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Madhya Pradesh High Court · body

2008 DIGILAW 1379 (MP)

ISRAR v. STATE OF M. P.

2008-11-26

K.S.CHAUHAN

body2008
JUDGMENT : 1. This Criminal Appeal under section 374(2) Criminal Procedure Code has been filed being aggrieved by the judgment, finding and sentence dated 30-3-1994 passed by VIII Additional Sessions Judge, Bhopal in Special Case No. 58/91, whereby the appellants have been convicted under section 376(2)(g) read with section 34 of Indian Penal Code and sentenced to R.I. for 10 years each with fine of Rs. 200/- with fine of Rs. 200/-, in default of payment of fine further R.I. for 6 months. 2. Prosecution case in short is that PW-4 is the victim who has lodged the report at police station Gunga on 3-9-1991 at 1:00 p.m. to the effect that she resides at Barkhedi, Bhopal and is a household lady. She came to her husband at Nishatpura along with her father Tarachand and maternal uncle Heeralal. They returned after leaving her there. Her husband took her nearby to D.I.G. bungalow and proceeded towards Bairasiya by an auto. She also followed him by travelling in a tempo. Three boys were also sitting in that tempo. One of them asked as to where she is going. She stated that her husband has gone towards that side by auto, therefore, she is searching him. They said that they would search her husband. She alighted from Tempo at one place. They also alighted. She inquired about the place, one of them told that it is the Sixth Mile. They carried her in a field where there was a room. Out of them Ganga threw her on the ground, lay down over her and after removing the clothes he inserted his penis into her private part. She cried. Ganga said to Jagdish and Israr to catch, therefore, they caught hold of her and Ganga committed sexual intercourse with her. Thereafter Ganga caught hold of her and said to Israr to commit sexual intercourse. Israr also did the same act. Some other persons were coming there. They heard their voice. Ganga said to Israr and Jagdish to run away from that place. Thereafter they fled away. On this information Crime No. 167/91 under section 376/34 of Indian Penal Code was registered. Her medical examination was done. Slides were prepared and handed over to the constable. The map was prepared. Accused persons were arrested. They were also medically examined. Statements of the witnesses were recorded. Thereafter they fled away. On this information Crime No. 167/91 under section 376/34 of Indian Penal Code was registered. Her medical examination was done. Slides were prepared and handed over to the constable. The map was prepared. Accused persons were arrested. They were also medically examined. Statements of the witnesses were recorded. After completing the usual investigation the charge sheet was filed in the Special Court, Bhopal. 3. Accused persons were charged under section 376(2)(g) read with section 34 of Indian Penal Code and section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. The prosecution examined as many as 16 witnesses and the accused persons did not examine any witness in their defence. After appreciating the evidence, trial Court acquitted them from the charge under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act but convicted under section 376(2)(g) of Indian Penal Code and sentenced thereto as stated hereinabove in para 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence passed by the trial Court, instant appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Shri M.A. Khan, Advocate was engaged by the appellants as their counsel but he did not appear on the date of hearing on 14-5-2008 to argue the case. The appeal was pending since 1994. Therefore, Shri R. N. Mishra has been appointed from the panel of the High Court Legal Aid Services Committee to argue the case on behalf of the appellants so that the appeal may be disposed of expeditiously. 5. Shri R. N. Mishra, learned counsel for the appellants submitted that trial court has not appreciated the evidence in proper perspective. No independent witness has supported the prosecution case. There are material contradictions and omissions in the statement of the prosecutrix. Doctor did not find any injury on her vaginal part. She was a consenting party, therefore, the finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. 6. On the contrary, Shri Deepak Awasthy, learned G.A. appearing on behalf of respondent/State supported the impugned judgment, finding and sentence mainly contending that prosecutrix is the sufferer. She was a consenting party, therefore, the finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. 6. On the contrary, Shri Deepak Awasthy, learned G.A. appearing on behalf of respondent/State supported the impugned judgment, finding and sentence mainly contending that prosecutrix is the sufferer. The manner and method of commission of offence is that two appellants used to catch hold of her and one used to commit sexual intercourse with her hence she was not a consenting party. The finding of guilt is based on the proper appreciation of evidence, therefore, it does not call for any interference. 7. The main point for consideration in this appeal is that whether trial Court has committed any illegality in convicting and sentencing the appellants under section 376(2)(g) of Indian Penal Code? 8. PW-4 is the victim who has deposed that at the time of incident she was searching her husband and was going towards Navibagh in a tempo. The appellants were also sitting in that tempo. Since it was night, therefore, she could not alight at the proper place but when she tried appellants assured to leave at her house. When the tempo stopped she alighted, appellants also followed. They carried her in a field where there was a construction like a hut. They committed forcible sexual intercourse with her in succession. Two of them used to catch hold of her and one used to commit sexual intercourse with her. She tried to escape but in vain. When escaped she ran away making hue and cry "Bachao Bachao". Some persons were going from there. They asked as to what has happened she narrated the story. Thereafter she lodged the F.I.R. (Ex.P/4) at outpost Itkhedi. 9. A lengthy cross-examination has been done to this witness wherein various contradictions and omissions have been brought from police report (Ex.P/4) and the police statement (Ex.D-1). These are relating to the facts that whether her father and maternal uncle left her at Nishatpura in her in-laws house, where her husband met, how they come to D.I.G. bungalow and when her husband went from there. These contradictions and omissions are not of much significance because the suggestion has been given to this witness by appellants that she has taken Rs. 20/- from each of the appellants and hence was a consenting party. These contradictions and omissions are not of much significance because the suggestion has been given to this witness by appellants that she has taken Rs. 20/- from each of the appellants and hence was a consenting party. Therefore, the inconsistencies on insignificant point will not adversely affect her testimony. 10. No doubt, there was darkness but she has deposed that in the light of tempo she identified them and they were the same persons who committed forcible sexual intercourse with her. She has given evidence in great detail as to how they committed forcible sexual intercourse with her. According to her they were also naming each other therefore she came to know the names of the appellants. Thus she has given evidence against these appellants. It is evident that she did not know these appellants from before the incident, therefore, there was no any question of ill-will or goodwill against them. There was also no question of falsely implicating them. She is victim. Her evidence is quite natural which inspires confidence. Her evidence alone is sufficient to convict the appellants. 11. Braj Kishore (PW-9) is the husband of victim. She has also deposed that in the night he waited for his wife but she could not come. On the next day when she met she apprised him about this incident. 12. Dr. Versha Mukherjee (PW-16) examined the victim and found abrasions on her left knee and leg as described in medical report Ex.P-5. However, she did not find any external injury on her private part. According to her no definite opinion regarding rape can be given. Such opinion can only be given after chemical examination. Further she has deposed that she prepared two slides of vaginal swab which were handed over to the constable. Her petticoat was also taken which was sealed and handed over to the constable. Her medical report is Ex.P/5. 13. Dr. C. S. Jain (PW-8) was Medical Officer in Medico Legal Institute, Bhopal on 21.10.1991. On that day he received two sealed packets of two slides of vaginal swab and one petticoat. On examination he found that there was spermatozoa on the vaginal swab and petticoat. He has given his report Ex.P-14. Thus it is proved by the evidence of Dr. C. S. Jain that the spermatozoa were found on these articles. It also supports the story of prosecution. 14. The appellants were also arrested. On examination he found that there was spermatozoa on the vaginal swab and petticoat. He has given his report Ex.P-14. Thus it is proved by the evidence of Dr. C. S. Jain that the spermatozoa were found on these articles. It also supports the story of prosecution. 14. The appellants were also arrested. Their medical examination was done by Dr. R. K. Sharma (PW-5) who found them competent to commit sexual intercourse and has given the medical reports Ex.P-6 to Ex.P-8. According to this witness, the underwear and semen slides of the appellants were handed over to the constable. Dr. C. S. Jain (PW-8) has also examined the same. On examination, he found that underwear is positive for squaurous epithelial cell. Semen slides were having normal spermatozoa. Report is Ex.P-11 and Ex.P-12. He has also stated that semen slide was positive for normal spermatozoa and has submitted the report Ex.P-13. 15. This witness in cross-examination has stated that he has not written the name of any person in the report but article number is written in it. 16. On perusal of these reports it is manifestly clear that these reports pertains to Crime No. 167/91 of Police Station Gunga. This case has emerged out from Crime No. 167/91. Thus by omission of name of appellants will not adversely affect the prosecution case. 17. Thus from the report it is evident that the epithelial cells were found on the underwear and the spermatozoa were found on the semen slides. The result of chemical analysis is against the appellants. 18. On critical appraisal of evidence adduced on behalf of prosecution it is clearly established that forcible sexual intercourse was done with victim (PW-4). 19. The main defence of the appellants is that she was a consenting party but in the evidence adduced before the Court she has specifically stated that forcible sexual intercourse was done with her. According to section 114A of the Indian Evidence Act where sexual intercourse by the accused is proved and the question is whether it was without the consent of the women alleged to have been raped and she states in her evidence before the Court that she did not consent the Court shall presume that she did not consent. 20. Section 376(2)(g) of Indian Penal Code envisages about the commission of gang rape. 20. Section 376(2)(g) of Indian Penal Code envisages about the commission of gang rape. Explanation 1 says that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. 21. Thus in the light of the aforesaid provisions and the evidence of this case, it is manifestly clear that the appellants have committed gang rape. Thus, the prosecution has proved the case beyond reasonable doubt against the appellants. The trial Court has given cogent reasons for arriving at the conclusion regarding the guilt of the appellants. There is no any infirmity, illegality or perversity in such finding, therefore, the same is hereby affirmed. The minimum sentence prescribed for the offence has been awarded, therefore, it also does not call for any interference. This appeal is meritless and deserves to be dismissed. 22. Consequently, this appeal fails and is dismissed accordingly. The appellants are on bail. Their bail bonds are cancelled. They be directed to appear before C.J.M., Bhopal on 26-12-2008 for serving out the remaining part of the sentence.