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2014 DIGILAW 228 (CHH)

Deviprasad v. State of M. P.

2014-06-20

PRITINKER DIWAKER

body2014
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 17.10.1998 passed by Additional Sessions Judge Durg, in Sessions Trial No. 205/1998 convicting the accused/appellant under Section 376(2)(g) IPC and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 2000/-, plus default stipulations. Facts of the-case in brief are that on 10.4.1998 FIR Ex. P-1 was lodged by prosecutrix (PW-1) aged about 13 years alleging that on that day at about 10.30 p.m. she along with her brother Omprakash had gone to the house of the accused/appellant for watching TV. As her brother expressed the desire of sleeping, she came to her house and after dropping him back when she was again going to the house of the accused/appellant, on the way the accused/appellant caught hold of her and co-accused Hiramani shutting her mouth by one of his hands dragged her to the nearby courtyard of Ramkumar, made her lie down on the ground and then first co-accused Hiramani committed forcible sexual intercourse with her and then the accused/appellant also took his turn. While doing this act, both the accused persons had pressed her breasts and that on account of the sexual intercourse she was feeling acute pain and her private part was bleeding. She has alleged that accused persons had even threatened her of death in case she disclosed the incident to anyone. Based on this report, offences under Sections 376,450/34 IPC were registered against the accused/appellant and co-accused Hiramani. Prosecutrix was medically examined by Dr. (Smt.) M. Pandey (PW-8) who gave her report Ex. P-17 stating that there was bleeding in and around the recent torn hymen, one finger entered vagina with difficulty and that for determination of age she was referred to radiologist. After completion of investigation, charge sheet was filed by the police on 25.4.1998 against the accused/appellant herein and the co-accused for the offences punishable under sections 376(2) (g) and 450/34IPC. However, the Court, below framed the charge under Section 376(2) (g) IPC only. 2. So as to hold the accused persons guilty, prosecution has examined 08 witnesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 3. 2. So as to hold the accused persons guilty, prosecution has examined 08 witnesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 3. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No. 1 of this judgment. 4. Counsel for the accused/appellant submits that statement of the prosecutrix is not reliable and looking to her conduct she appears to be a consenting party. He submits that statement of the doctor who medically examined the prosecutrix does not appear to be reliable because the injuries received by the prosecutrix have been termed as recent though her medical examination took place on the next day after the incident. He submits that even the FSL report is not on record. Lastly, he submits that as the accused/appellant has already remained in jail for more than six years, it would be in the interest of justice if the sentence imposed on him is reduced to the rigorous imprisonment for seven years. 5. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/appellant under Section 376(2)(g) IPC are strictly in accordance with law and there is no infirmity in the same. According to the State counsel, statement of the prosecutrix has been duly supported by the medical report. 6. Heard counsel for the parties and perused the evidence on record. 7. Prosecutrix (PW-1) has stated that on the date of incident she along with her brother Omprakash had gone to the house of accused/appellant herein for watching TV. As her brother wanted to sleep, she went to her house for dropping him back and while again coming to the house of accused/appellant, on the way both the accused persons caught hold of her hands, shut her mouth and dragged her to the nearby enclosure of one Ramkumar putting under threat of being killed if she cried. As her brother wanted to sleep, she went to her house for dropping him back and while again coming to the house of accused/appellant, on the way both the accused persons caught hold of her hands, shut her mouth and dragged her to the nearby enclosure of one Ramkumar putting under threat of being killed if she cried. In the said enclosure, she was stripped off and then the accused/appellant herein asked co-accused Hiramani to first make physical relations with her and accordingly Hiamani made her lie down, removed his clothes, mounted on her and committed forcible sexual intercourse with her pressing breasts at the same time. She has stated that while accused Hiramani was subjecting her to rape, accused/appellant herein had pressed her mouth. Thereafter, accused/appellant also subjected her to rape in the same manner as by accused Hiramani. According to her, on account of forcible sexual intercourse, her private part bled profusely and her underwear was smeared with blood. According to her, on account of acute pain she was not able to walk and for that the accused/appellant had lifted her up to the well and while leaving both of them had threatened her of being killed and dumped in the well in case of disclosure of incident to anyone. Thereafter, taking support of the wall, she somehow reached home and as she was feeling excruciating pain, she could not narrate her agony to her father who had opened the door for her. Thereafter on being scolded by her father to disclose the cause of her weeping, she informed him about the heinous act of the accused persons. Disbelieving all this, her father took her to the house of accused/appellant who being the son of her aunt happened to be her brother and on seeing them he was trembling in fear and after being asked by her father he denied the commission of anything wrong. Her father also went to the house of co-accused Hiramani but he was not found. After all this, she accompanied her father to the police station and lodged the report under her signature. Cross-examination contains nothing new to be put down but the same agony as described by this witness in the examination-in-chief. Her father also went to the house of co-accused Hiramani but he was not found. After all this, she accompanied her father to the police station and lodged the report under her signature. Cross-examination contains nothing new to be put down but the same agony as described by this witness in the examination-in-chief. Huliabai (PW-2) - mother of the prosecutrix has stated on seeing her daughter weeping she asked her about the reason there-for on which she told her about the entire incident and the manner in which the accused/appellant herein and accused Hiramani had ravished her. According to this witness, at the relevant time the prosecutrix was aged about 13 years and not 17. In cross-examination also just reiteration of the version given in the examination-in-chief is there. Mahabir (PW-3) - the father of the prosecutrix has also supported the case of the prosecution and stated almost the same thing as by Huliabai PW-2. As regards age, he has stated that at the relevant time the prosecutrix was 13. Firtaram Verma (PW-4) - the headmaster of the school has proved the admission register Ex. P-5 on the basis of which certificate Ex. P-5 mentioning the date of birth of the prosecutrix as 1.4.1985 was issued by him. However, in cross examination he has stated that in village if the parents do not have any document regarding date of birth, it is recorded on the basis of assumption. S.P. Shukla (PW-5) is the investigating officer who has duly supported the case of the prosecution. Dr. S.A. Ali (PW-6) is the witness who medically examined the accused/appellant and gave his report Ex. P-11-A stating therein that he was capable of performing sexual intercourse. Ghanshyam Prasad Verma (PW-7) is the witness to seizure of clothes of the prosecutrix and the accused persons made under Ex. P-3, P-7 and P-8. Dr. (Smt.) M. Pandey (PW-8) is the witness who medically examined the prosecutrix vide report Ex. P-17 and stated that her hymen was recent torn with redness coupled with bleeding in and around and the vagina entered one finger with difficulty. This witness also suggested for radiological examination for determination of age. 8. P-3, P-7 and P-8. Dr. (Smt.) M. Pandey (PW-8) is the witness who medically examined the prosecutrix vide report Ex. P-17 and stated that her hymen was recent torn with redness coupled with bleeding in and around and the vagina entered one finger with difficulty. This witness also suggested for radiological examination for determination of age. 8. Evidence of the minor prosecutrix (PW-1) having in its fold the pathetic experience of being victimized by the accused/appellant herein and the co-accused namely Hiramani at the cost of her never-to-be-repaired damage to the image where her chastity has been robbed by them, appears to be fully reliable. Testimony of the prosecutrix is supported by her parents (P.W.-2 and PW-3) as well as the doctor (PW-8) who medically examined the prosecutrix. All this apart, there is a prompt report lodged by the prosecutrix under her signature leaving nothing for this court to doubt her otherwise trustworthy and reliable testimony supported by the evidence of other witnesses. Furthermore, there is full consistency in the FIR and the court statement of the prosecutrix. Record also goes to show that the accused/appellant being the son of aunt of the prosecutrix happened to be her brother and in a case where the relations are put at stake, the doer loses the soft corner, if any. 9. View of conviction taken by the Court below is absolutely as per the evidence on record. Judgment impugned carries what the accused/appellant deserves and the same is hereby affirmed. Reduction in sentence to seven years as prayed for is also liable to be turned down looking to the brutal act of the accused/appellant. Order accordingly. 10. As the accused/appellant is on bail, bail bonds furnished by him stand cancelled and he is directed to be taken into custody and sent to jail forthwith for serving out remaining part of the sentence. Appeal dismissed.