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Madhya Pradesh High Court · body

2003 DIGILAW 1071 (MP)

Ramesh v. State of M. P.

2003-09-09

S.K.SETH

body2003
JUDGMENT This appeal by appellants is directed against their conviction under section 376(2)(g) of the Indian Penal Code, 1860 and sentence of ten years' rigorous imprisonment handed down by the learned Sessions Judge in S.T. No. 93/1992. Fine of Rs. 1,000/- on each appellant has also been imposed and in default of payment of fine, appellants are directed to suffer six months additional rigorous imprisonment. Relevant facts necessary for disposal of this appeal are that on 26.11.1990, appellants are alleged to have sexually assaulted prosecutrix and committed rape against her will. Prosecution case in brief is that on 26.11.1990, prosecutrix was tending her cattle in forest near to her village. In the afternoon after taking her meals, she started collecting cattle. Appellants, known to prosecutrix, offered her help in collecting cattle, which had scattered in the forest. They proceeded towards forest and after travelling some distance; appellant Ramesh suddenly caught hold of prosecutrix, and sexually assaulted her and committed rape without her consent while co-accused Madariya using physical force, prevented prosecutrix from raising alarm and to offer any resistance. After appellant Ramesh satisfied his lust, he exchanged role with Madriya. Thus, both accused one after another, committed rape against the Will of prosecutrix. Prosecutrix narrated the incident to her mother. Since father of prosecutrix had gone to other village, therefore, after his return, matter was reported on 28.11.1990 at the Police Outpost, Katkut vide Ex. P. 3 on the basis whereof, FIR Ex. P. 3-A was recorded at police Station Balwada for an offence punishable under section 376/34 of the IPC. Prosecutrix was examined by Dr. (Mrs.) Asha Chouhan (PW 5) and her report is Ex. P. 4-A. After arrest, appellants were also examined by Dr. J.P. Chouhan (PW 1). Medical report of Ramesh is Ex. P. 2 and appellant Madariya is Ex. P-1. Clothes, which were seized from prosecutrix and appellants, were sent for chemical examination and the report from Forensic laboratory is Ex. P-11 Thus, after completing investigation, police filed the charge-sheet against accused persons. At trial, appellants abjured their guilt and submitted that they have been falsely implicated. On the basis of prosecution evidence, learned trial Court came to conclusion that appellants are guilty of committing an offence punishable under section 376 (2) (g) of the IPC. Accordingly, convicted and sentenced both appellants as mentioned above. At trial, appellants abjured their guilt and submitted that they have been falsely implicated. On the basis of prosecution evidence, learned trial Court came to conclusion that appellants are guilty of committing an offence punishable under section 376 (2) (g) of the IPC. Accordingly, convicted and sentenced both appellants as mentioned above. Shri L.S. Chandiramani, learned Counsel appearing for appellants, contended that conviction recorded by trial Court, is not supported by any reliable prosecution evidence as such, appellant deserves to be acquitted. Learned counsel submitted that from the ossification test, which was suppressed by the prosecution at the time of trial, age of prosecutrix is 16 to 18 years, therefore, in absence of mark of any injury on prosecutrix, it" was a case of consent, therefore, appellants are entitled for acquittal. Shri Salim, learned Panel Lawyer appearing for the State supported impugned judgment, and submitted that conviction is based upon proper "appreciation of prosecution evidence which does not call for any interference. He submitted that from the evidence of prosecutrix, it is established beyond any doubt that appellants are guilty of committing gang rape. He further submitted that in the case like the one in hand, sole testimony of prosecution is itself sufficient for conviction and in support he placed reliance on the decision of Supreme Court reported in AIR 1983 SC 753 . I have heard learned counsel for parties at length and perused the record. Besides prosecuterix (PW 2), other material witnesses her mother Thawalibai (PW 3) and two medical experts, Dr. (Smt.) Asha Chouha (PW 5) and Dr. J.P. Chouhan (PW 1) were examined by the prosecution. Learned Counsel for appellants, while drawing attention of this Court to the Ossification Report wherein age of prosecutrix was shown between 16 to 18 years, very strongly submitted that prosecution unfairly withheld said piece of relevant evidence collected during investigation. He contended that despite no formal proof of a document, it could be used by an "accused in his defence. There is no quarrel with the said principle of law, however, proof of age of prosecutrix is purely academic and would not take us anywhere, as would be clear from the following discussion. He contended that despite no formal proof of a document, it could be used by an "accused in his defence. There is no quarrel with the said principle of law, however, proof of age of prosecutrix is purely academic and would not take us anywhere, as would be clear from the following discussion. From the evidence of prosecuterix (PW 2), it is established beyond any doubt that when she was in forest, appellants, suddenly caught hold of her and one after another, sexually assaulted her and committed rape without her consent. Appellants prevented any resistance or attempts to raise alarm by prosecutrix by use of physical force. From the evidence of Dr. (Smt.) Asha Chouhan, it is clear that prosecutrix was subjected to rape by appellants in hapless condition. At the time of examination, lady Doctor had noticed that prosecutrix was not accustomed to sexual intercourse. She noticed swelling in the private parts which did not admit two fingers. Dr. also noticed that hymen and perineum of prosecutrix were ruptured on account of sexual intercourse. From the evidence available on record, I have no doubt whatsoever in my mind that prosecutrix lost her virginity on account of the sexual assault committed by appellant against her wishes. Appellants were examined by J.P. Chouhan, (PW 1) who found them capable of performing sexual intercourse. In absence of marks of injury on the person of prosecutrix, learned counsel for appellants submitted that prosecutrix was consenting party and the appellants were falsely implicated. This again, in the considered opinion of this Court, has to be seen in the factual backdrop of the whole case and not in isolation. As against two accused prosecutrix was alone and she was prevented from resisting or any raising alram by use of physical force by appellants. It is now a very well settled position of law that if the testimony of prosecutrix inspire confidence, then that alone is sufficient to base conviction. In each and every case relating to offence against woman, corroboration is not required. While looking to corroboration, the Court has to keep in mind broad spectrum of prosecution case. Nature and extent of corroboration depends upon facts of each case. In each and every case relating to offence against woman, corroboration is not required. While looking to corroboration, the Court has to keep in mind broad spectrum of prosecution case. Nature and extent of corroboration depends upon facts of each case. Recently, in a decision reported in 2003 AIR SCW 2541 Supreme Court has indicated that approach to be adopted by Court in rape cases has to be different from cases of run of the mill, and the Court have to show greater responsibility while trying an accused on charge of rape without getting swayed by minor contradictions or discrepancies. If evidence in present case is evaluated and analysed in the light of principles of law laid down by the Supreme Court in string of decisions, from the evidence of prosecuterix, which is duly corroborated, by other evidence, it is established beyond any reasonable doubt that appellants are guilty of charge laid against them. Minor contradictions, or alleged missing link as pointed by learned counsel for appellants, in the considered opinion of this Court are not fatal to prosecution case. In view of the foregoing discussion, I find that there is no merit and substance in the appeal and it deserves to be dismissed. The conviction and sentence awarded to appellants are hereby confirmed and maintained. Appellants are on bail. They are directed to immediately surrender their bail bonds before the trial Court to serve out the sentence. In the event of failure of appellants to surrender, as directed above, trial Court shall take all necessary steps in accordance with law to secure their presence. Ordered accordingly.