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2019 DIGILAW 490 (MP)

DHOKAN @ DHOKAL @ GOKUL v. STATE OF M. P.

2019-07-06

ANJULI PALO, VISHAL DHAGAT

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JUDGMENT : ANJULI PALO, J. 1. Appellant has preferred this appeal being aggrieved by the judgment dated 11-3-2010 passed by the Sessions Judge, Sagar in Session Trial No. 125/2009 whereby, the appellant has been convicted under section 376(2)(f) of Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs. 1,000/- and in default of fine, rigorous imprisonment for one year. 2. As per the prosecution case, on 20-12-2008 at village Sahavan, the appellant committed rape with the prosecutrix (PW-7) who is a minor girl aged about 5-6 years old. FIR (Ex. P/2) has been lodged by the prosecutrix on 23-12-2008 at Police Station. Crime was registered against the appellant under section 376 of Indian Penal Code and on 25-12-2008 at Police Station Banda, Sagar. After due investigation, charge-sheet was filed before the concerned Court. 3. After committal of the case, learned trial Court conducted trial against the appellant. Considering the testimonies of the prosecutrix (PW-7), her mother Devka (PW-6) and the opinion of Dr. Mamta Timori (PW-4), the trial Court held the appellant guilty for committing rape with a minor girl. Hence, convicted and sentenced him as mentioned above. 4. The appellant has challenged the aforesaid findings on the grounds that the prosecution evidence is contradictory and the findings of the trial Court is based on the testimony of interested and unreliable witnesses. There are many omissions and improvements in their testimonies. The FIR has been lodged belatedly. Hence, it is prayed to set aside the impugned judgment and appellant be acquitted from the charge levelled against him. 5. Learned Government Advocate appearing for the respondent/State supported the findings of learned trial Court and submitted that the judgment is rightly based on cogent and reliable evidence produced by the prosecution. 6. Heard learned counsel for the parties at length and perused the record. 7. It is not in dispute that at the time of incident, the prosecutrix was about 5 to 6 years old. Dr. Mamta Timori (PW-4), Medical Officer in the MLC report (Ex. P/11) mentioned about her bodily characters which also establish that the age of the prosecutrix was under 7 years. 8. Prosecutrix (PW-7) in her statement categorically stated against the appellant in corroboration of FIR (Ex. P/12) on the date of incident at about 8:00 pm, the prosecutrix went to purchase sugar from the shop at village Sahavan. P/11) mentioned about her bodily characters which also establish that the age of the prosecutrix was under 7 years. 8. Prosecutrix (PW-7) in her statement categorically stated against the appellant in corroboration of FIR (Ex. P/12) on the date of incident at about 8:00 pm, the prosecutrix went to purchase sugar from the shop at village Sahavan. From there, the appellant lured her and took her to a lonely place and committed raped with her. She further explained that due to forcible intercourse committed by the appellant, blood was oozing from her private parts. We do not find any reason to disbelieve the testimony of prosecutrix (PW-7). 9. Devka Patel (PW-6) mother of the prosecutrix, duly corroborated the testimony of prosecutrix. In her cross-examination, she denied the suggestions that on the occasion of Sankranti, she demanded Rs. 1,000/- and 50 kilograms of wheat from the appellant. On refusal to do so, Devka Patel falsely implicated the appellant and lodged false FIR at Police Station. In our view her testimony is also reliable. 10. Learned counsel for the appellant submits that FIR was lodged belatedly. As per the testimony of Sushma Shrivastav (ASI) (PW-1), on 23-12-2008, Devka Patel reported the incident at Police Station. From the statement of Sushma Shrivastav (PW-1), it is clear that FIR was lodged after three days. 11. On 24-12-2008, Dr. Mamta Timori (PW-4) examined the prosecutrix and found an abrasion of size 1.5 cm x 0.5 cm on the right thigh in external examination. During the internal examination, she found the following injuries along with bleeding from her private parts : (1) Blood clot present on the labia majora (vulva). (2) Blood oozing from the vagina at 4-8 o’clock position. (3) Hymen ruptured at 6 o’clock position and blood was oozing. 12. Dr. Mamta Timori (PW-4) gave a definite opinion that intercourse was committed with the prosecutrix. She also explained that the prosecutrix was admitted for treatment in Dafrin Hospital, Sagar for seven days. Her bedhead tickets (Ex. P/10) establish that the prosecutrix was under treatment for the injuries caused to her private parts. 13. We cannot ignore that the prosecutrix is a child, belonging to a village. In cases of rape, the victim and her family members find it difficult to go and lodge a report at police station due to shame and fear of defamation in society. 13. We cannot ignore that the prosecutrix is a child, belonging to a village. In cases of rape, the victim and her family members find it difficult to go and lodge a report at police station due to shame and fear of defamation in society. Their reluctance to go to the police is because of society’s attitude towards the victim. 14. In case of Karnel Singh vs. State of Madhya Pradesh reported in (1995) 5 SCC 518 , the Hon’ble Supreme Court has held as under : “The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society’s attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.” 15. Likewise in case of State of Punjab vs. Gurmit Singh and ors. reported in (1996) 2 SCC 384 , the Hon’ble Supreme Court has held that : “The Courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged” 16. Therefore, only on the ground that the FIR was lodged with some delay, we cannot discard the testimonies of the prosecutrix and her mother Devka (PW-6). 17. Learned counsel for the appellant submits that there are many material contradictions and omissions in the testimony of the prosecutrix. Both are related hence, without corroboration from the independent witness, conviction cannot be based on it. 18. In case of State (Govt. of NCT of Delhi) vs. Pankaj Chaudhary and ors., 2018 (4) Crimes 271 (SC), the Hon’ble Supreme Court has held as observed as under : “24. Both are related hence, without corroboration from the independent witness, conviction cannot be based on it. 18. In case of State (Govt. of NCT of Delhi) vs. Pankaj Chaudhary and ors., 2018 (4) Crimes 271 (SC), the Hon’ble Supreme Court has held as observed as under : “24. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu alias Undrya vs. State of Maharashtra (2006) 15 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State vs. N. K. The accused, (2000) 5 SCC 30 ].” 19. Looking to the age of the prosecutrix and the facts narrated by her in her statement, we are not inclined to accept the aforesaid contention. The prosecutrix specifically stated about the acts of the appellant which establish that the appellant committed intercourse with her. 20. In case of State of Himachal Pradesh vs. Sanjay Kumar @ Sunny reported in (2017) 2 SCC 51 , the Hon’ble Supreme Court has held that : “31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma vs. State of Himachal Pradesh, (2008) 8 SCC 551}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 21. In the light of the principle laid down by the Hon’ble Supreme Court, the testimony of prosecutrix coupled with the medical opinion of Dr. Mamta Timori (PW-4) is sufficient to convict the appellant for committing the offence with the prosecutrix. 22. In that view of the matter, in our considered opinion, the trial Court has rightly convicted the appellant for the charge under section 376(2)(f) of Indian Penal Code and awarded proper sentence as mentioned in the judgment. 23. In view of the foregoing discussion, the judgment of the trial Court is hereby upheld. This appeal being devoid of any merit, is hereby dismissed. 24. Copy of this judgment along with its record be sent to the Court below for information and compliance.