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2013 DIGILAW 96 (CHH)

ANIL KUMAR RATHORE v. STATE OF M. P.

2013-03-08

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 17.8.1998 passed by Additional Sessions Judge Janjgir in Sessions Trial No. 271/ 1997 convicting the accused/appellant for the offence punishable under Section 376 (2) (f) IPC and sentencing him to undergo RI for ten years with fine of Rs. 2000/-, in default of payment of fine to further undergo SI for six months. 2. Facts of the case in brief are that on 17.2.1997 at about 4.25 p.m. FIR Ex. P-4 was lodged by Aasha Bai (PW-3) - mother of the prosecutrix (PW-1) - a minor girl aged about 10 years at the relevant time alleging that on that day at about 2 p.m. when she (prosecutrix) was all alone in the house, accused/appellant gained an entry thereto and committed forcible sexual intercourse with her. Based on this report, offence under Section 376 IPC was registered against the accused/appellant and the prosecutrix was medically examined on that day itself by Dr. (Smt.) Rama Verma (PW-4) who gave her report Ex. P-5. Query report of the doctor is Ex. P-7. After completion of investigation, charge-sheet was filed on 28.5.1997 for the offence under Section 376 IPC. Court below however framed the-charge against him under Section 376 (2) (f) IPC. 3. In support of its case the prosecution has examined 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of the judgment. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the accused/appellant submits that even if the entire ease of the prosecution is taken as it is, at the most offence under Section 376/ 511 IPC would be made out against the accused/appellant as there is absolutely no evidence on record to show that the prosecutrix was subjected to sexual intercourse because even her hymen was found to be intact. He submits that the prosecutrix (PW -1) as also her mother (PW-3) have exaggerated their version while making statement against the accused/appellant. He submits that the prosecutrix (PW -1) as also her mother (PW-3) have exaggerated their version while making statement against the accused/appellant. Counsel for the appellant further submits that the appellant being a practising lawyer cannot even think of committing such a heinous offence and due to some financial transaction between the parties he has been roped in a false case. According to him, there is no evidence available on record in respect of the age of the prosecutrix and if the statement of the radiologist, the prosecutrix herself and that of her mother is taken into consideration, it can be said that she (prosecutrix) was above 12 years of age on the date of incident and in these circumstances conviction of the accused/appellant under Section 376 (2) (f) IPC is not sustainable in the eye of law and the act of the accused/appellant at best can fall under Section 376 IPC. 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that in the query report Ex. P-7 the doctor (PW-4) has categorically stated that there was least chance of full intercourse but she has not stated that no intercourse was committed with the prosecutrix. He submits that at the time of medical examination of the prosecutrix she was complaining pain on her private part and there was redness on it. In respect of age of the prosecutrix, State counsel submits that even if statement of the mother of the prosecutrix is considered, age of the prosecutrix comes to be less than 12 years. He submits that the lady doctor medically examining the prosecutrix did not find any pubic hair on the private part of the prosecutrix and thus even as per the Modi medical jurisprudence her age at the relevant time was less than 12 years. 8. Before proceeding to record the statement of the prosecutrix (PW-1) in camera, the Court below has tested her ability to answer the questions put by it. She has stated in her statement that while she was all alone in her house cooking vegetable as her mother had gone to take bath, accused/appellant reached there and asked for water. When she gave water to him, the accused/ appellant asked her to remove her underwear and when she refused for that, he himself removed the same and committed forcible sexual intercourse with her. When she gave water to him, the accused/ appellant asked her to remove her underwear and when she refused for that, he himself removed the same and committed forcible sexual intercourse with her. When this witness tried to resist the act of the accused/appellant, he threatened her to press her neck. On account of the act of the accused/appellant which lasted for 15-20 minutes, she was feeling pain in her private part. After arrival of her mother she disclosed the entire incident to her and was medically examined by the doctor. In cross-examination, this witness has categorically stated that at the time of recoding of her evidence she was running 13. A suggestion was given to the prosecutrix that she lodged the report after being tutored by the witnesses but she has denied the same. In cross examination, this witness remained firm to what she has stated in the examination-in-chief. Arun Kumar Rathore (PW-2) cousin of the accused/appellant has stated that on the date of incident parents of the prosecutrix came to him and informed that their minor daughter was subjected to rape by the accused/appellant. Thereafter, mother of the accused/appellant gave 5-6 club blows to her son i.e. the appellant and also asked this witness to beat him on which he also gave 2-3 slaps to him and then the report was lodged and consent of the prosecutrix for medical examination was obtained. Asha Bai (PW-3) mother of the prosecutrix has stated that on the date of incident she had gone to the canal for taking bath leaving the prosecutrix all alone in the house. After some time the prosecutrix came to her weeping and informed that after removing her underwear and gagging mouth, the accused/appellant had committed forcible sexual intercourse with her. Thereafter, she went to the house of the accused/ appellant and informed the incident to his mother who then subjected him to beating with club and then the report was lodged. In paragraph-13 of her cross-examination she has stated that after the incident accused/appellant made an attempt to commit suicide by hanging but somehow he was saved. Dr. (Smt.) Rama Verma (PW-4) is the witness who medically examined the prosecutrix and gave her report Ex. In paragraph-13 of her cross-examination she has stated that after the incident accused/appellant made an attempt to commit suicide by hanging but somehow he was saved. Dr. (Smt.) Rama Verma (PW-4) is the witness who medically examined the prosecutrix and gave her report Ex. P-5 stating that her vulva and libia minora and libia majora were healthy but there was redness in her hymen which was found to be intact and that on touch she was complaining pain on it. In the query report Ex. P-7 this witness has stated that chance of full intercourse is less. This witness has further clarified that the term redness in hymen means there was inflammation on it. She has further stated that mere touch of erected male organ would not cause inflammation or tenderness in the hymen. This witness was in agreement that if on account of slightest penetration of erected male organ the ejaculation takes place, it would necessarily lead to rupture of hymen. Dr. U.C. Sharma (PW-5) is the witness who medically examined the accused/ appellant and gave his report Ex. P-8 stating that he was capable of performing sexual intercourse. Shiv Kumar (PW-6) is the Patwari who prepared spot map Ex. P-10. S.N. Pateria (PW-7) is the investigating officer who has duly supp0l1ed the case of-the prosecution. Dr. R. Jitpure (PW-8) is the radiologist who took x-ray of the prosecutrix and opined that at the relevant time she was aged about 10 years carrying a margin of two years on either side. Kunjan Prasad (PW-9) is the witness to seizure of underwear made under Ex. P-12. Robin Singh (PW-10) is the witness who assisted in the investigation. V.S. Kerketta (PW-11) is the witness who did part of the investigation. 9. Having heard counsel for the parties and gone through the material available on record particularly the evidence of the prosecutrix (PW-1) - aged about 10 years at the relevant time, it is apparent that the accused/appellant went to her house when she was all alone and her mother had gone to the canal for taking bath, asked for water from her and when she gave water to him, he asked her to remove her underwear and on refusal by her to do so, he himself removed the same and committed forcible sexual intercourse with her on account of which she was feeling pain in her private part. Her evidence also makes it clear that a suggestion put to her by the defence regarding lodgment of report on being tutored by the witnesses has also been denied by her. Even the doctor (PW-4) who medically examined the prosecutrix has stated that she noticed redness which means inflammation on the hymen of the prosecutrix and on touch she was feeling pain in her private part. This Court does not find any force in the argument of the counsel for the appellant that the prosecutrix was not subjected to rape as her hymen was found to be intact because even the slightest penetration is sufficient to convict the accused in such cases and in case of a tender aged girl hymen being deep seated is not necessarily required to rupture always. Though the doctor medically examining the prosecutrix has stated that there was least chance of full intercourse, she has nowhere stated that no sexual intercourse at all has taken place with the prosecutrix and it is the settled legal position that in rape cases full penetration is not necessary to convict the accused and even the slightest penetration is sufficient to hold him guilty in the cases of like nature. This Court further finds no force in the argument of the counsel for appellant that the present case would fall under Section 376/511 and not under Section 376. Apat1 from the statement of the prosecutrix and her mother, the Doctor (PW-4) has categorically stated that on touch, the prosecutrix was complaining pain in her private part and feeling difficulty in walking. Had it been a case of attempt to rape, prosecutrix would not have been under severe pain as has been noticed by the doctor and all this shows that accused/appellant had inserted his private part into that of her. Defence has not led any evidence as to why the prosecutrix (PW -1) or her mother (PW-3) would falsely implicate the accused/appellant as even the stand taken by it that some financial transaction between the parties has led to false implication of the accused, has not been proved by adducing cogent and clinching evidence. Evidence of the prosecutrix has been duly supported by her mother and the doctor medically examining her. Even the radiologist (PW-8) has opined the age of the prosecutrix to be about 10 years. Evidence of the prosecutrix has been duly supported by her mother and the doctor medically examining her. Even the radiologist (PW-8) has opined the age of the prosecutrix to be about 10 years. Thus it is established that the accused/appellant taking advantage of helplessness of the minor prosecutrix committed forcible sexual intercourse with her and threatened her to press her neck if she made a protest to his act. Findings recorded by the Court below convicting the accused/appellant under Section 376 (2) (f) IPC are strictly in accordance with law and there is no infirmity in the same to. In these circumstances, according to the considered opinion of this Court, the judgment impugned being based on the evidence of the witnesses is quite justified and there is no scope for any interference by this Court. Appeal thus fails and is dismissed. Judgment impugned gets affirmed. Accused/appellant is on bail and therefore his bail bonds stand cancelled. He be sent to jail forthwith to serve out remaining part of the sentence. Appeal Dismissed.