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Madhya Pradesh High Court · body

2011 DIGILAW 1250 (MP)

Bijji @ Brijbihari v. State of M. P.

2011-11-03

RAKESH SAKSENA

body2011
JUDGMENT 1. Appellant has filed this appeal against the judgment dated 28th November, 1994, passed by Sessions Judge, Tikamgarh, in Sessions Trial No. 78/1993, convicting the appellant under section 376 of the Indian Penal Code and sentencing him to rigorous imprisonment for 10 years. 2. In short, the prosecution case is that on 27.4.1993, at about 8.00 a.m., when prosecutrix, a young girl of about 16 years of age, was going to her field in village Raj Nagar. accused met her on way, forcibly felled her in a ditch in the bushes of ipomea and committed rape on her. Prosecutrix went to her house, narrated the incident to her mother and lodged a report at Police Station, Baldeogarh, on 28.4.1993 at 13.30 Hrs. As stated in the FIR, since father of the prosecutrix had gone out of village, she lodged the report next day, when her father came back. Prosecutrix was sent to Rajendra Hospital, Tikamgarh, where Dr. Madhu Jain (PW-5) examined her. Vide medical examination report Ex.P/5-A, Dr. Madhu Jain could give no opinion the sexual intercourse, as the prosecutrix was a married woman. Petticoat and slide of the vaginal swab of prosecutrix was seized and sent to Forensic Science Laboratory. As per FSL report (Ex.P/11), said articles were found to have contained human sperms. 3. After investigation, charge sheet was filed in the Court of Magistrate. The case was then committed to the Court of Sessions for trial. 4. On charge being framed under section 376 of the Indian Penal Code, accused abjured his guilt and pleaded false implication due to enmity over a thresher. He also examined Ram Dayal (DW-l) to show that husband of the prosecutrix had also come to her house after the incident. 5. Prosecution, to substantiate the prosecution case, examined 8 witnesses. 6. Learned Sessions Judge, relying mainly on the evidence of prosecutrix (PW-l), her father Panche (PW-3) and Har Charan Singh (PW-7), held the appellant guilty and convicted and sentenced him as aforesaid. 7. Learned counsel for the appellant/accused submitted that the evidence of prosecutrix was not reliable. The story of rape was not corroborated by the medical evidence of Dr. Madhu Jain (PW-5), who found no injury on any part of the body of the prosecutrix. On the other hand, learned Panel Lawyer submitted that the evidence of prosecutrix was trustworthy. 7. Learned counsel for the appellant/accused submitted that the evidence of prosecutrix was not reliable. The story of rape was not corroborated by the medical evidence of Dr. Madhu Jain (PW-5), who found no injury on any part of the body of the prosecutrix. On the other hand, learned Panel Lawyer submitted that the evidence of prosecutrix was trustworthy. It was corroborated by the evidence of Dashrath (PW -2) and the FSL report (Ex.P/11). 8. I have heard the learned counsel for the parties at length and perused the impugned judgment and the evidence on record. 9. Prosecutrix (PW-1) stated that on the day of occurrance, at about 8-9 O' clock in the morning, when she was taking her bullocks to her field, on way, out side the village, accused caught hold of her hair and throat and after intimidating, dropped her near the shrub of ipomea and forcibly committed sexual intercourse with her. After completion of his act, he ran away. When she regained her senses, she went back to her house and narrated the incident to her mother and father Panche. She also informed the incident to Sarju and Dashrath. Thereafter, with her parents, she went to Police Station, Baldeogarh, and lodged a report (Ex. P/1). During investigation, police prepared the spot map (Ex. P/2) and recovered the pieces of broken bangles from the spot. 10. Learned counsel for the accused, from the cross-examination of prosecutrix, pointed out that prosecutrix stated that her father had come back to home on the day of incident itself, wheras, in the FIR, she stated that her father had come on the next day and thereafter she lodged the report with the police. There appeared some inconsistency between the aforesaid two statements of the prosecutrix. But, she clarified that her father had come back to home only on the day when she went to lodge report alongwith him. 11. Learned counsel for the accused further submitted that independent witnesses Dashrath (PW-2), Channu (PW-4) and Hanumat (PW-6) did not support the prosecution case. They were declared hostile. It is true that Dashrath (PW-2) denied that prosecutrix narrated the incident to him, and stated that her mother had given broken bangles to police for showing their recovery from the spot, but there appears no reason for the prosecutrix to have deposed false. They were declared hostile. It is true that Dashrath (PW-2) denied that prosecutrix narrated the incident to him, and stated that her mother had given broken bangles to police for showing their recovery from the spot, but there appears no reason for the prosecutrix to have deposed false. Her statement regarding recovery of the broken bangles finds corroboration from the statement that broken bangles of the prosecutrix were seized by him from the spot vide seizure memo Ex. P/3. 12. The evidence of prosecutrix (PW-1) finds corroboration from the evidence of her father Panche, who categorically stated that on the day of incident he had gone to village Larr. On the next day when he returned to his village, his daughter informed him that accused forcibly committed rape on her near the well. He then went to police station with the prosecutrix where she lodged the report. She was then sent for medical examination to Tikamgarh Hospital. Nothing specific was suggested by the defence to show that the prosecutrix or her father concocted a false story of rape. Merely a bald suggestion was put that accused was falsely implicated due to village rivalry. 13. It is true that Dr. Madhu Jain (PW-5) stated that no definite opinion about the rape could be given because the prosecutrix was a married lady, but, merely on that count, otherwise reliable evidence of prosecutrix cannot be discarded. 14. Learned counsel for the accused argued that no marks of aggression were found on the body of prosecutrix. Therefore, it could not be held that intercourse was forcible. I am unable to accept this argument. It appears from the medical examination report (Ex. P/5-A) of the prosecutrix that she was a woman of thin built and was of about 16 years of age. Accused happened to be a healthy boy of about 20 years of age. It is quite possible that out of fear the prosecutrix could not have resisted. It is also apparent from her evidence that accused intimidated her by saying that he would assault her by knife, if she shouted and caught her by neck. In these circumstances, the absence of injuries on the person of prosecutrix do not lead to inference that she was speaking untrue. 15. It is also apparent from her evidence that accused intimidated her by saying that he would assault her by knife, if she shouted and caught her by neck. In these circumstances, the absence of injuries on the person of prosecutrix do not lead to inference that she was speaking untrue. 15. On a close scrutiny of the evidence of prosecutrix, which stands corroborated from the evidence of her father Panche (PW-3) to whom she narrated incident and the first information report (Ex.P/1) lodged by he after the incident, I am of the opinion that it was amply established that accused/appellant committed forcible sexual intercourse with the prosecutrix without her consent. Trial Court committed no error in holding the appellant/accused guilty and convicting him under section 376. Accordingly, the conviction of the appellant recorded by the trial Court under section 3760 the Indian Penal Code is affirmed. 16. So far as the question of sentence is concerned, learned counsel for the accused submitted that the incident had occurred in the year 1993, since then around 17-18 years have elapsed. At the time of said offence, accused was around 20 years of age. Probably he could not resist his lust and committed the offence because of the immature understanding. He has already remained in custody for a period of about five years and two months. He is a very poor village labourer, At present also he is in jail because he failed to appear on the interim dates fixed for his appearance in the case. He moved to different villages for earning livelihood. Learned Panel Lawyer, on the other hand, submitted that because of the act of accused, the life of prosecutrix was spoiled, therefore, the sentence awarded by the trial Court is justified. 17. On due consideration, of the submissions made by the learned counsel for the accused, particularly the fact that accused was a young boy at the time of commission of offence and he had already remained in custody for over five years, I am of the opinion that his sentence deserves to be reduced. 18. Accordingly, the conviction of the appellant/accused under section 376 of the Indian Penal Code recorded by the trial Court is affirmed. However, the sentence of rigorous imprisonment for 10 years, as imposed by the trial Court, is reduced to the period of 7 years. 19. Appeal partly allowed. 18. Accordingly, the conviction of the appellant/accused under section 376 of the Indian Penal Code recorded by the trial Court is affirmed. However, the sentence of rigorous imprisonment for 10 years, as imposed by the trial Court, is reduced to the period of 7 years. 19. Appeal partly allowed. R.S. Patel for appellant; Ramesh Kesharwani, Panel Lawyer for respondent/State.