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Madhya Pradesh High Court · body

2008 DIGILAW 730 (MP)

Baliram Alias Bali v. State Of M. P.

2008-06-16

K.S.CHAUHAN

body2008
JUDGMENT : This Criminal Appeal under section 374(2) of Criminal Procedure Code has been filed being aggrieved by the judgment, finding and sentence dated 4-10-2005 passed by First Additional Judge to the Court of First Additional Sessions Judge, Katni in Sessions Trial No. 71/2005, whereby the appellant has been convicted under sections 363, 366 and 376/511 of Indian Penal Code and sentenced to R.I. for 2 years with fine of Rs. 500/-, R.I. for 7 years with fine of Rs. 500/- and R.I. for 10 years with fine of Rs. 1,000/-, in default of payment of fine R.I. for 1 month, 1 month and 2 months respectively. 2. Prosecution case in short is that victim aged 10 years was residing with father and grandmother at village Basadi and was studying in class-IVth. On 14-2-2005 at 6:00 p.m. she went to kirana shop to purchase some rice. On returning therefrom she was sitting on turning with Puja Gupta. Appellant came there on a bicycle and on his assurance that she will be dropped at her house, he carried her on bicycle to Nursery. He removed his pant and the chaddi of the prosecutrix. She started weeping. He pressed her mouth, lie down on the ground and tried to mount over her. She again started weeping then he left her and threatened not to tell this thing to anybody else then he put on his pant and prosecutrix also put on her chaddi. Then he dropped her at some place near to her house from there she went to her house on foot. There she narrated entire incident to her father, uncle and grandmother. It was also stated that she sustained the nail marks on her left cheek on account of pressing of her mouth by the appellant. On this Crime No. 26/2005 was registered under sections 376, 506 and 511 of Indian Penal Code at police station Badwara. She was sent for medical examination which was conducted by Dr. Versha Rai (PW-4). Map was prepared. Statements of the witnesses were recorded. Accused was arrested. After completing the investigation, charge-sheet was filed in the Court of J.M.F.C., Katni who committed the case to the Sessions Court for trial. 3. Appellant was charged under sections 363, 366 and 376/511 of Indian Penal Code. He abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated. Accused was arrested. After completing the investigation, charge-sheet was filed in the Court of J.M.F.C., Katni who committed the case to the Sessions Court for trial. 3. Appellant was charged under sections 363, 366 and 376/511 of Indian Penal Code. He abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 9 witnesses and appellant examined 2 witnesses in defence. After appreciating the evidence, trial Court found him guilty under sections 363, 366 and 376/511 of Indian Penal Code and convicted and sentenced thereunder as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the judgment finding and sentence passed by trial Court, instant appeal has been preferred on the grounds mentioned therein. 4. Learned counsel for the appellant has submitted that there is delay in lodging F.I.R. Appellant did not take or entice the prosecutrix but she accompanied at her own will. She has not sustained any injury. No offence under section 376/511 of Indian Penal Code is made out, maximum offence under section 354 of Indian Penal Code may be made out. Learned counsel further submitted that there is old rivalry in between the parties. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 5. On the contrary, Smt. Sushila Paliwal, learned G.A. appearing on behalf of the respondent/State supported the impugned judgment, finding and sentence mainly contending that the statement of prosecutrix is corroborated by the medical evidence. The finding of guilt is proper hence does not call for any interference. 6. The main point for consideration in this appeal is that whether trial Court has committed any illegality in convicting and sentencing the appellant under sections 363, 366 and 376/511 of Indian Penal Code? 7. Victim (PW-6) is the star witness to this case. She has stated in her deposition that she went to purchase rice from kirana shop in the evening. Pooja Gupta (PW-8) was also with her. When she was returning therefrom she saw appellant was sitting near a 'Tapra'. He was having bicycle and asked her to drop her at her house. 8. Dinesh Kumar (PW-3) has also supported her version regarding purchasing of rice from his shop. Pooja Gupta (PW-8) has also supported the fact that victim bought rice from the shop and appellant also came there. 9. He was having bicycle and asked her to drop her at her house. 8. Dinesh Kumar (PW-3) has also supported her version regarding purchasing of rice from his shop. Pooja Gupta (PW-8) has also supported the fact that victim bought rice from the shop and appellant also came there. 9. Victim (PW-6) has further stated in her evidence that appellant carried her to Nursery on bicycle. He searched quarter of wine there but could not find. He remove his pant and also removed her chaddi and did bad work. She started weeping. He pressed her mouth and as a consequence blood started oozing out from her cheek. She sustained injuries there. Thereafter he stated not to tell this thing to anybody else then he left her at some distance from where she came to her house and narrated the story to her grandmother. This witnesses has been subjected to a lengthy cross-examination wherein she has stated that she did not accompany appellant voluntarily. Appellant carried her to Nursery through other way than the way which passes through her house saying that he has to search wine quarter which was kept in Nursery. Her evidence is intact on the material point. Her testimony has nowhere been shattered in cross-examination and there is nothing to disbelieve her statement. 10. Bhura (PW-7) and Munni Bai (PW-5) have also corroborated the statement of victim wherein they have mainly stated that victim told them that appellant carried her in Nursery, removed her chaddi and did bad work with her. She has also stated that on account of pressing her mouth and throat she sustained injuries on her cheek. Then they went to make the complaint to Narayan (PW-2) who has also corroborated such fact. Munni Bai (PW-5) also made the complaint to the mother of the appellant. Then on the next day victim lodged the F.I.R. (Ex.P/3) at Police Station Badwara which was recorded by P. S. Garewal (PW-9). He sent her for medical examination. Dr. Versha Rai (PW-4) examined her and found 7 abrasions 1 cm to .25 cm and one contusion 2 x 2 cm on her left cheek, caused by hard and blunt object within 24 hours of her examination. Medical report is Ex.P/2 which contains her signature. 11. He sent her for medical examination. Dr. Versha Rai (PW-4) examined her and found 7 abrasions 1 cm to .25 cm and one contusion 2 x 2 cm on her left cheek, caused by hard and blunt object within 24 hours of her examination. Medical report is Ex.P/2 which contains her signature. 11. Thus, the version of victim is supported by the statement of her father Bhura (PW-7), grandmother Munni Bai (PW-5) and Narayan Soni (PW-2) and further corroborated by the statement of Dr. Versha Rai (PW-4) 12. The defence of the appellant is that he has been falsely implicated on account of enmity but no evidence is given in support of such defence. The evidence of Gundhilal (DW-1) and Shivkumar (DW-2) have no bearing on this point because it is deposed in their evidence that Baliram carried Gundhilal at about 10 p.m. but this incident is of the evening time therefore the defence is of no consequence. 13. By way of this evidence prosecution tried to establish offences charged against appellant. 14. The first contention of the learned counsel of the appellant is that there is delay in lodging F.I.R., hence fatal to prosecution. 15. On perusal of F.I.R. (Ex.P/3) it reveals that the incident is of 14-2-2005 at 6:00 p.m. and the report is lodged on 15-2-2005 at 13:00 p.m. The incident is of Nursery Basadi Forest which is 14 kilometres away from concerned Police Station. The reason for lodging delayed F.I.R. is that there were no any means of communication. 16. It is settled position of law that mere delay in filing of F.I.R. is not a ground in itself for discarding the case. Totality of the facts has to be looked into. [See Ranjit Das vs. State of W. B., 2000 Cri.L.J. 1241 (Cal)]. In a rape case as honour of family was involved delay of 10 days was held reasonable. [See Harpal, 1981 Cri.L.J. 1 (SC)]. Delay in filing F.I.R. in rape case should be ignored where it is plausibly explained. [See State of Maharashtra vs. Sarala Sagu Kokare, (1997) Cri.L.J. 786 (Bom)]. 17. So far as the present case is concerned, the delay has properly been explained, therefore, it is not fatal to the prosecution. 18. The next contention of the learned counsel for the appellant is that the appellant did not take or entice the victim but she herself accompanied with him. 17. So far as the present case is concerned, the delay has properly been explained, therefore, it is not fatal to the prosecution. 18. The next contention of the learned counsel for the appellant is that the appellant did not take or entice the victim but she herself accompanied with him. But this contention is not acceptable for the simple reason that victim has clearly denied the suggestive question put to her that she herself accompanied the appellant. Furthermore, she has stated that appellant asked her to accompany with him to drop at her house. The appellant instead of carrying her at her house carried to a Nursery. She was minor. She was taken by appellant without the consent of her lawful guardian. She was kidnapped with intent to compel her to illicit intercourse with him in Nursery. He put off his clothes and also removed the chaddi of victim and mounted over her and when she tried to weep he pressed her mouth as a result thereof she sustained the injuries on her left cheek. This clearly goes to show that he made attempt to commit rape with her. 19. The next contention of the learned counsel of the appellant is that offence under section 376/511 has not been made out. He has placed reliance on the decisions rendered in the case of State of Punjab vs. Major Singh, AIR 1967 SC 63 and in the case of State vs. Babulal Ramlal, 1960 MPLJ 161 . The distinction between rape and attempt to rape is very meagre. In Rex vs. James Lloyd, (1) (1836) SC and P 318 (173 E R 141) while summing up the charge to the jury, Justice Patterson observed : "In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part." In Impress vs. Shankar, (2) I.L.R. 5 Bom. 403 the accused was charged for an attempt to commit rape. 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill J., which are quoted below, are very pertinent : "We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance." 20. So far as the present case is concerned, the victim was only of 10 years whereas the appellant was of 29 years. He removed his pant and also removed the chaddi of victim, mounted over her, did bad work and when she started weeping he pressed her mouth. On account of which she sustained the injuries. So by all means he intended to commit sexual intercourse notwithstanding any resistance on her part therefore this is not only the criminal assault but an attempt to commit rape. The cited cases are distinguishable on facts and are of no help to the appellant. 21. The statement of victim is quite natural, probable and hence reliable. As stated earlier, her statement has been supported by the evidence of her father, grandmother and also by other witnesses. Her testimony is further corroborated by medical evidence. Prosecution has proved the case beyond reasonable doubt against the appellant. Trial Court has not committed any illegality in convicting the appellant under section 363, 366, 376/511 of Indian Penal Code hence finding of guilt is hereby affirmed. 22. Learned counsel for the appellant has submitted that the appellant is in jail since February, 2005 therefore he should be released on the period already undergone. But keeping in view the seriousness of the offence committed by the appellant, he does not deserve to be released. The sentence being not excessive is also hereby affirmed. The appeal is meritless and hence deserves to be dismissed. 23. Consequently, the appeal fails and is dismissed accordingly.