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Madhya Pradesh High Court · body

2004 DIGILAW 71 (MP)

Santulal Yadav v. State of M. P.

2004-01-23

S.L.JAIN

body2004
JUDGMENT This appeal under section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 18.4.2001 passed by Sessions Judge, Hoshangabad in Sessions Trial No. 404/2000 whereby appellant Santulal Yadav has been convicted for offences punishable under sections 506 (Part II), 323 and 376 of the IPC and sentenced to R.I. for two years, one year and seven years, respectively. The prosecution case, in brief, is that on 16.6.2000, prosecutrix Ramkali Bai (PW 5) aged about 60 years, had gone to answer the call of nature near graveyard. When she was answering call of nature, appellant reached there with a knife. He overthrew the prosecutrix and committed rape on her. When the prosecutrix tried to resist, the appellant dealt on her a number of fist blows. He prevented her from shouting or speaking or calling for help by pressing her mouth with his hand. After commission of rape, appellant committed criminal intimidation by giving her threat that if she will lodge any report, she will be done to death. Thereafter, the prosecutrix went to her house and started weeping. She narrated the incident to her daughter-in-law, Rameti Bai and her sons. She went to police station, Itarsi along with her sons and lodged report of the incident, Ex. P-2. The prosecutrix was sent for medical examination. She was examined by Dr. R.K. Damle (PW 7), who found following injuries on her person: (1) Swelling around left eye, (2) Localized swelling over middle of forehead, (3) Swelling over lower lip, (4) Contusion and tenderness on both the sides of the back and scapular region, (5) Abrasion over right middle finger; and (6) Bone-deep abrasion over lobule and right ear. Dr. Damle opined that all the injuries were caused by hard and blunt object within 24 hours of the examination. His report is Ex. P-10. The prosecutrix was also examined by Dr. Smt. Neeta Dubey (PW 4), who opined that no definite opinion regarding rape can be given as the prosecutrix was used to sexual intercourse. Her report is Ex. P-9. The appellant was also sent for medical examination. He was examined by Dr. Rajendra Kumar Gupta (PW 9), who found him capable of sexual intercourse. Ex. P-12 is the report of Dr. Gupta. Her report is Ex. P-9. The appellant was also sent for medical examination. He was examined by Dr. Rajendra Kumar Gupta (PW 9), who found him capable of sexual intercourse. Ex. P-12 is the report of Dr. Gupta. After investigation, a challan for offences punishable under sections 506 (Part II), 323 and 376, IPC was filed against the appellant and the case was committed to the Court of Session. Learned Sessions Judge, Hoshangabad, framed charges against the appellant for the aforesaid offences. The appellant abjured the guilt and pleaded that he has been falsely implicated at the instance of Bhawani Singh, who is son of the prosecutrix. Aggrieved by the conviction and sentence aforesaid, the appellant has filed this appeal. I have heard Shri Arun Nema, learned counsel for the appellant and Ku. Mamta Billore, learned State counsel and perused the record of the trial Court. Learned counsel for the appellant led me through the record and contended that the learned trial Judge erred in accepting the prosecution evidence. He submitted that the conviction and sentences imposed upon the appellant are illegal and incorrect and as such, are liable to be set aside. On the other hand, the learned State counsel supported the judgment and order and stated that the impugned judgment and order convicting and sentencing the appellant for the alleged offences is just and proper and calls for no interference. Prosecutrix, Smt. Ramkali Bai (PW 5) has stated that on the date of incident, she had gone to answer the call of nature near her house. When she was answering call of nature, the appellant, (whom she described as son of Mishrilal, as she could not recall his name at the time of her deposition), overthrew her and committed rape on her. She has also stated that at that time, the appellant was armed with a knife. He mishandled her as a result of which, she received injuries on her back, thighs, ear and cheeks: The appellant also told her to come next morning again to attend the call of nature, otherwise, she and her son would be done to death. Thereafter, she returned her home. When her family members saw her weeping, they enquired from her the reason for the same. She narrated the whole story to her son Bhawani Singh (PW 3) and daughter-in-law, Rameti Bai (PW 6). Thereafter, she returned her home. When her family members saw her weeping, they enquired from her the reason for the same. She narrated the whole story to her son Bhawani Singh (PW 3) and daughter-in-law, Rameti Bai (PW 6). Bhawani Singh (PW 3) and Rameti Bai (PW 6) have stated that the prosecutrix informed them about the incident. Evidence of the prosecutrix has been corroborated by the injuries found by Dr. Raj Kumar Damle (PW 7), as described above. Learned counsel for the appellant submitted that it is admitted by the prosecutrix that the incident occurred in the night, therefore, it was not possible for her to identify the assailant who assaulted her and the appellant has been implicated at the instance of her son. It is true that in paragraph 5 of her statement, the prosecutrix has stated that the incident occurred in the night and it was dark, but she has given the time of incident. According to her, the incident occurred at 7 p.m. It was the month of June. It cannot be said that on the date of incident at 7 p.m. it was a pitch dark, therefore, even if it was slightly dark, it cannot be said that it was not possible for the prosecutrix to identify the appellant. The place of incident is an open place. At such place at 7 p.m. it was not impossible for the prosecutrix to identify the appellant. Therefore, the contention is not acceptable. The witness in paragraph 10 of her statement has specifically denied that she could not identify the appellant due to dark and stated in clear terms that she could identify the appellant. She has further denied that she named the appellant out of suspicion. She also denied the suggestion that she named the appellant at the instance of her son. Learned counsel for the appellant next contended that prosecutrix has admitted that at the time of incident name of the appellant was not known to her but in her examination-in-chief, she has identified the appellant as son of Mishrilal. Though she could not name the appellant at the time of evidence in the Court due to slip of his name from her memory, but on account of this lapse, it cannot be said that the prosecutrix was not knowing the appellant from before. Though she could not name the appellant at the time of evidence in the Court due to slip of his name from her memory, but on account of this lapse, it cannot be said that the prosecutrix was not knowing the appellant from before. In paragraph 6 of her cross examination she has stated that the appellant being her enemy it was not proper for her to take his name. The appellant has been identified in the Court. In the first information report lodged by the prosecutrix the name of the appellant has been mentioned. Therefore, the contention cannot be accepted that the name of appellant was not known to the prosecutrix. Admittedly, the prosecutrix and the appellant are residents of the same vicinity. It has been suggested to the prosecutrix in paragraph 9 of her cross examination that the appellant used to visit the house of her son. Learned counsel for the appellant also submitted that Dr. Smt. Neeta Dubey (PW 4) has stated that as the prosecutrix was used to sexual intercourse, no definite opinion can be given regarding rape having been committed on her. From the evidence of Dr. Smt. Dubey the sexual intercourse on the prosecutrix cannot be ruled out. Simply because sexual intercourse could not be confirmed by medical evidence, it cannot be said that no such incident had taken place. Learned counsel for the appellant further contended that when the appellant was examined by Dr. R.K. Gupta (PW 7), stigma was found present on his male organ which suggests that he had no intercourse in the recent past. The incident is of 16.6.2000 and the appellant was examined by Dr. Gupta on 21.6.2000 i.e. after about five days of the incident, therefore, presence of stigma on the male organ of the appellant will not rule out commission of rape on the prosecutrix. Learned counsel for the appellant lastly contended that the prosecutrix is aged about 60 years while the age of the appellant was 25 years. It is difficult to believe that a young boy of 25 years wil1 commit rape of an old woman of 60 years. The contention cannot be accepted. It is true that normally the person even with weak moral fibre will not commit rape on an old lady but sometimes the age factor does not come in his way to satisfy insatiable appetite for sex. The contention cannot be accepted. It is true that normally the person even with weak moral fibre will not commit rape on an old lady but sometimes the age factor does not come in his way to satisfy insatiable appetite for sex. Therefore, simply because age of the prosecutrix was 60 years, the commission of rape on her cannot be ruled out. Learned counsel for the appellant contended that looking to the age of the prosecutrix and the fact that she has given the evidence under the influence of her son, her evidence must be scrutinized with abundant care and caution and her statement cannot be considered to be that of a reliable witness. Al1 that she says cannot be accepted at its face value. On careful scrutiny of the evidence of the prosecutrix, I do not find any thing unnatural in her conduct. Normal1y no woman, who is a widow and in her sixties, would come forward to make a statement against her honour, therefore, the evidence of the prosecutrix cannot be discarded lightly. She is not a child witness who may give evidence under the influence of other persons. The testimony of the victim in a case of sexual offence is vital and unless there are compel1ing reasons which necessitate looking for corroboration of her statement, Court should find no difficulty to act on the testimony of victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Corroborative evidence is not an imperative component of judicial credence in every rape case. It must not be overlooked that a woman subjected to sexual assault is not an accomplice to the crime but is the victim of another person's lust and it is improper and undesirable to test her testimony with suspicion treating her as if she were an accomplice. In this case, not only the evidence of prosecutrix is natural but also inspires confidence. It is also corroborated by her son and daughter-in-law. Normal1y, no son or daughter-in-law would come forward to make a humiliating statement against the honour of their mother/mother-in-law, unless it was true. The presence of injuries on the person of prosecutrix justifies her statement that there had been a rape on her. Learned trial Judge in his judgment has discussed the evidence in detail. Normal1y, no son or daughter-in-law would come forward to make a humiliating statement against the honour of their mother/mother-in-law, unless it was true. The presence of injuries on the person of prosecutrix justifies her statement that there had been a rape on her. Learned trial Judge in his judgment has discussed the evidence in detail. The finding of the trial court are based on cogent reason Looking to the evidence of the prosecutrix which is corroborated by her son and daughter-in-law first information report lodged by her and presence of injuries on her person, I am of the opinion that there is overwhelming evidence. In view of the aforesaid discussion, I do not find any reason to interfere with the order of conviction passed against the appellant. So far as the sentence is concerned the appellant committed rape on a widow in her sixties. In the absence of any special reason, minimum sentence prescribed for the offence. Under the facts and circumstances of the case, the sentences imposed upon the appellant by the learned trial Judge cannot be said, in any manner, to be harsh or unjust and as such cannot be interfered with. In the result, the appeal is dismissed. The impugned judgment and order passed by the trial Court, convicting and sentencing the appellant as indicated above, is maintained.