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2004 DIGILAW 169 (MP)

Chhagan v. State of M. P.

2004-02-17

SHANTANU KEMKAR

body2004
JUDGMENT 1. This is an appeal against the judgment passed by the I Additional Sessions Judge, Burhanpur in Sessions Trial No. 74/2002 on 12.9.2002 whereby the appellants No. 1 and 2 have been convicted of offence under section 376(2) (g) of the Indian Penal Code and sentenced to 10 years' rigorous imprisonment and the appellant No.3 has been convicted under section 201 of the Indian Penal Code and sentenced to 2 years' rigorous imprisonment. 2. Appellant No. 1 Chhagan is husband of appellant No.3 Chunki Bai and appellant No.2 Mangilal is brother of the appellant No. 1. 3. The prosecution case very briefly stated is that on 31.12.2002 Sukhlal (PW 12) took his minor daughter (prosecutrix) aged 14 years from his village Basali to Dhulkot where appellant No.3 Chunkibai (aunt of the prosecutrix) met them. She took the prosecutrix for stay to her house at village Piprana. After reaching Piprana at about 10 p.m., the appellants No. 1 and 2 took the prosecutrix with them to attend the mela (patla) arranged at the house of Dulia. On their way, in the fields of Dhyan Singh (PW 9), they committed rape on her one after another. The prosecutrix cried for help, hearing her cry, Fugaria (PW 2) came there but on being threatened by the appellant No. 1 he went away. The prosecutrix then went to the house of her step sister Reshambai (PW 11) and she narrated the incident to her and stayed with her. On the next morning the prosecutrix went to the house of the appellants where she narrated the incident to her aunt appellant No. 3. She also told her that her petticoat was stained with blood. The appellant No. 3 washed the petticoat of prosecutrix. Thereafter the appellant No.3 took her to village Basali where she narrated the incident to her father Sukhlal (PW 12). The prosecutrix along with her father Sukhlal went to the Police Chowki Dhulkot and lodged the First Information Report Ex. P-11. The prosecutrix was referred for medical examination. In the report Ex. P-4 Dr. Ms. Uma Verma (PW 5) found that an attempt was made to commit rape on her. As per the said report the age of the prosecutrix was opined to be below 18 years. Dr. Ms. Vma Verma prepared vaginal smear slides and handed over the same for chemical examination. In the report Ex. P-4 Dr. Ms. Uma Verma (PW 5) found that an attempt was made to commit rape on her. As per the said report the age of the prosecutrix was opined to be below 18 years. Dr. Ms. Vma Verma prepared vaginal smear slides and handed over the same for chemical examination. In order to determine the age of the prosecutrix, Dr. Ms. Vma Verma (PW 5) referred her to Radiological examination. Dr. Bajpai Radiologist examined the prosecutrix. His report is Ex. P-22 in which he has opined her age to be below 16 years. In the report Ex. P-14 of the chemical examiner presence of human spermatozoa was confirmed on the vaginal smear slides of the prosecutrix. After investigation the charge sheet was submitted. The trial Court after recording the evidence convicted the appellants as mentioned above. 4. Shri B.K. Khare, learned counsel for the appellants has submitted that the evidence of the prosecutrix is wholly unreliable. There are exaggerations in her evidence. Resham Bai (PW 11) to whom the prosecutrix is alleged to have narrated the incident has not supported the prosecutrix story. The medical report Ex. P-4 does not establish the offence of rape. He, therefore, prayed that the judgment of conviction of appellants is not sustainable. On the other hand Shri Ashok Agrawal, learned Government Advocate has submitted that the evidence of the prosecutrix is supported by the medical evidence. Other corroborative evidence clearly prove the offence against the appellants. He further submitted that even if the evidence of Resham Bai (PW 11) is discarded wholly then also on the basis of other evidence available on record the offence is well established. 5. In her evidence prosecutrix (PW 8) has deposed that on 3.12.2002 her father Sukhlal '{PW 12) took her to village Dhulkot. Chunkibai appellant No. 3 met them and she took her for stay to her house at village Piprana. In order to attend the Mela (Patla) in the night she was going to the house of Dulia with the appellants No. 1 and 2. On their way, in the fields of Dhyan Singh (PW 9) they committed rape on her one after another. She cried for help on which Fugaria (PW 2) came there but he was threatened by appellant No. 1 and, therefore, he went away. On their way, in the fields of Dhyan Singh (PW 9) they committed rape on her one after another. She cried for help on which Fugaria (PW 2) came there but he was threatened by appellant No. 1 and, therefore, he went away. She further deposed that thereafter she went to the house of her step sister Reshambai (PW 11). She narrated the incident to her and stayed with her. Next morning she went to the house of the appellants and there she narrated the incident to appellant No.3. Appellant No.3' washed her petticoat. It has been further testified that thereafter the appellant No. 3 took her to village Basali where she narrated the incident to her father Sukhlal (PW 12). She then along with her father Sukhlal (PW 12) went to Police Chowki Dhulkot and lodged the FIR Ex. P-11. 6. The evidence of prosecutrix stands corroborated by the evidence of Dr. Ms. Vma Verma (PW 5) who has deposed that on 2.1.2002 when she was posted as Assistant Surgeon in the Nehru Hospital Burhanpur, Constable Prahlad Rao (PW 3) brought the prosecutrix for medical examination. On her examination she found injuries of abrasions at her back and just above her left hip. On examination it was also found by Dr. Ms. Uma Verma (PW 5).that her hymen was torn and found irregular edges and bleeding and small blood clots were present. He breast was not found developed and public hair absent. In order to confirm about the commission of rape she prepared two vaginal smear slides and handed over the same to the Constable for chemical examination. She referred the prosecutrix for radiological examination to Dr. Bajpai (PW 17) who in his report Ex. P-22 has opined that the age of the prosecutrix is below 16 years. Chemical examination report Ex. P-14 shows the presence of human spermatozoa on the vaginal smear slides. Thus, according to the evidence of Dr. Ms. Uma Verma (PW 5), and Dr. Bajpai (PW 17) corroborated by their medical reports Ex. P-4, P-14 and chemical examination report Ex. P-22, it is proved that the prosecutrix was below 16 years of age and she was subjected to rape. 7. Thus, according to the evidence of Dr. Ms. Uma Verma (PW 5), and Dr. Bajpai (PW 17) corroborated by their medical reports Ex. P-4, P-14 and chemical examination report Ex. P-22, it is proved that the prosecutrix was below 16 years of age and she was subjected to rape. 7. The evidence of the prosecutrix finds further support from the evidence of Sukhlal (PW 12) who has deposed that when the prosecutrix came back along with the appellant No.3 she started crying and narrated to him the entire incident of rape with her by the appellants No. 1 and 2 and also washing of the blood stained petticoat by the appellant No.3. The evidence of Fugaria (PW 2) though turned hostile cannot be discarded wholly. It can be accepted to the extent found to be dependable on careful scrutiny. Fugaria (PW 2) has supported the prosecution case to some extent and has deposed that on hearing the sound of cry of a girl coming from the field of Dhyan Singh he went there. He further admitted that when he reached there the appellant No. 1 threatened him so he went away. He further admitted that the appellants No. 1 and 2 committed rape on the prosecutrix and this he had stated in his statement recorded under section 164 of the Criminal Procedure Code. Thus, from the evidence of Fugaria (PW 2) atleast this can be said to be proved that when he was passing through the fields of Dhyan Singh he heard cry of the prosecutrix, on reaching there he saw the appellants No.1 and 2 and the appellant No.1 threatened him so he went away. 8. The learned counsel for the appellants has submitted that Reshambai (PW 1) did not support the story of the prosecutrix to whom she has narrated the incident. In my view the evidence of the prosecutrix which is otherwise truthful cannot be discarded if her step sister has turned hostile. The minor contradictions and the exaggerations pointed out by the learned counsel for the appellants are also insignificant and according to me are not fatal in nature to throw out an otherwise reliable prosecutrix version. 9. On the basis of the entire evidence as discussed above, in my view the trial Court has rightly convicted the appellants for the commission of the alleged offences against them. 9. On the basis of the entire evidence as discussed above, in my view the trial Court has rightly convicted the appellants for the commission of the alleged offences against them. Prosecutrix, who was closely related to the appellants, had no reason to falsely implicate them. The appellants have not come forward with any defence. The judgment of conviction passed by the trial Court is perfectly legal and justified, the same is hereby affirmed. 10. However, considering the fact that the appellant No.3 is a lady and is having two tender aged daughters the sentence passed against the appellant No.3 (Chunki Bai) deserves to be reduced and is hereby reduced to the period of jail sentence which she has already undergone during the trial and after her conviction until she was released on bail by this Court. The sentence awarded to the appellants No. 1 and 2 is maintained. They will undergo the remaining part of jail sentence as awarded to them by the trial Court. The bail bonds submitted by the appellant No.3 shall stand cancelled. The appeal is accordingly partly allowed.