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Madhya Pradesh High Court · body

2004 DIGILAW 109 (MP)

KHEMAJI v. STATE OF MADHYA PRADESH

2004-02-04

S.L.JAIN

body2004
Judgment ( 1. ) APPELLANT Khemaji stands convicted for offence punishable under Section 376 (1), IPC and sentenced to R. I. for seven years with fine of Rs. 1000/-, in default whereof to undergo R. I. for three months, vide impugned judgment and order dated 19-1-2001, passed by Additional Sessions Judge, Harda, in sessions Trial No. 250/99. ( 2. ) THE prosecution case lies in a narrow compass. Ku. Mamta (P. W. 6) is the daughter of Nandram (P. W. 5 ). On 29-9-99 at about 6 P. M. when she was returning from the forest along with her cattle after grazing them, appellant met her in the way. He threatened her and took her in a field and committed rape on her. When the cattle reached home and Mamta did not reach, her father, Nandram (P. W. 5) along with his son, Ramsingh and other persons went in the forest in search of Mamta. They saw Mamta in a field along with the appellant. Mamta narrated whole incident to her father. Nandram took Mamta and the appellant to the Sarpanch, Laxmi Narayan, whom also Mamta narrated the incident. Laxmi Narayan advised Nandram to lodge report at the police station. Nandram along with his daughter, Mamta, went to Police Station, chheepawad and lodged report (Ex. P-7 ). ( 3. ) PROSECUTRIX Mamta was medically examined by Dr. Smt. Abha jesani (P. W. 3 ). On examination she did not find any external injury on the person of the prosecutrix. There was an old rupture of hymen. No fresh bleeding was present. On internal examination, the prosecutrix made a complaint of pain. Her vaginal secretia was obtained and preserved for analysis. Salwar and Kurta of the prosecutrix was also recovered by Dr. Smt. Jesani and was handed over to the concerned Police Constable in a sealed cover. On examination, Dr. Smt. Jesani concluded that no definite opinion can be given regarding commission of rape on the prosecutrix. Ex. P-6-A is the report of dr. Smt. Jesani (P. W. 3 ). ( 4. ) THE appellant was examined by Dr. Kishore Kumar (P. W. 4) who found him capable of sexual intercourse. The underwear of the appellant was recovered by Dr. Kishore Kumar. Two slides of his semen were prepared and preserved for chemical examination. Ex. P-4-A is the report of Dr. Kishore kumar (P. W. 4 ). ( 5. ( 4. ) THE appellant was examined by Dr. Kishore Kumar (P. W. 4) who found him capable of sexual intercourse. The underwear of the appellant was recovered by Dr. Kishore Kumar. Two slides of his semen were prepared and preserved for chemical examination. Ex. P-4-A is the report of Dr. Kishore kumar (P. W. 4 ). ( 5. ) ON ossification test, age of the prosecutrix was found to be above 9 years but below 15 years. Salwar, Kurti and slides of smear of the prosecutrix and underwear and slides of the semen of the appellant were sent to FSL, gwalior for chemical examination. Assistant Chemical Examiner found the presence of semen and spermatozoa on the salwar and slides of the prosecutrix. ( 6. ) AFTER investigation, a challan was filed against the appellant for the aforesaid offence. ( 7. ) LEARNED Additional Sessions Judge framed charge against the appellant for the offence punishable under Section 376 (1), IPC. The appellant abjured the guilt and pleaded that he has been falsely implicated. ( 8. ) ON the basis of the above prosecution case, the learned Trial judge came to the conclusion that the prosecution established its case against the appellant beyond any reasonable doubt and as such, vide the impugned judgment and order convicted and sentenced him as indicated above. ( 9. ) AGGRIEVED by the aforesaid conviction and sentence, the appellant, he filed this appeal. ( 10. ) I have heard Ku. K. G. Saxena, learned Counsel appearing for the appellant and Ku. Mamta Billore, learned Panel Lawyer appearing for the state, and perused the record of the Trial Court. ( 11. ) KU. Saxena, learned Counsel for the appellant led me through the record and contended that the learned Additional Sessions Judge erred in accepting the prosecution evidence. She submitted that the conviction and sentence imposed upon the appellant are illegal, bad and incorrect and as such are liable to be set aside. ( 12. ) ON the other hand, Ku. Mamta Billore, learned Panel Lawyer, supported the judgment and order, convicting and sentencing the appellant as indicated above. Mamta (P. W. 6) has stated that on the date of the incident she was grazing her cattle in the forest. Appellant Khemaji was also grazing his cattle. ( 12. ) ON the other hand, Ku. Mamta Billore, learned Panel Lawyer, supported the judgment and order, convicting and sentencing the appellant as indicated above. Mamta (P. W. 6) has stated that on the date of the incident she was grazing her cattle in the forest. Appellant Khemaji was also grazing his cattle. In the evening, the appellant caught hold of her and gave her a threat that if she will not go with him, she will be done to death. Out of fear she went along with the appellant, who took her to the field, overthrew her and committed rape on her. When she cried, her younger brother Ashok came to her rescue. Ashok, thereafter, went towards her house. After some time her father came to the spot and took her and the appellant to Sarpanch whom she narrated the incident. Thereafter, she was taken to the police station along with the Kotwar. From the police station she was taken for medical examination. ( 13. ) NANDRAM (P. W. 5) has stated that on the date of the incident his daughter, Mamta had gone to the forest to graze the cattle. At about 7 P. M. he was informed by Raju that Mamta has been taken away by the appellant, therefore, he went in search of Mamta. She was seen along with the appellant. He brought both of them to the Sarpanch and narrated the incident to sarpanch. Thereafter, he along with Kotwar went to the police station and lodged report (Ex. P-7 ). ( 14. ) RAJU (P. W. 7) has also partly corroborated the prosecution case stating that he along with Nandram, went in search of the prosecutrix. She was found in a field. At that moment, appellant was also with her. They were brought before Sarpanch. ( 15. ) LEARNED Counsel for the appellant submitted that in the rape case the oral testimony of the prosecutrix must be scrutinized with abundant caution and care to ensure that it is not concocted or embellished to any extent, particularly, when she is a grown up girl. ( 16. ) ON close scrutiny of the evidence of the prosecutrix, I do not find any reason to disbelieve her testimony. No girl or woman would come forward to make humiliating statement against her honour of having been raped, unless it was true. ( 16. ) ON close scrutiny of the evidence of the prosecutrix, I do not find any reason to disbelieve her testimony. No girl or woman would come forward to make humiliating statement against her honour of having been raped, unless it was true. It must not be overlooked that a girl subjected to sexual assault is not an accomplice to the crime but is the victim of another persons lust and it is improper and undesirable to test her testimony with suspicion treating her as if she were an accomplice. ( 17. ) LEARNED Counsel for the appellant submitted that the evidence of the prosecutrix is not corroborated by the medical evidence. Dr. Smt. Jesani (P. W. 3), has stated that no definite opinion can be given regarding rape on the prosecutrix. Merely because lady doctor could not give any definite opinion regarding rape, evidence of the prosecution can not be discarded. Dr. Smt. Jesani also has stated that on internal examination she found tenderness, therefore, it can not be said that the evidence of the prosecutrix has not been corroborated by medical evidence. Even otherwise, medical evidence can hardly negative the charge of rape. ( 18. ) LEARNED Counsel for the appellant next contended that Dr. Smt. Jesani did not find any external injury on the person of the prosecutrix. Had there been the incident of rape in the field without the consent of the prosecutrix, she would have certainly sustained some injuries on her back and arms. In the absence of injury on the person of prosecutrix only inference will be that she was a consenting party. ( 19. ) THE contention can not be accepted. On careful scrutiny of the evidence of the prosecutrix it does not appear that she was a consenting party. From her evidence it is clear that she did not give consent and appellant committed rape on her by using force, therefore, her act could not be considered as a result of her will. The age of the prosecutrix according to her father was only twelve years. According to ossification test also, the age of the prosecutrix was above nine years and below fifteen years. Sexual intercourse with a girl below sixteen years even with her consent is an offence under section 376, IPC. The age of the prosecutrix according to her father was only twelve years. According to ossification test also, the age of the prosecutrix was above nine years and below fifteen years. Sexual intercourse with a girl below sixteen years even with her consent is an offence under section 376, IPC. Accepting that there is possibility of a margin of two years in case of determination of her age by ossification test and even if her age is taken to be sixteen years, her consent for intercourse can not be inferred simply because there is absence of injuries on her back and arms. ( 20. ) FROM the evidence of the prosecutrix it is further clear that the appellant gave her threat that she will be done to death. Due to the fear the prosecutrix might have surrendered and did not resist the assault. It can not be said that she was a consenting party. Absence of external injury will not necessarily indicate absence of physical violence and further absence of physical violence itself does not mean that sexual intercourse has not been committed forcibly. The force need not be actual physical force. The physical force made on the prosecutrix to commit rape may not cause her any physical injury. ( 21. ) LEARNED Counsel for the appellant next contended that if the appellant would have committed sexual intercourse forcibly, he would have received some injury on his male organ but Dr. Kishore Kumar (P. W. 4), who has examined the appellant did not find such injury. The fact that there is no injury on the male organ of the appellant would not be material as there could have been no violent fiction of the male organ inside the vagina. ( 22. ) THE case of the prosecution is further corroborated by first information report promptly lodged at Police Station, Chheepakheda. The incident occurred on 29-9-99 at about 7. 00 P. M. and the report was lodged in the night at 12. 25 A. M. The distance of police station from the place of occurrence is seven kms. The evidence of prosecutrix has been corroborated by the testimony of her father and also by presence of semen and spermatozoa on her salwar. Her testimony inspires confidence and is reliable. I do not find any difficulty to act on her testimony to convict the appellant. ( 23. The evidence of prosecutrix has been corroborated by the testimony of her father and also by presence of semen and spermatozoa on her salwar. Her testimony inspires confidence and is reliable. I do not find any difficulty to act on her testimony to convict the appellant. ( 23. ) LEARNED Trial Judge has discussed the evidence in detail. The findings of the learned Trial Judge are based on cogent reasons. Looking to the totality of the evidence as discussed above, I am of the opinion that there is overwhelming evidence against the appellant. ( 24. ) IN view of the aforesaid discussion, I do not find any reason to interfere with the order of conviction passed against the appellant. The sentence of seven years rigorous imprisonment with fine of Rs. 1000/- can not be said, in any manner, to be harsh. In the absence of special reason minimum sentence prescribed for the offence of rape is seven years. The Trial Court, already showing the leniency, has awarded the minimum sentence of seven years R. I. I do not find any reason much less a special and adequate reason to award lesser sentence. ( 25. ) IN the result, the appeal being devoid of any merit is dismissed and the impugned judgment and order of the Trial Court convicting and sentencing the appellant as indicated above is hereby maintained. Criminal Appeal dismissed.