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Madhya Pradesh High Court · body

2003 DIGILAW 1268 (MP)

Prabhunarayan Nai v. State of Madhya Pradesh

2003-11-20

S.L.JAIN

body2003
Judgment ( 1. ) APPELLANT Prabhunarayan Nai stands convicted for offence punishable under Section 376, IPC and sentenced to R. I. for seven years, by the impugned judgment and order dated 9-10-1998, passed by Sessions Judge, Sidhi, in Sessions Trial No. 151/97. ( 2. ) THE prosecution case, in brief, is that on 29-9-97 at about 10. 00 A. M. prosecutrix Phoolmati (P. W. 1) was going to her cattle shed with a bucket of water to provide it to the cow. Appellant was sitting near the door of cattle shed. He caught hold of the hand of prosecutrix and when she objected, appellant pressed her neck and gagged her. The appellant pushed prosecutrix on the ground and committed rape on her. The prosecutrix tried to resist. Hearing the sound of resistance and struggle Jagmati (P. W. 2), the mother-in-law of the prosecutrix who was cooking food in the house, came out and saw the appellant committing rape on the prosecutrix. When she raised alarm, appellant threatened her. Hearing the cries of Jagmati, Sudama, the husband of the prosecutrix also came to the spot and saw the appellant running away. Certain persons of the locality also gathered there. As the husband of the prosecutrix was sick and her father-in-law was outside the village, the complainant could not lodge the report till 2-10-1997. On 3-10-1997 she went to Police Station, Madha alongwith her husband and lodged First Information Report (Ex. P-1 ). ( 3. ) PROSECUTRIX was medically examined by lady Dr. Nama Tirkey (P. W. 4 ). On examination, she found nail scratch mark on the right breast of the prosecutrix. Both the breasts were painful and tender. Bangle scratch marks were found on the right wrist joint. Dr. Tirkey cut the pubic hair of the prosecutrix and preserved for examination. Vaginal secretia was obtained and preserved for examination. Underwear of the prosecutrix was also recovered. Dr. Tirkey opined that rape was committed on the prosecutrix. Ex. P-3 is the report of Dr. Tirkey. ( 4. ) THE appellant was examined by Dr. B. L. Seth (P. W. 5) who found him capable of sexual intercourse. The undergarments of the appellant were recovered by Dr. Seth. Two slides of his semen were prepared and were preserved for chemical examination. ( 5. Ex. P-3 is the report of Dr. Tirkey. ( 4. ) THE appellant was examined by Dr. B. L. Seth (P. W. 5) who found him capable of sexual intercourse. The undergarments of the appellant were recovered by Dr. Seth. Two slides of his semen were prepared and were preserved for chemical examination. ( 5. ) THE underwear, slides of the semen, the petticoat and slide of the secretia of the prosecutrix were sent for chemical examination to Forensic Science Laboratory, Sagar. But the report of the F. S. L. , Sagar has not been filed by the prosecution. ( 6. ) AFTER investigation, a challan for offence punishable under Section 376, IPC was filed against the appellant and the case was committed to the Court of Session. ( 7. ) THE learned Sessions Judge framed charge against the appellant for the offence punishable under Section 376, IPC who abjured the guilt and pleaded alibi. ; ( 8. ) ON the basis of above prosecution case, the Trial Court came to the conclusion that the prosecution established its case for the offence punishable under Section 376, IPC and accordingly, by the impugned judgment and order convicted and sentenced the appellant as indicated above. ( 9. ) AGGRIEVED by the conviction and sentence aforesaid, the appellant has filed this appeal. ( 10. ) I have heard Shri Satish Pateria, learned Counsel appearing for the appellant and Ku. Alka Pandya, Govt. Advocate appearing for the State and perused the record of the Trial Court. ( 11. ) SHRI Pateria, learned Counsel for the appellant led me through the record and contended that the learned Sessions Judge erred in accepting the prosecution evidence. He submitted that the conviction and sentence imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. ( 12. ) ON the other hand, Ku. Alka Pandya, learned State Counsel has supported the judgment recorded by the Trial Court convicting and sentencing the appellant as indicated above. ( 13. ) PHOOLMATI (P. W. 1) has stated that on the date of incident, she was giving water to the cow in a bucket. Her mother-in-law was cooking food inside the house. Her husband was lying inside the house as he was sick. Appellant was sitting outside the cattle shed. He caught hold of her and took her in the cattle shed. Her mother-in-law was cooking food inside the house. Her husband was lying inside the house as he was sick. Appellant was sitting outside the cattle shed. He caught hold of her and took her in the cattle shed. When she tried to shout, the appellant gagged her mouth and committed rape on her. On hearing the sound of struggle, her mother-in-law reached the spot. On seeing her mother-in-law, the appellant gave her threat and took to his heels. ( 14. ) JAGMATI (P. W. 2) has stated that on the date of incident her daughter-in-law, Phoolmati was sent to fetch water. When she did not return with the water she came outside the house to see her. She found the appellant committing rape on the proseculrix. Appellant gave her a threat and ran away towards his house. The prosecutrix narrated the incident to her. ( 15. ) LALJI (P. W. 3) has also stated that on hearing cries of prosecutrix he went towards the spot. At that time, he saw the appellant running away from the place of incident. ( 16. ) THE version of prosecutrix has been corroborated by the medical evidence also. Dr. Tirkey (P. W. 4) who medically examined the prosecutrix has stated that on examination she found nail scratch marks on the right breast of the prosecutrix. Her both the breasts were painful and tender. Bangle scratch marks were also found. She has opined that the rape was committed on the prosecutrix. Ex. P-3 is the report of Dr. Smt. Tirkey. ( 17. ) DR. B. L. Seth (P. W. 5) has stated that he examined the appellant and found him capable of sexual intercourse. ( 18. ) LEARNED Counsel for the appellant submitted that in the rape case, the oral testimony of the prosecutrix, particularly when she is a married and grown up woman must be scrutinised with abundant caution and care to ensure that it is not unconcocted or embellished to any extent. On close scrutiny of the evidence of the prosecutrix, I do not find any reason to disbelieve her testimony. ( 19. ) LEARNED Counsel for the appellant next contended that there is delay of four days in lodging the first information report and it is a circumstance which provides a legitimate basis for suspecting that prosecution introduced improvement and embellished and set up a distorted version of the occurrence. ( 20. ( 19. ) LEARNED Counsel for the appellant next contended that there is delay of four days in lodging the first information report and it is a circumstance which provides a legitimate basis for suspecting that prosecution introduced improvement and embellished and set up a distorted version of the occurrence. ( 20. ) THE contention can not be accepted. Reason for delay in lodging the F. I. R. has been given. Delay in complaint of such cases in India does not raise inference that the complaint was false. The complainant stated that as her husband was sick, she could not go to lodge the report. In the circumstances of the case, the evidence of prosecutrix can not be discarded. Delay in lodging report alone can not be said to be vital. The evidence of the prosecutrix has been corroborated by the evidence of her mother-in-law and also by the evidence of Lalji Medical evidence further corroborates her evidence. ( 21. ) LEARNED Counsel for the appellant has submitted that the Trial Court committed grave error in rejecting the plea of alibi. Ram Bharose (D. W. 1), Sarpanch has stated that on the date of incident appellant was working as labour for the construction work of Panchayat Bhavan. The witness had submitted the copy of the relevant register as Ex. D-4-C showing the attendance of labours during the period 8-5-97 to 14-5-97, 15-5-97 to 21-5-97 and 20-9-97 to 26-9-97. In none of these entries signature or thumb mark of the appellant were obtained. While the signatures/thumb marks of other labour were obtained. Even otherwise the distance of the site where the construction work was going on is only 12 K. Ms. from the place of occurrence. The appellant could have come from the site of construction work to the spot and could have returned to the site after the incident. Therefore, the Trial Court has rightly rejected the plea of alibi and rightly relied of the evidence of prosecutrix which is corroborated by the evidence of her mother-in-law and other circumstances. The evidence of prosecutrix can not be said to be untrustworthy. Probability factor also renders it worthy of credit. ( 22. Therefore, the Trial Court has rightly rejected the plea of alibi and rightly relied of the evidence of prosecutrix which is corroborated by the evidence of her mother-in-law and other circumstances. The evidence of prosecutrix can not be said to be untrustworthy. Probability factor also renders it worthy of credit. ( 22. ) THE testimony of a victim in a case of sexual assault is vital and when it is corroborated by other witnesses and by medical evidence, the Court should not find any difficulty to act on the testimony of the witness of sexual assault to convict an accused, where the testimony inspires confidence and is found to be reliable. ( 23. ) IN view of the aforesaid discussion, I do not find any reason to interfere with the conviction recorded by the Trial Court against the appellant. So far as the sentence is concerned, the law requires that in a case of rape the punishment should not be awarded less than seven years of rigorous imprisonment. I do not find any reason much less special and adequate reasons to award sentence of imprisonment less than seven years. The appeal is accordingly dismissed and the impugned judgment and order of the Trial Court convicting and sentencing the appellant is hereby maintained.