Madhya Pradesh High Court
Tej Khan And Anr. vs State Of Madhya Pradesh on 19 May, 2003
Equivalent citations: 2004CRILJ276
JUDGMENT S.L. Jain, J.
1. Appellants/accused being aggrieved by the judgment of ;conviction and sentence passed by the Additional Sessions Judge, Chhatarpur, in S. T. No. 112./ 1997, have filed this appeal challenging the correctness, propriety and validity of the findings and sentence.
2. By the impugned judgment the appellant Tej Khan has been convicted for offence punishable under Section 376(1) of the I.P.C. for having committed rape on a minor girl, namely Haseena, aged 11 years. The appellant Gafooran has been convicted for offence punishable under Section 376 read with Section 120B of the I.P.C., as she entered into a conspiracy with appellant Tej Khan for the commission of rape on the said girl. Both of them have been sentenced to R. I. for ten years and pay fine of Rs. 1000/-, in default they are to undergo further R.I. for one year each.
3. Succinctly narrated, the prosecution case is as follows :
Prosecutrix Haseena is daughter of Rasool Mansoori, resident of Isha Nagar. On 10-4-97 Haseena was cooking food in her house. Her parents had gone for their routine work as labourers. The appellant Gafooran went to the house of the prosecutrix and told her that her uncle (appellant Tej Khan, husband of appellant Gafooran) is calling her. Haseena accompanied Gafooran to her house. Gafooran took the innocent girl to a room where the appellant Tej Khan was present. After leaving the girl in the room she bolted from outside. In the closed room appellant Tejkhan committed rape on the prosecutrix.
4. The prosecutrix started to weep as her private part bled, consequent to the penetration. Gafooran came inside the room and tried to mop up the blood ozing from the private part of the prosecutrix with a piece of cloth. The appellant Gafooran threatened Haseena and advised her to tell others that a piece of wood got struck in her private part which resulted in bleeding. With the help of Jinnat, the grandother of Haseena, Gafooran carried Haseena to Chhatarpur Hospital, where her private part was stitched by the doctor. In the hospital also Gafooran did not allow Haseena to narrate anything about the incident. She herself told all the persons concerned that a piece of wood got struck in the private part of Haseena.
5. After returning from the hospital, she told her mother Sakeena, grandmother Jinnat and father Rasool about the incident. On 13-4-97 at 9.30 a.m. she lodged FIR Ex. D-l at police station Isha Nagar, where Crime No. 11/97 was registered against the appellants for offences punishable under Sections 376 and 120B of IPC.
6. Haseena was sent to District Hospital, Chhatarpur for medical examination. She was examined by Dr. Sangita Choubey (PW-1), who found multiple tears of hymen at 6, 9, 7 and 3 O'Clock position. From the record of hospital, the Doctor also found that earlier three stitches were applied on the private part of Haseena at posterior commensura. The vagina of prosecutrix admitted one finger with difficulty. Dr. Sangita prepared two slides of vaginal smear and also recovered a Salwar from the person of the victim. She sealed the slides and Salvar in a packet and handed over the same to the constable accompanying her. Dr. Sangita Choubey opined that sexual intercourse was performed with the girl within four days of examination. Ex. P-1 is her report. In her report, Dr. Sangita has mentioned that Haseena was brought by appellant-Gafooran to the hospital on 10-4-97 also and Gafooran had informed her that Haseena sustained injuries because a piece of wood had pierced her vagina.
7. Bed head ticket of Haseena was recovered from the hospital. Immediately after appellant-Tej Khan committed rape on the girl the appellant-Gafooran had wiped off the blood from the private part of Haseena with a frock, a yellow shirt, a white Banlyan and a piece of cloth. All these clothes were seized from her house vide Ex. P-5. Salwar recovered by Dr. Sangita Chouhan and slides prepared by her were also seized from constable Chandra Bhan, in a sealed packet as per Ex. P-11. Both the accused persons were arrested.
8. Accused-Tej Khan was sent to PHC. Isha Nagar, for his medical examination. Dr. V. S. Bajpal, who examined appellant Tej Khan found that he was capable of sexual intercourse. Two slides of his semen were prepared and handed over to constable Ramjan. Ex. P-10 is the report of Dr. Bajpai. The clothers and slides mentioned in paragraph 7, a Kurta, recovered by Dr. Sangita Chouhan from the person of prosecutrix Haseena, an underwear which was seized from accused-Tej Khan and slides of semen were sent to Assistant Chemical Examiner, State FSL, Sagar for chemical examination, who, after examination, found presence of blood on all the above articles, except the underwear and semen of accused-Tej Khan. The stains found by the Assistant Chemical Examiner were not sufficient for further examination, therefore, these articles were not sent to Serologist, Central FSL.
9. On completion of the investigation a charge-sheet was filed against the appellants in the Court of CJM, Chhatarpur, who committed the case to the Court of Session.
10. Charges for the offences described above were framed against the appellants. They abjured the guilt. Appellant-Tej Khan pleaded that there are two parties in his village. Father of the prosecutrix is leader of the opposite party. He has been falsely implicated by the opposite party. Appellant-Gafooran pleaded that she never brought Haseena to her house. Rasool, the father of prosecutrix had an evil eye on her and he has falsely implicated her in the offence.
11. After conclusion of the trial, learned trial Judge held that the prosecution succeeded in bringing home the guilt of the appellants and convicted and sentenced them as indicated above. It is against this conviction and sentence that the appellants have filed this appeal.
12. I have heard Shri Pramod Verma, learned counsel appearing for appellants and Ku. Alka Pandya, learned Govt. Advocate, appearing for the State; and perused the record of the trial Court.
13. Shri Verma learned counsel for appellants has contended that learned trial Judge erred in holding the appellants guilty of the charge levelled against them. He submits that the conviction and sentence imposed upon the appellants are bad, illegal and improper. On the other hand, learned Govt. Advocate supported the impugned judgment rendered by the trial Court convicting and sentencing the appellants.
14. Conviction of the appellants is based mainly on the following material:--
(a) The evidence of prosecutrix;
(b) The evidence of the mother of prosecutrix;
(c) The medical evidence; and
(d) Presence of blood and spermatozoa on different articles.
15. Haseena (PW-2) has stated that on the fateful day, she was alone in her house. Her parents had gone to attend their 'routine work. She was cooking food. The appel-lant-Gafooran came to her house and told her that her uncle appellant-Tej Khan was calling her. She then went to the house of accused persons along with Gafooran where Tej Khan took her to the inner room. Gafooran closed the door from outside. Tej Khan opened her Salwar and committed sexual intercourse with her. Her private part was profusely bleeding. She started crying, whereon Gafooran came and took her to the courtyard. She tried to wipe off the blood oozing out of her private part. The bleeding did not stop. Gafooran threatened her that if she disclosed the incident to anybody, she would be killed.
16. Gafooran told Jalil to convey a message to the parents of the prosecutrix that she is not well. Thus, parents returned home. On being asked by her mother Sakeena the prosecutrix could not tell her the real story due to threat given by Gafooran. Gafooran informed Sakeena that when Haseena was answering call of nature, a piece of wood got struck in her vagina. Thereafter, Gafooran took the prosecutrix along with her mother and grandmother to Dr. Shaeed, who advised to take the girl to Chhatarpur Hospital. Gafooran further accompanied the prosecutrix to Chhatarpur Hospital. Gafooran Bi was with her in the hospital, where the prosecutrix was admitted and stitches were applied to her private part throughout. After two days she was discharged from the hospital. After departure of Gafooran when complainant was free from her influence, she narrated the incident to her mother in detail. Thereafter, a written report was lodged by complainant at P. S. Isha Nagar. She was then sent to Chhatarpur Hospital by the police for her medical examination.
17. Sakeena (PW-3) who is the mother of prosecutrix, has stated that on the date of occurrence she along with her husband had gone to attend her routine work. At about 4 O'clock, Jalil came to the place where she was working and informed that Haseeha is sick. She along with her husband reached home. She found that Haseena was not able to speak and Gafooran told her that private part pierced by a piece of wood, therefore, it was breeding. Haseena was taken to a private poctor at Icha Nagar from where she was taken to Chhatarpur Hospital. She could not go to Chhatarpur. When Haseena returned from Chhatarpur Hospital, she narrated the incident in detail. The girl also told her that Gafooran had threatened her not to disclose the incident to anybody.
18. The evidence of prosecutrix and her mother is corroborated by medical evidence. Dr. Sangita Choubey (PW-1) has stated that she medically examined Haseena on 13-4-97 and found multiple tears on her hymen at 6, 9, 7 and 3 O'Clock position. Swelling and tenderness was present on her private part. From the record of hospital, the doctor also found that the earlier three stitches were applied on the private part of Haseena at posterior commensura. The vagina of prosecutrix admitted one finger with difficulty. Dr. Sangita prepared two slides of her vaginal smear and also recovered a Salwar with blood-stains from the person of the victim. She sealed the slides and Salwar in a packet and handed over the packet to the same constable who had brought the prosecutrix to the hospital. Dr. Sangita Choubey opined that sexual intercourse was performed with the girl within four days of her examination. Ex. P-l is her report. Dr. Sangita further stated that on 10-4-97 also Haseena was brought by appellant-Gafooran to the hospital and she had informed her that Haseena sustained injury because some piece of wood pierced against her private part. This fact was recorded by the doctor concerned in the relevant file. According to Dr. Sangita, she examined Haseena on 11-4-97 also on the request of her colleague-Doctors.
19. It is true that prosecutrix is a child witness and in case of a child witness Court has to carefully consider whether the child is under the influence of tutoring. The evidence of a child witness is not required to be rejected per se but rule of prudence requires such evidence to be scrutinised closely. Only on being convinced as to the quality of such evidence and its reliability the Court can base conviction thereon. The prosecutrix has lucidly stated the incident in detail and her cross-examination is not shaky. Her answers in the cross-examination suggest that her deposition was not under the influence of any tutoring. There are unimpeachable and most eloquent matters on the record which go to prove that Haseena is a witness of truth and not a witness of imagination. Therefore, her evidence cannot be discarded.
20. It is true that the witness did not disclose about the incident to her parents at the first available opportunity but the reason for that is apparent. The appellant-Gafooran who had threatened her was with her throughout and immediately after departure of Gafooran she narrated the whole story to her parents in detail. Evidence of Haseena has not only been corroborated by her mother but also by medical evidence.
21. There are also other circumstances to corroborate the evidence of Haseena. Certain clothes which were used for wiping off the blood oozing from the vagina of the prosecutrix by appellant-Gafooran haVe been recovered from her house. Stains of semem and spermatozoa were found present on the Salwar and Kurti of Haseena and also on the clothes which were used for wiping off the blood on her private part. All these circumstances confirm the incident of rape on victim.
22. The testimony of prosecutrix inspires confidence and is found to be reliable. She is an innocent village girl. Her evidence is intrinsically true and she is a truthful witness. Her evidence cannot be viewed with doubt, disbelief or suspicion. Testimony of victim of sexual assault is at par with the testimony of an injured witness. Just as it is presumed that a person sustaining injuries in an occurrence is likely to shield the real culprit, a rape victim is also highly unlikely to protect her tormentor and to falsely implicate some person in the same way. Therefore, evidence of the victim of the sexual assault has great probative force. The prosecution story as a whole strikes the judicial mind as probable. The evidence of the prosecutrix is corroborated by medical and circumstantial evidence. This way, the prosecution has established the guilt of appellant-Tej Khan beyond doubt.
23. It was pointed out by Shri Verma, learned counsel for the appellant that even if the Court comes to the conclusion that appellant-Tej Khan has committed rape on Haseena, the conviction of Gafooran with the aid of Section 120B of IPC is not legally maintainable. So far as the participation of Gafooran is concerned, the whole story appears to be unnatural. It is quite improbable that a wife will aid her husband in committing rape on a girl. Qafooran has been falsely implicated due to enmity.
24. The contention cannot be countenanced. From the evidence on record and the discussion above, it is established that Gafooran played an active role in the commission of offence by her husband and also in protecting him. The statement of Haseena in this regard is that it was appellant Gafooran who took her to her house on the pretext that her uncle was calling her and it was she who closed the door from outside and abetted commission of crime. The conclusion that she entered into a conspiracy with her husband, is based on legal and convincing evidence and the evidence of prosecution in this regard cannot be discarded only on the reasoning that a wife will not help her husband in commission of rape on a girl.
25. From the evidence adduced by the prosecution it is established beyond reasonable doubt that the appellant-Tej Khan committed rape on Haseena, aged 11 years and his wife, appellant-Gafooran conspired with her husband and helped him in the commission of the crime. Therefore, the conviction of both the appellants is proper.
26. So far as the sentences awarded to the appellants are concerned, looking to the seriousness of the offence they cannot be said to be excessive.
27. For the reasons stated above, we find no merit in this appeal and the same is dismissed. The appellant-Gafooran is on bail. Her personal bond and bail bonds are discharged. She shall surrender before the C.J.M., Chhatarpur, on or before June 23, 2003 to serve out the remaining part of the sentence awarded to her by the trial Court.