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Madhya Pradesh High Court · body

2001 DIGILAW 954 (MP)

Bhanwar v. State of M. P.

2001-12-14

S.L.KOCHAR

body2001
Judgment ( 1. ) BOTH these appellants have preferred this appeal against the judgment and findings dated 2nd February, 1993 passed by 1st Additional Sessions Judge, Dhar in Sessions Trial No. 133 of 1991 thereby convicting the appellants for the offence punishable under Section 376, IPC and sentencing them for 10 years RI each. ( 2. ) THE prosecution case in brief, was that on 7th April, 1991, in Village Aali, prosecutrix Rajjubai (P. W. 7) aged above 16 years, had gone to attend the marriage ceremony of her cousin brother Rama. After attending the marriage ceremony while she alone was returning to her house in the night at about 10. 00 PM, she was caught hold from her waist by the appellant and took her inside the garden owned by one Nandkishore of Village Aali. She tried to raise alarm but her mouth was gagged. She was laid down under the mango tree, thereafter appellant No. 1 Bhanwar committed sexual intercourse with her against her consent and Will. At that time co-appellant Ramnarayan was guarding them. It is, further, alleged that after performance of sexual intercourse by Bhanwar, Ramnarayan also committed sexual intercourse with the prosecutrix against her consent and Will. After ravishing she was threatened not to disclose about this, to anybody. The prosecutrix, thereafter, reached at her house where she disclosed the incident to her mother, uncle Kailash (P. W. 1), father Nandu (P. W. 3) and Aunt Soumitibai (P. W. 5 ). On the next day i. e. , on 8-4-91 at about 11. 30 AM the prosecutrix lodged report in the police station on the basis of which, offence under Sections 376 and 506/34, IPC was registered. After completion of investigation charge-sheet was filed. ( 3. ) THE Trial Court framed charges against the appellants for the offences as mentioned above, which were denied by the appellants. According to them, they have been falsely implicated in the case. Their defence was that they were taken from their house by Thanedar Bhadodia in a theft case but thereafter, they have been falsely implicated at the instance of Nandu (P. W. 3) who was village Choukidar, in a false case of rape with her own daughter. According to them, they have been falsely implicated in the case. Their defence was that they were taken from their house by Thanedar Bhadodia in a theft case but thereafter, they have been falsely implicated at the instance of Nandu (P. W. 3) who was village Choukidar, in a false case of rape with her own daughter. In defence, they have examined 2 witnesses Ramchand (D. W. 1) and Narsingh (D. W. 2) whereas the prosecution has examined as many as 8 witnesses and got proved in all 11 documents, ( 4. ) THE submissions of the counsel for the appellants are that the prosecutrix was a grown up girl but her version has not been corroborated by the medical evidence. The prosecutrix was examined by lady doctor Dr. (Smt.) B. Sabarwal (P. W. 4) who did not find even any scratch on her person. According to the counsel for the appellants, the appellants were falsely implicated in the case. Learned Panel Lawyer appearing for the State submits that the prosecutrix Rajjubai (P. W. 7) just after the incident immediately disclosed about the incident to her uncle Kailash (P. W. 1), father Nandu (P. W. 3) and aunt Soumitibai (P. W. 5 ). FIR Exh. P-7 was also lodged immediately after the incident without any delay. The Police Station was about 10 kms. away from the village.-There was no reason for the prosecutrix or her family members to implicate the appellants in a false case of rape involving the reputation of their daughter and family. ( 5. ) HAVING heard the learned counsel for the parties and after perusing the entire record, this Court is of the opinion that there is no force in the submissions of the appellants and the appellants are rightly convicted by the Trial Court. ( 6. ) THE prosecutrix, Rajjubai (P. W. 7) has deposed in her statement that she was coming back alone, after attending the marriage ceremony, to her house, in the night between 10. 00 PM to 11. 00 PM on the way, she met both the appellants. Appellant Bhanwarsingh caught her mouth and thereafter she was taken to garden belonging to one Nandkishore, where she was ravished by the appellants one after another. During this period she tried to raise alarm but her mouth was gagged. 00 PM to 11. 00 PM on the way, she met both the appellants. Appellant Bhanwarsingh caught her mouth and thereafter she was taken to garden belonging to one Nandkishore, where she was ravished by the appellants one after another. During this period she tried to raise alarm but her mouth was gagged. After commission of rape upon her, when freed from the grip of the appellants, she rushed to her house where she was being searched by her parents, she disclosed the incident and name of the appellants. In the same night, she did not go to lodge report because it was late hours in the night but immediately on the next day she proceeded for lodging the report and lodged the same in police station vide Exh. P-7. A detail cross-examination was done by the defence Counsel but nothing material has come up in the cross-examination except one or two minor contradictions and omissions. ( 7. ) THE version of the prosecutrix Rajjubai (P. W. 7) has been duly and effectively corroborated by Kailash (P. W. 1), Nandu (P. W. 3) and Soumitibai (P. W. 5), they all have stated in one voice that immediately after the incident in the same night, the prosecutrix disclosed about commission of gang rape with her against her consent and Will and thereafter, they have lodged report in the police station. Merely because in the medical report no injuries were found by the doctor, would not be sufficient to hold that the prosecutrix and other witnesses are speaking lie. There is no concrete motive or reason for the prosecutrix or her parents for lodging false report against the appellants. ( 8. ) THE defence of the appellants that they were taken by ASI Bhadodia from their house in a case of theft but thereafter, at the instance of Nandu (P. W. 3) Village Choukidar and also father of the prosecutrix, they were falsely implicated in the case of rape. In a cross-examination, (in para 22) of the prosecutrix, the defence has given suggestion that before marriage, the prosecutrix used to go to enjoy film with appellant Bhanwarsingh. By this suggestion, indirectly the defence wanted to establish a case of consent but it does not sound well. In a cross-examination, (in para 22) of the prosecutrix, the defence has given suggestion that before marriage, the prosecutrix used to go to enjoy film with appellant Bhanwarsingh. By this suggestion, indirectly the defence wanted to establish a case of consent but it does not sound well. If the prosecutrix was a consenting party, she would not have allowed for commission of sexual intercourse with her by two persons and if she has any relations with appellant No. 1 Bhanwarsingh, Bhanwarsingh would have not allowed appellant No. 2 Ramnarayan to ravish the prosecutrix. The prosecutrix has stated that during the course of incident, her bangles are broken. Immediately, the next day i. e. , 8-4-1991 at about 5. 45 PM Suresh Balsaj (P. W. 8) has seized broken pieces of bangles vide seizure memo Exh. P-9. ( 9. ) THE appellants have examined Ramkunwar (D. W. 1) and Narsingh (D. W. 2) both the witnesses have stated that is one fine morning at 6. 00 a. m. Nandu Choukidar came to his house and disclosed about the incident of theft in his house. Along with Nandu Choukidar, Thanedar Bhadodia and other persons were also present. They disclosed that they have a doubt upon the appellants for theft of Rs. 4000/ -. If this was correct, then why appellants or their relations have not immediately complained this fact to superior officials about false implication in the case of rape. Apart from this, if the complainant and police had doubt upon the appellant about the commission of theft, they could have very easily implicated them in the case of theft instead of involving prestige and chastity of their own unmarried daughter. This defence of the appellants does not appeal to this Court. Narsingh (D. W. 2) has stated that he was knowing the appellant Ramnarayan and on one fine morning Sub-Inspector Bhadodia came to the house of Ramnarayan and taken him from his house. He also went to police station where he was told by one Ramibai, sister of appellant Ramnarayan, that Ramnarayan detained in police station in a theft case. In cross-examination this witness was not able to speak about theft as to when it had taken place and on so many points he had given evasive replies. ( 10. ) IN the aforesaid evidentiary scenario of the case, same is clearly establishing the guilt of the appellants beyond reasonable doubt. In cross-examination this witness was not able to speak about theft as to when it had taken place and on so many points he had given evasive replies. ( 10. ) IN the aforesaid evidentiary scenario of the case, same is clearly establishing the guilt of the appellants beyond reasonable doubt. Therefore, appeal of the appellants deserves to be dismissed. It is, accordingly, dismissed. The appellants arc directed to surrender before the Trial Court to serve out the sentence. The appellants are on bail, their bail bonds stands cancelled.