Madhya Pradesh High Court
Rakesh & Anr. vs State Of M.P. on 9 September, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
1
Cr.A. No.592/2004 & Cr.A. 682/2004
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE VISHAL MISHRA
Criminal Appeal No. 592/2004
(Rakesh & Another Vs. State of M.P.)
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Shri V.K. Saxena, Senior Advocate with Shri M.S. Dubey,
learned Advocate for the appellants.
Shri Sanjay Bahirani, learned Public Prosecutor for the
respondent/State.
Connected with
Criminal Appeal No. 682/2004
(Kalyan Vs. State of M.P.)
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Shri Brijesh Sharma, learned Advocate for the appellant.
Shri Sanjay Bhirani, learned Public Prosecutor for the
respondent/State.
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JUDGMENT
[Delivered on 9th day of September, 2019] The aforesaid both the Criminal Appeals arise out of the impugned judgment and the order of conviction and sentence dated 24/8/2004 Criminal Appeal No.592/2004 and Criminal Appeal No.682/2004 rendered in Sessions Trial No. 53/2004 by the Second Additional Sessions Judge, Shivpuri (M.P.). Since the judgment challenged in these criminal 2 Cr.A. No.592/2004 & Cr.A. 682/2004 appeals is same, both the appeals are herewith taken up together for disposal and decided by this common judgment.
2. Appellants Rakesh and Lakhmi in Criminal Appeal No.592/2004, appellant Kalyan in Criminal Appeal No. 682/2004, stood tried for the charges leveled against them by the trial court and accordingly accused/appellants were convicted and sentenced under section 376 of IPC for 10 years R.I. and fine of Rs.10,000/- each and in failure to deposit the fine amount the further imprisonment of one year and under Section 506-B of IPC one year R.I. and fine of Rs.1000/- and in failure to deposit fine amount further the imprisonment of three months, all the sentences to run concurrently.
3. The facts from Criminal Appeal number 592/2004 is being taken for convenience.
4. Bare facts giving rise to the prosecution case are that complainant/prosecutrix came along with her mother and father to lodge a report on 27/01/2003 at Police Station Bairadah to the effect that prior to five months of the incident, when she was alone at her house at about 2 p.m. the accused Rakesh, Lakhmi, Kalyan and Bhura entered into her house and Kalyan entered in her patore and asked her to co-operate for sexual intercourse/commission of offence. She refused for the same, then Kalyan forcefully committed the rape with her and at that time other co-accused persons were standing 3 Cr.A. No.592/2004 & Cr.A. 682/2004 outside the patore and thereafter one by one all the accused persons have committed rape on her. At that time, her younger sister came inside and she shouted and has beaten the Kalyan with slippers. The accused persons ran away giving threats not to disclose the incident to anyone or else they will kill her, out of threat the FIR was not lodged by the complainant for almost 4-5 months but thereafter when she got pregnant and her pregnancy was noticeable and asking by her mother, the incident was narrated to her mother and thereafter, all of them went to lodge the FIR. On the basis of the aforesaid complaint, an FIR was got registered bearing Crime No.16/2003, at Police Station Bairadh under section 376 & 506 of IPC.
5. The prosecution after completion of Investigation has produced the charge-sheet before the learned trial court. The learned trial court has framed the charges against the present appellants and they were put to trial. As they have refused the charges against them stating that they have falsely been implicated in the case.
6. The prosecution in support of the case has examined ten prosecution witnesses, PW-7 being the prosecutrix. The learned trial court after conclusion of the trial and recording the statements u/S. 313 of Cr.P.C of the accused has arrived at a conclusion that prosecution was successful in proving the case against the accused persons beyond reasonable doubt 4 Cr.A. No.592/2004 & Cr.A. 682/2004 and accordingly has held them guilty for committing the offence and were accordingly convicted by the learned Trial Court vide its judgment of conviction dated 24/8/2004. Being aggrieved by the judgment of conviction dated 24/8/2004. The present appeal is being filed by the appellants.
7. The counsel for appellants has alleged that the learned trial court has committed error in convicting the appellants for the aforesaid offence as there are material contradictions and omissions in the statements of prosecution witnesses. He has drawn attention of this court to the statement of prosecutrix PW-7, has argued that as per the version of the prosecutrix she was major at the time of incident. It is further submitted that the prosecutrix is a consenting party to the offence as no steps were taken by her to lodge the report immediately. The incident has taken place prior to 4-5 months to lodging of an FIR and there is no proper explanation given by the prosecution for delay in lodging the FIR. It is further argued that the prosecutrix herself has admitted the fact that she has handed over her clothes to the police after the incident i.e. 4-5 months. It is further stated that the accused persons have committed rape with her several times, but she has not lodged the report to the police station at any point of time. Counsel for the appellants has further drawn attention of this court to the statement of Dr. Sunita Jain (PW-1) who has given a finding that she is a major and habitual of sexual intercourse, 5 Cr.A. No.592/2004 & Cr.A. 682/2004 therefore, no definite opinion can be given regarding commission of offence. Counsel for the appellants has further drawn attention of this court to the statement of Barelal (PW-
2) father of the prosecutrix who has stated that the incident regarding commission of offence came to his knowledge after two months, he has specifically denied regarding the fact of knowledge of the incident after five or six months. He has further drawn attention of this court to the statement of Gomtibai (PW-3) mother of the prosecutrix, wherein she has admitted that her patore surrounded by many houses and in all patore people used to live. He has drawn attention of this court to the fact that the mother of the prosecutrix has stated that when, in the evening, they came to her house from the fields, prosecutrix has narrated the incident to her and her second daughter Rajini has also told her about the incident and on the same day, the incident was communicated to her husband by her. She has further admitted that they have lodged an FIR after 3-4 months. He has drawn attention of this court to the statements of PW-6, wherein, she has admitted that she was told by her father to depose in the court like this. Thus, after taking this count through various statements, it is argued by Counsel for the appellants that there are material contradictions and omissions in the statements of all the witnesses and the main arguments which has been raised is delay in lodging of an FIR approximately 6 Cr.A. No.592/2004 & Cr.A. 682/2004 five months despite of the fact that the incident was narrated to the mother and father by the prosecutrix as well as her sister on the same day in the evening when they came back from the fields, therefore, she was a consenting party. It is further argued that in the medical report, she was opined to be habitual of sexual intercourse, she is a major, therefore it appears to be a clear-cut case of consent as the prosecutrix herself admitted this fact that she was subjected to sexual intercourse on several occasions. Learned counsel for the appellants has relied upon judgments in support of his submission. Hon'ble Supreme Court in the case of Surjan and others Vs. State of M.P. reported in AIR 2002 SC 476, Hon'ble Supreme Court in the case of Vijayan Vs. State of Kerala reported in (2009) 3SCC (Cri) 585, Hon'ble Supreme Court in the case of Parkash Chand Vs. State of Himachal Pradesh, reported in, (2019) 5SCC 628., Thus, he has prayed for setting aside the judgment of conviction of the trial and acquittal of the appellants.
8. Par contra, learned Public Prosecutor has supported the judgment of conviction passed by the trial court. It is submitted that there is no delay in lodging the FIR as the delay was satisfactorily explained in the FIR itself, threats were given by the accused on several occasions to the prosecutrix not to lodge an FIR or else they will kill her. In her statement she has given the same reasons for not lodging 7 Cr.A. No.592/2004 & Cr.A. 682/2004 the FIR immediately. In such circumstances, the lodging of FIR after a considerable period was duly explained. It is further contended, that initially owing to the fact that lodging of FIR will destroy the reputation of the family and it would be very difficult for the family to get the marriage of her daughter. Under such circumstances, when it was found that the prosecutrix was pregnant, then no other option was left out to the family itself to lodging an FIR against the accused. They have immediately narrated the incident to the Sarpanch of the village and FIR was registered. He has drawn attention of court to the statements of prosecutrix, wherein she has categorically stated that in the chief as well as cross- examination that she was subjected to rape by the accused persons. As far as commission of rape on several occasion is concerned it was clarified by the prosecutrix that the accused persons used to pressurize her by giving threat and used to rape her/commit the offence, therefore it cannot be said that she was a consenting party to the sexual intercourse. The statement of prosecurtrix was duly supported by her younger sister (PW-6) who was eyewitness of the incident. Thus, it is contended that the learned trial court has rightly convicted the accused for the offence punishable under Sections 376 and 506-B of IPC. Accordingly, he has prayed for dismissal of the appeal.
9. Heard the learned counsel for the parties and perused 8 Cr.A. No.592/2004 & Cr.A. 682/2004 the record.
10. From perusal of record it is seen that the FIR (Ex-P/6) was lodge on 27th January 2003, which was registered at Crime No.16/2003 wherein, it is being stated that incident was taken prior to five months before lodging of FIR and the reason for delaying the FIR was explained as "badnami evam Dar Ke Karan". She has categorically stated in the FIR itself that she has not lodged an FIR or narrated the incident to anyone owing to the "badnami", reputation of the family and fear of the accused persons as they used to threaten her. It was only, when she got pregnant and was noticed by her parents, then the incident was narrated by her to parents. Thus, the prosecutrix (PW-7) in her statement has categorically stated regarding commission of offence with her. It is further stated by the prosecutrix that accused persons used to threat her and used to commit sexual intercourse forcefully with her. The aforesaid statements given by the prosecutrix remain intact and the statements duly supported by her father (PW-2), mother (PW-3) and her younger sister (PW-6). As she was subjected to sexual intercourse on several occasions by the accused persons, therefore, the Dr. Sunita Jain (PW-1) has opined regarding habitual of sexual intercourse. The Doctor's report confirmed that the prosecutrix was pregnant and was having a fetus of four and half months or five months. Thus, commission of offence was confirmed by the prosecutrix and 9 Cr.A. No.592/2004 & Cr.A. 682/2004 doctor duly supported by the statements of her mother, father as well as her sister (PW-6). The Doctor (PW-1) has affirmed that prosecutrix was having 4-5 months pregnancy, which supports the prosecution case.
11. The Hon'ble Supreme Court in the case of Lillu @ Rajesh & Anr. Vs. State of Haryana reported in (2013) 14 SCC 643 reads under;
"Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide:
State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248).
In view of the provisions of Sections 53 10 Cr.A. No.592/2004 & Cr.A. 682/2004 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all".
12. Hon'ble Supreme Court in the case of State of Punjab Vs. Ramdev Singh, reported in AIR 2004 SC 1290 has dealt with a issue and held that rape is violative of the victim's most cherished of the Fundamental Rights u/A. 21 of the Constitution
11.Learned counsel for the respondent-
accused pointed out that rape as claimed by the victim was discounted by the evidence of PW-2, who did not find visible injury when she medically examined the victim. In our opinion the same is of no consequence. The doctor examined the victim after about 3 weeks. That being so, the effect of the act on the physical form was practically obliterated. That is not denied by the doctor. Merely because the friend of the victim was not examined that also cannot be a suspicious circumstance to throw suspicion on the victim's evidence.
13. Hon'ble Supreme Court in State of Uttar Pradesh Vs. Pappu @ Yunus and Anr. reported in AIR 2005 SC 1248 has held that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the Crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars, for the reason that she stands on much higher pedestal than an 11 Cr.A. No.592/2004 & Cr.A. 682/2004 injured witness.
14. In Narayannamma (Kum) vs. State of Karnataka and Ors., reported in (1994) 5 SCC 728, this court held that the fact of admission of two fingers and the hymen rapture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood raptured much earlier or carried an old tear. The factum of admission of two fingers could not be held adverse to prosecutrix, as it would also depend upon the size of the fingers inserted. The Doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to hymen.
15. The argument regarding the fact that the spot of incident was patore which is situated in the village surrounded by many other patores, wherein several people used to live but nobody has noticed the incident. The aforesaid argument does not have any force for the simple reason that the witnesses in the statement clearly deposed that the local village people/villagers who used to reside in their patores, used to go for work in the afternoon, there remains no one in the neighbourhood. Thus, when the incident has taken place there was no one in the adjoining patores so there was no occasion for anyone to come for help. Thus, the aforesaid stand of the learned Senior Advocate has no legs to stand. As far as the argument regarding material 12 Cr.A. No.592/2004 & Cr.A. 682/2004 contradictions in the statements given by the prosecution witnesses are concerned they are only minor inconsistencies rather all the prosecution witnesses have supported the case of the prosecution.
16. Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Munshi, reported in AIR 2009 SC 370, has expressed its anguish and held that even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally.
17. Thus, after going through the evidence available on record and after hearing the parties, this Court is of the 13 Cr.A. No.592/2004 & Cr.A. 682/2004 considered opinion that the trial Court has properly and legally appreciated the evidence available on record in this case, and the prosecution has proved the commission of offence beyond any reasonable doubt that it was only the appellants who have committed the offences. It is clear that appeal is not having any substance.
18. Consequently, the appeal filed by the appellants against their conviction under Sections 376 & 506-B of IPC is dismissed and conviction and sentence of the appellants as recorded by the trial Court is affirmed. The appellants are on bail, their bail bonds be cancelled and warrant of arrest be issued to enable them to suffer the remaining part of jail sentence. Resultantly, both the criminal appeals fails and are hereby dismissed. Copy of this order be sent to the trial Court for necessary compliance.
(Vishal Mishra)
vpn Judge
VIPIN KUMAR
AGRAHARI
2019.09.11
13:08:43
+05'30'