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Madhya Pradesh High Court · body

2009 DIGILAW 319 (MP)

BHOLA PRASAD RAIDAS v. STATE OF M P

2009-03-13

R.C.MISHRA

body2009
Judgment ( 1. ) THE appellant stands convicted under Section 376 (1) of the IPC and sentenced to undergo R. I. for 10 years and to pay a fine of Rs. 500/-and in default to suffer S. I. for 2 months. The corresponding judgment dated 30/9/2004. passed by Sessions Judge, Shahdol in ST. No. 131/2004 is the subject matter of challenge in this appeal. ( 2. ) BRIEFLY stated, the prosecution version is as follows- (i) At the relevant point of time, the appellant was residing in the immediate neighbourhood of Babbu Prasad Tiwari (PW2), father of the prosecutrix (since dead), in village Jamuna Basti, parasi Road. (ii) On the festive day of Maha Shivratri falling on 18/2/2004 at about 7 p. m. , the prosecutrix, a girl aged about 15 years, had gone all-alone to fetch water from the Well situated near the appellants house. Taking an undue advantage of her loneliness, the appellant committed rape on her. Immediately after return to her house, the prosecutrix narrated the incident to her mother Pushpa Tiwari (PW3) and aunt Manisha. (iii) Marriage of the prosecutrix was proposed to be solemnized in the " coming Vaishakha month of Hindu Calendar. The appellant is a member of Scheduled Caste whereas Babbu Prasad is the Pujari of shiva temple located in the village. In these circumstances, the prosecutrix, feeling disgusted and humiliated, committed suicide in the night intervening 19th and 20th February, 2004 byhangingherself in the Saar (cowshed) adjoining her house. (iv) Upon information given by Koledas (PW1) as to an unnatural death of the prosecutrix, initially, a marg was registered at P. S. Bhalumara. After inquest proceedings, dead body of the prosecutrix was sent to the hospital for post mortem. Dr. S. Kori (PW9), while opining that cause of death of the prosecutrix was asphyxia due to hanging, also corroborated the factum of recent ante-mortem intercourse with her. However, she prepared two slides from vaginal smear of the prosecutrix. (v) On 20. 02,2004 only, in the light of findings of the marg inquiry, m. K. Upadhyay (PW10), the then SHO, recorded the FIR (Ex. P-13) to register a case under Section 306 of the IPC. (vi) During investigation, Sari worn by the prosecutrix at the time of sexual act was seized. The appellant was apprehended and subjected to medical examination. Dr. 02,2004 only, in the light of findings of the marg inquiry, m. K. Upadhyay (PW10), the then SHO, recorded the FIR (Ex. P-13) to register a case under Section 306 of the IPC. (vi) During investigation, Sari worn by the prosecutrix at the time of sexual act was seized. The appellant was apprehended and subjected to medical examination. Dr. O. P. Choudhary (PWll) found that the appellant was capable of performing sexual intercourse. He also prepared slides from appellants semen. These slides along with slides prepared from the vaginal smear of the prosecutrix and her Sari were forwarded to FSL, Sagar for chemical examination. The corresponding report (Ex. P-2) indicated that all the articles found to contain seminal stains and human spermatozoa. (vii) After due investigation, charge-sheet was presented in the court of JMFC, Kotma who committed the case to the Court. . . of Session for trial. ( 3. ) ON being charged with the offences punishable under Sections 376 (1) and 306 of the IPC, the appellant pleaded false implication due to animosity. In the examination, under Section 313 of the Code of Criminal Procedure, he further asserted that consequent to a quarrel that ensued on cutting of Bari (fencing), his mother forbade members of Babbus family to draw water from the Well with the result that they were required to fetch water from another Well owned by one ganesh Prasad Lohar ( 4. ) TO bring home the charges, the prosecution examined as many as 11 witnesses including the parents of the prosecutrix and the medical expert. No evidence was adduced in defence. ( 5. ) ON consideration of the entire evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, came to the conclusion that the appellant was guilty of the offence of rape only. He, accordingly, acquitted the appellant of the charge of abetment of suicide and convicted and sentenced him as indicated hereinabove. No appeal against the order of acquittal in respect of the offence under Section. 306 of the IPC has been preferred by the State. ( 6. ) LEGALITY and propriety of impugned conviction have been assailed primarily on the ground that, in absence of victims evidence, the charge of rape was also not proved beyond a reasonable doubt. However, learned Dy. Govt. 306 of the IPC has been preferred by the State. ( 6. ) LEGALITY and propriety of impugned conviction have been assailed primarily on the ground that, in absence of victims evidence, the charge of rape was also not proved beyond a reasonable doubt. However, learned Dy. Govt. Advocate, while inviting attention to the corresponding incriminating pieces of evidence, has submitted that the conviction in question is well merited. ( 7. ) BEFORE proceeding to appreciate the merits of the rival contentions in a proper perspective, it is necessary to first advert to the medical and forensic evidence available on record. ( 8. ) AUTOPSY Surgeon Dr. S. Kori (PW9) testified that sexual intercourse was performed with the prosecutrix before her death due to asphyxia caused by hanging. According to her, for confirmation of the opinion as to rape, she also prepared slides from the prosecutrixs vaginal secretion. The relevant findings recorded by dr. S. Kori in the post-mortem report (Ex. P-12) may be reproduced as under -No matting found over the pubic hairs, dry blood found over post part of perineum. Hymen tear found completely circular in shape. Size 2. 5 cm x 2. 5 cm. Vagina both sides two lacerated wounds found. Right side - 1 cm x 1/2 cm x 1/4 cm. Lt. Side -1 cm x 1/4 cm x 1/4 cm in size. Blood found in vagina. No injury in uterus. No injury found over labia majora. Slight swelling found over labia minora". In the light of these findings, a categorical opinion that the prosecutrix was subjected to sexual assault before her death was rightly accepted. ( 9. ) NO dispute was raised as,to the opinion recorded by Dr. O. P. Choudhary (PW11) in the report (Ex. P-15) that the appellant was capable of performing sexual intercourse. His assertion that he had prepared two slides from the semen of the appellant was also not challenged in the cross-examination. As pointed out already, Chemical Examiner also confirmed the factum of sexual intercourse with the prosecutrix by reporting that the slides and the Sari forwarded to FSL, Sagar contained seminal stains and human spermatozoa. ( 10. ) COMING to the other evidence on record, it may be seen that Pushpa (PW3), mother of the prosecutrix, duly corroborated the prosecution version. As pointed out already, Chemical Examiner also confirmed the factum of sexual intercourse with the prosecutrix by reporting that the slides and the Sari forwarded to FSL, Sagar contained seminal stains and human spermatozoa. ( 10. ) COMING to the other evidence on record, it may be seen that Pushpa (PW3), mother of the prosecutrix, duly corroborated the prosecution version. According to her, - on being asked in presence of her Deorani (co-sister) about cause of delay in- fetching water, the prosecutrix candidly revealed that she was ravished by the appellant only and the Sari worn by the prosecutrix was also found stained with blood and soil. It also came in her statement that on the following day, the prosecutrix neither took bath nor ate any thing and, in the next morning, her dead body was found hanging in the Saar. Pushpa was cross-examined at length but nothing beneficial to the defence could be elicited. Her evidence drew adequate support not only from the medical evidence but also from other evidence on record. ( 11. ) CORROBORATING testimony of his wife, Babbu Prasad (PW2) deposed that on being informed about the incident, he consulted Koledas and Ramkhelawan, who, in turn, had proposed a visit to his house to understand, the things but, in the meanwhile, his daughter ended her life. Koledas (PW1) and Ramkhelawan (PW4)substantially supported Babbus corresponding statement. It is relevant to note that no question as to the alleged dispute regarding Bari was put in the cross-examination of Babbu Prasad. Thus, the defence was not only after thought but was. inherently improbable as no father would stoop so low to bring forth a false charge of rape with his minor and unmarried daughter because of some dispute of trivial nature. ( 12. ) EVIDENCE of A. K. Pandey (PW7) relates to investigation. His assertion that he had seized a Sari containing stains from Pushpa was not challenged in the cross-examination. While corroborating the fact that dead body of the prosecutrix was found hanging in the Saar, he also described the attendant circumstances to prove suicide. He firmly refuted the suggestion that it was a case of murder. As indicated already, the medical evidence also did not support the theory of homicide. ( 13. While corroborating the fact that dead body of the prosecutrix was found hanging in the Saar, he also described the attendant circumstances to prove suicide. He firmly refuted the suggestion that it was a case of murder. As indicated already, the medical evidence also did not support the theory of homicide. ( 13. ) FURTHER, irrespective of the mode of prosecutrixs death, the case of the prosecution could not be thrown overboard due to non-availability of the victim for examination (State of Karnataka vs. Mahabaleshwar Gourya Naik AIR 1992 sc 2043 relied on ). The relevant observations may be reproduced as under - "merely because a victim is dead and consequently could not be examined can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned. " ( 14. ) ACCORDINGLY, learned trial Judge did not commit any illegality in holding that the other overwhelming evidence on record was sufficient to prove the charge of rape beyond a reasonable doubt. Moreover, the probability of defence was not established. The impugned conviction, therefore, deserves to be maintained. ( 15. ) WHILE inviting attention to the fact that the appellant has already suffered a period of more than 5 years in custody, learned counsel for the appellant has submitted that interests of justice would be met if the term of the custodial sentence is reduced to the period already undergone. BADDU @ JHAM SINGH Vs. STATE OF M. P. ( 16. ) SINCE, the age of the prosecutrix was more than 12 years, the offence of rape on her carried a minimum sentence of 7 years imprisonment. Further, as explained- by the Supreme Court in Dinesh vs. State of Rajasthan AIR 2006 SC 1267 - "the measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socioeconomic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. Crimes of violence upon women need to be severely dealt with. The socioeconomic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence". ( 17. ) TAKING into consideration the social impact of the crime and other relevant facts and circumstances of the case, I am of the view that although, the term of jail sentence deserves reduction yet, there is no adequate or special reason for imposing a sub-minimum sentence. ( 18. ) IN the result, the appeal is allowed in part. The impugned conviction and consequent sentence of fine passed against the appellant are hereby affirmed. However, the term of custodial sentence is reduced from 10 years to 7 years. Appeal partly allowed.