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2011 DIGILAW 40 (CHH)

Krishnaram v. State of M. P.

2011-02-02

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment dated 15.5.1998 passed by the Additional Sessions Judge, Jashpurnagar in Sessions Trial No. 61/1998 convicting the accused/Appellant under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500 in default of payment of fine to undergo rigorous imprisonment for two months. 2. Case of the prosecution in brief is that on 27.4.1996 a missing report was lodged by Firish Ram (PW-2) - the father of the prosecutrix alleging that on 25.4.1996 when he and his wife had gone to the jungle to collect fire wood, prosecutrix (PW-1) was in the house along with her brother and when he returned home in the evening, he found the prosecutrix missing. It is alleged that he was informed by his son that the prosecutrix had gone along with the accused/Appellant and when he enquired the accused/Appellant he informed him that the prosecutrix had gone to the house of one Akbar to attend marriage. Thereafter, she was recovered from the house of her uncle Ghurvat (PW-3) on 29.4.1996. Her statement was recorded on 30.4.1996 and FIR Ex. P-6 was registered on the same day for the offences under Sections 363, 366 and 376 IPC. She then was medically examined by Dr. R. Toppo (PW-6) on 2.5.1996 who gave her report Ex. P-3. After investigation, challan was filed on 1.11.1996 for the offences under Sections 363, 366 and 376 IPC. 3. So as to hold the accused/Appellant guilty, prosecution has examined 10 witnesses in support of its case. Statement of the accused/Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has acquitted the accused/Appellant of the charges under Sections 363 and 366 IPC but convicted and sentenced him as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the Appellant submits that there is an inordinate delay of about six days in lodging the FIR which has not been satisfactorily explained by the prosecution. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the Appellant submits that there is an inordinate delay of about six days in lodging the FIR which has not been satisfactorily explained by the prosecution. She submits that medical report of the prosecutrix is not positive and therefore benefit of the same should be given to the accused/Appellant. She submits looking to the conduct of the prosecutrix where she accompanied the accused/Appellant of her own, the offence under Section 376 IPC is not made out. She submits that father of the prosecutrix and that of the Appellant were not having good relations and that is why the possibility of false implication of the accused/Appellant cannot be ruled out. She submits that as uncle of the prosecutrix is also a doctor who had accompanied her while she was taken for medical examination, possibility of manipulation of medical report cannot be ignored. 7. On the other hand counsel for the Respondent/State supports the judgment impugned and submits that delay in FIR could be because the family members of the prosecutrix must have consulted each other before doing so and may be for this reason it took time in lodging the report. He submits that this delay is not fatal to the case of the prosecution because on 25.4.1996 the prosecutrix was raped by the accused/Appellant and missing report was lodged on the same day, on 29.4.1996 she was found in the house of her uncle and on 30.4.1996 her case diary statement was recorded and then the report came to be lodged on that day itself. He submits that the medical report of the prosecutrix is positive as the doctor examining her noticed injury on her private part and her hymen was ruptured. 8. Prosecutrix (PW-1) has stated that on the date of incident at about 10-11 p.m. she had gone to village Nakwar to attend the marriage in the house of her uncle where she met the accused/Appellant and asked him to drop her at village Pemla. According to this witness, the accused/Appellant took her on his bicycle and on the way near a river; he threw her on the sand bed and committed forcible sexual intercourse with her. According to this witness, the accused/Appellant took her on his bicycle and on the way near a river; he threw her on the sand bed and committed forcible sexual intercourse with her. Thereafter, she again asked him to take her to village Pemla but he refused and then she proceeded to Pemla alone and after reaching there she informed her uncle Ghurvat (PW-3) about the incident. In cross examination she has categorically denied the pendency of any land dispute between her father and the father of the accused/Appellant. In paragraph 5 of her cross examination she has clarified that her mother and father were not willing to send her to attend the marriage and when they had gone to jungle, she went to the house of the accused/Appellant twice. According to her, she stayed at Pemla for 4-5 days and on the fifth day her father had come there and then the report was lodged. This witness has admitted that one Dr. Chouhan of Kansabel happens to be her maternal uncle in relation but has denied that the medical report was managed by her because of him. No suggestion has been put to this witness in the cross examination that she was a consenting party to the act of the accused/Appellant. Bare reading of her deposition reveals that she had accompanied the accused/Appellant to village Pemla but she had never consented for the physical relations with him. Accompanying a person of her own and allowing him to have sex with her are two different things. Prosecutrix has categorically stated that when she was being taken to village Pemla, accused/Appellant threw her on the sand bed and committed forcible sexual intercourse with her. Firish Ram (PW-2) - the father of the prosecutrix has stated that on 25.4.1996 he and his wife had gone to jungle and returned home in the evening, his son informed him that the prosecutrix had gone along with the accused/Appellant to attend the marriage. When this witness enquired the accused/Appellant about the whereabouts of the prosecutrix, he informed him that she had gone to the place of marriage. Thereafter, when his daughter did not return on the second day, he again enquired the accused/Appellant about the whereabouts of the prosecutrix before the Panch and Sarpanch of the village but the accused/Appellant told him that he was not aware of the same. Thereafter, when his daughter did not return on the second day, he again enquired the accused/Appellant about the whereabouts of the prosecutrix before the Panch and Sarpanch of the village but the accused/Appellant told him that he was not aware of the same. He then went to village Pemla and found his daughter weeping. This witness was informed by the prosecutrix that she was subjected to forcible sexual intercourse by the accused/Appellant. He has also stated about the age of the prosecutrix but as the Court below has already given its finding in that respect holding her to be major and acquitted the accused/Appellant of the charges Under Section 363 and 366 IPC, this Court does not think it proper to re-appreciate the same. Satelal Sahu (PW-5) is the Patwari who had prepared spot map Ex. P-2. Dr. (Smt) R. Toppo (PW-6) is the witness who had medically examined the prosecutrix and given her report Ex. P-3 has opined that there was a scratch mark on the private part of the prosecutrix and hymen was ruptured. According to this witness, the injuries found on the body of the prosecutrix could be 4-7 days old. This witness has stated that vaginal slides were prepared and sent for chemical examination along with the clothes of the prosecutrix. This witness has denied the fact that the injury on the body of the prosecutrix could be caused because of something else. Nelson Lakda (PW-7) is the witness to the entry register of the school. Assistant Sub Inspector namely CM. Maitry (PW-8) is the witness who had done part of the investigation. Dr. M.D. Joshi (PW-9) who had done ossification test of the prosecutrix has opined that she was aged about 15-16 years at the relevant time. Nankaram (PW-10) is the police constable who had registered the missing report of the prosecutrix. 9. Minute examination of the evidence of the prosecutrix thus makes it clear that though she accompanied the accused/Appellant of her own to attend some marriage at Pemla, she never consented for any physical relations with him and the accused/Appellant did the same with her against her will and without her consent. Even if the age of the prosecutrix is taken as more than 16 or 18 years, sexual intercourse by the accused/Appellant without her consent makes him liable for conviction under Section 376 IPC. Even if the age of the prosecutrix is taken as more than 16 or 18 years, sexual intercourse by the accused/Appellant without her consent makes him liable for conviction under Section 376 IPC. More so, the medical report also confirms the injury on the private part of the prosecutrix apart from the presence of spermatozoa on her skirt and vaginal slides as is clear from FSL report Ex. P-9. Trial Court's findings being based on due appreciation of the evidence of the witnesses are just and proper and no interference therewith is called for. 10. Accordingly, the appeal being without merit is liable to be dismissed and it is dismissed as such. Accused/Appellant is on bail. His bail bonds stand cancelled. He be taken into custody forthwith.