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Madhya Pradesh High Court · body

2009 DIGILAW 901 (MP)

Nanda v. State of M. P.

2009-07-31

R.C.MISHRA

body2009
JUDGMENT 1. This appeal has been preferred against the judgment dated 10.5.1994 passed by Sessions Judge, Mandla in S.T. No.105/1993 whereby the appellant was convicted and sentenced as under with the direction that the jail sentences shall run concurrently: Convicted under Sentenced to section 363 of the IPC undergo RI for 3 years and to pay a fine of Rs.200/- and in default, to suffer SI for 2 months 376 of the IPC undergo RI for 3 years and to pay a fine of Rs.200/- and in default, to suffer SI for 2 months 2. The prosecution case, in short, may be stated thus: (a) At the relevant point of time, the prosecutrix (PW 1), a 13 years old daughter of Nanhelal (PW3) and the appellant were residing in the same village viz. Tikaria. (b) On 22.2.1993 at about 4 p.m., finding that the prosecutrix was sitting all alone in the corridor of her house, the appellant asked her to accompany on the pretext of grazing bullocks. However, as they reached near his house, the appellant caught hold of her hand and took her to the house wherein she was subjected to sexual intercourse and was turned out immediately thereafter. On her way back to home, the prosecutrix was found weeping by Chaina Bai and Ahilya Bai (PW2) and in answer to their query, she narrated the incident. As her father had gone out of station to sell bullocks, the FIR (Ex.P-1) could be lodged only after his return. (c) Upon the FIR made on 26.2.1993, a case under section 376 was registered at Police Station Shahpura, Distt. Mandla. The prosecutrix was sent to the hospital for medical examination. Dr. S. Shahwar, while expressing her inability to give a definite opinion as to recent intercourse, prepared two slides from the vaginal smear for chemical analysis and also preserved sample of pubic hair and Sari said to have been worn by the prosecutrix at the time of sexual assault, for chemical examination. The lady doctor further advised x-ray examination for determination of the prosecutrix's age. On the basis of ossification test, Dr. Karuna Marskole (PW7) opined that the prosecutrix was to be between 14 to 16 years of age. (d) On 27.2.1993, the appellant was apprehended and was also subjected to medical examination. Dr. C.B. Badhiye found him capable of performing sexual intercourse. On the basis of ossification test, Dr. Karuna Marskole (PW7) opined that the prosecutrix was to be between 14 to 16 years of age. (d) On 27.2.1993, the appellant was apprehended and was also subjected to medical examination. Dr. C.B. Badhiye found him capable of performing sexual intercourse. The medical expert further prepared two slides from the appellant's semen and preserved the underwear worn by him for chemical analysis. The seized articles were sent to FSL, Sagar for chemical examination. However, the corresponding report could not be placed on record during trial. 3. On being charged with the offences punishable under sections 363 and 366 of the IPC, the appellant abjured the guilt and pleaded false implication at the instance of Ram Milan, who allegedly refused to deliver possession of land even after receiving a sum of Rs A ,000/- as consideration for its sale. An alternative defence was suggested in the cross-examination of the prosecutrix to the effect that she herself wanted to marry the appellant. However, in the examination, under section 313 of the Code of Criminal Procedure, he reiterated that Ram Milan was the mastermind behind his prosecution on false grounds. 4. The prosecution sought to prove the charges by examining as many as 7 witnesses including the prosecutrix, her father Nanhelal and Ahilya Bai. No evidence was led on behalf of the appellant. However, Dr. S. Shahwar and Dr. C.B. Badhiye were not summoned as the contents of their reports (Ex.P-6 and P-7) pertaining to medical examinations of the prosecutrix and the appellant respectively were admitted by the defence. 5. Upon critical appraisal of the entire evidence on record, the learned trial Judge, for the reasons assigned in the impugned judgment, concluded that the guilt of the appellant for the offences charged with was established beyond a reasonable doubt. He, accordingly, convicted the appellant and sentenced him as indicated hereinabove. 6. Legality and propriety of the convictions in question has been challenged on the following grounds : (i) Want of cogent evidence to prove that age of the prosecutrix was less than 16 years. (ii) Absence of corroborative medical evidence as to rape. (iii) Material contradictions between the sworn testimony of the prosecutrix and recital of a belated FIR. However, the Panel Lawyer, while 'making reference to the incriminating pieces of evidence, has contended that the convictions were fully justified. 7. (ii) Absence of corroborative medical evidence as to rape. (iii) Material contradictions between the sworn testimony of the prosecutrix and recital of a belated FIR. However, the Panel Lawyer, while 'making reference to the incriminating pieces of evidence, has contended that the convictions were fully justified. 7. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to first advert to the medical and other evidence regarding age of the prosecutrix. 8. Being an illiterate father, Nanhelal (PW3) was not able to state the exact date of the prosecutrix's birth. As per his statement, he had duly informed the Kotwar about birth of the prosecutrix but the corresponding entry in the register was not tendered in evidence. Contents of the report (Ex.P-15) and the x-ray plates annexed thereto clearly indicated that Dr. Karuna Marskole (PW7) had assessed age of the prosecutrix as above 14 and below 16 years on the basis of findings of the radiological examination of joints comprising radius, ulna and femur bones and crest of ilium. Her admission that margin of error in determination of radiological age can be 2 years on both sides was apparently misconceived simply because the ossification test was not confined to x-ray examination of a single bone only {See Ram Deo Chauhan v. State of Assam [ AIR 2001 SC 2231 ]}. Accordingly, the margin of error could be ±6 months. This apart, the following physical features reflected by Dr. S. Shahwar in the report (Ex.P6), which is an admitted document, clearly proved that the prosecutrix was about 14 years of age {State of H.P. v. Mango Ram [ AIR 2000 SC 2798 ] followed} : (a) Menarche not yet attained. (b) Breasts -- not well developed, firm pointed and small nipples. 6 + 7 (c) Teeth 7 + 7 = 27 (d) Labia majora not well developed. (e) Vagina admitted only one finger. 9. Coming to the testimony of the prosecutrix (PW1), it may be observed that she was able to give true account of sequence of events leading to her ravishment by the appellant. 6 + 7 (c) Teeth 7 + 7 = 27 (d) Labia majora not well developed. (e) Vagina admitted only one finger. 9. Coming to the testimony of the prosecutrix (PW1), it may be observed that she was able to give true account of sequence of events leading to her ravishment by the appellant. According to her, on being persuaded by the appellant to accompany for grazing the cattle, she had voluntarily left the house for the purpose but while proceeding towards the pasturage, the appellant took her to his house and forcibly committed sexual intercourse with the result that she started bleeding per vagina. She further deposed that after completing the sexual assault, the appellant had made her to leave the house through a lane. As per her statement, while returning home, she happened to meet Chaina Bai and Ahilya Bai who, noticing her weeping, had enquired about the cause thereof and were apprised of what the appellant had done. Her evidence drew ample support from the evidence of Ahilya Bai (PW2) and the defence was not able to elicit any material inconsistency in their cross examination. 10. Explaining the delay in lodging the FIR, the prosecutrix asserted that before return of her father Nanhelal (PW3) from the other village, she, out of shame, had not informed other members of the family including her mother about the incident. Nanhelal corroborated the fact that, at the relevant point of time, he was not available in the village. According to him immediately after his return home, his daughter viz. the prosecutrix had apprised him of the occurrence and in turn, he first informed Paranu, Kandhilal and Gaya Prasad, respectively Kotwar, Gram Patel and Sarpanch of the village before taking her to the police station for lodging the report. His evidence drew ample support from the statements of Gaya Prasad (PW4) and Kandhilal (PW5). It was, therefore, clearly established from the evidence on record that the decision to take action against the appellant was taken only after return of Nanhelal as per reputation of the family and future of the prosecutrix were at stake. This cogent and credible explanation was rightly considered as sufficient to treat the delay as inconsequential {State of Rajasthan v. Om Prakash [ AIR 2002 SC 2235 ] referred to}. 11. The medical report (Ex.P-6) prepared by Dr. This cogent and credible explanation was rightly considered as sufficient to treat the delay as inconsequential {State of Rajasthan v. Om Prakash [ AIR 2002 SC 2235 ] referred to}. 11. The medical report (Ex.P-6) prepared by Dr. S. Shahwar further indicated that at the time of examination on 28.2.1993, hymen of the prosecutrix was found newly tom, and her vagina admitted only one finger. As pointed out already, the medical opinion recorded by Dr. C.B. Badhiye in his report dated 27.2.1993 (Ex.P-7) as to capability of the appellant to perform sexual intercourse was also not disputed. 12. The contention that the offence of kidnapping was not made out in view of prosecutrix's willingness to enjoy company of the appellant deserves rejection as it is well settled that the word "takes" does not necessary connote taking by force and it is not confined only to use of force, actual or constructive but means 'to cause to go', 'to escort' or to get into possession' {See Thakorlal D. Vadgama v. The State of Gujarat [ AIR 1973 SC 2313 ]}. 13. The defence that the appellant was roped in a false charge of rape at the instance of Ram Milan was apparently improbable as no father would allow her minor daughter to be used by his relative for wreaking personal vengeance. This apart, the suggestion that the prosecutrix, who had not even attained the age of puberty, was herself inclined to have a marital relationship with the appellant who was already having a spouse, was far from being convincing. 14. For these reasons, none of the grounds raised in the appeal deserves acceptance. The impugned convictions, therefore, deserves to be maintained as well merited. 15. Coming to the question of sentence, it may be observed that, taking note of the fact that for the offence of rape, less than statutorily prescribed minimum punishment has been imposed by learned trial Judge without assigning any special or adequate reasons, a co-ordinate Bench of this Court vide order dated 5.1.2008, proceeded to issue a notice for enhancement of sentence. In reply, the appellant submitted that all disputes prevailing between him and the prosecutrix have been amicably settled. However, the corresponding application for grant of permission to compound the offences has been dismissed as none of them is compoudable. In reply, the appellant submitted that all disputes prevailing between him and the prosecutrix have been amicably settled. However, the corresponding application for grant of permission to compound the offences has been dismissed as none of them is compoudable. Taking into consideration the social impact of the crime and other relevant circumstances of the case including that a lenient view has already been taken in the matter, no further indulgence would be justified. 16. In the result, the appeal stands dismissed. The impugned convictions and the consequent sentences are hereby affirmed. 17. Appellant is on bail. He is directed to surrender to his bail bonds before the trial Court on or before 15.10.2009 for being committed to the custody for undergoing remaining part of the sentence.