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2008 DIGILAW 1360 (MP)

HARAKH CHAND v. STATE OF M P

2008-11-21

SUSHMA SHRIVASTAVA

body2008
Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Sessions Judge, Khandwa in S. T. No. 228/92, decided on 1. 10. 94. ( 2. ) APPELLANT has been convicted under Section 376 of IPC and sentenced to rigorous imprisonment for three years with fine of Rs. 500/-, in default further rigorous imprisonment for fifteen days, by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 31. 8. 90 about 11 oclock in the morning at village Moondi, prosecutrix had gone towards the colony road for grazing her cattle. Her goats, while grazing, had gone towards the appellants field. Appellant was also grazing his cattle in his field. When prosecutrix went to the field of appellant to bring back her goats, appellant came to her, caught hold of her hands, fell her on the ground and forcibly committed sexual intercourse with her. Prosecutrix shouted for help, but nobody came to her rescue, as none was present there. After committing sexual intercourse, appellant threatened and intimidated the prosecutrix not to disclose the incident to anyone. Prosecutrix somehow came back to her house and narrated the whole incident to her father and other family members. Her father took her to the Police Station to lodge the report. On the basis of her report, an offence was registered at Police Station Moondi against the appellant and was investigated. Prosecutrix was sent for medical examination. She was also sent for radiological examination for confirmation of her age. On being arrested, appellant was also sent for medical examination. The petticoat and vaginal slide of the prosecutrix and underwear and seminal slide of the appellant collected during medical examination were seized by the Police and sent for forensic examination. After due investigation, appellant was prosecuted under Section 376, 506 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication. According to the appellant, he prevented the prosecutrix from grazing cattle in his field, so she lodged a false report. ( 5. ) LEARNED Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty under Section 376 of IPC, convicted and sentenced him as aforesaid by the impugned judgment. Hence, this appeal. ( 6. ( 5. ) LEARNED Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty under Section 376 of IPC, convicted and sentenced him as aforesaid by the impugned judgment. Hence, this appeal. ( 6. ) LEARNED counsel for the appellant submitted that the trial court erroneously convicted the appellant on the basis of sole testimony of the prosecutrix without their being any medical evidence on record and failed to consider that the prosecutrix was a major lady and a consenting party, as there were no injuries on her person. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant. ( 8. ) PERUSED the evidence on record. Prosecutrix (P. W-1) categorically deposed in her evidence that on the day of occurrence she was grazing her goats on the colony Road at village Moondi and some of her goats h ad gone to appellants field where he was grazing his cattle; prosecutrix went to take back her goats, appellant caught hold of her hand, forcibly fell her down, sat upon her and forcibly committed sexual intercourse with her. Prosecutrix shouted for help, but none was present there to come to her rescue. Prosecutrix then went to her house and narrated the incident to her parents and lodged the FIR (Ex. P-1) at the Police Station. ( 9. ) THE evidence of the prosecutrix also stood corroborated by the testimony of her sister-in-law Sukhai Bai (P. W-2), to whom she narrated the incident. Sukhai bai (P. W-2) deposed in her evidence that prosecutrix had gone to jungle to graze the goats and she came back weeping and narrated that appellant had sexually assaulted her; then the matter was reported to the Police. The FIR (Ex. P-1) was lodged same day. ( 10. ) DESPITE extensive cross-examination of the prosecutrix (P. W-1), nothing has been elicited so as to disbelieve or distrust her version. There is nothing in her evidence to indicate that appellant was falsely implicated. The FIR (Ex. P-1) was lodged same day. ( 10. ) DESPITE extensive cross-examination of the prosecutrix (P. W-1), nothing has been elicited so as to disbelieve or distrust her version. There is nothing in her evidence to indicate that appellant was falsely implicated. Prosecutrix refuted the suggestion made in her cross-examination that appellant had slapped her when her cattle trespassed into his field or she had quarreled with him: It does not appeal to reason that on account of so called quarrel over cattle trespass, prosecutrix (P. W-1) would lodge a false report of rape against the appellant at the cost of her dignity, honour and reputation. In fact upon close and careful scrutiny of the evidence of the prosecutrix (P. W-1), her evidence is found cogent, trustworthy and it inspires confidence. ( 11. ) LEARNED counsel for the appellant submitted that there was no medical evidence on record to suggest that the prosecutrix was raped and she admittedly did not sustain any injuries, therefore, the possibility of her being a consenting party could not be ruled out. ( 12. ) ALTHOUGH the prosecution did not examine the doctor, who had medically examined the prosecutrix after the incident, but that cannot be a reason to discard the version made by her against the appellant, which remained virtually unimpeached. The Apex Court in the case of State of M. P. Vs. Dayal Sahu reported in (2005) 8 Supreme Court Cases page 122 has held that non-examination of the doctor and non-production of the doctors report would not be fatal to the prosecution case if the statement of the prosecutrix and other prosecution witnesses inspire confidence. ( 13. ) MOREOVER, prosecutrix (P. W-1) has explained in her cross-examination that appellant fell her on the grass and mud, therefore, she did not sustain any abrasion. Prosecutrix (P. W-1) stated in her cross-examination that she had tried to resist the act of the appellant and also shouted for help and had a scuffle with him; the scuffle some of her bangles had broken, but she did not sustain any injury. Thus, it does not appear that the prosecutrix was a consenting party. The mere fact, that prosecutrix (P. W-1) did not sustain any injury in the incident, would not ipso facto mean that she did not resist or was a consenting party. The Apex Court in the case of State of Rajasthan Vs. Thus, it does not appear that the prosecutrix was a consenting party. The mere fact, that prosecutrix (P. W-1) did not sustain any injury in the incident, would not ipso facto mean that she did not resist or was a consenting party. The Apex Court in the case of State of Rajasthan Vs. N. K. reported in AIR 2000. SC Page 1812 has held that the absence of visible mark of injuries on the person of prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had not offered any resistance at the time of commission of crime; and absence of injuries on the person of prosecutrix is not necessarily an evidence of falsity of allegation or an evidence of consent on the part of prosecutrix. It was also reiterated by the Apex Court in the case of Dastagir sab and another Vs. State of Karnataka reported in AIR 2004 SC page 2884, that the absence of injury on the person of prosecutrix would not by itself be sufficient to discard the prosecution case. ( 14. ) IT is also well settled, as reiterated by the Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in 2005 AIR SCW page 6009 that conviction can be founded on the testimony of the prosecutrix alone, if her testimony inspires confidence and is found to be reliable. ( 15. ) IN the instant case, as already said, the evidence of the prosecutrix (P. W-1)is found to be cogent, natural and trustworthy, which also stood corroborated by the promptly lodged FIR (Ex. P-1) as well as by the evidence of Sukhai Bai (P. W-2) to whom the incident was narrated by her. It was thus established from the evidence on record beyond periphery of doubt that appellant committed rape on the prosecutrix (P. W-1 ). ( 16. ) IN view of the aforesaid, the conviction of the appellant under Section 376 of IPC, as recorded by the trial court, does not call for any interference in this appeal. ( 17. ) AS regards the sentence, the impugned sentence of rigorous imprisonment for three years, which was already less than the minimum prescribed under Section 376 (1) of IPC, also does not warrant any interference. ( 18. ) CONSEQUENTLY, appeal being bereft of any merit is hereby dismissed. ( 17. ) AS regards the sentence, the impugned sentence of rigorous imprisonment for three years, which was already less than the minimum prescribed under Section 376 (1) of IPC, also does not warrant any interference. ( 18. ) CONSEQUENTLY, appeal being bereft of any merit is hereby dismissed. ( 19. ) APPELLANT is on bail. He shall forthwith surrender to his bail bonds to serve out the remaining part of sentence. Appeal dismissed.