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Madhya Pradesh High Court · body

2009 DIGILAW 1238 (MP)

Ashok Kumar v. State of M. P.

2009-11-03

RAKESH SAKSENA, S.C.SINHO

body2009
JUDGMENT Rakesh Saksena, J. 1. Since all the aforesaid appeals arise out of the common impugned judgment, they are being disposed of by this common judgment. 2. Appellants have filed these appeals against the judgment dated 27th November, 2002 passed by the Additional Sessions Judge, Rewa in Sessions Trial No. 191/2001 convicting them under Section 376(2)(g) of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 1,000/- each. 3. In short, prosecution case is that on 25.9.2001 at about 6:30 p.m. when prosecutrix boarded the jeep/taxi from Atraila triangle for going to her house in village Moaniya, accused persons, who were in the jeep, took her away. They did not stop the jeep even on her raising hue and cry. Accused Ashok caught hold of her breast and dropped her on the back seat of the jeep. When she tried to push him away, accused Umesh pressed her hands and mouth and then Ashok rolled over her sari and petticoat and committed rape on her in the moving jeep. After him, accused Manoj who was driving the jeep came on the back seat and also committed rape on her. At that time, Ashok drove the jeep. When jeep reached near Kalyanpura turn, they told her that they would do away with her and threw her away in the forest of Dabhoura. They turned the jeep again towards village Atraila. Near a culvert, when she saw two persons watering the field, she shouted and jumped from the jeep and accused persons went away in the jeep. She narrated the incident to the persons who were watering the field and also to two other persons who reached there on a motorcycle. According to her, her bangles were broken in the jeep and she had suffered abrasions on knee and elbow. Prosecutrix went to Police Station Atraila on the same day and lodged first information report Ex.P-3 at 8:30 p.m. naming all the three accused persons. She was sent for medical examination to Gandhi Memorial Hospital, Rewa. Dr. (Smt.) Archala Tripathi examined prosecutrix on 27.9.2001. She did not find any mark of injury on her knee and head. In her opinion, prosecutrix was used to sexual intercourse, therefore, no definite opinion about the recent intercourse could be given. Her sari and petticoat were seized and sealed. She was sent for medical examination to Gandhi Memorial Hospital, Rewa. Dr. (Smt.) Archala Tripathi examined prosecutrix on 27.9.2001. She did not find any mark of injury on her knee and head. In her opinion, prosecutrix was used to sexual intercourse, therefore, no definite opinion about the recent intercourse could be given. Her sari and petticoat were seized and sealed. She also prepared slide of her vaginal swab and after sealing it handed it over to constable. Accused persons were arrested on 26.9.2001 and were sent for medical examination. From their possession, a Commander jeep was seized vide seizure memo Ex.P-6. From the seat of the jeep, broken bangles were also seized. Slide and clothes of prosecutrix were sent to Forensic Science Laboratory, Sagar. Spermatozoa were detected in the slide and petticoat of the prosecutrix. After investigation, charge-sheet was filed and the case was then committed for trial. 4. Accused persons abjured their guilt. According to them, they were falsely implicated due to enmity. They had inimical relations with the relatives of the prosecutrix, therefore, prosecutrix lodged false report against them, however, they did not adduce any evidence. 5. For substantiating its case, prosecution examined ten witnesses viz. Dr. (Smt.) Archala Tripathi (PW1), Valmik Prasad Patwari (PW2), prosecutrix herself (PW3), Devdatt Tiwari (PW4), Anil Kumar Dwivedi (PW5), Constable Chhedilal (PW6), Mahesh Singh Lodhi (PW7), Head Constable Mahendra Singh (PW8), Head Constable Jagannath Saliu (PW9) and Jagdish Prasad (PW 10). Witnesses viz. Devdatt Tiwari (PW4), Anil Kumr Dwivedi (PW5), Mahesh Singh Lodhi (PW7) and Jagdish Prasad (PW10), to whom the prosecutrix met after getting released from the clutches of accused persons, did not support the prosecution case. They were declared hostile. Trial Court, however, relying on the evidence of prosecutrix (PW3) held the accused-Appellants guilty and convicted and sentenced them as mentioned above. 6. Learned Counsel for the Appellants submitted that the evidence of the sole prosecutrix (PW3) was not reliable. Her evidence was not corroborated by the medical evidence of Dr. (Smt.) Archala Tripathi (PW1) and also by the evidence of Devdatt Tiwari (PW4), Anil Kumar Dwivedi (PW5) and Mahesh Singh Lodhi (PW7) and Jagdish Prasad (PW10). Counsel submitted that learned trial Judge committed error in convicting the accused persons on the basis of uncorroborated sole testimony of prosecutrix. Apart from that, they submitted that award of sentence of life imprisonment to accused persons was excessive. Counsel submitted that learned trial Judge committed error in convicting the accused persons on the basis of uncorroborated sole testimony of prosecutrix. Apart from that, they submitted that award of sentence of life imprisonment to accused persons was excessive. No special reason was assigned by the trial Judge for imposing the maximum jail sentence. Accused persons were young boys in their twenties and the prosecutrix was also not a minor girl. The incident occurred because they could not control their urge, therefore, their sentence of imprisonment deserved to be reduced. They placed reliance on Dilip and Anr. v. State of M.P. 2001(2) BLJ 89 : AIR 2001 SC 3049 , State of Maharashtra v. Abdul Hafix Faroki and Ors. AIR 1998 SC 2382 , Devinder Singh and Ors. v. State of Himachal Pradesh AIR 2003 SC 3365 , Hurji v. State of Rajasthan 2002 Cri.LJ 472, Sanju alias Sanjay and Anr. v. State of M.P. 2005(1) MPLJ 334 , Badrilal v. State of M.P. 2004(4) MPLJ 149, Promod Mahto and Ors. v. The State of Bihar AIR 1989 SC 1475 and Kailash v. State of M.P. 2005(3) MPLJ 346. Per contra, justifying the impugned judgment, learned Counsel for the State submitted that the evidence of prosecutrix was wholly reliable. Merely because other witnesses turned hostile, the evidence of prosecutrix, which was otherwise natural and reliable, cannot be disbelieved. Prosecutrix was a married lady of about 22 years of age, she had delivered a child, therefore, even if no injuries were found on her private parts, the story of rape given by her cannot be thrown away. He placed reliance on Rafiq v. State of Uttar Pradesh AIR 1981 SC 96 , and Kamalanantha and Ors. v. State of Tamil Nadu (2005)5 SCC 194 . 7. We heard the learned Counsel of both the sides at length and perused the impugned judgment and the evidence and material on record carefully. 8. Prosecutrix (PW3) deposed that she knew all the three accused persons. She was returning to her village after reaping the paddy crops from village Rimari. She boarded the bus and alighted at Atraila crossing. While she was waiting for a bus for her village, accused Ashok came in a jeep. Accused Manoj and Umesh were also in the jeep. They insisted her to board the jeep assuring her that they would drop her at village Itoha. She boarded the bus and alighted at Atraila crossing. While she was waiting for a bus for her village, accused Ashok came in a jeep. Accused Manoj and Umesh were also in the jeep. They insisted her to board the jeep assuring her that they would drop her at village Itoha. On their insistence, she boarded the jeep. Manoj drove the jeep and Ashok came and sat on the back seat near her. While jeep was moving, he put his hand around her shoulder and touched her breast. When she resisted, Ashok abused her and asked Umesh to catch hold of the prosecutrix. Umesh held her hands and pressed her mouth. She resisted and shouted, but Ashok rolled over her clothes and committed rape on her. He then asked Manoj to come. Manoj came on the back seat and committed rape. Umesh kept on pressing her mouth and holding her hands. When jeep reached near the house of Ramdhani, she jumped from the jeep. Manoj then threw away her bag. Chhotkau, son of Rajnath, came there on a motorcycle, to whom she narrated the incident. Accused persons went away in the jeep. With Chhotkau, she went to police station and lodged the report Ex.P-3 at 8:30 p.m. She was sent to hospital at Rewa where she was medically examined. According to her, her bangles were broken in the jeep. Prosecutrix was subjected to a lengthy cross-examination but she remained firm on the substantial part of her version. Minor contradictions pointed out in her statement, in our opinion, cannot be held to be material, affecting the veracity of the testimony of the prosecutrix. Contradictions in the nature of details of the incident viz. what conversation took place between accused and the prosecutrix when she boarded the jeep or the details and the manner in which the incident occurred or by which hand the accused pressed her breast and how the accused Manoj came on the back seat and Ashok went on the driving seat, in our opinion, do not render the evidence of prosecutrix unreliable. Except mere suggestion that prosecutrix gave false evidence on the move of Rajnath Tiwari, no evidence or material was adduced by the accused persons to indicate the reason for their false implication by her. Except mere suggestion that prosecutrix gave false evidence on the move of Rajnath Tiwari, no evidence or material was adduced by the accused persons to indicate the reason for their false implication by her. It is significant to note that Devdatt Tiwari s/o Rajnath Tiwari (PW4), who is also known by the name of Chhotkau, himself did not support the prosecution case and turned hostile. According to prosecutrix, after the occurrence, she had narrated the incident to him and with him she had gone to police station to lodge the report, but Devdatt himself did not extend support to prosecutrix. This, in our opinion, clearly indicated that the suggestion put to prosecutrix that she deposed false at the behest of Rajnath Tiwari, had no basis. 9. It is true that Devdatt Tiwari (PW4), Anil Kumar Dwivedi (PW5), Mahesh Singh Lodhi (PW7) and Jagdish Prasad (PW10) did not support the prosecution case and resiled from the statements given by them to police that prosecutrix jumped from the jeep and narrated the occurrence to them, but merely by that, the evidence of prosecutrix which otherwise appears consistent, natural and reliable, cannot be discarded. 10. Dr. (Suit.) Archala Tripathi (PW1) examined prosecutrix on 27.9.2001. According to her, prosecutrix was a married lady of about 22 years of age and she had also given birth to a child. Though she had complained about pain in her back and right knee but no mark of injury was found on her body. Since prosecutrix was used to sexual intercourse, it was not possible to give opinion about any recent intercourse. She also did not find any injury on her private parts. 11. Learned Counsel for the Appellants submitted that in case of gang rape by two persons, it was necessary that prosecutrix should have suffered some injury on private parts. Absence of external injuries and any injury on her private parts rendered her testimony unreliable. They placed reliance on Dilip (supra), wherein apex Court held that where narration of incident given by prosecutrix was contradicted by statement of her aunt to whom she had narrated the story of sexual assault, also by the medical evidence and report of Forensic Science Laboratory, truthfulness of version of prosecutrix being doubtful, cannot be relied upon. They placed reliance on Dilip (supra), wherein apex Court held that where narration of incident given by prosecutrix was contradicted by statement of her aunt to whom she had narrated the story of sexual assault, also by the medical evidence and report of Forensic Science Laboratory, truthfulness of version of prosecutrix being doubtful, cannot be relied upon. In the case of Dilip (supra), the house of prosecutrix was situated in a populated village by the side of the main road where people were moving, on account of Holi festival. The prosecutrix was alleged to have raised hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix was said to have sustained injuries, which blended from her private parts staining her body as also the clothes which she was wearing, but this part of the story was not corroborated by the medical evidence, it was rather belied thereby. The presence of bloodstains was not confirmed by Forensic Science Laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt, to whom she narrated the story of sexual assault, gave the version, which did not tally with the version of the prosecutrix. In those circumstances, apex Court held that the truthfulness of the version of the prosecutrix was not acceptable as her narration of the incident became basically infirm. It is true that in the present case also no internal and external injuries were found on the person of prosecutrix, yet there is basic difference in the facts of two cases as the prosecutrix in the present case happened to be a married lady who had given birth to a child, whereas in case of Dilip (supra), the prosecutrix was aged about 16 years and was unmarried. In para 19 of her evidence, prosecutrix categorically stated that she did not suffer any injury on her body. It has not come on record that when prosecutrix had jumped from the jeep, jeep was moving. According to her, when she had jumped, she had fallen and suffered injuries on her knee and back side of her head, but in our opinion, it was not essential that there should have occurred any visible injury as prosecutrix was wearing petticoat and sari which could have prevented infliction of a visible injury. 12. According to her, when she had jumped, she had fallen and suffered injuries on her knee and back side of her head, but in our opinion, it was not essential that there should have occurred any visible injury as prosecutrix was wearing petticoat and sari which could have prevented infliction of a visible injury. 12. Apex Court in the case of State of Himachal Pradesh v. Gian Chand AIR 2001 SC 2075 , held in para 13: ...If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.... 13. In State of Maharashtra v. Abdul Hafix Faroki (supra), Hon'ble apex Court disbelieved the evidence of prosecutrix because her evidence was inconsistent with the medical evidence. The prosecutrix was subjected to rape in a running train by eight persons and that too twice and they pushed her out of the running train after giving kicks to her. But except for a small incised wound on her right hand and some minor superficial abrasions no other injury was found. Apart from that, there was no evidence to show that prosecutrix raised shouts while accused were taking her forcibly to Railway Yard. In those circumstances, the apex Court affirmed the findings recorded by the High Court that possibly prosecutrix had gone willingly with the accused persons and had falsely involved them. In the present case, trial Court has found, and in our opinion rightly, that the testimony of prosecutrix was trustworthy and inspired confidence in the given circumstances of the case. 14. In Devinder Singh (supra), prosecutrix was subjected to sexual intercourse by five persons. No injury was found on any part of her body. Report of the incident was lodged by the prosecutrix after six days of the occurrence and the identity of the accused persons was also found doubtful which led to the acquittal of accused persons. 14. In Devinder Singh (supra), prosecutrix was subjected to sexual intercourse by five persons. No injury was found on any part of her body. Report of the incident was lodged by the prosecutrix after six days of the occurrence and the identity of the accused persons was also found doubtful which led to the acquittal of accused persons. In our opinion, the circumstances of the above case are clearly distinguishable from the case in hand. 15. In Hurji v. State of Rajasthan, Sanju alias Sanjay and Anr. v. State of M.P. and Badrilal v. State of M.P. (supra), the testimony of prosecutrix was not found wholly reliable and trustworthy as no injury or tenderness in private parts of the prosecutrix was found. But it has been settled by the apex Court in Rafiq (supra), that "corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area being introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed". 16. After having given our anxious considration to the ratio of all the above cited cases and after scanning and evaluating the evidence of prosecutrix (PW3), we are of the firm opinion that the evidence of prosecutrix in the present case inspires confidence despite the existence of some minor contradictions and discrepancies. Her evidence finds corroboration from the first information report Ex.P-3, promptly lodged by her after the occurrence, the presence of semen and human sperms in her vaginal swab slide and clothes as detected by the Forensic Science Laboratory and the recovery and seizure of broken pieces of bangles from the middle seat of the jeep used in commission of the offence. View taken by us finds support from the view taken by the apex Court in Kamalanantha (supra), in holding that conviction can be based on the testimony of the prosecutrix alone, without insisting on corroboration if the same inspires confidence. View taken by us finds support from the view taken by the apex Court in Kamalanantha (supra), in holding that conviction can be based on the testimony of the prosecutrix alone, without insisting on corroboration if the same inspires confidence. When there was no reason for the prosecutrix to depose falsely against the accused, the conviction can be based on the evidence of the prosecutrix despite minor discrepancies or contradictions in the testimony of prosecution witnesses if not found fatal. 17. For the reasons stated above, we are of the considered opinion that the trial Court committed no error in holding the accused-Appellants guilty and in recording the finding of conviction. Accordingly, the finding of conviction of the Appellants is affirmed. 18. Learned Counsel for the Appellants urged that there was no compelling reason for the trial Judge to have awarded the maximum sentence of imprisonment for life to accused persons instead of awarding them the minimum sentence which is by itself adequately rigorous i.e. RI for 10 years. Placing reliance on Promod Mahto and Ors. v. The State of Bihar (supra), and Kailash v. State of M.P. (supra), they submitted that it was observed that it appeared that the accused had lost the control of his passion and was swayed by the sexual impulse and urge. The accused was the first offender and rustic poor villager and the act of accused was impulsive. It was also observed that punishment should always be proportionate to the crime and while awarding the sentence, the gravity of the offence; the manner in which it was committed; the age; sex of the accused should be taken into consideration and the sentence should be neither excessively high nor ridiculously low and it should commensurate with the gravity of offence. Learned Counsel for the accused urged that all the accused in the case were young boys of 20, 21 and 22 years of age. They were not previous convicts or persons of bad antecedents. There were no compelling circumstances before the trial Judge that they should have been sentenced to severe punishment like life imprisonment. No special reason was given by the trial Court for imposition of maximum sentence of imprisonment for life to them, therefore, their sentence deserved to be reduced. 19. They were not previous convicts or persons of bad antecedents. There were no compelling circumstances before the trial Judge that they should have been sentenced to severe punishment like life imprisonment. No special reason was given by the trial Court for imposition of maximum sentence of imprisonment for life to them, therefore, their sentence deserved to be reduced. 19. On due consideration of the facts and circumstances of the case, particularly the young age of the accused-Appellants, we modify their sentence of imprisonment for life to rigorous imprisonment for 10 years, though with enhancement of fine from Rs. 1,000/- to Rs. 10,000/- (Rupees ten thousand) each. On failure to deposit the aforesaid amount of fine, the Appellants shall suffer further rigorous imprisonment for two years. It is further directed that out of the amount of fine recovered from each of the Appellants, amount of Rs. 5,000/- (cumulatively Rs. 15,000/-) shall be paid to the prosecutrix by way of compensation. 20. Appeals partly allowed. A copy of this judgment be kept in the record of Criminal Appeal No. 1975/2002 and Criminal Appeal No. 666/2003.