Madhya Pradesh High Court
Ramhit vs The State Of M.P. on 24 September, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:28076
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 104 of 2000
RAMHIT
Versus
THE STATE OF M.P.
Appearance:
Shri Vivek Singh, learned counsel for the appellant.
Shri H.S. Rathore, learned Government Advocate for the respondent/
State.
Heard on : 08.08.2024
Pronounced on : 24.09.2024
JUDGMENT
The present appeal has been filed on behalf of the appellant under Section 374 being disgruntled by the order dated 12.01.2000 passed in Sessions Case No. 23/1997, whereby the appellant has been convicted for the offence under Section 376 of the Indian Penal Code, 1860 (hereinafter referred as to 'IPC') for 7 years R.I. with fine of Rs.1,500/- and default stipulation.
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02. The Prosecution case in a nutshell is that on 23.02.1997, the complainant/prosecutrix went to pick cotton from her field. At about 2:00 o'clock, appellant Ramhit S/o Shivnarayan came there and said to prosecutrix "what is she doing", by saying this, the appellant caught hold the hand of prosecutrix. Then, after scuffle, the prosecutrix caught hold the hand of appellant and by another hand, broke head with stone. Due to which, the appellant released her, but again he caught the prosecutrix and knocked her down and put his both knees on her chest. Thereafter, the appellant committed rape upon her. The whole incident was told by her to her husband. Further, both went to police station to lodge FIR, where they were told that SHO was not there. After which, when they were coming back, accused Nandlal, Gabbu, Gendalal and Kishanlal @ Kantiya entered in the police station and surrounded them and also assaulted them by threatened them. Prosecution witnesses Vishnu, Watchman, Ghanshyam, Watchman and Rakesh intervened. An FIR was lodged by the complainant bearing Crime No. 40/1997 for the offence punishable under Sections 376, 342, 323, 506 & 34 of IPC and Sections 3(1) 12 of Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 (In short "SC/ST Act, 1989") at Police Station Khategaon, District Dewas.
03. In turn, after completion of investigation, charge-sheet was filed and the case was committed to the Session Judge and thereafter, appellant Ramhit was charged for offence under Sections 376 of IPC & Section 3(2)(5) of SC/ST Act, 1989 and other accused persons were charged for the offence under Sections 341, 323 & 506 of IPC.
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PMNEUTRAL CITATION NO. 2024:MPHC-IND:28076 3 They abjured theirt guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial.
04. In order to bring home the charges, the prosecution has adduced as many as 09 witnesses namely the prosecutrix/complainant (PW-1), Ranglal, husband of prosecutrix (PW-2), Rakesh (PW-3), V.N. Katiyar, ASI (PW-4), Uma Rathore, Service/Sarpanch (PW-5), D.K. Sakalle, CSP (PW-6), Dr. Laxmi Namdeo, Medical Officer (PW-7), Vishnuprasad, Watchman (PW-8) and Ghanshyam, Watchman (PW-9). On behalf of defence, no witness was adduced.
05. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 12.01.2000 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of Section 376 of IPC and sentenced to undergo for 07 years R.I. with fine of Rs.1,500/- and default stipulations and acquitted him from the offence under Section 3(2)(5) of ST/ST Act, 1989.
06. Here, it is pertinent to mention that others accused persons Gendalal, Gabbu and Nandlal have also been convicted for the offence under Section 341 of IPC with fine of Rs.500/- and Section 323 of IPC with fine of Rs.1,000/-, but no appeal has been preferred by them against the order of learned trial Court.
07. Being disgruntled from the findings and conviction of sentence, the appellant has preferred this appeal on various grounds. Learned counsel for the appellant has submitted that the impugned judgment is perverse in view of the law and facts. The learned trial Court has erred in passing the order of conviction and sentencing the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 4 accused on the basis of contradictory evidence of prosecution. There is no external and internal injury on the body of the prosecutrix. There is no sexual assault instincts on part of the appellant established by the prosecution. It has also been submitted that the appellant has falsely been implicated in this case on the basis of some old animosity. He has already completed jail sentence approximately two months and fifteen days. Therefore, the appellant is liable to be acquitted. Learned counsel for the appellant further demurred regarding the omissions, contradictions and embellishment in the testimonies of prosecutrix as well as other witnesses.
08. Learned counsel for the State on the other hand supports the impugned judgment and prays for dismissal of this appeal. It is submitted that the learned trial court has passed the impugned order after considering each and every aspect of the case and convicted the appellant rightly.
09. In the backdrop of the rival submissions, the point for consideration is as to whether the findings of learned trial Court regarding conviction and sentence of the appellant for the aforesaid offences is correct in the eyes of law and facts.
10. In view of the aforesaid statements, having gone through the record of trial Court, it is evident that prosecutrix (PW-1) has supported the prosecution case and narrated in her examination-in- chief that appellant Babulal committed rape upon her. She has clearly narrated that when she was in her field, appellant Ramhit came to her and asked as to what she was doing. Thereafter, he scuffled with her, caught hold her hands and pulled her to some extent. Her bangles Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 5 were broken. In the meantime, the prosecutrix has also caused injury on head of the appellant. In spite of that he has not left her and pulled her towards drainage and knocked down. Due to that, she was unable to move. Further, he put his both knees on her chest and committee bad work (bura kam). Owning to committal of rape, her dress (dhoti) sustained blood. The statement of prosecutrix in examination-in-chief has not been rebutted in her whole cross-examination.
11. Further, she alongwith her husband went to the Police Station for lodging complaint, whereupon she met with Rakesh (PW-3), Vishnuprasad, Watchman (PW-8) and Ghanshyam, Watchman (PW-
9). However, since the Station House Officer was not available at Police Station, she returned from the said police chowki but in the way other four accused persons met them and beaten her and her husband. Further, she has gone to the Police Station Khategaon and lodged the First Information Report (Ex.-P/1) in the night. The statement of prosecutrix also finds support from the testimonies of Ranglal, husband of the prosecutrix (PW-2), Rakesh (PW-3), V.N. Katyar, ASI (PW-4), Vishnuprasad (PW-8) and Ghanshyam (PW-9). The statements of these witnesses as to lodging the FIR have also not been controverted in their cross-examination.
12. Learned counsel for the appellant has adverted to some discrepancies in the statements of the witnesses, but during whole arguments, he is not able to point out any discrepancies or contradictions which hit the root of the case. On this aspect, the law laid down by Hon'ble Apex Court in we celebrated judgment Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 6 rendered in Bharwada Bhognibai Hirjibai Vs. State of Gujarat, AIR 1983 SC 753 is worth to refer here. In this case Hon'ble Apex Court has viewed as under :-
"Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
13. Here, prosecutrix is a rustic lady and victim of heinous offence, hence it is not expected that during the Court statement, she possesses the photographic memory and to recall the details of the incident exactly in the same manner. Hence, only on the trivial contradictions and omissions, the statement of prosecutrix cannot be thrown away.
14. Learned counsel for the appellant has also expostulated that due to enmity, the statements of prosecution witnesses can not be relied upon. It has been contended that the complainant party and appellant had previous enmity with each other. On this aspect, the law is well settled that enmity is double edged sword, and on the basis of enmity witnesses cannot be branded as liar. Recently in the case of Nagraj Reddy Vs. State of Tamilnadu, 2023 LawSuit (SC) 687, the observation of Hon'ble Apex Court is condign to quote here as under :-
Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PMNEUTRAL CITATION NO. 2024:MPHC-IND:28076 7 "13. Undisputedly, Narayanappa (PW1) is an interested witness, being the brother of the deceased. He has also admitted that there existed previous enmity between the parties. As held by this Court in a catena of cas es including a recent decision in the case of Khema alias Khem Chandra etc. Vs. State of Uttar Pradesh, 2022 SCC Online (SC) 991 previous enmity is a double edged sword. On the one hand, it provides for the motive and on the other hand, the possibility of false implication cannot be ruled out."
15. In view of the aforesaid propositions, the testimony of the prosecutrix as well as other witnesses cannot be discredited or wiped out only on the basis previous enmity or trivial contradictions which are not touching the substratum of case. As such the aforesaid contention is also not liable to be accepted. However, in such type of cases, the Court is bound to test and enquire the testimony of prosecutrix and other witnesses who are supporting the prosecution case.
16. So far as the submissions regarding internal and external injury on the body of the prosecutrix is concerned, certainly, as per medical report (Ex.P/7), no internal and external injury was found on the body of the prosecutrix. Dr. Laxmi Namdeo, (PW-7) has also not stated anything in this regard. On that basis, learned counsel also challenged the findings of conviction. On this aspect, it is well settled Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 8 that in the absence of external injury on the person of prosecutrix, it cannot be concluded that the incident had taken place with consent of prosecutrix. It rests upon the facts and circumstances of each case. In the case of B.C. Deva @ Dyava vs. State of karnataka, (2007) 12 SCC 122, Hon'ble the Apex Court has held that absence of injury on the person of the victim of rape does not lead to an inference that the accused did not commit forcible sexual intercourse. It has further been held that even in the absence of external injury, the oral testimony of the prosecutrix that she was subjected to rape cannot be ignored.
17. In this regard, Hon'ble the apex court in the case of Rafiq vs. State of Uttar Pradesh [AIR 1981 SC 559] has already observed as under:
"5. The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life-styles may fluctuate, and so, rules of prudence relevant in one fact-
situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 9 one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstance. Indeed, from place to place, from age to age, from varying life-style and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of presidential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed."
18. In view of the aforesaid law laid down by Hon'ble Apex Court, it can be manifested that the injuries on the person of the prosecutrix cannot be treated as sine qua non for setting up the offence of rape, because in order to establish the offence of rape such injuries on the person of prosecutrix are not an indispensable requirement. Hence, Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 10 the contentions raised by learned counsel in this regard, is found futile.
19. Shri Vivek Singh, learned counsel for the appellant has also demurred that only on the basis of statement of major prosecutrix, a person cannot be convicted for such a heinous offence for which minimum sentence of seven years has been provided. On this aspect, this Court is bound to recall the law laid down by Hon'ble Apex Court in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384 wherein it is held as under :-
"8..........The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 11 victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 12 which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 13 the victim of sex crime strikes the judicial mind as probable."
20. In this regard, Hon'ble Justice Krishna Iyer, speaking for the Bench in Rafiq Vs. State of Uttar Pradesh, (1980) 4 SCC 262 eloquently observed as follows :-
"Corroboration as a condition for judicial reliance on the testimony cf a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age. from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed."
21. Further in the case, Sham Singh Vs. State of Haryana, (2018) 18 SCC 34, the Hon'ble Apex Court observed as under :-
"........It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 14 may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults."
22. In the case at hand, the prosecutrix was working in her field and in course of that the appellant entered in the field and ravished her by using extra force. As per statement of prosecutrix, she was knocked down in the field by the appellant and thereafter, she was raped by him. The evidence of prosecutrix in her examination-in- chief regarding forceful sexual intercourse committed by the accused has not been shaken. Although, she has used the word for committing the bad act (khota kam) with her, yet, in view of the law laid down in Wahid Vs. State of M.P., AIR 2010 SC 1, the word 'bad act' would be treated as committing rape in the context of the circumstances of the case. The statement of prosecutrix finds support from the statement of her husband as well as other witnesses. That apart, the testimony of D.K. Sakalle, CSP (PW-6), the Investigating Officer has also no infirmity.
23. On this aspect, a recent judgment of Hon'ble Apex Court in State of Himachal Pradesh Vs. Raghuveer Singh and Others in Criminal Appeal No. 2568/2024 {2024 LawSuit (SC) 433} is also worth referring wherein Hon'ble Apex Court relying upon the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 15 judgment of State of Punjab Vs. Gurmit Singh (supra) emphasized the following excerpt of the judgment :-
"........ If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should Criminal Appeal no.2567 of 2024 etc. Page 12 of 15 ordinarily have no hesitation in accepting her evidence."
24. In the case at hand, the aforesaid ratio is exactly applicable. Having gone through the whole record in entirety, it is apparent that the statement of prosecutrix is absolutely worth relying. She had no reason to defame herself by falsely implicating the present appellant. As such, the prosecution case against the appellant has been proved beyond the reasonable doubt. Accordingly, the judgment of learned trial Court after well appreciation of evidence with regard to the conviction of appellant under Section 376 is found infallible and immaculate.
25. Now, turning to the part of sentence, in this case, the learned trial Court has convicted the appellant for the offence punishable under Section 376 of IPC and sentenced him for 07 years R.I. alongwith fine. In this regard, it is pertinent to mention that under Sub-Section (1) of Section 376 of IPC, minimum sentence of Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 16 rigorous imprisonment is prescribed for seven years alongwith fine. However, at the relevant time of offence, the proviso of Sub-section (1) of Section 376 of IPC reads as under :-
"376.......................................................
(1).........................................................
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than seven years."
26. In view of the aforesaid proviso, the Court has the power to impose a sentence of imprisonment of either description for a term of less than seven years for adequate reasons. Now, the question arises as to whether in this case any adequate reason is visible in favour of appellant or not. Having gone to the factual scenario of the present case, the following factors can be taken into account :-
(i) The incident was happened on 23.02.1997 i.e. 27 years ago.
(ii) The learned trial Court has convicted the appellant on 12.01.2000, as such, this appeal is pending before this Court for 24 years.
(iii) The age of the appellant is approximately 54 years.
(iv) There is no evidence regarding criminal antecedents against the appellant available on record.
27. Considering the aforesaid facts, this Court is of the view that there is adequate reason in favour of appellant to award the sentence Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM NEUTRAL CITATION NO. 2024:MPHC-IND:28076 17 for a term of less than seven years for the offence punishable under Section 376 of IPC. On this aspect, this Court can profitably rely upon the judgment rendered in State of Himachal Pradesh Vs. Raghuvir Singh & Ors (supra) wherein the Hon'ble Apex Court has affirmed the conviction of three years for the offence of rape in which the incident was 35 years old. This case is also related to the incident which has been happened nearly 27 years old. Hence, the sentence awarded to appellant may be reduced to some extent.
28. In upshot of the aforesaid analysis as well as deliberations in entirety, this Court is of considered opinion that in view of the aforementioned adequate reasons affirming the findings of learned trial Court regarding conviction under Section 376 of IPC, it would be condign to reduce the sentence from seven years to four years R.I. with enhanced fine of Rs.50,000/- in place of Rs.1,500/-. In case of default of payment of fine amount, the appellant shall undergo further three months Simple Imprisonment. Accordingly, this appeal is partly allowed.
29. After depositing the whole fine amount, the prosecutrix would be entitled to get the whole amount as compensation.
30. On the other hand, the appellant Ramhit is directed to surrender before the trial Court within 15 days from the pronouncement of this judgment for serving the remaining sentence, failing which, the learned trial Court will proceed to comply with and send the appellant in jail for suffering the remaining jail sentence as aforesaid.
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31. The judgment regarding disposal of the seized property stands confirmed.
32. A copy of this order be sent the learned trial Court concerned for information and compliance.
33. Pending application, if any, stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH) JUDGE Vindesh Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 9/24/2024 5:27:29 PM