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Madhya Pradesh High Court · body

2001 DIGILAW 884 (MP)

Mangu alias Mangilal v. State of M. P.

2001-11-30

S.L.KOCHAR

body2001
Judgment ( 1. ) THIS appeal has been directed against the judgment and finding dated 7-5-1992 passed by 2nd Additional Sessions Judge, Ratlam in S. T. No. 21/91 convicting the appellant for the offence punishable under Section 376, IPC and sentencing to under Rigorous Imprisonment for 7 years and fine of Rs. 200a in default, Simple Imprisonment for 3 months and also one year Rigorous Imprisonment under Section 342, IPC. ( 2. ) IN brief, the prosecution case before the Trial Court was that on 18th May, 1990 Kamlabai (P. W. 7) the mother of prosecutrix Kailashbai (P. W. 5) was not in the house, at the relevant time, in the noon, prosecutrix Kailashbai had gone to answer the call of nature at the out skirt of the village, at that time, she was caught by the appellant and taken to the cattle house of one Raisingh Mori. It has also alleged by the prosecution that in the evening at 4. 00 PM at the point of knife the appellant committed forcible sexual intercourse with the prosecutrix against her consent and Will. She was also threatened not to disclose this fact to anybody. She fell unconscious. The mother and father alongwith maternal uncle of the prosecutrix reached the place of the incident while searching the prosecutrix and rescued the prosecutrix after opening the door of the cattle house. The prosecutrix disclosed the incident before them. Father of the prosecutrix was going to lodge report to the police station but he was suggested by Bapusingh (P. W. 4) not to lodge report in the police station because the same would lower down the prestige of their family but on 20-5-90 when maternal uncle Bapusingh came to their house, he suggested for lodging the report, hence report Exh. P-4 was lodged in the night at about 10. 00 PM at Police Station, Tal situated about 25-26 kilometers. After completion of investigation, charge-sheet was filed. ( 3. ) THE appellant has denied the charges and his defence was that the prosecutrix Kailashbai wanted to have second marriage with the appellant (NATRA) and as such she was the consenting party. It was also the defence of the appellant that since he was not having sufficient money for the performance of the NATRA he was got assaulted by villagers and relations of the prosecutrix because of which he had sustained injuries on his person. It was also the defence of the appellant that since he was not having sufficient money for the performance of the NATRA he was got assaulted by villagers and relations of the prosecutrix because of which he had sustained injuries on his person. The appellant lodged report Ex. D-1 in the police station on the basis of which police registered the offence under Sections 324/34, IPC against the father of the prosecutrix named Ramchand and villagers. He has also taken the defence that the prosecutrix was the consenting party and having relations with him since last 2 years. The prosecution has examined as many as 9 witnesses and got proved 7 documents whereas the appellant has examined only one witness Kalkasingh Parihar (D. W. 1) ASI and got proved his report Ex. D-1, dated 19-5-90. After hearing both the parties, the Trial Court convicted the appellant as mentioned above. ( 4. ) LEARNED Counsel for the appellant argued that there was delay in lodging the FIR and the explanation given by the prosecution is highly improper and unacceptable. The FIR was got lodged by the prosecutrix after lodging of the report by the appellant Ex. D-1, which was just after the incident of the assault by the father of the prosecutrix and other villagers. False case has been concocted against the appellant as a counter blast after 2-3 days. The prosecutrix was a consenting party. Hence, no case is made out against the appellant. Learned Panel Lawyer argued that reasonable and plausible explanation has been given by the prosecution for delay in lodging the report. Looking to the statement of the prosecutrix and medical report, the Trial Court has rightly convicted the appellant. ( 5. ) HAVING heard the Counsel for the parties and after perusing the entire record of the case, this Court is of the opinion that the appellant has been rightly convicted by the Trial Court and there is no substance in his appeal. ( 6. ) THE prosecution witnesses Dr. Usha Ojha (P. W. 1) had examined the prosecutrix on 21-5-90 and found several injuries on her person i. e. , on legs, neck and left heap. In internal examination of the private part of the prosecutrix tenderness and redness were found. According to the medical evidence, injuries could be caused by sharp edged and pointed object. Usha Ojha (P. W. 1) had examined the prosecutrix on 21-5-90 and found several injuries on her person i. e. , on legs, neck and left heap. In internal examination of the private part of the prosecutrix tenderness and redness were found. According to the medical evidence, injuries could be caused by sharp edged and pointed object. According to the opinion given by the doctor the prosecutrix was subjected to forcible sexual intercourse. If the prosecutrix was consenting party as submitted by the defence, how she could receive such kind of injuries on her person. The appellant has not explained either by putting any specific question in the cross-examination to the prosecutrix or in his accused statement. In reply to question No. 8 he has shown his ignorance whereas the statement of the prosecutrix Kailashbai (P. W. 5) is fully corroborated by the medical evidence as well as by the statement of her mother Kamlabai (P. W. 7), who has stated that when she did not find the prosecutrix in the house she went in search of her and after hearing cries of the prosecutrix from inside the cattle house of Raisingh the door of the same was broken up and the prosecutrix rescued immediately from there. The prosecutrix disclosed about forcible sexual intercourse with her against her consent and Will. The defence suggestions given to this witness Kamlabai (P. W. 7) as well as the prosecutrix Kailashbai prosecutrix being a consenting party, have been specifically denied by this witness. The prosecution case also finds support from the statement of P. W. 4 (Bapusingh), who has stated that the appellant Mangilal was being assaulted by the villagers at that time he asked reason for beating, on which Ramchand father of the prosecutrix had disclosed that the appellant was caught while abducting the prosecutrix. ( 7. ) MUCH emphasis has been placed by the defence for the delay in lodging of FIR Ex. P-4 by the prosecutrix. True it is, that the report was lodged on 20-5-90 but for this delay reasonable and plausible explanation has been given by the prosecution. Independent witness Bapusingh (P. W. 4) has stated that when appellant was being assaulted by the villagers and the father of the prosecutrix he suggested for not lodging the report in the police station just to save the reputation and honour of the family. Independent witness Bapusingh (P. W. 4) has stated that when appellant was being assaulted by the villagers and the father of the prosecutrix he suggested for not lodging the report in the police station just to save the reputation and honour of the family. This explanation is mentioned in the FIR Ex. P-4 as well as in Court statement by the prosecutrix Kailashbai (P. W. 5) and mother Kamlabai (P. W. 7 ). The prosecutrix has stated in Paragraph 2 in her deposition that when they came to know about lodging of the report by the appellant, they had also gone to lodge the report. This appears to be reasonable. When the appellant had lodged report Ex. D-1 and took the matter to the authorities, complainant party has also gone and lodged the report. Otherwise, they were keeping silent with a view to save the honour and reputation of the family. The Supreme Court in the State of Karnataka v. Manganna ( AIR 2000 SC 2231 ) relying on the State of Punjab v. Gurmeet Singh ( AIR 1996 SC 1393 ) held in Paragraph 15 that :- "the Courts can not overlook the fact that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint sexual intercourse offence is generally lodged. " ( 8. ) IN the present case, aforesaid observations of the Supreme Court is fully applicable and since the prosecution has explained the delay right from very beginning the same is not fatal to the prosecution. In a judgment pronounced by the Supreme Court in the State of Rajasthan v. N. K. (Accused) ( AIR 2000 SC 1812 ) has held that :- "a mere delay in lodging the FIR can not be a ground by itself for throwing the entire prosecution case over-board. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reasons assigned. If the delay is explained to the satisfaction of the Court, it can not be counted against the prosecution. " ( 9. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reasons assigned. If the delay is explained to the satisfaction of the Court, it can not be counted against the prosecution. " ( 9. ) THIS Court finds sufficient and acceptable explanation advanced by the prosecution for the delay for lodging the FIR and holds that the same is not fatal to the prosecution. ( 10. ) THE Trial Court has relied upon FSL report Exh. P-7 about the presence of blood, semen and human spermatozoa on the slide Articles A to A-2 and petti coat but this report was not put in accused statement to the accused giving opportunity of explaining the same. Hence this Court is of the opinion that the same could not be relied upon for the purposes of conviction of the appellant but even after ignoring this report, there is sufficient, cogent and convincing evidence on record to hold that the appellant has committed forcible sexual intercourse with the prosecutrix against her consent and Will and the appellant has utterly failed to establish the case of consent. The prosecution witness Bapusingh (P. W. 4) in cross-examination Paragraph 3 has stated that the prosecutrix was having relations with the appellant since last one year and the appellant was willing to marry with her but he was not having Rs. 10000/- to pay her father for NATRA marriage. If this fact was correct and on the alleged dale of the incident, the prosecutrix was a consenting party then how the prosecutrix has received injuries on her person, has not been explained by the defence whereas the prosecution has duly explained the injuries sustained by the appellant as well as Report Exh. D-1 lodged by the appellant. Bapusingh (P. W. 4) has stated that the appellant was being assaulted by the villagers and the father of the prosecutrix when he was taking away the prosecutrix. ( 11. ) MUCH reliance has been placed by the defence on the report lodged by the appellant Ex. D-1. I have carefully gone through this report. In this report also the appellant has not explained injuries on the person of the prosecutrix, moresoever, he has not disclosed the fact of commission of sexual intercourse with the prosecutrix with her consent and Will. D-1. I have carefully gone through this report. In this report also the appellant has not explained injuries on the person of the prosecutrix, moresoever, he has not disclosed the fact of commission of sexual intercourse with the prosecutrix with her consent and Will. In this report the appellant has mentioned only this much that the prosecutrix came to him and asked him for going to some other place, on refusal, she sat on the flour-mill and thereafter, in the night at about 1. 00 AM villagers came and assaulted him. This Court, after overall careful scrutiny of the evidence, oral as also documentary available in the case finds no substance in the appeal of the appellant. It deserves to be dismissed. The appeal is accordingly dismissed. The appellant is on bail. His bail bonds stand cancelled.