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Madhya Pradesh High Court · body

2009 DIGILAW 1214 (MP)

RUPESH KUSHWAHA v. STATE OF MADHYA PRADESH

2009-10-26

SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Sessions Judge, jabalpur in S. T. No. 736/04, decided on 23. 6. 05. ( 2. ) APPELLANT has been convicted under Section 376 (1), 323 of IPC and sentenced to rigorous imprisonment for five years with fine of Rs. 1000/-, in default simple imprisonment for three months, and rigorous imprisonment for three months for the respective offences. Both the sentences were directed to run concurrently. ( 3. ) ACCORDING to prosecution, on 11. 9. 04 about 2oclock in the noon at village Amkhera, when prosecutrix was going to the field to give tiffin to her husband, appellant met her near the field of Vijay Patel, pushed her, fell her down and committed forcible sexual intercourse with her. On protest, appellant gagged her mouth and pressed her throat, caused hurt to her and fled away. When Kalawati, while passing by, saw the prosecutrix lying in the mud in the field, she informed the husband and brother of the prosecutrix. She was then taken to the Police Station Gohalpur, where she lodged the FIR of the incident, on the basis of which an offence was registered against the appellant and was investigated. Prosecutrix was sent for medical examination. On being arrested, appellant was also medically examined and was found capable of performing sexual act. The petticoat, underwear and sari of the prosecutrix and her vaginal slide prepared during her medical examination as well as underwear of the appellant and his semen slide were seized by the Police and were sent for chemical examination. After due investigation, appellant was prosecuted under Section 376, 323 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication. ( 5. ) LEARNED Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for committing rape on the prosecutrix and causing simple hurt to her, convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel for the appellant submitted that the trial court erroneously convicted the appellant on the basis of unreliable testimony of the prosecutrix without there being any corroboration from the medical evidence or other evidence. ( 7. ( 6. ) LEARNED counsel for the appellant submitted that the trial court erroneously convicted the appellant on the basis of unreliable testimony of the prosecutrix without there being any corroboration from the medical evidence or other evidence. ( 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-3) categorically deposed in her evidence that at the relevant time, when she was going to her field to give tiffin to her husband, appellant Rupesh met her near the field of Vijay patel, pushed her, beat her, undressed her and lay upon her, then committed wrong act with her. In her own words, "***". According to prosecutrix (P. W-3), she had sustained injuries on her chest, thigh neck and mouth. On being informed, her husband and brother lavkush came to the place of occurrence and took her to the Police Station, where she lodged the FIR (Ex. P-2 ). The FIR of incident was recorded by ASI sheikh Saeed Khan (P. W. 2) on the same day, i. e. 11. 9. 04 at about 4:00 P. M. ( 9. ) KALA Bai (P. W-4) also deposed that when she was passing by the field of Vijay Patel, she heard the sigh of prosecutrix and found her lying half-dressed in the mud. Parsadilal (P. W-6) also deposed that he had seen the prosecutrix lying in the mud near the field of Vijay Patel. He had then informed her husband. ( 10. ) ASHOK (P. W. 5), the husband of the prosecutrix also testified that when Parsadilal informed him, he reached the place of occurrence and found his wife lying half dressed in the mud and she told him that appellant had committed rape upon her. ( 11. ) DR. M. K. Jain (P. W-8), who medically examined the prosecutrix on 11. 9. 04, found the following simple injuries on her person and thereafter referred her to the Algin Hospital for gynecological examination:- 1. Lacerated wound of " x " x " size on the left side of lower lip. 2. Lacerated wound of "x " x " size on the right side of lip. 3. Lacerated wound of 1" x " x " size on chin. 4. Abrasion of 1" x " size on left thigh. 5. Lacerated wound of " x " x " size on the left side of lower lip. 2. Lacerated wound of "x " x " size on the right side of lip. 3. Lacerated wound of 1" x " x " size on chin. 4. Abrasion of 1" x " size on left thigh. 5. Abrasion of 3" x " size over the anterior and lateral aspect of neck. ( 12. ) DR. Kusum Jain (P. W-1) during gynecological examination of the prosecutrix also found an abrasion of 1" x " size on her left thigh. She also prepared her vaginal slide and sealed her blood and mud-stained sari and petticoat and handed over to the constable for chemical examination. Her medical report (Ex. P-1) is also on record. ( 13. ) LEARNED counsel for the appellant mainly submitted that the evidence of the prosecutrix (P. W-3) suffers from exaggerations and is not reliable; it also lacks corroboration from the medical evidence or any other evidence. According to learned counsel for the appellant, the report of the chemical examination as to the presence of spermatozoa on the clothes and vaginal slide of the prosecturix, has also not been filed on record, nor any definite opinion as to the commission of rape with the prosecutrix, has been given by doctor; as such the sole testimony of the prosecutrix could not form the basis of conviction of the appellant. ( 14. ) ALTHOUGH prosecutrix (P. W-3) was confronted with her police statement (Ex. D-1) as to the omission of certain facts stated in her evidence, but the omissions are not such so as to discard the entire evidence of the prosecutrix (P. W-3 ). On the other hand, her statement to the effect that the appellant pushed her, fell her down and sexually violated her, is found to be cogent and trustworthy; it also stands corroborated by the fact that she was seen lying in the mud in the field by Kalabai (P. W-4) as also by Parsadilal (P. W-6 ). The injuries found on the lips, chin and left thigh of the prosecutrix (P. W-3) also lend assurance to her testimony that she was ravished by the appellant. The FIR (Ex. P-2) promptly lodged by her also corroborates her version. ( 15. The injuries found on the lips, chin and left thigh of the prosecutrix (P. W-3) also lend assurance to her testimony that she was ravished by the appellant. The FIR (Ex. P-2) promptly lodged by her also corroborates her version. ( 15. ) THE statement of the prosecutrix (P. W-3) that appellant sexually assaulted her, cannot be disbelieved or rejected for the reason that the report of the chemical examination was not placed on record or the lady doctor did not give any definite opinion as to the commission of rape with her. There are also no reasons for false implication of the appellant at the instance of the prosecutrix, particularly when he was already known to her and was on good terms. It does not appeal to reason that the prosecutrix (P. W-3) would make false allegations against the appellant without any rhyme or reason at the cost of her honour, dignity and reputation. ( 16. ) IN fact, the evidence of the prosecutrix (P. W-3)against appellant inspires confidence and is found to be reliable. Minor discrepancies in the evidence of the prosecution witnesses are immaterial and not such so as to cast any doubt on the testimony of the prosecutrix (P. W. 3 ). It is well settled as reiterated by the Apex Court in the case of State of Himachal pradesh Vs. Asharam reported in 2006 AIR SCW page 6277 if the evidence of the prosecutrix inspires confidence, it can be relied upon without seeking any corroboration. ( 17. ) THE evidence of the prosecutrix (P. W-3) in the instant case that the appellant pushed her, fell her down, undressed her and lay upon her and committed wrongful act as is done between husband and wife, is eloquent enough to hold that appellant committed forcible sexual intercourse with her against her will and thereby committed rape on her. ( 18. ) IN the wake of aforesaid, the conviction of the appellant as recorded by the trial court under Section 376 (1) of ipc does not warrant any interference in appeal and deserves to be upheld. ( 19. ) IN view of the medical evidence and the statement of the prosecutrix (P. W-3), the conviction of the appellant under section 323 of IPC also does not require any interference and deserves to be affirmed. ( 20. ( 19. ) IN view of the medical evidence and the statement of the prosecutrix (P. W-3), the conviction of the appellant under section 323 of IPC also does not require any interference and deserves to be affirmed. ( 20. ) AS regards the sentence, appellant has already been awarded lesser sentence than the minimum prescribed under section 376 (1) of IPC and calls for no interference. The sentence of imprisonment for three months for the offence under Section 323 of IPC was also justified in the facts and circumstances of the case. ( 21. ) APPEAL has no merit. It fails and is hereby dismissed.