceased Radha Bai, when we heard
learned counsel for the appellant, the only submission placed        E
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       F
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          G
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,         H
    786     SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A further action was taken by the police by nabbing the appellant
  and proceeding with the prosecution in accordance with law.
  Therefore, when we 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
B 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-
C 5, whci 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
0
  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
E to considerabl~ extent regarding the 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.
F
        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
G and he shall be taken into custody forthwith to serve out the
  remaining part of sentence, if any.
    R.P.                                      Appeal dismissed.