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Madhya Pradesh High Court · body

2003 DIGILAW 788 (MP)

Bijiya v. State of M. P.

2003-06-27

S.K.SETH

body2003
JUDGMENT The appellant has preferred this appeal against the judgment of conviction and sentence passed against him by the Sessions Judge, Jhabua in S.T. No. 231/90 for having committed rape which is punishable offence under S. 376 IPC. The trial Court after appreciating the evidence led by the prosecution has convicted the appellant and sentenced him to undergo seven years RI. In addition to the custodial sentence, learned Sessions Judge has also imposed a fine of Rs. 500/- and in default of payment of fine, the appellant is sentenced to undergo two months additional RI. The facts relevant for disposal of this appeal are as under : Thai on 8.9.1989 at about 4.00 p.m. in the afternoon, PW 1, a girl aged about 14 years was returning home alongwith PW 2 Chenna and PW 6 Munna, with their cattles. On their way back the appellant who as hiding behind a tree, at a lonely spot, grabed the prosecutris and committed rape. The appellant after satisfying his lust, ran away from the spot. Prosecutrix immediately narrated the whole incident to her mother. Same day an FIR (Ex. P. 1) naming the appellant as the author of the crime, was lodged at police station. The prosecutrix was examined by the lady Dr. (Smt.) Gupta, (PW 4) on 9.9.1989 and as per her report (Ex. P. 3) sexual intercourse had taken place and referred the prosecutrix to radiologist to determine her age. Dr. Ramesh Tiwari (PW 5) had taken X-ray to determine the age of the prosecutrix and after examination of X-ray, in his opinion the age of the prosecutrix was 14 years + 3 years as per his report (Ex. P. 4). During the course of investigation the clothes (petty coat) of the prosecutrix which she was wearing on the date of incident, were seized. After arrest of the appellant his Dhoti was seized from him. This Dhoti alongwith clothes of the prosecutrix were sent to the Forensic Science Lahoratory, Sagar to ascerstain the stains found on the clothes. Ex. P. 5 is the report of the FSL Sagar and as per this report semen stains were found on the clothes seized from the appellant and prosecutrix. Appellant was also medically examined by Dr. Rathod (PW 3) who found that the accused was well developed young man capable of performing sexual intercourse. Ex. P. 5 is the report of the FSL Sagar and as per this report semen stains were found on the clothes seized from the appellant and prosecutrix. Appellant was also medically examined by Dr. Rathod (PW 3) who found that the accused was well developed young man capable of performing sexual intercourse. Thus, after completing the investigation the police filed the charge sheet for the prosecution of the appellant for the alleged crime. During the course of trial the prosecution apart from the expert evidence of doctors, as mentioned above, examined the prosecutrix PW 1, her mother, Shantibai PW 7, Chenna PW. 2, Munna, PW 6 who are material witnesses. From the evidence of the prosecutirix it is clear beyong reasonable doubt that she was sexually assaulted by the appellant against her wishes and she had narrated the whole incident to her mother PW 7 immediately after the incident. PW 7 Sahntibai has fully supported the version of prosecutrix. The version of the prosectrix is also corroborated by PW. 2 Chenna and PW 6 Munna who were with the prosecutrix at the time when appellant assaulted the prosecutrix and forced these two witnesses to ran away from the spot. No doubt it is clear from the record that PW 2 Chenna and PW 6 Munna both are child witnesses but the learned Sessions Judge put questions to ascertain their mental status so as to find out whether they understand the question to give proper and rational answers. After being satisfied that these two child witnesses are matured enough to understand the question to give proper and rational answer learned Sessions Judge proceeded to record their statements. These two witnesses have supported the version of the prosecution fully and the contradictions brought out in the cross examination, are of minor nature and are not at all fatal to the prosecution. From the evidence of the prosecutrix which is also corroborated by the medical expert evidence of lady Dr. (Smt.) Gupta (PW 4) that the prosecutrix has to undergo agony of the sexual assault by the appellant. Thus, from the record it is established beyond any doubt that the appellant alone is the author of the crime and had committed the offence punishable under S. 376 IPC by sexually assaulting PW 1 who at the time of incident was a minor. Thus, from the record it is established beyond any doubt that the appellant alone is the author of the crime and had committed the offence punishable under S. 376 IPC by sexually assaulting PW 1 who at the time of incident was a minor. In the opinion of this Court no other view can possibly be taken even if the appellant was being represented by the counsel. This Court instead of dismissing the appeal for default of appearance of appellant's counsel, has proceeded to decide the appeal on merits after going through the record in view of the decision of the Supreme Court reported in (1996) SCC 848 (Bani Singh v. State of U.P.) In view of the above discussion, this Court finds that learned Sessions Judge committed no illegality or judgment cannot be said to be perverse. The judgment of conviction and sentence passed by the learned Sessions Judge are hereby maintained and upheld. The appellant who is on bail, is directed to surrender his bail bonds and the trial Court is directed to take necessary steps to secure the presence of the appellant so that he can undergo the custodial sentence awarded to him by the learned Sessions Judge. The appeal thus, fails and is hereby dismissed.