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Madhya Pradesh High Court · body

2010 DIGILAW 530 (MP)

Girish Kumar v. State of M. P.

2010-05-07

SUSHMA SHRIVASTAVA

body2010
JUDGMENT Sushma Shrivastava, J. 1. Appellant has challenged his conviction and order of sentence passed by Sessions Judge, Seoni in Special Case No. 4/95, decided on 20.10.95. 2. Appellant has been convicted under Section 376, 506-I of IPC and sentenced to rigorous imprisonment for seven years with fine of Rs. 100/- and rigorous imprisonment for six months, for the respective offences, by the impugned judgment. Both the sentences were directed to run concurrently. 3. According to prosecution, on 13.10.94 about 6/7 'O' clock in the evening at village Karkoti when prosecutrix, a member of Scheduled Caste aged about fourteen years, had gone to latrine on the outskirt of the village and was coming back, Appellant caught hold of her, took her near the bank of the lake and fell her under a tree: when prosecutrix tried to scream, Appellant took out a knife, gagged her mouth and committed forcible sexual intercourse with her. Prosecutrix began weeping under pain and seeing blood on her private part, Appellant then threatened to kill her and asked her to go to her house and also intimidated her not to disclose the incident to anyone. Prosecutrix came back to her house, but out of fear and bashfulness she did not disclose the incident to anyone. However, when she developed pain in her abdomen, she narrated the whole incident to her mother on 6.11.94 and thereafter, went to Police Station to lodge the FIR. On the basis of her report, an offence was registered against the Appellant and was investigated. The underwear of the prosecutrix worn at the time of incident produced at the Police Station was seized from her. Prosecutrix was sent for medical examination. On being arrested, Appellant was also sent for medical examination. The vaginal slide of the prosecutrix and seminal slide of the Appellant collected during their medical examination were sent for forensic examination. After due investigation, Appellant was prosecuted under Section 376. 506-II of IPC and 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as 'Act') and was put to trial. 4. Appellant abjured the guilt and pleaded false implication due to enmity. 5. After due investigation, Appellant was prosecuted under Section 376. 506-II of IPC and 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as 'Act') and was put to trial. 4. Appellant abjured the guilt and pleaded false implication due to enmity. 5. Learned Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted the Appellant of the charge under Section 3(1)(xi) of the Act, but found him guilty for commission of offences under Section 376 and 506-I of IPC 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 sole testimony of the prosecutrix, despite negative medical evidence and delayed FIR. Learned Counsel for the Appellant further submitted that the trial Court failed to consider that the prosecutrix did not disclose the incident to anyone for nearly twenty five days and there was no satisfactory explanation for undue delay of twenty five days in lodging the FIR. According to learned Counsel for the Appellant, though the trial Court came to a finding that the age of the prosecutrix was more than sixteen years, yet it failed to consider that the prosecutrix was a consenting party and even as per the medical report, she was habitual to sexual intercourse. Learned Counsel for the Appellant also submitted that the trial Court failed to consider that the Appellant was falsely implicated and the FIR was lodged at the instance of Sarpanch due to party rivalry in the village. 7. Learned Counsel for the Respondent/State, on the other hand, justified and supported the conviction of the Appellant. 8. Perused the evidence on record. Prosecutrix (P.W. 3) deposed in her evidence that at the relevant time about 6 or 7 O' clock in the evening, she had gone to answer the call of nature near the lake and when she was returning back, Appellant came from the backside, gagged her mouth and took her under a tree, fell her on the ground and pulled her underwear, sat on her, inserted his male organ into her private part and committed sexual intercourse with her. According to prosecutrix (P.W. 3), Appellant had gagged her mouth, so she could not scream and tried to kick him, but Appellant did not leave her and when she began weeping, Appellant took out a knife and threatened her not to disclose the incident to her parents. 9. Prosecutrix (P.W. 3) further deposed that out of fear and bashfulness, she did not divulge the incident to her parents, but when she developed abdominal pain and vomiting, then on inquiry by her mother she narrated the whole incident to her mother. Her mother then went to sarpanch of the village, who advised to report the matter with the Police, then prosecutrix lodged the report (Ex. P 3) with the Police. Prosecutrix (P.W. 3) also testified her signatures on the FIR (Ex. P-3). 10. Mahatlal (P.W. 4), the father of the prosecutrix also corroborated this fact that on being informed of the incident of rape with his daughter from his wife after fifteen-twenty days, they went to Sarpanch of the village and apprised him of the incident, thereafter prosecutrix lodged the report with the Police. Shiv Prasad (P.W. 5), the village Kotwar also corroborated this fact that he had gone to Police station with the Prosecutrix and she had lodged the report with the Police. 11. Prosecutrix (P.W. 3) was cross-examined in extenso. However, despite cross-examination, nothing has been elicited in her evidence so as to discredit her version that when she was coming back after answering the call of nature, Appellant caught hold of her, gagged her mouth and fell her on the ground and committed sexual intercourse with her. Her evidence unequivocally reveals that Appellant had intimidated her, therefore, she did not disclose the incident to her parents out of fear and bashfulness. Although it has come in her evidence that it was the time of immersion of 'Durgaji' and there were lights around the place of occurrence and there was human traffic, but she categorically stated in para 9 of her deposition that she did not narrate the incident to anyone on the spot, as nobody was present there at that time. Though it was a time of 'Naudurga', but sexual offences are committed by the offenders besieging an opportunity when the victim is found or seen lonely. Though it was a time of 'Naudurga', but sexual offences are committed by the offenders besieging an opportunity when the victim is found or seen lonely. Therefore, there are no reasons to doubt that when the prosecutrix was returning back alone in the evening, Appellant caught hold of her, took her under the tree, fell her on the ground and committed sexual intercourse. The manner in which the Appellant committed sexual intercourse with the prosecutrix, as narrated by her, per se indicates that she was subjected to forcible sexual intercourse. 12. The mere fact that prosecutrix (P.W. 3) did not disclose the incident for a pretty long time to her mother, does not cast any doubt or suspicion over her testimony. Prosecutrix (P.W. 3), who was a teenager, categorically deposed in her evidence that Appellant had threatened and intimidated her and also had shown a knife alarming her not to disclose the incident to anybody. The aforesaid explanation given by the prosecutrix appears to be reasonable and satisfactory. It is not unnatural for a young girl to have been frightened and shocked by such an act and threats given by the Appellant. The incident, as narrated by the prosecutrix (P.W. 3), finds substantial corroboration from the FIR (Ex. P-3) lodged by her with the Police. 13. Although prosecutrix (P.W. 3) was confronted with the FIR (Ex. P-3) and her Police Statement (Ex. P-5) as to the omission of certain facts stated by her in her evidence, but the omissions are not vital and material and nothing substantial has been brought forth so as to disbelieve her version that Appellant committed rape with her. Even otherwise, the FIR is not the encyclopedia of the whole prosecution case and need not contain minute deals of the entire episode. More so, it has been clearly mentioned in the FIR (Ex. P-3) lodged by the victim girl (P.W. 3) that she did not disclose the incident to her parents out of fear and bashfulness and when she developed pain in her abdomen, she narrated the whole incident to her mother a day prior to the lodging of the FIR. 14. More so, it has been clearly mentioned in the FIR (Ex. P-3) lodged by the victim girl (P.W. 3) that she did not disclose the incident to her parents out of fear and bashfulness and when she developed pain in her abdomen, she narrated the whole incident to her mother a day prior to the lodging of the FIR. 14. The fact that the prosecutrix was working with the Sarpanch of the village or her mother had gone to Sarpanch and informed him of the incident before lodging of the report, cannot be a ground to reject or suspect the testimony of the prosecutrix (P.W. 3). It is not uncommon with the rustic villagers first to inform such incidents to the village Sarpanch before going to the Police. The suggestion made in her cross-examination that one Baijnath, the brother of Appellant had contested the election against the village Sarpanch and there was party rivalry, is far fetched suggestion for false implication of the Appellant and does not appeal to reason. Had it been a case of false implication at the instance of Sarpanch due to party rivalry, the report would have been lodged against the brother of the Appellant, who contested the election and not against the Appellant. 15. The main thrust of the submission of learned Counsel for the Appellant has been that the prosecutrix, being more than sixteen years of age, as found by trial Court, was a consenting party, and therefore, that was the reason for not disclosing the incident to her parents for twenty five days and she also conceded. However, such a statement obtained from the prosecutrix (P.W. 3) on a hypothetical question in cross-examination, does not necessarily imply that the prosecutrix was a consenting party, particularly when she categorically deposed in her sworn testimony that out of fear and bashfulness she did not disclose the incident to her parents. Moreover, it nowhere transpires from the evidence of prosecutrix (P.W. 3) that she was familiar with the Appellant or had any contact or affair with him so as to be consenting party in the incident. On the other hand, prosecutrix (P.W. 3) clearly deposed in para 6 of her deposition that she had never talked to the Appellant prior to the incident. Appellant has also not claimed any prior acquaintance or an affair with the prosecutrix (P.W. 3). On the other hand, prosecutrix (P.W. 3) clearly deposed in para 6 of her deposition that she had never talked to the Appellant prior to the incident. Appellant has also not claimed any prior acquaintance or an affair with the prosecutrix (P.W. 3). Thus the plea of her being consenting party to the incident, does not appeal to reason, nor any such suggestions or facts are brought forth in her evidence so as to infer that the prosecutrix was a consenting party. On the other hand, the vivid description of the incident given by prosecutrix (P.W. 3) in para 1 and para 6 of her deposition clearly indicates that she was subjected to forcible sexual intercourse. 16. Although Dr. A. Varma (P.W. 2), who medically examined prosecutrix (P.W. 3) did not find any external or internal injury on her person and did not give any definite opinion as to the commission of rape with her, but that also does not negate the statement of the prosecutrix. When the prosecutrix (P.W. 3) was medically examined twenty five days after the incident, no fresh injury of any kind was expected to be detected on her body. The Apex Court in the case of State of Rajasthan v. N.K. reported in AIR 2000 SC 1812 has held that the absence of visible mark of injuries on the person of prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had not offered any resistance at the time of commission of crime; and absence of injuries on the person of prosecutrix is not necessarily an evidence of falsity of allegation or an evidence of consent on the part of prosecutrix. It was also reiterated by the Apex Court in the case of Dastagir Sab and Anr. v. State of Karnataka reported in AIR 2004 SC 2884 , that the absence of injury on the person of prosecutrix would not by itself be sufficient to discard the prosecution case. 17. Moreover, merely because the victim was more than sixteen years of age, as found by the trial Court, that cannot be a ground to hold that she was a consenting party. The mere fact that the prosecutrix (P.W. 3) was found habitual to sexual intercourse by Dr. A. Varma (P.W. 2). is no ground to suspect her testimony as against the Appellant. The mere fact that the prosecutrix (P.W. 3) was found habitual to sexual intercourse by Dr. A. Varma (P.W. 2). is no ground to suspect her testimony as against the Appellant. Even if the girl is habitual to sexual intercourse, as observed by the Apex Court in the case of State of U.P. v. Pappu alias Yunus and Anr. reported in AIR 2005 SC 1248 (1) each and every person has no right or licence to intrude upon her privacy without her consent and to ravish her. 18. Needless to emphasize that the delay of twenty five days in lodging the FIR, as vehemently submitted by the learned Counsel for the Appellant, is also no ground to discard the testimony of the prosecutrix (P.W. 3), particularly when she has given a cogent and satisfactory explanation that she did not disclose the incident to her parents out of fear and bashfulness. The Apex Court in the case of State of U.P v. Manoj Kumar Pandey reported in AIR 2009 SC 711 has held that the normal rule regarding the duty of the prosecution to explain the delay in lodging the FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. It would also be profitable to reproduce the following observation made by their Lordships in this behalf in the case of State of Himachal Pradesh v. Prem Singh reported in AIR 2009 SC 1010 : So far as the delay in lodging the FIR in question is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family member before coming to the Police Station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. 19. In the instant case, as discussed hereinabove, prosecutrix (P.W. 3) gave a possible and natural explanation that she did not disclose the incident of rape to her parents out of fear and bashfulness. 19. In the instant case, as discussed hereinabove, prosecutrix (P.W. 3) gave a possible and natural explanation that she did not disclose the incident of rape to her parents out of fear and bashfulness. In the backdrop of threat and intimidation caused by the Appellant to the prosecutrix, which resulted in delay in lodging the FIR by twenty five days, her testimony cannot be viewed with suspicion, particularly when there are no cogent reasons for false implication of the Appellant at the instance of prosecutrix (P.W. 3). 20. In fact, upon careful scanning of the entire evidence of the prosecutrix (P.W. 3), her testimony against the Appellant is found to be clear, cogent and trustworthy and it inspires confidence and can be acted upon without any corroboration. The submission of learned Counsel for the Appellant that the mother of the prosecutrix, to whom she narrated the incident, was not examined to corroborate the testimony of prosecutrix (P.W. 3), also has no merit, when the testimony of the prosecutrix herself is found to be reliable, acceptable and trustworthy. It is well settled, as reiterated by the Apex Court in the case of State of Himachal Pradesh v. Asha Ram reported in AIR 2005 SCW 6009 that the testimony of the prosecutrix alone can form the basis of conviction, if it inspires confidence and is found to be reliable. 21. In view of the foregoing discussion and the evidence as available on record, the conviction of the Appellant under Section 376 and 506-I of IPC, as recorded by the trial Court, does not call for any interference in appeal. 22. There are no special or adequate reasons to reduce the sentence of seven years' rigorous imprisonment awarded to the Appellant, which is minimum prescribed under Section of IPC and there are also no reasons to reduce the sentence of six months under Section 506-I of IPC. 23. Appeal has no merit. Appeal, therefore, fails and is dismissed. 24. Appellant is on bail. He shall surrender to his bail bonds to serve out the remaining part of his sentence.