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2011 DIGILAW 304 (MP)

Sadan @ Nanhu v. State of M. P.

2011-03-04

SUSHMA SHRIVASTAVA

body2011
JUDGMENT : Appellant has preferred this appeal challenging his conviction and order of sentence passed by First Addl. Sessions Judge, Balaghat in S.T. No.96/93, decided on 04.01.96. 2. Appellant has been convicted under Section 450, 376 of IPC and sentenced to rigorous imprisonment for seven years for each of the offences, by the impugned judgment. Both the sentences were directed to run concurrently 3. According to prosecution, on 16.1.93 about 12 O'clock in the noon at village Parsatola, when prosecutrix was all alone in the house, her parents and other family members having gone to work in the field, appellant Nanhu, who lived in the neighbouring house, came to the house of the prosecutrix and caught hold of her. Appellant proposed her for sex, but she declined, then he forcibly dragged her inside the house, prosecutrix pushed him, but he overpowered her and bit her on her cheeks, fell her on the ground, undressed her and committed forcible sexual intercourse with her. On her screaming, the uncle and cousin sister of the prosecutrix, namely, Bhandari and Sevanta came there, then appellant fled away. Prosecutrix went to the Police Station alongwith her parents, uncle and sister Sevanta and lodged the FIR at Police Station Kirnapur, District Balaghat. On the basis of her report, an offence was registered against the appellant and was investigated. Prosecutrix was sent for medical examination. On being arrested, appellant was also sent for medical examination. The saree, and vaginal slide of the prosecutrix collected during her medical examination as well as the underwear and blood stained shirt of the appellant, and his pubic hair were seized by the Police. The broken bangles and earthen pot broken at the time of incident were also seized by the Police. The seized articles were sent for forensic examination. After due investigation, appellant was prosecuted under Section 376, 324 and 448 of IPC and was put to trial. 4. Appellant denied the charges framed against him under Sections 450, 376 and 324 of IPC, and pleaded false implication. 5. The seized articles were sent for forensic examination. After due investigation, appellant was prosecuted under Section 376, 324 and 448 of IPC and was put to trial. 4. Appellant denied the charges framed against him under Sections 450, 376 and 324 of IPC, and pleaded false implication. 5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted the appellant of the charge under Section 324 of IPC, but found him guilty under Sections 450 and 376 of IPC for committing rape with the prosecutrix in her house, convicted 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 did not appreciate the evidence properly and erroneously convicted the appellant on the basis of unreliable testimony of the prosecutrix without any medical corroboration. Learned counsel for the appellant further submitted that the trial court failed to consider that the prosecutrix was a major girl, as also married, and her conduct revealed that she was a consenting party. 7. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant. 8. Perused the evidence on record. Prosecutrix (P.W-1) deposed in her evidence that at the relevant time she had come to her house after working in the field, gave food to her niece and after leaving her for playing when she came back to her house and tried to close the doors, appellant caught hold of her from the back and dragged her; prosecutrix pushed the appellant, as a result, he dashed against an earthen pot, which was broken into pieces, but he again used force to her and committed forcible sexual intercourse with her. According to prosecutrix (P.W-1), at the time of incident she was all alone in her house, her parents having gone to the field, and when she screamed her uncle Bhandari and cousin Sevanta Bai had come to her, but by that time, appellant had already ravished her. 9. Prosecutrix (P.W-1) further deposed that after the incident, her cousin sister had called her parents and she had gone to the Police Station with them about 2 O'clock in the noon and had lodged the report with the Police. Her report (Ex.P-5) was recorded by S.K. Maravi (P.W-7), S.H.O. Kirnapur on 16.1.93. 10. 9. Prosecutrix (P.W-1) further deposed that after the incident, her cousin sister had called her parents and she had gone to the Police Station with them about 2 O'clock in the noon and had lodged the report with the Police. Her report (Ex.P-5) was recorded by S.K. Maravi (P.W-7), S.H.O. Kirnapur on 16.1.93. 10. Bhandari (P.W-2), the uncle of the prosecutrix, who lived in the neighbouring house, also corroborated this fact that about 11 O'clock in the noon, while he was passing by the side of the house of prosecutrix, he saw that her she-goat was bleating; he, therefore, went inside the house and saw that appellant was pulling the saree of the prosecutrix, and she told him that appellant had committed rape with her. Sevanta Bai (P.W-3), the cousin sister of the prosecutrix also stated in her evidence that she had heard the screams of the prosecutrix and her uncle sent her for calling the parents of the prosecutrix. 11. Medical evidence also lends corroboration to the version made by the prosecutrix. Dr. Archana Shukla (P.W-9), who medically examined the prosecutrix on 17.1.93 at 6 O'clock in the evening, found three small linear abrasions of about 1 mm size over her right lower jaw, which was located 3-4 cm away from her mid of the chin. According to Dr. Archana Shukla (P.W-9), these injuries were caused by rough and sharp object within 24 to 48 hours. Her medical report (Ex.P-12) is also placed on record. 12. Dr. N.P. Tamrakar (P.W-6), who medically examined the appellant on 18.1.93, also found the following injuries on his person:- "(i) Abrasion 4 cm x 1/2 cm over upper 1/3rd at back of the left forearm. (ii) Abrasion 2 cm x 1/4 cm over upper 1/3rd at back of the left forearm. (iii) Linear abrasion 4 cm over lower 1/3rd at back of the left forearm. (iv) Abrasion 3 cm x 1/2 cm over left side of the chest in mid axillary line at 6th rib level. 13. According to Dr. N.P. Tamrakar (P.W-6), the above injuries found on the person of appellant were caused due to hard, blunt and rough object and were of 48 hours' duration. He also found that appellant was well built young male adult and his external genital organs were well developed. His medical report (Ex.P-4A) is also placed on record. 14. 13. According to Dr. N.P. Tamrakar (P.W-6), the above injuries found on the person of appellant were caused due to hard, blunt and rough object and were of 48 hours' duration. He also found that appellant was well built young male adult and his external genital organs were well developed. His medical report (Ex.P-4A) is also placed on record. 14. The broken pieces of bangles and earthen pot were also seized by Police Officer N.K. Shrivastava (P.W-4) from the place of occurrence as corroborative evidence vide seizure memo (Ex.P-2). 15. Learned counsel for the appellant, however, submitted that the evidence of the prosecutrix (P.W-1) was not at all reliable for want of corroboration from the medical evidence. According to learned counsel for the appellant, the prosecutrix alleged use of force and sexual violence, but Dr. Archana Shukla (P.W-9), who medically examined the prosecutrix did not find any external or internal injury over her body except very few small and minor abrasions, which could also be self inflicted. It was further submitted that the absence of injuries on her body revealed that the prosecutrix, who was admittedly more than sixteen years of age, was a consenting party and the description of the incident as narrated by her in para 16 of her deposition regarding undressing her etc. could not have been possible without her consent. Learned counsel for the appellant also submitted that though the prosecutrix made allegations of rape against the appellant, yet she did not try to escape, nor she shouted for help, though her uncle lived in the neighbouring house. Learned counsel for the appellant also submitted that her niece Sangeeta, who was a key witness, was not examined by the prosecution, nor her uncle Bhandari (P.W-2) and cousin sister Sevanta had seen the appellant committing rape with the prosecutrix. 16. In view of the aforesaid submissions made by learned counsel for the appellant, the evidence of the prosecutrix is closely examined. Upon careful scanning of the entire testimony of the prosecutrix, her evidence is found to be cogent and trustworthy and it inspires confidence. Prosecutrix (P.W-1) categorically deposed that she was all alone in the house at the time of occurrence and had left her niece outside for playing, as such there was no question of her niece being a witness to the occurrence or to be examined by the prosecution. Prosecutrix (P.W-1) categorically deposed that she was all alone in the house at the time of occurrence and had left her niece outside for playing, as such there was no question of her niece being a witness to the occurrence or to be examined by the prosecution. Prosecutrix (P.W-1) categorically deposed that when she was trying to close the doors of her house, appellant caught hold of her from the back and dragged her. Her evidence also reveals that she tried to push the appellant, as a result of which appellant dashed with an earthen pot, the broken pieces of which were also subsequently seized by the Police from the place of occurrence. This fact is also clearly mentioned in the FIR (Ex.P-5) promptly lodged by the prosecutrix on the same day. Prosecutrix (P.W-1) also deposed that appellant sustained injury in his hands while falling on the earthen pot. The various injuries and abrasions found by Dr. N.P. Tamrakar (P.W-6) on the body of appellant, also lends corroboration to this fact. The injuries and abrasion found on the chest of the appellant indicates that the prosecutrix offered resistance at the time of commission of rape. That also nullifies the submission made on behalf of the appellant that prosecutrix was a consenting party. 17. It is pertinent to mention that the appellant was admittedly examined by the doctor on 18.1.93 and the injuries found on his person were said to have been caused before 48 hours, which also corresponds to the date and time of the occurrence, which took place on 16.1.93 in the day time. There are no reasons to doubt or discard the evidence of Dr. N.P. Tamrakar (P.W-6) that as many as four simple injuries like abrasion were found on the person of appellant. Needless to repeat that three linear abrasions were also found on the person of prosecutrix (P.W-1) by Dr. Archana Shukla (P.W-9), who examined the prosecutrix on 17.1.93, and her injuries were also said to have been caused within 24 to 48 hours. There are no reasons to infer that the prosecutrix would herself cause such injuries on her face in order to make false allegations of rape against the appellant. 18. The mere fact that Dr. Archana Shukla (P.W-9), who examined the prosecutrix on 17.1.93, and her injuries were also said to have been caused within 24 to 48 hours. There are no reasons to infer that the prosecutrix would herself cause such injuries on her face in order to make false allegations of rape against the appellant. 18. The mere fact that Dr. Archana Shukla (P.W-9) did not find any other external or internal injury on the body or private part of the prosecutrix, does not belie the evidence of the prosecutrix given against the appellant regarding sexual assault on her. It is evident from the testimony of Dr. Archana Shukla (P.W-9) that the vagina of the prosecutrix easily admitted two fingers and she was found habitual to sexual intercourse, therefore, in such a situation any injury on the private part of the prosecutrix was hardly expected during sexual violation. Moreover, the mere absence of injuries on the person of the prosecutrix does not by itself falsify the case of rape. The Apex Court in the case of State of Rajasthan Vs. N.K. reported in AIR 2000 Supreme Court Page 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 injury on the person of prosecutrix is not necessarily an evidence of falsity of allegation of rape or an evidence of consent on the part of the prosecutrix. It was also reiterated by the Apex Court in the case of Dastagir Sab & another Vs. State of Karnataka reported in AIR 2004 Supreme Court page 2884, that the absence of injury on the person of prosecutrix would not by itself be sufficient to discard the prosecution case. More so, in the instant case, small abrasion found on the face of the prosecutrix as well as the abrasions and scratch marks found on the body of appellant by Dr. N.P. Tamrakar (P.W-6) are also indicative of struggle and strengthen the version of the prosecutrix regarding sexual assault by the appellant. 19. The mere fact that the prosecutrix (P.W-1) was found habitual to sexual intercourse by Dr. Archana Shukla (P.W-9) is not a ground to suspect her testimony against the appellant. N.P. Tamrakar (P.W-6) are also indicative of struggle and strengthen the version of the prosecutrix regarding sexual assault by the appellant. 19. The mere fact that the prosecutrix (P.W-1) was found habitual to sexual intercourse by Dr. Archana Shukla (P.W-9) is not a ground to suspect her testimony 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. Vs. Pappu alias Yunus and another reported in AIR 2005 Supreme Court page 1248, each and every person has no right or licence to intrude upon her privacy without her consent and to ravish her. 20. The vivid description given by the prosecutrix (P.W-1) in para 2 as well as in para 16 of her deposition unequivocally reveals that the prosecutrix was subjected to forcible sexual intercourse. The submission of learned counsel for the appellant that the sexual act, as described by the prosecutrix would not have been possible without her consent and the prosecutrix did not try to escape or scream, are devoid of substance, in view of description of the occurrence given by the prosecutrix that despite her resistance and push, the appellant used force to her and overpowered her by holding her hands, and gagged her mouth. The stray suggestions made in her cross-examination, that the prosecutrix came back to the house in order to meet the appellant, which were denied by her, would not imply any consent on her part. Prosecutrix (P.W-1) also denied any acquaintance or relations with the appellant in para 13 of her deposition. Nothing of the sort transpires from her evidence that prosecutrix was familiar with the appellant or had any contact or affair with him so as to be consenting party in the incident. Moreover, had it been a case of consent, the prosecutrix would not have left her doors open, nor she would have screamed for help, as evident from her testimony that on hearing her screams, her uncle Bhandari (P.W-2) had come to her house, which is also borne out from the evidence of Bhandari (P.W-2) himself. It is also evident from the testimony of Sevanta (P.W-3), who is her cousin sister, that she had heard the screams of the prosecutrix and then she was called by Bhandari (P.W-2). It is also evident from the testimony of Sevanta (P.W-3), who is her cousin sister, that she had heard the screams of the prosecutrix and then she was called by Bhandari (P.W-2). Though Sevanta (P.W-3) has been declared hostile by the prosecution, but there are no reasons to disbelieve her statement that she had heard the screams of the prosecutrix. Needless to emphasize, as held by the Apex Court in the case of Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh reported in AIR 1991 Supreme Court Page 1853, that the evidence of a hostile witness cannot be treated as effaced or washed off from the record altogether, but the same can be accepted to the extent the version of such witness is found to be dependable on a careful scrutiny thereof. Although Bhandari (P.W-2), the uncle of the prosecutrix and her cousin sister Sevanta (P.W-3) have not actually witnessed the appellant committing rape with the prosecutrix, but that by itself cannot be a ground to reject the version of rape given by the prosecutrix (P.W-1) herself, which also stands corroborated by the promptly lodged FIR (Ex.P-5). It needs no emphasis, as reiterated by the Apex Court in the case of State of Himachal Pradesh Vs. Asharam reported in 2005 AIR SCW page 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 the instant case, there are no reasons to doubt or suspect the version of the prosecutrix (P.W-1) made against the appellant that he subjected her to forcible sexual intercourse inside the house. It has come in the evidence of the prosecutrix that she was a married woman, and as her 'gauna' was not performed, she was staying in her parent's house. In such a situation it can hardly be presumed that prosecutrix would make a false allegation of rape against the appellant at the cost of her honour and dignity and would take the risk of ostracization by her husband and in-laws. Thus, in view of the evidence as available on record, that the appellant subjected her to forcible sexual intercourse without her consent and against her will at her residential house, the conviction of the appellant as recorded by the trial court under Section 450 and 376 of IPC does not call for any interference. 22. Thus, in view of the evidence as available on record, that the appellant subjected her to forcible sexual intercourse without her consent and against her will at her residential house, the conviction of the appellant as recorded by the trial court under Section 450 and 376 of IPC does not call for any interference. 22. The citations referred to and relied upon by learned counsel for the appellant as reported in AIR 2004 SC page 85, AIR 2007 SC (Supp) page 847, AIR 1998 SC page 2694, AIR 2005 SC page 203 and AIR 2003 SC page 1639 have turned on the peculiar and different set of facts of those cases and are of no avail to the appellant in the instant case. 23. As regards the sentence, 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 376(1) of IPC. There are also no reasons to reduce the sentence of seven years' rigorous imprisonment under Section 450 of IPC in the facts and circumstance of the case. No interference in the impugned sentence of imprisonment is thus called for. Appeal has no merit, the same is hereby dismissed. Appellant is on bail. He shall surrender forthwith to his bail bonds to serve out the remaining part of his sentence.