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Madhya Pradesh High Court · body

2004 DIGILAW 93 (MP)

Kailash v. State of M. P.

2004-01-30

S.L.JAIN

body2004
JUDGMENT Appellant Kailash stands convicted for offences punishable under section 376 (1) and 307 of IPC and sentenced to RI for 10 years with fine of Rs. 5,000/- and RI for 5 years with fine of Rs. 5,000/- respectively by the impugned judgment and order dated July 2, 2001, passed by Additional Sessions Judge, East Nimar, Khandwa, in Sessions Trial No. 41/2001. The prosecution case, in brief, is that on 13.9.1995 at about 6 p.m. when prosecutrix Salitabai (PW 2), after giving tea to her father at his field, was returning home alongwith her cattle, appellant intercepted her, caught hold of her hand and forcibly took her in the field of one Jaswant Singh. The prosecutrix tried to raise alarm but the appellant pressed her mouth, overthrew her in the field, pressed her neck by putting his leg and thereafter, committed rape on her. After the commission of offence of rape, the appel1ant warned the prosecutrix not to inform anyone about the incident. When she expressed that she will convey about the incident to her parents, appellant again overthrew her in the field, pressed her neck, assaulted her with a stone and caused injury on her head. On hearing the cries of prosecutrix, when Rajaram reached at the place of occurrence, the appellant took to his heels. When the father of the prosecutrix reached home and learnt that the prosecutrix has not reached so far, he went in search of prosecutrix alongwith his son Gabru and some other persons including Devram and Kamal Singh. Prosecutrix was found injured in the field. She was taken to her village Netangaon where prosecutrix narrated the incident to her father and other persons. Injured prosecutrix was taken to Government Hospital, Sanawad, for treatment where the first information report was recorded vide Ex. P-7. The prosecutrix was medically examined by Dr. P.S. Sodhi (PW 1) who found one lacerated wound on head, a contusion on cheek and swelling on neck and left cheek of the prosecutrix. Ex. P-3 is the report of Dr. Sodhi. He opined that the injuries sustained by Salitabai were sufficient to cause death in the absence of timely medical aid. As per the report of doctor who took the X-ray of the skull of the prosecutrix, fracture on her parieto-temporal bone was found. On ossification test, the age of the prosecutrix was reported to be between 16 to 18 years. He opined that the injuries sustained by Salitabai were sufficient to cause death in the absence of timely medical aid. As per the report of doctor who took the X-ray of the skull of the prosecutrix, fracture on her parieto-temporal bone was found. On ossification test, the age of the prosecutrix was reported to be between 16 to 18 years. The prosecutrix was examined by Dr. Sita Goel also, who could not give any definite opinion regarding the commission of rape on her. Dr. Sita Goel collected the vaginal smear of the prosecutrix and prepared two slides. Her petticoat was also recovered. The slides and petticoat were handed over to the police in a sealed packet. Both these articles were sent to FSL, Indore, for analysis. As per report of the FSL, blood and semen were found on the petticoat and slides. For the treatment of head injury, the prosecutrix remained admitted as indoor patient in Government Hospital, Sanawad, from 13.9.1995 to 22.9.1995. After investigation, a challan for offence punishable under sections 376 and 307, IPC was filed against the appellant and the case was committed to the Court of Sessions. Learned Additional Sessions Judge framed the charges against the appellant for the aforesaid offences who abjured the guilt and pleaded that he has been falsely implicated. He has also pleaded that prosecutrix was having illicit relations with one Raju. She was found in a compromising position with Raju and while running away, she suffered injuries. On the basis of the above prosecution case, the trial Court came to the conclusion that the prosecution has established its case against the appellant and accordingly, by the impugned judgment and order, convicted and sentenced him as indicated above. Aggrieved by the conviction and sentence aforesaid, the appellant has filed this appeal. I have heard Shri S.K. Garg, learned counsel appearing for the appellant and Ku. Mamta Billore, learned Panel Lawyer for the State and perused the record of the trial Court. Shri Garg, learned counsel for the appellant, led me through the record and contended that the learned Additional 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. On the other hand, Ku. Shri Garg, learned counsel for the appellant, led me through the record and contended that the learned Additional 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. On the other hand, Ku. Mamta Billore, learned State counsel, has supported the judgment recorded by the learned trial Judge convicting and sentencing the appellant as indicated above. Salitabai (PW 2) has stated that on the date of incident she went to her field to give tea to her father. When she was returning at the time of sunset alongwith her cattle, the appellant accosted her, caught hold of her and forcibly took her in the field of Prahlad where the crops were standing. The appellant pressed her mouth, assaulted her and committed rape on her. After commission of the offence, the appellant assaulted her with a stone also. She became unconscious. When she regained consciousness, she found her father and brother in the field. She was taken to the house of Patel where she narrated the incident to the villagers. She was taken to Sanawad hospital in a tractor where she was admitted. She lodged a report to the police vide Ex. P-7 in the hospital. Tulsi Ram (PW 3), the father of the prosecutrix, has stated that on the date of incident he was working in his field. At about 3.00 p.m. Salitabai brought meals and tea for him. She left the field for her house alongwith cattle at about 6.00 p.m. After some time when he reached home he learnt that Salitabai has not reached home, therefore he, alongwith his son Gajju and other persons, namely, Devram and Kamal Singh, went in search of prosecutrix. When they reached near the field of Jaswant Singh, they found Salitabai lying in the field with injuries on her body. She was brought in the village where she narrated the incident. The prosecutrix was taken to the Government Hospital, Sanawad, where she was admitted. Devram (PW 4) has also corroborated the prosecution case. He has stated that he, alongwith the father of the prosecutrix and Kamal Singh, had gone in search of the prosecutrix who was found injured in the field of Jaswant Singh. She was taken to the house of Patel, where she narrated the incident. Devram (PW 4) has also corroborated the prosecution case. He has stated that he, alongwith the father of the prosecutrix and Kamal Singh, had gone in search of the prosecutrix who was found injured in the field of Jaswant Singh. She was taken to the house of Patel, where she narrated the incident. The testimony of Salitabai has been further corroborated by Dr. Sodhi who examined heron 13.9.1995. Dr. Sodhi has stated that on examination he found one lacerated wound on the head of the prosecutrix. He also found a contusion on her cheek, left eye and swelling on left cheek and neck. He referred her for X-ray. On X-ray examination, fracture of parieto-temporal bone was detected. Learned counsel appearing for the appellant has vehemently argued that the evidence of the prosecutrix is not worthy of credence. The same has not been corroborated by the medical evidence. The report of Dr. Sita Goel reveals that she was not in a position to give definite opinion regarding the sexual intercourse with the prosecutrix. Merely because the lady doctor could not give any definite opinion regarding commission of rape on the prosecutrix, it cannot be said that the rape was not committed on her. The testimony of the prosecutrix in the case of sexual assault is vital. Where her testimony inspires confidence and is found to be reliable, the same cannot be discarded. Normally, no woman or girl would come forward to make a humiliating statement against her honour of being raped unless it was true and the Court should not find any difficulty in acting on the testimony of victim of sexual assault. The evidence of the father and other witnesses also inspires confidence. No father would make the statement against the honour of her daughter. The evidence of prosecutrix is further corroborated by the evidence of Dr. Sodhi (PW 1) who found the injuries on the body of the prosecutrix and narrated the same in his report Ex. P-3. The evidence of prosecutrix is further corroborated by the presence of semen on the slides of her vaginal smear and on her petticoat. From the evidence of the prosecutrix it is also clear that appellant assaulted her and caused lacerated wound on her. As per the evidence of Dr. P-3. The evidence of prosecutrix is further corroborated by the presence of semen on the slides of her vaginal smear and on her petticoat. From the evidence of the prosecutrix it is also clear that appellant assaulted her and caused lacerated wound on her. As per the evidence of Dr. Sodhi (PW 1), the injury found on the head of the prosecutrix was sufficient to cause death in the absence of timely medical aid. As per X-ray report, the parieto-temporal bone of the prosecutrix was also found fractured. Where, from the medical evidence it is clear that the injury was sufficient in ordinary course of nature to cause death, the conviction of appellant under section 307, IPC cannot be said to be improper. Learned counsel for the appellant argued that Raju, who, according to the prosecution case, also reached the place of occurrence, has not been examined for the simple reason that the prosecutrix was found in compromising position with him and when she was seen by the villagers, she ran away and while running away, she fell down and suffered injuries. I do not find any basis for accepting this contention. Even if Raju has not been examined, no adverse inference can be drawn against the prosecution. The evidence of the prosecutrix is reliable and worthy of credence, therefore, she cannot be disbelieved. Learned counsel also vehemently argued that the prosecutrix has implicated the appellant falsely because of the enmity. No enmity has been suggested to the prosecutrix or to her father. Therefore, this contention also is not acceptable. Learned counsel for the appellant also contended that there is material contradiction in the statement of prosecutrix. While in her evidence she has stated that the field in which the appellant committed rape on her belonged to Jaswant Singh and in the FIR, she stated that the field belongs to Prahlad Singh. The contradiction may be apparent but is not real. Jaswant Singh and Prahlad Singh both may be of the same family and the joint owners of the field. Even otherwise, minor contradictions cannot affect the credibility of the evidence of the prosecutrix, which otherwise inspires confidence. Learned trial Judge in his judgment has discussed the evidence in detail. The conclusion of the trial Court is based on cogent reasons. Jaswant Singh and Prahlad Singh both may be of the same family and the joint owners of the field. Even otherwise, minor contradictions cannot affect the credibility of the evidence of the prosecutrix, which otherwise inspires confidence. Learned trial Judge in his judgment has discussed the evidence in detail. The conclusion of the trial Court is based on cogent reasons. Looking to the totality of the evidence as discussed above, 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 conviction recorded by the trial Court against the appellant for the offences punishable under sections 376 (1) and 307, IPC. Learned counsel for the appellant contended that the sentence of imprisonment of 10 years for offence under section 376 (1), IPC is too harsh. On considering the circumstances of the case, I also feel that 7 years of RI for the offence under section 376 (1), IPC will meet the ends of justice as the case does not fall under sub-section (2) of section 376, IPC. Therefore, the sentence for the offence punishable under section 376 (1), IPC is modified and instead of RI for 10 years, a sentence of RI for 7 years is imposed on the appellant. So far as the sentence of fine is concerned, no interference is called for as the same appears to be reasonable. With regard to the sentence of imprisonment and fine imposed upon the appellant for offence under section 307, IPC also I do not find any justification to modify the same and as such it stands maintained. With the above modification in the sentence for offence under section 376 (1), IPC, the appeal is dismissed.