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Madhya Pradesh High Court · body

2012 DIGILAW 448 (MP)

Puran Bunkar v. State of M. P.

2012-04-26

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 01.07.1996 passed by learned Fourth Additional Sessions Judge, Chhattarpur in Sessions Trial No. 121/92 convicting the appellant under section 376 IPC and thereby sentencing him to suffer RI of 7 years and fine of Rs. 1000/-; in default of payment of fine, further RI of 6 months, this appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 23.05.1992 at 1.30 p.m. prosecutrix having age of 10 years, along with her younger brother Chhanu sent to graze she goats and at the relevant point of time when she was taking rest beneath the tree of guava and her younger brother Chhanu had gone to jungle by carrying the she goats, at that juncture appellant came there and asked the prosecutrix to accompany him at a place where they cannot be seen and when the prosecutrix did not accept his offer, the appellant threw her on the ground and by gagging her mouth committed sexual intercourse with her. Since the mouth of the prosecutrix was gagged by the appellant she was unable to scream. Anyhow, when she was released from the clutches of the appellant she started screaming and on hearing her scream, son of Nathua, his uncle Ghanshu and brother Chhanu arrived there and on seeing these persons the appellant flew from the place of occurrence. Blood was oozing from the vagina of the prosecutrix and she narrated the entire episode to her brother and uncle. Thereafter, they brought the prosecutrix at her residence where she narrated the entire incident to her father. On the next day i.e. 24.5.1992 the prosecutrix along with her father sent to lodge the report. 3. The investigating Agency after registering the case against the appellant arrested him and sent him for medical examination. 4. After the investigation was over, a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for trial. 5. The learned Trial Judge on the basis of the material available in the charge sheet framed charge punishable under section 376 IPC against the appellant which he denied and requested for the trial. 6. 5. The learned Trial Judge on the basis of the material available in the charge sheet framed charge punishable under section 376 IPC against the appellant which he denied and requested for the trial. 6. In order to prove the charge, the prosecution examined as many as 09 witnesses and also proved Ex. P/1 to P/12, the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under section 313 Cr.P.C. However, in support of his defence, he did not choose to examine any witness. 7. The learned Trial Judge on the basis of the evidence placed on record and by paying heed to the statement of the prosecutrix found that charge under section 376 IPC is emphatically proved and eventually convicted him and passed the sentence which I have mentioned herein above. 8. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 9. The contention of Shri S.K. Dixit, learned counsel for the appellant is that in the present case the statement of prosecutrix does not inspire any confidence and, therefore, prosecution was obliged to examine the witnesses to corroborate the statement of the prosecutrix but having failed to examine them, the appellant has been arbitrarily convicted by learned Trial Court. 10. On the other hand, Shri Akshay Namdeo, learned Public Prosecutor argued in support of the impugned judgment and submitted that if the testimony of the prosecutrix inspires full confidence, no corroboration is needed and in the present case since the statement of the prosecutrix inspires full confidence, therefore, for no rhyme or reason the conviction of the appellant be set aside by allowing this appeal. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. 12. It is well settled in law that if a person has been made an accused in some sexual offence, the statement of the prosecutrix alone is required to be considered. But it is equally true that her testimony should inspire full confidence and in case her testimony inspire full confidence, no corroboration is needed. 13. In the present case, on going through the statement of the lady doctor Usha Tiwari (PW-6), it is gathered that her age was between 12 to 13 years. But it is equally true that her testimony should inspire full confidence and in case her testimony inspire full confidence, no corroboration is needed. 13. In the present case, on going through the statement of the lady doctor Usha Tiwari (PW-6), it is gathered that her age was between 12 to 13 years. The lady doctor who examined the prosecutrix did not find the pubic hair as well as hair on her armpit. The prosecutrix is an illiterate girl and she has only put her thumb impression on the FIR lodged by her. The parents of the prosecutrix are also rustic villagers and are illiterate persons. On examination of the prosecutrix by the lady doctor, she opined her age to be between 12 to 13 years. No effective cross examination has been made upon the statement of the lady doctor and, therefore, I am of the view that on the date of incident the age of prosecutrix was between 12 to 13 years and learned Trial Court did not commit any error in arriving such a conclusion. 14. On bare perusal of the testimony of the prosecutrix, it is gathered that on seeing her alone, the appellant threw her on the ground and thereafter he inserted his penis in the private part of the prosecutrix. Specifically she has stated that she had screamed and was unable to come out from the clutches of the appellant. Further she has stated that on account of committing sexual intercourse by the appellant with her, blood started oozing from her vagina. The prosecutrix was cross-examined at length but nothing has been carved out in order to disbelieve her testimony. True, it has come in her testimony that she did not understand the meaning of the word ‘Penis’ but by using the synonym word she has stated that appellant has inserted his penis and committed sexual intercourse with her for which she was not ready and she was also screaming. On going through the statement of the prosecutrix, I find that her testimony is clear, cogent and trustworthy and learned Trial Court did not commit any error in placing reliance on her testimony. On going through the statement of the prosecutrix, I find that her testimony is clear, cogent and trustworthy and learned Trial Court did not commit any error in placing reliance on her testimony. True, it has come in her testimony that on hearing her scream certain persons namely her uncle Ghanshu and brother Chhanu arrived there and on seeing them appellant ran away from the place of occurrence, further it is true that these persons have not been examined by the prosecution, but, since the testimony of the prosecutrix is not at all shaky and on the contrary it inspires full confidence, I am of the view that learned Trial Court did not commit any error in placing reliance on her testimony. 15. Further prosecutrix has stated that immediately after the incident when she came to home and narrated the entire episode to her father Motilal (PW-1) and mother Nanhi Bai (PW-4). Both of them have categorically stated that they found that her clothes were stained with blood and she stated about committing of sexual intercourse by the appellant. Since immediately after the incident the prosecutrix has narrated the entire incident to her parents, according to me, the evidence of Motilal (PW-1) and Nanhi Bai (PW-4) is relevant under section 157 of the Evidence Act. 16. Apart from what I have held hereinabove, on bare perusal of the testimony of the lady doctor Usha Tiwari (PW-6) it is gathered that labia of the vagina of the prosecutrix was torn and there was an injury of 1/4 cm. The lady doctor further stated that vagina of the prosecutrix was filled by blood. Hence, the medical evidence also corroborates the evidence of the prosecutrix about committing sexual intercourse by the appellant. 17. I have gone through the reasons assigned by learned Trial Court convicting the appellant under Section 376 IPC and I found that they are quite cogent and they are based on correct appreciation of the evidence. Learned Trial Court has already taken a lenient view in passing the sentence of seven years, therefore, no leniency can further be adopted. 18. For the reasons stated hereinabove, I do not find any merit in this appeal and it is hereby dismissed. The appellant is on bail. Learned Trial Court has already taken a lenient view in passing the sentence of seven years, therefore, no leniency can further be adopted. 18. For the reasons stated hereinabove, I do not find any merit in this appeal and it is hereby dismissed. The appellant is on bail. His bail bonds shall stand cancelled only upon his surrender before learned Trial Court on 18th May, 2012 failing which the learned Trial Court shall issue arrest warrant against the appellant. In case appellant fails to appear before the learned Trial Court on 18th May, 2012, learned Trial Court shall take action against his surety and may pass necessary orders in accordance to the law. 19. Registry of this Court is hereby directed to send the record posthaste along with the original bail bond papers of the appellant to learned Trial Court so as to reach that Court much prior to 18.05.2012. A photocopy of bail bond papers shall be kept in the record of this file.