Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 1204 (MP)

Akbar v. State of M. P.

2006-10-18

A.P.SHRIVASTAVA

body2006
Judgment ( 1. ) THIS appeal is directed under Section 374 of Cr. PC, 1973 against the conviction and sentence dated 31-1-2000 passed by Second Additional Sessions Judge, Vidisha in Sessions Trial No. 128/99 convicting the appellant under Section 376 of IPC and sentenced to undergo seven years RI and fine of Rs. 1,000/- with default stipulation. ( 2. ) PROSECUTRIX, Santibai (P. W. 1) lodged the report against the appellant at the Police Station, Kurbai (District Vidisha) which is Exh. P-1. According to the report, on 31-3-99 at about 11 a. m. , when prosecutrix was taking kanda (cow-dung cake) from the field, appellant came there and asked for septic-pin from the prosecutrix and she was refused to give same to the appellant. Then appellant caught hold her and squeezed her breast and she started crying. Appellant gagged her mouth and brought to her near "pogra" and threw on the ground and undressed her and also opened her bottom of the pant and committed rape. After came back home, she narrated the incident to her husband. Her husband called the appellant in presence of her. Appellant denied to have committed sexual intercourse with the prosecutrix. Due to night, report could not be lodged on the same day and lodged the report on the next day that on 1-4-99 at about 12 in the noon. She was sent for medical examination, the report is Exh. P-6 and the report of FSL is Exh. P-7. From the medical report accused was also found capable for sexual intercourse. The Trial Court framed charge under Section 376 of IPC against the appellant and found guilty of having committed rape with the prosecutrix and convicted the appellant with imprisonment as mentioned in above Para No. 1. ( 3. ) DURING the course of arguments, Counsel for the appellant challenged the conviction on the following grounds: (1) First Information Report is delayed. (2) No independent witness has corroborated the prosecution story. (3) The doctor who examined the prosecutrix was not examined by the prosecution. (4) Lastly, if it is found that the appellant committed sexual intercourse with the prosecutrix, then it is case of consent, therefore, no offence is made out against the appellant. ( 4. ) AS per statement of prosecutrix (P. W. 1), the report (Exh. P-1) lodged by her. (4) Lastly, if it is found that the appellant committed sexual intercourse with the prosecutrix, then it is case of consent, therefore, no offence is made out against the appellant. ( 4. ) AS per statement of prosecutrix (P. W. 1), the report (Exh. P-1) lodged by her. In Para 2, she has stated that after the occurrence, she informed the incident to her husband and her brother-in-law. Due to night she could not go to lodge the report on the same day and lodged on the next day. In the FIR, the cause for delay is also mentioned. From the First Information Report, it appears that the incident took place on 31-3-99 at 11 a. m. and the report was lodged on 1-4-99 at 12. 30 hrs. As per the First Information Report, the distance of Police Station, Kurbai from the place of occurrence is about 25 kilometres. Therefore, the reason for lodging late FIR is properly explained by prosecutrix. Therefore, it cannot be said that the FIR is delayed. ( 5. ) PROSECUTRIX in her statement clearly stated that when she was collecting dry cow-dung near her village, appellant was also harvesting crop of wheat and he asked for septic-pin. On her refusal, appellant came from the back side and caught hold her and she was being taken near the pogra when she tried to escape, the appellant gave blows to her back and pressed her breast by one hand and gagged her mouth by of her hand and threw her on the ground and undressed her and committed sexual intercourse with her. Appellant threatened her that she could not disclose anybody about this incident. When she came back her home, her husband was not present. She first narrated the story to her mother-in-law. After returned her husband from the field, she informed about the incident and lodged the report. She was sent by police for medical examination also. In her cross-examination, Para No. 9, she told that when she was cried, nobody was present to rescue her, while she was crying. She also sustained minor injuries at the time of incident and her glass bangles were also broken as stated in Para No. 10. She sustained injuries on her private part and she also admits that she was having discharged (lubrication) after committing sexual intercourse. She also sustained minor injuries at the time of incident and her glass bangles were also broken as stated in Para No. 10. She sustained injuries on her private part and she also admits that she was having discharged (lubrication) after committing sexual intercourse. In Para No. 18, she denied that he had a relation with the appellant and committed sexual intercourse with the consent and when she was seen by one Gochhi, therefore, lodged the report for the sake of defence. ( 6. ) PARMOLI (P. W. 2), husband of the prosecutrix, corroborated that his wife Santibai informed that accused committed sexual intercourse with her and he lodged the report in the next day at the Police Station. In Para 11, the witness denied that the prosecutrix had a relation with the appellant. When she refused to give septic-pin to the appellant, appellant committed rape with her. Then she lodged the report. In this case, the prosecution examined on the version of prosecutrixs husband Parmoli (P. W. 2) and Suresh Chandra Sharma, Investigating Officer (P. W. 3 ). From the side of documents, two witnesses have been examined one is Mulchand (D. W. 1) and Gochhi @ Hukum (D. W. 2 ). Mulchand (D. W. 1) stated that there had been a quarrel between the prosecutrix and appellant and they are enimity term, while Gochhi @ Hukum (D. W. 2) stated that prosecutrix and appellant were on a compromising position. ( 7. ) IT is submitted by the Counsel for the defence that as Gochhi @ Hukum (D. W. 2) seen the prosecutrix and appellant on a compromising position. Therefore, report lodged. But under Section 313 of Cr. PC, the appellant has taken such defence. In question No. 26, he also stated that he was acquitted in this case for theft of mare (female horse), therefore, he was falsely implicated. ( 8. ) THE main submission of the Counsel for the appellant is that the prosecutrix was narrated the incident to her mother-in-law and she has not examined by the prosecutrix and also doctor who examined the prosecutrix not examined. ( 9. ) IN this behalf, learned Counsel for the appellant has also relied following citations: (1) Lakhan Singh v. State of M. R 2004 (2) M. P. II. T. 153. (2) Kosiram v. State of M. P. 2004 (2) Vidhi Bhasvar 254. (3) Dilip Singh and Anr. ( 9. ) IN this behalf, learned Counsel for the appellant has also relied following citations: (1) Lakhan Singh v. State of M. R 2004 (2) M. P. II. T. 153. (2) Kosiram v. State of M. P. 2004 (2) Vidhi Bhasvar 254. (3) Dilip Singh and Anr. v. State of M. R AIR2001 SC 3049 , 2001 Crilj4721 , 2001 (4 )Crimes105 (SC ), JT2001 (8 )SC 390 , RLW2002 (2 )SC 328 , 2001 (7 )SCALE51 , (2001 )9 SCC452. (4) Guddu Pulra @ Yogendra Singh Thakur v. State of M. P. 2004 (3) M. P. H. T. 117. ( 10. ) MUCH emphasis has been given in the point that during the course of commission of an act, the prosecutrix also stated that she has also discharged and in the manner the act was committed. It appears that she is also evaluating a consenting party. In this behalf, the Counsel for the appellant has relied on the decision of this High Court in Criminal Appeal No. 124/98, Prahlad v. State of M. P. , in which case the Court has held that the prosecutrix was a consenting party. Counsel for the appellant argued that in that case both of them have discharged and the manner of position which was said by prosecutrix. It appears that she was evaluating as a consenting party. ( 11. ) REGARDING discharge (lubrication) from the vagina of the prosecutrix during the course of intercourse is not conclusive evidence for consent or willingness on her part. It is observed in the Taylors Medical Jurisprudence that "thus, in consenting intercourse, where there has been preliminary lovemaking, there is normally considerable lubrication of the mucosa before penetration is attempted and subsequent injury lends to be less severe. In rape or digital penetration without consent, where preliminary stimulation has not taken place initial lubrication lends to be lacking. It must be also remembered that the reaction of the vaginal mucosa to a penetrating foreign body is to lubricate and therefore even on non-consenting intercourse, there will be a certain amount of lubrication produced during the act, even if lubrication was lacking in initial penetration". This submission as advanced on the above point is not acceptable. ( 12. It must be also remembered that the reaction of the vaginal mucosa to a penetrating foreign body is to lubricate and therefore even on non-consenting intercourse, there will be a certain amount of lubrication produced during the act, even if lubrication was lacking in initial penetration". This submission as advanced on the above point is not acceptable. ( 12. ) IN recent judgment of the Apex Court in the case of State of M. P. v. Dayal Sahu 2006 (2) JLJ 135 , it is held that in case of rape under Section 376 may be proved solely by reliable evidence of prosecutrix. Her statement need not be corroborated by any of her evidence, even medical evidence is not required to be adduced. It was held by the Apex Court that-the Court must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault done So convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court, while appreciating the evidence of a prosecutrix, may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. In this case also (1996) 2 SCC 384 : (1993) 4 SCC 10 : (1998) 8 SCC 635 : (2000) 5 SCC 30 and (1983) 3 SCC 217 was relied on. ( 13. ) SO in view of the above proposition as laid down by the Apex Court and looking to the facts and circumstances of the case, I am of the opinion that the evidence of prosecutrix is not unreliable or doubtful. Therefore, even on the sole testimony of the prosecutrix without corroborative evidence of her mother-in-law or medical evidence, she can be relied on her statement found to be credible. From the above discussion, it is clearly established that accused sexually molested the prosecutrix. Therefore, appellant is found guilty under Section 376 of IPC for committing rape with the prosecutrix. ( 14. ) IN view of the above discussions, the finding of conviction and sentence is recorded by the Lower Appellate Court is just and proper. There is no interference is called for. Therefore, the judgment passed by Lower Court is hereby affirmed. Bail bonds of the appellant stand discharged and he is directed to surrender before the Trial Court to serve out the remaining part of sentence.