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Can't Disbelieve Prosecution's Case Due To Absence Of Injury On Male Organ: MP High Court Affirms Life Sentence In 5 Y/O Girl's Rape Case

Sparsh Upadhyay
19 Aug 2022 11:56 AM GMT
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Upholding the life sentence imposed upon a convict who raped a 5-year-old girl, the Madhya Pradesh High Court recently observed that the absence of injury on the penis is not sufficient to disbelieve the prosecution case.

The bench of Justice G. S. Ahluwalia and Justice Rajeev Kumar Shrivastava emphasized that offence was an unpardonable act and therefore, in order to provide a safe society for minor girls, it is necessary that such types of act must be dealt with firmly.

The case in brief

As per the prosecution's case, the parents of the prosecutrix had gone for labor works, and therefore, they had left the prosecutrix (a 5-year-old girl) in her uncle's house. Uncle and his wife were also in the field. His son Dhanpal aged about 4 years, and his younger son, and the prosecutrix were in the house.

In the afternoon, Dhanpal came to the field and informed that some incident had taken place. The Uncle of the victim rushed to the house and found that the prosecutrix was lying unconscious and she was bleeding from her private part. She had bite marks on her teeth.

Khema, Gudda, Phulla, and Mangilal were also there, 3 of them said that they had seen the Appellant running away.

The police registered the FIR and a spot map was prepared. The prosecutrix was sent for medical examination and the Appellant was arrested. The Trial Court convicted and sentenced the Appellant under Section 376(2)(f) of IPC.

Being aggrieved by the Judgment and Sentence passed by the Court below, the Appellant moved to the Court contending that the prosecution had failed to prove that it was the Appellant who had committed rape on the prosecutrix.

Court's analysis

Taking into account the facts of the case and the medical evidence adduced, the Court noted that it was clear that the prosecutrix was subjected to rape. Though the victim was not examined as she was unable to understand the court's proceedings, the Court observed that her medical evidence fully established the fact that she was subject to sexual assault. The Court also took into account the presence of Human semen and sperm in the vaginal swab and the slide of the prosecutrix.

"The defence has failed to dislodge the evidence of running away from the spot, by bringing any fact that there were movements of general public at the place of spot. FIR was lodged without any delay. The names of the prosecution witnesses were also mentioned in the FIR. Thus, when the incident took place at an isolated place with no movements of any other person, and the Appellant was seen running away by three persons who were grazing their cattles, and the small girl was also found on the spot in an unconscious condition with bleeding from her private part coupled with the fact that the medical evidence of the prosecutrix also establishes that She was subject to rape, this court is of the considered opinion that the prosecution has succeeded in establishing the guilt of the Appellant beyond reasonable doubt," the Court remarked.

Regarding the submission made by the Counsel for the Appellant that no injury was found on the penis of the Appellant, the Court relied upon the apex court's ruling in the case of State Of Himachal Pradesh vs Raghubir Singh 1993 SCR (1)1087, wherein it was held that an absence of injury on the penis is not sufficient to disbelieve the prosecution's case.

Consequently, the conviction of the Appellant for offence under Section 376(2)(f) of IPC was hereby affirmed.

Case title - Kishna Banjara v. State Of M.P. [CRIMINAL APPEAL No.360 of 2012]

Citation: 2022 LiveLaw (MP) 192

Click here To Read/Download Order

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