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Madhya Pradesh High Court · body

2002 DIGILAW 960 (MP)

Dallu @ Laxman Prasad v. State of M. P.

2002-10-17

AJIT SINGH

body2002
JUDGMENT 1. Appellant, Dallu alias Laxman Prasad, the sole accused person in the present case, has been convicted under section 376 (1) of the Indian Penal Code and sentenced to rigorous imprisonment for eight years and a fine of Rs. 5,000/- or in default of payment of fine, to undergo one year rigorous imprisonment. The appellant has been found guilty for committing rape on Guddan (PW 5), who is an unmarried girl of unsound mind. 2. Briefly stated the facts giving rise to this appeal are as under: The appellant is a neighbour of prosecutrix Guddan (PW 5). She unfortunately, is of unsound mind and after the incident of rape, her condition has worsened. She is unmarried and on the date of incident she was aged 22 years. On 6.12.1998, at about 1.30 p.m., when Shantibai (PW 2), mother of prosecutrix Guddan (PW 5), left her house to fetch water, Guddan (PW 5 also left for the field to pluck bhaji and as she passed by the house of appellant he pulled her inside and despite he protest, committed rape on her According to Guddan (PW 5), appellant lifted her dhoti and then penetrated his penis into her vagina, as a result of which she had started bleeding. When Shantibai (PW 2) returned, she found Guddan (PW 5) missing from the house and, therefore, she, naturally, became worried and called her by shouting he name whereupon she saw the appellant opening the door of his house and Guddan (PW 5) coming out from it. On her asking, Guddan (PW 5) narrated that the appellant had committed rape on her Shantibai (PW 2) saw blood stains on the petticoat of Guddan (PW 5). Thereafter she called her husband Maganlal (PW 1) to whom also Guddan (PW 5) narrated the incident of rape on her by the appellant. Maganlal (PW 1) too] Guddan (PW 5) to the Bargi Polio Station where she lodged the first information report, Ex. P-3. Dr. Mamta Gupta (PW 4) examined Guddan (PW 5) and she in her report, Ex. P-4, found the following injury: "Hymen torn at 9 O'clock position (fresh tear). She also found slight oozing of blood from the tear." Dr. Mamta Gupta (PW 4), however opined that intercourse was attempted or Guddan (PW 5). 3. P-3. Dr. Mamta Gupta (PW 4) examined Guddan (PW 5) and she in her report, Ex. P-4, found the following injury: "Hymen torn at 9 O'clock position (fresh tear). She also found slight oozing of blood from the tear." Dr. Mamta Gupta (PW 4), however opined that intercourse was attempted or Guddan (PW 5). 3. Sub-Inspector Akhilesh Mishra (PW 6), arrested the appellant and after due investigation filed the challan against him for an offence under section 376 of the Indian Penal Code. 4. The trial Court, relying upon the evidence of prosecutrix Guddan (PW 5) her parents Maganlal (PW 1) and Shantibai (PW 2), convicted the appellant for an offence under section 376 of the Indian Penal Code and sentenced him as stated above. 5. Dr. Rajendra Singh, learned Senior counsel for the appellant, submitted that testimony of Guddan (PW 5), who has not been administered oath by the trial Court because she did not understand the sanctity of oath, should not have been accepted without corroboration. The learned Senior counsel also submitted that the medical evidence does not corroborate the statement of prosecutrix Guddan (PW 5) and the first information report too was no lodged by her, but by her father Maganla (PW 1) which is evident from his cross examination and as such, the first information report could also not have been used to corroborate the statement and conduct of prosecutrix. Alternatively, a hesitant plea was also made by him that the offence, at any rate, would only be under section 376 read with section 511 of the Indian Penal Code. 6. Shri Wakil Khan, learned Panel Lawyer for the State, on the other hand vehemently supported the finding of the trial Court regarding conviction and sentence of appellant under section 376 of the Indian Penal Code. 7. I have carefully perused the evidence of Guddan (PW 5). True it is that oath was not administered to her because the trial Judge was of the opinion that she did not understand the sanctity of oath, but that does not, in any way, create a hurdle in the way of her testimony being accepted. She has stated in the Court that one should speak the truth and she has given a very natural and truthful version of the incident of rape on her. She has stated in the Court that one should speak the truth and she has given a very natural and truthful version of the incident of rape on her. Even in her cross examination, nothing has been brought out to detract from the weight of her testimony. She stands corroborated by the evidence of her mother Shantibai (PW 2) and father Maganlal (PW 1), to whom she narrated the gist of the incident soon after the occurrence, on being asked and when she was still under the impulse of sexual assault on her. The first information report Ex. P-3, lodged by her shortly after the commission of crime, also lends corroboration to her evidence. She also stands corroborated by the medical evidence. The argument of the learned Senior counsel for the appellant that the prosecutrix Guddan (PW 5) was tutored, is fallacious on the face of it. She has very specifically deposed that her father Maganlal (PW 1) had only asked her to narrate the incident as it actually happened. It is not to be forgotten that prosecutrix Guddan (PW 5) is of unsound mind and she needs protection and guidance. No enmity, whatsoever, has been either pleaded or proved by the appellant to suggest his false implication by the prosecutrix Guddan (PW 5) and her parents. In the cross-examination, taking advantage of the unsound mind of Guddan (PW 5), a suggestion was made to her that appellant had introduced a stick into her vagina to which she answered in affirmative without understanding its implication. The appellant, in my opinion does not deserve any benefit of the said answer given by Guddan (PW 5) because the suggestion was put into her mouth. 8. Prosecutrix Guddan (PW 5), in her examination-in-chief, has deposed that the first information report, Ex. P-3, was lodged by her. In her cross-examination nothing has been suggested to her that she was not the author of the first information report, Ex. P-3. It may also be stated that no suggestion at all was made to her to the effect that she did not go to the police station with her father Maganlal (PW 1) On the contrary, she answered to the suggestion that her father Maganlal (PW 1) had guided her by saying that she should narrate the incident as it actually happened. Further, Sub-Inspector Akhilesh Mishra (PW 6), who recorded the first information report, Ex. Further, Sub-Inspector Akhilesh Mishra (PW 6), who recorded the first information report, Ex. P-3, has deposed that it was recorded at the instance of Guddan (PW 5) and the same bore her thumb-mark. He has categorically denied that the first information report. Ex. P-3 was not recorded by him at the instance of Guddan (PW 5), but at the instance of he father Maganlal (PW l) He has categorically deposed trial, after recording the first information report, Ex. P-3, the same was read over to Guddan (PW 5) and she admitted it having been recorded, a stated by her. Even from the evidence of Maganlal (PW 1), it becomes clear that he was present at the police station at the time of recording of the first information report Ex. P-3, and because his daughter Guddan (PW 5) is of unsound mind, he had simply guided her in lodging the first information report, Ex. P-3. Under the circumstances his conduct cannot be said to be unnatural particularly owing to the fact that his daughter Guddan (PW 5) is of unsound mind and was sexually ravished by the appellant. Thus, I have no hesitation in coming to the conclusion that it was only Guddan (PW 5) who had lodged the first information report, Ex. P-3. 9. The next question that arises for my consideration is whether the proved fact establish the offence of rape or only attempt to commit rape. Dr. Mamta Gupta (PW 4) examined Guddan (PW 5) on 7.12.1998 at about 1.00 p.m. On examination, she found the hymen of Guddan (PW 5) torn at 9 O'clock position with a fresh tear and slight oozing of blood from the tear. From the said findings she however, opined that intercourse was attempted on Guddan (PW 5). Guddan (PW 5) has very categorically deposed in her evidence that appellant had penetrated his penis into her vagina, as a result of which she had started bleeding. Both Shantibai (PW 2) and Maganlal (PW1) found the petticoat of the prosecutrix Guddan (PW 5) stained with blood. Guddan (PW 5) has very categorically deposed in her evidence that appellant had penetrated his penis into her vagina, as a result of which she had started bleeding. Both Shantibai (PW 2) and Maganlal (PW1) found the petticoat of the prosecutrix Guddan (PW 5) stained with blood. It Madan Gopal Kakkad v. Naval Dubey am another [ (1992) 3 SCC 204 ], the Supreme Court held as under: "A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court or technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the experts' opinion is accepted, it is not the opinion of the medical officer but of the Court." 10. It is a well settled principle of law that to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen Part penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even al attempt of penetration is quite sufficient for the purpose of law. Even the slightes penetration is sufficient to make out al offence of rape and the depth of penetration is immaterial. In the present case, there 'is acceptable and reliable, evidence that there was penetration Further, Dr. A.K. Verma (PW 3) had examined the appellant on 11.12.1998. H found him to be a well developed person and, according to him, the appellant was capable of performing sexual intercourse The appellant, a robust man, must have penetrated his penis into the vagina of the prosecutrix, otherwise, there would no have been tear in the hymen with blood oozing out of it. 11. H found him to be a well developed person and, according to him, the appellant was capable of performing sexual intercourse The appellant, a robust man, must have penetrated his penis into the vagina of the prosecutrix, otherwise, there would no have been tear in the hymen with blood oozing out of it. 11. Thus, I hold that the prosecution has established beyond reasonable doubt that the appellant committed rape of prosecutrix Guddan (PW 5) by proving al the necessary ingredients required to make out an offence of rape punishable under section 376 of the Indian Penal Code Under the circumstances of the case, the sentence awarded to the appellant by the trial Court is just and proper. It does no require any modification. 12. The appeal fails and is dismissed.