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Madhya Pradesh High Court · body

2008 DIGILAW 1239 (MP)

Kummer Singh v. State Of M. P.

2008-10-21

K.S.CHAUHAN

body2008
JUDGMENT : This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed being aggrieved by the judgment, finding and sentence dated 25-7-1994 passed by Additional Sessions Judge, Khurai, District Sagar in Sessions Trial No. 361/92, whereby the appellants have been convicted under section 376(2)(g) of Indian Penal Code and sentenced to R.I. for 10 years with fine of Rs. 2,000/- in default of payment of fine further R.I. for 6 months. 2. The prosecution case in short is that on 23-8-1992 at about 8:00 p.m. prosecutrix (PW-6) aged 16 years had gone to fetch milk from the house of Chhutta Gadariya with Radhabai (PW-4) and when they were returning therefrom and came in front of the house of appellant Laxmi, appellant Kammi @ Kummer Singh caught hold of her hand and dragged her inside the house. She raised alarm but her mouth was gagged by appellant Laxmi. Radhabai fled away on account of fear. The appellants carried prosecutrix inside the house, pressed her nipples, she was laid down on the straw (bhusa). Laxmi pressed her mouth and hand and Kammi undressed her and after removing his own pant he committed forcible sexual intercourse with her. Thereafter Kammi pressed her mouth and hand and appellant Laxmi committed the same act with her. Then they ran away and when she was going to her house weepingly Radhabai, Mullu and Meerabai met her on the way to whom she narrated the entire story. The report was lodged at police station Bina on 24-8-1992 at 2:30 p.m. She was sent for medical examination. Her medical examination was done by Dr. Ku. Usha Saini and submitted the medical report. Her blouse and petticoat were seized. Two vaginal slides were prepared and handed over to the concerned constable. Accused persons were arrested and they were sent for medical examination. Dr. A. K. Dubey and Dr. A. K. Jain has medically examined them and found capable to perform sexual intercourse. The statements of the witnesses were recorded under section 161 of Criminal Procedure Code. After completing the usual investigation, charge-sheet was filed in the Court of J.M.F.C., Bina who committed the case to the Sessions Court for trial. 3. Appellants stood charged under section 376(2)(g) of Indian Penal Code. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. After completing the usual investigation, charge-sheet was filed in the Court of J.M.F.C., Bina who committed the case to the Sessions Court for trial. 3. Appellants stood charged under section 376(2)(g) of Indian Penal Code. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 8 witnesses and the appellants also examined 4 witnesses in their defence. After appreciating the evidence, trial Court found them guilty under section 376(2)(g) of Indian Penal Code and sentenced thereunder as stated hereinabove in para No. 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been filed on the grounds mentioned in the memo of appeal. 4. Learned counsel for the appellants submitted that there is delay in lodging the F.I.R. In fact F.I.R. was not lodged by prosecutrix herself but her father Mullu and one Jagpreet have got written this report and the story has been falsely cooked up by these persons. No any injury was found on the person of the prosecutrix. The ocular evidence is not corroborated by the medical evidence. The testimony of the prosecutrix is not wholly reliable. The prosecution has failed to prove the guilt beyond reasonable doubt, therefore, the appellants are entitled for acquittal. Learned counsel has placed the reliance on the decisions rendered in the case of Surjan vs. State of M.P., AIR 2002 SC 476 , Devinder Singh and others vs. State of Himachal Pradesh, AIR 2003 SC 3365 and in the case of Sanju alias Sanjay and another vs. State of M. P., 2005(1) MPLJ 334 in support of his contention. 5. On the contrary, Shri G. P. Singh, Dy. Government Advocate appearing on behalf of respondent/State supported the impugned judgment, finding and sentence mainly contending that prosecution has established the guilt beyond reasonable doubt and the appellants have been rightly convicted and sentenced under section 376(2)(g), Indian Penal Code hence it does not call for any interference. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under section 376(2)(g) of Indian Penal Code? 7. PW-6 is the prosecutrix and important witness to this case. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under section 376(2)(g) of Indian Penal Code? 7. PW-6 is the prosecutrix and important witness to this case. She has stated that on the day of incident she along with Radhabai had gone to fetch milk from the house of Chhutta Gadariya and when they were returning therefrom and came in front of the house of appellant Laxmi, appellant Kammi caught hold of her hand, snatched her, threw her on the ground, naked her then committed forcible sexual intercourse with her. Thereafter appellant Laxmi also committed the same act. She narrated the incident to her father and sister and on the next day the report Ex. P/6 was made. Her medical examination was also done. 8. She has stated in cross-examination that Radha Bai was frightened and ran away from there. 9. Radhabai (PW-4) has also supported the evidence of prosecutrix that when they were returning from the house of Chhutta, appellant Kammi caught hold of the hand of prosecutrix and snatched her. Appellant Laxmi also did the same act and they carried her inside the house. She rushed to the house and told to Mullu who immediately came towards the place of occurrence. 10. This witness in cross-examination has stated that the house in which the prosecutrix was snatched belongs to appellant Laxmi. It is used for animal shed. There is yet another house adjoining to it but nobody resides in that house. 11. Meera Bai (PW-5) also stated that prosecutrix and Radha Bai had gone to fetch the milk but Radhabai alone returned and told that the appellants have snatched the prosecutrix and taken her in the house. She immediately rushed there. Prosecutrix and the appellants were found on the way. She abused them. Prosecutrix told her that appellants have committed forcible sexual intercourse with her. Mullu (PW-7) has also given the similar evidence wherein it is deposed that prosecutrix told him that appellants caught hold of her, carried in the house and committed forcible sexual intercourse. Thereafter he carried his daughter to lodge the report. 12. She abused them. Prosecutrix told her that appellants have committed forcible sexual intercourse with her. Mullu (PW-7) has also given the similar evidence wherein it is deposed that prosecutrix told him that appellants caught hold of her, carried in the house and committed forcible sexual intercourse. Thereafter he carried his daughter to lodge the report. 12. Thus, there is ample ocular evidence regarding the fact that on the day of incident prosecutrix and Radha Bai had gone to fetch milk from the house of Chhutta Gadariya and when they were returning therefrom the appellants snatched prosecutrix, carried her in the house and committed forcible sexual intercourse with her in succession. The evidence of prosecutrix is corroborated by these witnesses. 13. The defence of the appellants is that when Radhabai (PW-4) and one girl with her were returning back by taking milk from the house of Chhotelal they slipped as a consequence that girl was pushed on account of which the milk spread. Thereafter that girl lodged the report against them. The defence is not acceptable for the simple reason that there is no possibility of slipping the both the appellants at the same time and no girl would make the complaint of such a serious charge. If they might not have committed such offence, there was no reason to implicate them merely because she was pushed. 14. The report is lodged on the next day at 2:30 p.m. The cause for late lodging the report is mentioned in F.I.R. 15. Learned counsel for the appellants submitted that there is delay in lodging the F.I.R. and in fact the report is not lodged by prosecutrix but Mullu and Jagpreet has lodged the report, therefore, no reliance can be placed on such report. 16. No doubt prosecutrix has admitted in cross-examination that the report was lodged by Mullu and Jagpreet and she affixed the thumb impression it. But Mullu (PW-7) has stated that this report was lodged by the prosecutrix herself. Tejram Ahirwar (PW-8) who was Assistant Sub Inspector (Police) on 23-8-1992 has stated that this report was lodged by prosecutrix herself and he himself has written this report and thereafter the thumb impression of prosecutrix was affixed. There is presumption that the official acts are done in the regular way, therefore, it cannot be accepted that prosecutrix herself did not lodge the report. There is presumption that the official acts are done in the regular way, therefore, it cannot be accepted that prosecutrix herself did not lodge the report. There is no delay in lodging the report keeping in view the facts and circumstances of the case. The reason is that in such cases the family members think over the matter whether the matter be reported to the police or not and moreover the incident is of about 8:00 p.m. in night and the place of incident is 12 kilometres away from police station, Bina, therefore, the possibility cannot be ruled out that she could not have gone to lodge the report in the night. 17. The defence of the appellants is that there is political rivalry in between appellant Kummer Singh and Jagpreet and the report has been lodged at the instance of Jagpreet. Appellant Kummer Singh has given the evidence in this regard and filed some documents but this defence is not acceptable for the simple reason that there were several candidates who filed the application for contesting the election of Panch from village Biharna Ward No. 1. These applications were filed in the year 1990. It has come in the evidence of Nandkumar (DW-3) that the elections were postponed. It clearly goes to show that the elections were not contested. This incident is of 23-8-1992 i.e. to say near about two years from the date when the candidates filed the application form for contesting the election of Gram Panchayat. In such circumstances, the defence cannot be accepted that on account of political rivalry Jagpreet has falsely implicated them. It appears from the evidence of Mullu (PW-7) that after this incident he carried her daughter to Sarpanch, Jagpreet at village Jagdishpura where entire things were told to him who in turn asked them to report the matter. From the evidence of Mullu (PW-7) it is evident that Jagpreet has not gone at police station to lodge the report but he had gone to Mandi after leaving them at the Court Bina. Moreover it is not brought on record that how Mullu (PW-7) was interested with Jagpreet and why he will keep the reputation of her daughter who was recently married at the stake for the sake of other person Jagpreet and she herself is a grown up lady and why she will try to defame herself by falsely implicating these appellants. Moreover it is not brought on record that how Mullu (PW-7) was interested with Jagpreet and why he will keep the reputation of her daughter who was recently married at the stake for the sake of other person Jagpreet and she herself is a grown up lady and why she will try to defame herself by falsely implicating these appellants. More so when there are chances when her husband come to know about this fact he may desert her. In such circumstances, there is no possibility of falsely implicating these appellants by prosecutrix at the instance of Jagpreet. 18. Dr. Ku. Usha Saini (PW-3) has examined the prosecutrix and has given medical report Ex.P/3. She opined that no definite opinion regarding rape could be given because she was habitual for intercourse. She prepared two slides from her vaginal smears. Her blouse and petticoat were seized and handed over to the concerned police constable. No doubt, the fact regarding commission of rape has not been corroborated by the medical evidence, but the evidence of prosecutrix and other witnesses Radhabai (PW-4), Meerabai (PW-5) and Mullu (PW-7) are corroborating such evidence. There is nothing to disbelieve their statements. 19. Dr. A. K. Dubey (PW-1) and Dr. A. K. Jain (PW-2) respectively examined Kummer Singh and Laxmi and found them capable of performing sexual intercourse. The medical reports are Ex.P/1 and Ex.P/2. Thus it is established that appellants were found capable of performing sexual intercourse. 20. In rape cases, if the evidence of prosecutrix is reliable then conviction can be based solely on the testimony of prosecutrix. In this case, the evidence of prosecutrix is natural, probable and reliable and further her evidence is also corroborated from the evidence of other witnesses. In such situation, trial Court has not committed any illegality in holding them guilty under section 376(2)(g) of Indian Penal Code. The same is hereby affirmed. The cases which are referred by the learned counsel for the appellants are quite distinguishable from the facts and circumstances of this case. Therefore, no benefit of the same can be extended to the appellants. Since the trial Court has awarded the minimum sentence prescribed for the offence under section 376(2)(g) of Indian Penal Code, therefore, no interference is called for in the matter of sentence also. This appeal is devoid of merits and deserves to be dismissed. 21. Therefore, no benefit of the same can be extended to the appellants. Since the trial Court has awarded the minimum sentence prescribed for the offence under section 376(2)(g) of Indian Penal Code, therefore, no interference is called for in the matter of sentence also. This appeal is devoid of merits and deserves to be dismissed. 21. Consequently, the appeal fails and is dismissed accordingly. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C.J.M., Sagar on 24-11-2008 for serving out the remaining part of sentence.