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Madhya Pradesh High Court · body

2002 DIGILAW 446 (MP)

MUNSHI ALIAS MUNESH v. STATE OF MADHYA PRADESH

2002-04-24

S.P.KHARE

body2002
S. P. KHARE, J. ( 1 ) APPELLANTS Munshi alias Munesh and Bharat alias Bharat Singh have been convicted under Section 376 (2) (g), I. P. C. and sentenced to rigorous imprisonment for ten years and to a fine of Rs. 2000/- each. They have also been convicted under Section 506 Part II, IPC and sentenced to rigorous imprisonment for six months each on that count. Both the substantive sentences of imprisonment have been directed to run concurrently. ( 2 ) THE prosecution case is that on 19-12-1997 at about 9. P. M. Elizabeth George (P. W. 10) aged about 51 years working as a staff nurse residing in Mohalla Benisagar was going to the hospital for night duty. The hospital is at a distance of about one kilometre from her residence, Accused Munshi who is son of a sweeperess working in the same hospital and Bharat met her on the way and took her near the temple on the bank of Benisagar tank and had forcible sexual intercourse with her one by one. They did so on the point of knife and threatened the prosecutrix that she would be done to death if she disclosed this incident to anyone. She could not go for her duty and returned to her house. Next day at about 1. 15 P. M. she lodged the report Ex. P-9 at Panna Police Station. She did not know the name of Bharat and therefore he was not specifically named in the F. I. R. The report was written by K. K. Tripathi (P. W. 12), Sub-Inspector of Police in a very cryptic manner. She was sent for medical examination. She was examined by Dr. Meena Namdeo (P. W. 9 ). She sealed her petticoat Article 'a' and prepared two slides of her vaginal swab and sealed them. These were sent to the Forensic Science Laboratory, Sagar on 10-5-1998 with letter Ex. P-14 of the Superintendent of Police, Panna. Semen and human spermatozoa were found on them as per report Ex. P-15. Accused Bharat was identified by the prosecutrix on 20-5-1998 in the test identification before the Executive Magistrate as per identification memo Ex. P-5. ( 3 ) THE accused person pleaded not guilty. Accused Munshi has set up the plea of alibi. Semen and human spermatozoa were found on them as per report Ex. P-15. Accused Bharat was identified by the prosecutrix on 20-5-1998 in the test identification before the Executive Magistrate as per identification memo Ex. P-5. ( 3 ) THE accused person pleaded not guilty. Accused Munshi has set up the plea of alibi. According to him he was admitted in Nagod hospital from 15-12-1997 to 25-12-1997 and therefore, he could not have been present in Panna on 19-12-1997 when the incident is said to have taken place. He says that he has been falsely implicated by the prosecutrix because of her animosity with his mother. ( 4 ) THE trial Court after an exhaustive survey of the evidence adduced by both the sides held that the accused persons have committed gang rape on the prosecutrix. The plea of alibi of accused Munshi has been negatived and the evidence on that count led by him has been held to be manipulated and fabricated. ( 5 ) IN this appeal it has been argued that the testimony of the prosecutrix is not reliable; there is no independent corroboration of her evidence; the plea of alibi of appellant Munshi ought to have been accepted and the identity of accused Bharat as the person having committed this crime is doubtful. ( 6 ) THE evidence on record has been scanned by this Court in light of the arguments advanced on behalf of the appellants. ( 6 ) THE evidence on record has been scanned by this Court in light of the arguments advanced on behalf of the appellants. Elizabeth George (P. W. 10) has deposed that she is working as a nurse in the District Hospital, Panna since 1982; she belongs to Kerala State and her husband is employed in the Army; on 19-12-1997 at about 9 P. M. she was going to the hospital on feet; accused Munshi came from behind and lifted her bodily; he put his knife on her neck; took her near the temple abutting the tank; made her to lie on the ground; accused Bharat was also with him; he threatened her to allow them to have sexual intercourse with her; accused Munshi was first to have sexual intercourse with her; he made her to wait for half an hour and then repeated the same act; she made entreaties to him to leave her as she is of the age of his mother and has to go for duty; accused Munshi again lifted her and took her to the verandah of a deserted Dharamshala and had forcible sexual intercourse with her for the third time; accused Munshi uttered that he was thirsty for two months and now he has quenched his thirst; thereafter accused Bharat made her to lie and he had forcible sexual intercourse with her; he also wanted to repeat the same act and at that time accused Munshi intervened and asked his friend that now he should leave her; the accused persons left her there and ran away. The prosecutrix has further stated that she came back to her house and kept on weeping for whole of the night. She went to the hospital next day and narrated to Dr. J. P. Chourasia (P. W. 7) and Dr. O. P. More (P. W. 8) what befell her on the previous night and on their advice she went to the police station and lodged the FIR Ex. P-9. She was examined by Dr. Meena Namdeo (P. W. 9 ). She gave her petticoat Article 'a' to the doctor. She has further deposed that she identified accused Bharat in Panna Jail before the Executive Magistrate and signed on the identification memo Ex. P-5. ( 7 ) DR. J. P. Chourasia (P. W. 7) and Dr. P-9. She was examined by Dr. Meena Namdeo (P. W. 9 ). She gave her petticoat Article 'a' to the doctor. She has further deposed that she identified accused Bharat in Panna Jail before the Executive Magistrate and signed on the identification memo Ex. P-5. ( 7 ) DR. J. P. Chourasia (P. W. 7) and Dr. O. P. More (P. W. 8) have testified that on 20-12-1997 the prosecutrix came to them; she was weeping and told them that she was ravished by accused Munshi and one more person on the preceding night while she was coming to the hospital for her duty. They advised her to report the matter to the police. Dr. Meena Namdeo (P. W. 9) has deposed that she had examined the prosecutrix on 20-12-1997 at 5. 30 P. M. and prepared two slides from her vaginal swab and sealed them. She also sealed the petticoat which the prosecutrix was wearing and on which some stains were visible. Her report is Ex. P-8. ( 8 ) K. K. Tripathi (P. W. 12) is the Sub-Inspector of Police. He has deposed that he had recorded the F. I. R. Ex. P-9 lodged by the prosecutrix; he had prepared the seizure memo of the slides and the petticoat which were in sealed condition and sent them to the Forensic Science laboratory in that condition with the letter Ex. P-14; the report of the Chemical Examiner is Ex. P-15 and it confirms the presence of semen and human spermatozoa on the slides and the petticoat Article 'a'. ( 9 ) M. L. Jain (P. W. 6) is the Naib Tehsildar and the Executive Magistrate. He has deposed that on 20-5-1998 he got accused Bharat identified by putting him amongst seven more persons in Panna Jail and in that identification parade the prosecutrix had correctly identified accused Bharat. The identification memo prepared by him is Ex. P-5. As already stated, the prosecutrix has also deposed that she identified accused Bharat in the test identification and also in the Court as the person who committed rape on her with accused Munshi. ( 10 ) THE testimony of the prosecutrix does not suffer from any infirmity. She is a nurse in the hospital from the year 1982. She is aged about 51 years. ( 10 ) THE testimony of the prosecutrix does not suffer from any infirmity. She is a nurse in the hospital from the year 1982. She is aged about 51 years. She has no reason to prefer false charge against the accused persons and thereby bring ignominy to her and compromise her own reputation. The suggestion that the mother of accused Munshi had sided with another nurse in some quarrel long back and that might be the reason to falsely implicate accused Munshi is not convincing and has to be rejected. The evidence of the prosecutrix tested on "broader probabilities" is fully reliable. It has been argued that she has exaggerated the incident and made improvements in her deposition as many details which have come in her evidence do not find place in the F. I. R. Ex. P-9 and her statement under Section 161, Cr. P. C. marked as Ex. D. 1. It is writ large that the police officer who recorded the F. I. R. and the statement took the case very casually and did not ask the prosecutrix to give the detailed version of the incident. That does not damage the sterling character of the testimony of the prosecutrix. She has given a vivid account and graphic description in her deposition how she was ravished by the accused persons to satisfy their lust. The Supreme Court has sounded a caveat in several recent decisions that the investigating agency and the Courts should show "greater sensitivity" in such cases and should not be carried away by insignificant discrepancies. In the present case the prosecutrix is a matured lady and she would not rope in the accused persons if the incident had not been true. Her sole testimony is sufficient for conviction of the accused persons and there is corroborative and reassuring evidence also. ( 11 ) THE evidence of the prosecutrix is corroborated by her statement to the two doctors on reaching the hospital next day. There was not much delay. The prosecutrix could not go to the hospital in the night. She was along in her house and on the next day in the forenoon she narrated the incident to the doctors with whom she was working in the hospital. There was not much delay. The prosecutrix could not go to the hospital in the night. She was along in her house and on the next day in the forenoon she narrated the incident to the doctors with whom she was working in the hospital. That statement is corroborative of her testimony in the Court under Section 157 of the Evidence Act as her former statement "at or about the time when the fact took place" and also under Section 8 of this Act as her conduct. In Nathuni v. State of Bihar, AIR 1997 SC 1808 it has been held that the words "at or about the time" must receive pragmatic and liberal construction. The principle is that the time interval between the incident and the utterance of the statement should not be such as to afford occasion for reflection or even contemplation. If the time interval was so short as between the two that the mind of the witness who made the statement was well connected with the incident without anything more seeping into, such statement has a credence, and hence can be used, though not as substantive evidence, as corroborating evidence, on the principle adumbrated in section 157 of the Evidence Act. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction. Again in State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 : (1998 Cri LJ 1416) the time interval was of two days. It was observed that the mere fact that there was intervening period of "a few days", in a given case, may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Act. The test to be adopted is this : Did the witnesses have the opportunity to concoct or to have been tutored? In the present case the prosecutrix was still under the stress of the horror and the excitement caused by the incident when she made the statement to the two doctors that would be covered by the words "at or about the time when the fact took place" used in Section 157 of the Evidence Act. She had no occasion to concoct the story and there was no one to tutor her. She had no occasion to concoct the story and there was no one to tutor her. ( 12 ) THERE is a further reassuring guarantee from the scientific evidence that the version of the prosecutrix is true. It is already stated that the petticoat Article 'a' and the slides of the vaginal swab were sent to the Forensic Science Laboratory in sealed condition and as per report Ex. P-15 of the Chemical Examiner, semen and human spermatozoa were found on these articles. The prosecutrix was 51 years of age and therefore, the signs of the commission of rape could not be found on her genitals on medical examination but the chemical test of the vaginal swab confirms that she was subjected to sexual intercourse. The husband of the prosecutrix is working in the Army and he was not at Panna and therefore, it cannot be said that she might have had sexual intercourse with her husband. ( 13 ) AFTER scrutiny of the defence evidence and the documents produced by accused Munshi, it is found that the plea of alibi set up by him is false and the documents which have been produced to support that plea are fabricated. Dr. P. C. Karun (D. W. 1) has deposed that he had admitted accused Munshi in Nagod hospital on 15-12-1997. He was suffering from typhoid fever. He remained in the hospital up to 25-12-1997. His discharge ticket is Ex D-3. The certificate given by him is Ex. D-4 and the bed-head tickets are Ex. D-5 and Ex. D-5a. The entry in the O. P. D. register is Ex. D-7. In his cross-examination he has stated that he himself had made the entry in the indoor patient register Ex. D-6 whereas the other entries have been made either by some nurse or by compounder. He had not made any other entry in this register on that day. The name of accused Munshi has been written at serial No. 75 on 15-12-1997 and there is over-writing in the first entry which was made on the next day. It is clear that the name of accused Munshi has been interpolated in this register. The trial Court has discussed the evidence in this respect very minutely and this Court also agrees with the finding of the trial Court in this respect. It is clear that the name of accused Munshi has been interpolated in this register. The trial Court has discussed the evidence in this respect very minutely and this Court also agrees with the finding of the trial Court in this respect. ( 14 ) ON comparison of the evidence of the prosecutrix with the plea of alibi set up by accused Munshi and the evidence which he has produced in support thereof, this Court is of the opinion that the plea of alibi is not proved by preponderance of evidence. The prosecution has proved beyond reasonable doubt that accused Munshi was present on the place of incident on 19-12-1998 at about 9 P. M. and he committed rape on the prosecutrix. ( 15 ) THE evidence of the prosecutrix as regards accused Bharat is also fully reliable. She did not know his name before the date of incident. She had sufficient time, about one and a half hour, at the time of incident to see him from a close range. It is difficult to accept the contention that the prosecutrix would not be able to identify the person who was with her for such a long time in committing gang rape on her. The story of false implication of accused Bharat is ruled out. If he was to be implicated falsely, the prosecutrix would have straightway mentioned his name in the F. I. R. Ex. P-9. She did not resort to any falsehood at the time of making the F. I. R. or at the time of deposition in the Court. There was some delay in the identification parade of accused Bharat and that was for the reason that the prosecutrix had left Panna after a few days of the incident and she had gone to her home State Kerala. The identification parade was arranged after she returned from Kerala. There is nothing to suggest that accused Bharat was shown to her before the formal test identification parade was arranged. The test identification conducted by the Executive Magistrate does not suffer from any irregularity or any infirmity. ( 16 ) FROM the foregoing discussion it is found that the testimony of the prosecutrix in this case is of sterling variety and of unimpeachable character. Her version is natural and truthful. It is now well settled that corroboration is not a sine qua non for conviction in a rape case. ( 16 ) FROM the foregoing discussion it is found that the testimony of the prosecutrix in this case is of sterling variety and of unimpeachable character. Her version is natural and truthful. It is now well settled that corroboration is not a sine qua non for conviction in a rape case. (B. Bhoginbhai v. State, AIR 1983 SC 753 : (1983 Cri LJ 1096), State v. C. K. Jain, AIR 1990 SC 658 : (1990 Cri LJ 889), State v. Gurmit Singh, AIR 1996 SC 1393 : (1996 Cri LJ 1728), State of H. P. v. Mangeram, AIR 2000 SC 2798 and State of Rajasthan v. N. K. , AIR 2000 SC 1812 : (2000 Cri LJ 2205 ). The prosecutrix would not have staked her reputation by levelling a false charge against the accused persons. As stated above there is corroboration of the evidence of the prosecutrix from the external sources also. The absence of injuries on her genitals or on her body does not render her version untrue. There was resistance to the sexual onslaught on her but she must have surrendered in face of the imminent peril and danger to her life from the accused persons. In this case the accused persons have not set up the plea of consent either before the trial Court or in this appeal nor such a defence is borne out from the material on record. ( 17 ) CONVICTION of the appellants under Sections 376 (2) (g) and 506, Part II, I. P. C. by the trial Court is well merited. Accused Munshi and Bharat behaved like "wolves in human frame" in ravishing the prosecutrix in the night in a lonely place when she was on her way for her duty in the hospital. Aroused by erotic impulses, the accused persons committed this crime. They are of depraved moral character and had no qualm of conscience. They committed gang rape on a lady who was of the age of their mother. She must have undergone the trauma of a deep sense of deathless shame. The act of the accused persons was brutal, savage and swayed by animal propensity. They have been rightly sentenced sternly for their demoniacal crime. It is a matter of satisfaction that the trial Court has shown utmost sensitivity and greater responsibility in dealing with this case. ( 18 ) THE appeals are dismissed. Appeals dismissed. .