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2009 DIGILAW 74 (CHH)

Kapoor alias Rajkapoor v. State of Madhya Pradesh

2009-03-02

D.R.DESHMUKH

body2009
JUDGMENT This appeal is directed against the judgment dated 9-8-1990 delivered by the IIIrd Additional Sessions Judge, Raipur in Sessions Trial No.167/89, whereby the appellant was convicted under Section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years and also fine of Rs.100/- and in default to undergo additional rigorous imprisonment for 1 month. (2) Briefly stated the prosecution story is that on 14-4-1989 at about 7:30 P.M., the prosecutrix had gone to the Sherha field to attend the call of nature. The appellant came there and expressed desire to have sexual intercourse with her. The prosecutrix abused him, whereupon the appellant dragged her and laying her on the bund committed rape on her. On hearing shouts of the prosecutrix, P.W.-5, Bahruram, P.W.-3 and Jhanaklal, P.W.-7, who were present at the nearby tank rushed to the spot and saw the appellant committing rape. Jhanaklal, P.W.-7 held the appellant by his hand and separated him from the prosecutrix. The appellant shouted for Domar Singh, D.W.-1, who came spot. The appellant ran away thereafter. F.I.R. was lodged by the prosecutrix at Police Station Mandir Hasaud at 2:30 A.M. on 15-4-1989 vide Ex.P-6. On medical examination, Dr. Bhagirathi Joshi, P.W.-6 did not find any injury in the genetalia of the prosecutrix or externally on her body. The appellant, on being examined by Dr. K. Shanker found that he was capable of performing sexual intercourse and smegma was absent on his glans penis. The Chaddi worn by the appellant, the vaginal slide of the prosecutrix prepared by Dr. Bhagirathi Joshi and the petticoat of the prosecutrix, which were seized by the police, were sent for chemical analysis to the Forensic Science Laboratory, Sagar, which opined vide Ex.P-14 that seminal stains or spermatozoa were not found on the above articles. After completion of investigation, the appellant was prosecuted under Section 376 of the Indian Penal Code. (3) The appellant abjured the guilt. The prosecution examined as many as 11 witnesses. In his examination under Section 313 of the Code of Criminal Procedure, the appellant pleaded false implication and examined Domar Singh, D.W.-1 and Budharu, D.W.-2 in defence. Domar Singh, D.W.-1 admitted that on the date, time and place of occurrence, Jhanaklal, P.W.-7 and Bahruram, P.W.-3 had caught hold of the appellant and asked him why he had outraged the modesty of the prosecutrix. Domar Singh, D.W.-1 admitted that on the date, time and place of occurrence, Jhanaklal, P.W.-7 and Bahruram, P.W.-3 had caught hold of the appellant and asked him why he had outraged the modesty of the prosecutrix. (4) Shri P.S.Chandel, learned counsel for the appellant argued that the testimony of the prosecutrix was unworthy of credit because no injury, external or on her private parts was found by Dr. Bhagirathi Joshi, P.W.-6. It was further argued that absence of injuries on the prosecutrix is suggestive of the consent of the prosecutrix in the sexual act alleged by the prosecution against the appellant. It was further argued that inference of consent of the prosecutrix in the sexual act could safely be drawn from the fact that the prosecutrix did not offer any resistance during the sexual act. Reliance was placed on a decision rendered by this Court in Criminal Appeal No.375 of 1990 on 25-1-2007 (Chaitram vs. The State of Madhya Pradesh). (5) On the other hand, Shri Sudhir Bajpai, learned Deputy Government Advocate for the State/respondent argued in support of the impugned judgment and placed reliance on Viswanathan and others vs. State represented by Inspector of Police, Tamil Nadu, (2008) 5 SCC 354 and B.C.Deva alias Dyava vs. State of Karnataka, (2007) 12 SCC 122. (6) Having heard the rival contentions, I have perused the record and case law cited by both sides. There is categorical and specific assertion by the prosecutrix that on the date, time and place of occurrence, on refusing the request of the appellant for sexual intercourse, the appellant held her by the hand and dragged her and forcibly made her lie on the bund and committed rape on her after lifting both her legs. In cross-examination, she admitted that she did not sustain any injury in the wrist due to breaking of her bangles. She further admitted in cross- examination that she did not sustain any injury on her body. While appreciating the testimony of the prosecutrix, it is noteworthy that the appellant did not undress the prosecutrix at the time of commission of rape. It is also necessary to remember that the prosecutrix had categorically stated in para 8 that she did try to resist but could not because the accused was young and very powerful. While appreciating the testimony of the prosecutrix, it is noteworthy that the appellant did not undress the prosecutrix at the time of commission of rape. It is also necessary to remember that the prosecutrix had categorically stated in para 8 that she did try to resist but could not because the accused was young and very powerful. The presence of the appellant at the date, time and place of occurrence, alleged by the prosecution is admitted by Domar Singh, D.W.-1, who has further admitted that Bahruram and Jhanaklal had asked the appellant as to why he outraged the modesty of the prosecutrix. Domar Singh, D.W.-1 did not deny that the prosecutrix was also present there. It is also to be borne in mind that the prosecutrix is married and even if she was forcibly made to lie on the bund she was wearing saree, petticoat, blouse etc. The appellant had, after lifting her legs, indulged in committing the sexual act. The absence of any injuries either on her body or on her private parts would not render the testimony of the prosecutrix unreliable. Being a married woman, she was used to sexual intercourse and, therefore, in the above situation, particularly when the appellant had overpowered her, no injury was expected on her private parts. (7) So far as the absence of seminal stains and spermatozoa on the petticoat and vaginal slides of the prosecutrix and also the Chaddi of the appellant, the learned trial Judge has rightly observed that Jhanaklal, P.W.-7 had lifted the appellant from over the prosecutrix during the sexual act, i.e., even before ejaculation had taken place. Therefore, the absence of spermatozoa or seminal stains either on the slide, petticoat or chaddi or on the glans penis is of no avail to the appellant. (8) The learned trial Judge, who saw the demeanour of the prosecutrix while recording her evidence, found her trustworthy. The appellant had failed to show that the prosecutrix bore any grudge or had an axe to grind against him. On the other hand, it appears from the questions suggested in cross-examination of the prosecutrix by the defence that the appellant used to take liberty with the sister-in-law of the prosecutrix. It appears that the appellant also took the prosecutrix for granted while asking her for a sexual favour. On the other hand, it appears from the questions suggested in cross-examination of the prosecutrix by the defence that the appellant used to take liberty with the sister-in-law of the prosecutrix. It appears that the appellant also took the prosecutrix for granted while asking her for a sexual favour. So far as the admission of Bahruram, P.W.-3 and Jhanaklal, P.W.-7 being close relatives, it does not cast a cloud on their testimony because their presence at the place, time and date of occurrence is admitted by Domar Singh, D.W.-1, who further admits that these witnesses had questioned the appellant as to why he had outraged the modesty of the prosecutrix. I have gone through the testimony of the prosecutrix with utmost circumspection and found her to be reliable, convincing and trustworthy. Her testimony is cogent and acceptable. I find no plausible and justifiable reason to disbelieve and discard her testimony. The prosecutrix is a trustworthy witness and her evidence cannot be brushed aside merely on technical grounds because the evidence of the prosecutrix finds full support and corroboration not only from the prompt F.I.R. Ex.P-6 lodged by the prosecutrix but also from the testimony of Bahruram, P.W.-3 and Jhanaklal, P.W.-7. (9) Having, thus, considered the rival submissions and after perusing the record, I am of the considered opinion that conviction of the appellant under Section 376 of the Indian Penal Code and the sentence awarded thereunder by the learned trial Judge is impeccable. There is no merit in this appeal, which is accordingly dismissed. The appellant shall surrender before the Chief Judicial Magistrate, Raipur on 16-03-2009. Upon such surrender, the appellant shall be taken into custody and sent to jail for undergoing sentence. A copy of this judgment alongwith super session warrant be sent to the Chief Judicial Magistrate, Raipur forthwith. If the appellant fails to surrender on 16- 03-2009, the Chief Judicial Magistrate, Raipur shall issue a warrant for the arrest of the appellant, forfeit his bail bonds and surety bonds and send intimation to this Court after the appellant is arrested and sent to jail to undergo sentence.