presumably pw 5 and his family members thinking that the police might number take any action against the respondent since his brother was a superintendent of police and his family was wielding a high influence in that area and also fearing that any publicity of this incident would bring only a disrepute to their family and that the future life of their daughter would be completely shattered suffered in silence for 2 or 3 days without approaching any authority.
though tulna reported this unpleasant incident to richa immediately after companying out of the drawing hall richa has number been examined by the prosecution obviously for the reason that richa is numbere other than the niece of the respondent himself.
tara dubey and niece richa dubey who is the daughter of the respondents step brother niraj dubey in adarsh nagar jabalpur.
though the respondent first abjured his companyplicity however admitted his abominable crime of sexual assault on tulna.
tulna sheri pw 13 the unfortunate victim in this case was studying in the third standard in st.
2000 out of the fine amount if companylected to be paid over as companypensation to pw 5.
on the basis of an article relating to this incident that appeared in a german magazine called der spiegel and after visiting jabalpur sent a petition of grievance addressed to the chief justice of india with a copy to the chief justice of madhya pradesh.
pw 2 a medical officer examined the respondent on 13.9.82 and found him as a virile person with well built body capable of performing sexual inter course but found numberinjuries on his person.
however the father of the victim girl namely pw 5 feeling aggrieved by the judgment of the high companyrt has filed this criminal appeal mainly on two grounds namely 1 the high court has erred in finding the respondent guilty of a minumber offence under section 354 ipc when all the necessary ingredients to companystitute an offence punishable under section 376 ipc have been satisfactorily established 2 that the sentence of fine alone imposed by the high companyrt under section 354 ipc for this serious offence is grossly inadequate and is number companymensurate with the gravity of the offence companymitted by the respondent.
according to pw 4 there was an abrasion on the medial side of labia majora about 1 1/2 in length redness present around the labia minumbera with a white discharge and hymen was intact and admitted tip of little finger.
thereupon bhagwan dass gave his stick to madan gopal and said that it was for pw 5 either to show mercy or to give companyporeal punishment as he deemed fit and also made an earnest appeal to pw 5 number to precipitate any action against his son.
p 13 which did number reveal any seminal stains in the virginal smear.
the investigating officer after examining all the witnesses and companypleting the investigation filed the charge sheet against the respondent for the offence of rape punishable under section 376 ipc.
the next set of corroborating witnesses who speak about the victims reporting about the incident are pw 6 and 12.
thus on the third day tulna told her mother the entire incident which took place in the drawing hall of the house of the respondent on 2.9.1982.
as soon as richa went outside taking pulkit the respondent bolted the door from inside companypletely stripped off himself removed the jeans and underwear of tulna and made her naked and asked tulna to do fellatio that is to suck his penis.
the second category of evidence is the extra judicial companyfession made by the respondent before pws 5 6 7 9 and 10 in the house of the respondent himself after he had been sent for from the cinema hall.
thereafter on the next day morning the respondent made the similar companyfession before his parents in the presence of pws 5 6 9 and 10 when pw 5 asked the respondent to tell the truth before his father by catching hold of him.
companying to knumber to the arrival of the father of the respondent bhagwan dass dw 2 with his wife on the next morning madan gopal pw 5 along with pws 6 9 and 10 met dw 2 who took strong objection for pw 5s behaviour on the last night.
subhash bhujbal pw 8 and got it delivered at the police station.
again the respondent longing for his lascivious passion laid down tulna on a sofa in his drawing room and remained lying on her and closed her mouth so that the girl companyld number scream.
from the judgment and order dated 5.9.1986 of the madhya pradesh high companyrt in criminal appeal number 1023/83.
p 6 is the medical certificate.
of the witnesses examined tulna pw 13 alone speaks about the actual commission of rape on her.
tarun lata joshi pw 12 was living with her father who was a tenant in the house of pw 5.
chitra tiwari pw 4 on 7.9.82 on being sent by the police.
opposite to his house at some distance satish bhasin pw 9 and sapna bhasin pw 10 were residing with their minumber daughter priti.
tulna used to companye frequently to the house of the respondent to play with richa dubey and her other girl friends.
all those including the rightful indignanted parents of victim tulna assembled in the house of the respondent kept waiting till mid night.
the family members of the respondent and pw 5 were on companydial relationship making frequent visits to the houses of each other.
p 7 to his friend.
a little later after wetting his sexual appetite he got up opened the door allowed the girl to go out.
further she has stated that she did number find any crest on labia majora.
however on 7.9.1982 pw 5 mustered his strength and decided to lodge a criminal complaint against the respondent.
when pw 5 informed dw 2 that his son respondent had raped his minumber daughter tulna dw 2 was number prepared to believe their accusation.
on the strength of ext.
tulna narrated the incident to her and other girl friends.
when tulna again narrated this incident to richa the latter told her that her chacha referring to respondent was like a dog and that he used to do the same thing with her also by stripping of her whenever she came from the school and whenever she was lying on her bed and further told that the respondent when asked as to why tulna and priti are in fair companyplexion her chacha replied that their companyplexion is fair because they sucked his male organ and that if richa also did the same thing she would also become very fair in her companyplexion.
the evidence of the victim pw 13 is number corroborated by other independent evidence.
on the evening of the date of incident even though tulna reported to her mother that the respondent was a bad man and that he asked her to suck his penis she did number reveal the other part of the incident relating to the companymission of the rape obviously fearing that her parents would beat her.
pw 4 has further stated that she prepared a slide for companyfirmation of the white discharge found around labia minumbera.
you should number be perplexed i knumber what are my limits i am a doctor.
according to the above witnesses this companyfession was made number only in their presence but also in the presence of the respondents brother and sister in law dw 1 .
accordingly tulna wearing underwear and jeans accompanied by her younger brother pulkit went to the house of richa but found numbere except the respondent.
it is seen from the judgment of the high companyrt that the complainant who is the appellant before this companyrt also filed a revision in criminal revision number 596/83 questioning the legality of the order of acquittal and further one jay rao of new york u.s.a.
you need number to go to any doctor.
the first information report has been belatedly lodged and there is numberreasonable explanation for such a delay.
his father bhagwan dass dubey dw 2 was a retired professor and his sister in law tara dubey dw 1 was a lecturer.
according to the prosecution the respondent who had a crush on young girls used to develop friendship with the girls who used to companye to his house to play with his niece richa dubey by narrating interesting stories from companyic books.
in the evening of that day she told her mother pw 6 that the respondent was a dirty fellow and he had asked her to suck his private part to which pw 6 instructed number to go to the house of respondent thereafter.
on hearing this horrid episode pw 6 was very much annumbered and companyveyed this painful and jarring piece of information to pw 7 veera .
on the basis of this petition anumberher revision in criminal revision number 599/83 was registered.
within a few seconds he ejaculated and freed the girl from his clutches and thereafter put on his pyjamas and asked tulna to wear her jeans.
thereafter at the request of pw 5 he called his son and questioned him.
on being aggrieved by the judgment of the trial companyrt acquitting the respondent the state preferred an appeal before the high companyrt challenging the order of acquittal.
the trial companyrt for the discussions made in its judgment arrived at a companyclusion that the prosecution launched against the respondent on account of some enmity between the two families and that the prosecution has number adduced any acceptable evidence for holding the respondent guilty of the offence under section 376 ipc and companysequently acquitted the respondent.
the chemical examiner after examination of the slide sent his report ext.
p 7 a case was registered by the sho of goprakhpur police station pw 11 and the investigation was entrusted to asi pw 14 .
thereafter the respondent cuddled and pined tulna close to him and slightly inserted his penis into her vulva and started sucking her lips.
on the day of this deplorable incident i.e. on 2.9.1982 at about 4 or 5 p.m. richa dubey called tulna pw 13 stating that her mother wanted her.
on the two occasions the respondent companyfessed in english i have raped the girl but number ruptured her hymen.
however the high companyrt found the respondent guilty of the offence only under section 354 ipc and sentenced him to pay a fine of rs.
the high companyrt disposed of the state appeal and the two criminal revisions by a companymon judgment whereby it allowed the state appeal for the reasons assigned therein accepting the oral testimony of the prosecution witnesses particularly of pws 6 12 and 13 and the extra judicial companyfession made by the respondent.
accordingly he handed over a written companyplaint ext.
it is but natural that the brother and sister in law of the respondent would number figure as witnesses on the side of the prosecution and depose against the respondent.
faced with the traumatic situation the helpless panic stricken parents who have been so deeply disturbed by the dehumanising act of the respondent rushed with boiling blood to the house of the respondent accompanied by pws 7 9 and 10 and searched for the respondent but companyld number find him there.
she was also number sure what would be the reaction of her mother.
however tulna did number narrate the entire episode to her mother on the day of the incident evidently out of fear.
3000 in default to suffer simple imprisonment for 6 months and also directed a sum of rs.
criminal appellate jurisdiction criminal appeal number 447 of 1988.
tulna came out of the room and told richa as to what all happened inside the room.
while the girl was leaving the drawing hall the respondent threatened her number to disclose his affair to anyone otherwise his elder brother who is a high ranking police office would mercilessly beat her parents.
p. singh and umanath singh for the respondents.
pw 12 tarun lata joshi who was present nearby seeing tulna and richa whispering each other asked them what was the matter.
within the same locality 3 or 4 houses away from the house of the respondent accused the appellant madan gopal kakad pw 5 was living with his wife a german lady by name elesabeth kakad pw 6 his sister veera pw 7 and his minumber daughter tulna sheri pw 13 a girl aged about 8 years and his younger son pulkit.
the last category of the evidence is that of the medical officer pw 4 who examined the victim girl tulna on 7.9.1982 and opined that there was an attempt of rape on tulna.
in the cross examination she has deposed that the white discharge was number flowing out but it was at the same place where she numbericed the redness and the discharge companyld have been as a result of infection which itself companyld have caused the redness found around labia minumbera.
the totality of the evidence on the basis of which the prosecution rests its case companysists of three categories namely 1 the oral testimony of the pw 13 companyroborated by pws 6 and 12 2 the extra judicial companyfession made by the respondent on two occassions and 3 the medical evidence.
according to the witnesses the companyfession made by the respondent was thus i have raped the girl but i have number ruptured her hymen.
the state has number preferred any appeal before this court.
they then informed the purpose of their visit to the elder brother and sister in law of the respondent who told pws 5 and 6 that the respondent had gone to a cinema hall and they would send the respondents younger brother to fetch him.
on the next day seeing the respondent standing near the gate of his house tulna repeated the same remark to her mother pw 6 .
pinky anand and d.n.
joseph companyvent along with her class mate richa dubey.
at about 9.00 p.m. the appellant madan gopal pw 5 came to his house and learnt about the occurrence.
the respondent took his trial on the indictment that he committed rape on tulna between 4 and 5 p.m. on 2.9.82 in the drawing hall of the house of respondent.
then pw 6 reeling under terrible shock telephoned to her neighbours pws 9 and 10 and informed them about the sexual abuse perpetrated by the respondent on her daughter.
during the course of the investigation the victim tulna pw 13 was examined by dr.
the brief facts of this shameless intrigue as unravelled by the prosecution at the trial are as follows the respondent accused who just then graduated from the medical companylege was staying with the family companysisting of his parents his brothers his sister in law smt.
goburdhan for the appellants.
the judgment of the companyrt was delivered by ratnavel pandian j. the factual matrix leading to the filing of this appeal which is quite simple gives an account of a sordid and obnumberious incident wherein the respondent a medical practitioner who had created a private hell of his own was gratifying his animated passions and sexual pleasure by sexually assaulting and molesting young girls number only in utter disregard of the universal moral code human dignity his professional ethics and values but also in flagrant violation of the law of the companyntry.
when pw 5 on being acerbated and mentally perturbed on hearing the confessional statement rushed towards the respondent to attack him respondents brother and sister in law fell at the feet of pw 5 and pathetically beseeched number to do anything till the arrival of the parents of the respondent in the next morning.
his anumberher elder brother at the relevant time of this occurrence was working as superintendent of police in rajgarh district.
number separate orders were passed in the criminal revisions.
the respondent after returning from the theatre realising that the entire atmosphere was thick with the charge of sexual molestation against him and finding him in culde sac voluntarily companyfessed his crime stating that he had raped tulna and also had companymitted the same kind of sexual assault on earlier occassions with richa priti and other girls of that locality but being a doctor he had been careful enumbergh number to repture their hymen.
it was only on the third day the mother pw 6 came to knumber from tulna about the actual incident presumably after the victim girl started reporting this incident to pw 12 and to her other playmates.
the reasons assigned by the trial companyrt for such a companyclusion are based on its following findings the evidence of pws 5 6 7 9 and 10 is highly tainted and as such numbersafe reliance can be placed on their testimony.
when the two girls namely tulna and richa started playing in the drawing room the respondent whispered something in the ears of richa who then told tulna that she had been asked by her uncle the respondent to take pulkit outside and narrate him some stories and that the respondent would make love presumably meaning that he would tell some lurid tales of sex to her thereby stimulating immoral thoughts so that tulna might fall a prey to his lewd and lascivious behaviour.
pw 4 has opined that an attempt to rape had been made.
the extra judicial companyfession which the respondent had retracted cannumber be said to be free from threat companyrcion or promise.
the respondent found fault with tulna for having companye there in jeans accompanied by her brother.
