Madhya Pradesh High Court
Dayaram And Anr. vs State Of Madhya Pradesh, Thr. P.S. ... on 27 January, 1992
Equivalent citations: 1992CRILJ3154
JUDGMENT S.K. Chawla, J.
1. The two appellants, who are brothers, were convicted under Section 366, IPC for the offence of kidnapping a minor girl for compelling her marriage and were each sentenced to R.I. for 4 years. Appellant Dayaram was further convicted under Section 376, IPC for committing rape on that girl and sentenced to R.I. for 4 years, which sentence was directed to run concurrently with the sentence for the first offence. Aggrieved by their convictions and sentences, the accused persons have filed the present I appeal.
2. The prosecution story briefly stated was that on 3-4-1985 during day time at about 1-00 p.m., both the accused reached the house of Bhura (P.W. 3) in village Salai, police station Dhangaon, district Khandwa, M.P. Bhura's daughter Sagarbai (P.W. 1) was alone in the house with her younger brothers. Dragging Sagarbai by her hair, the accused openly and forcibly took her away with the avowed object that accused Dayaram would marry her. Sagarbai was taken to a near by jungle. Accused Mansingh went to his house to bring Sari for Sagarbai. Meanwhile, accused Dayaram committed forcible sexual intercourse with Sagarbai in the jungle. Sagarbai was made to wear the Sari which was then brought by accused Mansingh. Both the accused then took Sagarbai to their house in village Junapani Bamjhar. A written report (Ex.P-1) about kidnapping was presented by Bhura (PW-3), the father of the prosecutrix, at Dhangaon police station on 4-4-1985. On the same day at about 4-05 p.m. accused Dayaram himself produced Sagarbai at the police station on 4-4-1985. The police then made recovery of the girl and handed her over to the custody of her father. On these averments, the prosecution case was that both the accused had committed offences under Section 363 and 366, IPC and further accused Dayaram had committed offence under Section 376, IPC, while accused Mansingh an offence Under Sections 376/34, IPC.
3. Learned Addl. Sessions Judge Khandwa by judgment dated 29-10-1985, holding that Sagarbai was not proved to be a minor girl below 18 years of age, acquitted both the accused of the offence of kidnepping under Section 363, IPC. Accused Mansingn was further acquitted of the offence under Section 376/34, IPC. But both the accused were convicted under Section 366, IPC, while accused Dayaram was further convicted under Section 376, IPC and sentenced in the manner already indicated.
4. The conviction of the accused persons for the offence under Section 366, IPC does not appear to be sustainable for the simple reason that the charge against the accused was that of kidnapping by them of minor girl Sagarbai from the guardianship of her father for compelling her marriage, whereas the prosecution evidence accepted by the trial Court to convict the accused persons for the offence under Section 366, IPC was that they had forcibly abducted Sagarbai for compelling her marriage. It was held in the case of Khanna v. State, 1961 MPLJ 267, that though offences of kidnapping and abduction may fall under the same Section viz. Section 366, IPC, the two are so vitally different that the defence in the case of abduction, namely, consent would be a fatal defence in the case of kidnapping. It was further observed that it was not proper to convict an accused under Section 366, IPC for abducting a girl, when the charge, although under the same section, was that of kidnapping a minor girl from her lawful guardianship. The prosecution in the present case failed to prove that the girl was minor. On that ground, the accused were expressly acquitted of the offence of kidnapping under Section 363, IPC. The charge under Section 366, IPC was also for kidnapping and stated that minor girl Sagarbai was taken out of the guardianship of her father for compelling her marriage. As such, it was improper without amendment of charges against the accused persons to convict them of the different offences of abduction, albeit under same Section, on the evidence that the girl had been forcibly abducted. On this short ground, the conviction of the appellants for the offence under Section 366, IPC cannot be sustained.
5. This leaves for consideration the charge under Section 376, IPC of which accused-appellant No. 1 Dayaram was convicted. On the evidence which appeared in the present case, the conviction of this accused for the said offence appears to be unassailable. There was first the evidence of prosecutrix Sagarbai (P.W. 1) that accused Dayaram had violated her by forcibly committing sexual intercourse with her against her will in the jungle. Just previous to that the accused had roughly handled the said girl by dragging her out of her house by pulling the hair of her head and openly and menacingly taking her away in broad day light at about 1-00 p.m. in the presence of her younger brothers who were at the house. The girl was found to have sustained lacerated wound 3 cm x 2 cm x 1 cm on both sides of the back, another lacerated wound 3 cm x 2 cm x 0.5 cm over right elbow joint and third lacerated wound 8 cm x 3 cm x 0.5 cm on left gluteal region vide medical report, Ex. P-3, proved by lady doctor Smt. Swami (PW-6). These injuries were received by Sagarbai, if not during the course of resistence when she was violated, atleast by reason of her manhandling prior to rape. It is wrong to start suspecting the evidence of a presecutrix given in a case of rape on the apriori assumption that a woman would not easily admit that she tacitly or expressly consented to sexual intercourse. On the other hand, if totality of the circumstances appearing in the record of the case disclose that prosecutrix did not have any strong motive to falsely implicate the accused, the Court should ordinarily have no hesitation in accepting the evidence of the prosecutrix. In the present case, the circumstances in which the prosecutrix was forcibly taken away from her house and manhandled, make it all the more probable that she was not a consenting party and that sexual intercourse was committed without her consent by the accused. When the prosecutrix was produced at the police station by accused Dayaram on the next day, her conduct even on that occasion was eloquent enough. She made it clear at that time by telling that she was forcibly taken away from her house by the accused. The fact that sexual intercourse was committed received support also from the evidence of lady doctor Smt. Swami (PW-6) who deposed that on medical examination of Sagarbai she found that the Vagina of the girl admitted of a finger loosely, showing that sexual contact had been done with her. Whatever doubt was left was cleared by the report of Chemical Examiner (Ex. P-23), according to which seminal stains and human spermatozoa were found on Ghaghra and vaginal slides of the prosecutrix. In the totality of the above evidence, it is safe to hold that accused Dayaram had forcibly committed sexual intercourse with prosecutrix Sagarbai without her consent or against her will on the date of the incident in the jungle. He was properly convicted of the offence of committing rape although conviction should have been properly recorded under Sub-section (1) of Section 376, IPC rather then under Section 376 as such.
6. It must be said that this was not a case of a stranger acting with brutality and trying to satisfy his lust over a girl. The accused had behaved in the way he did because he wanted to make prosecutrix his wife. It is in the evidence of prosecutrix herself that among Bhilalas to which the parties belong, it is customary during the time Bhagoriya festival lasts, for a boy to forcibly take away a girl whom he intends to marry. If the girl is also willing, a Panchayal is held and the Jhagra amount is settled which is paid from the boy's side to the girl's father. If the girl is not willing, no Panchayat is held and girl goes back to her parents. It is therefore clear that had the girl Sagarbai consented to be taken away by accused Dayaram, they would have got married on payment of Jhagra amount and would have been husband and wife, and then the question of this prosecution would not have at all arisen. The sexual morals among Bhilalas and the social milieu in which the crime was committed have to be considered in judging the degree of seriousness of crime. It is also in the evidence that the act of the accused did not cast any serious stigma on the girl, which it would have had, if she had belonged to non-aboriginal society. It has thus appeared in the evidence that Sagarbai was married sometime after the present incident by her father to a different person named Jawansingh and further her father recovered handsome amount of Rs. 3,000/- from the bridegroom. The accused Dayaram was hardly 21 years of age at the time of the commission of the alleged crime. Considering all these circumstances about the crime and the criminal, this Court is of the view that sentence much below the minimum sentence of 7 years prescribed in Sub-section (1) of Section 376, IPC deserves to be inflicted on the accused. The record of the case shows that accused-appellant Dayaram has already undergone sentence of 2 months and 24 days during the course of this appeal, He has also undergone pre-conviction detention for 8 days. This Court is of the view that ends of justice would be amply met if he is sentenced to imprisonment already undergone, with imposition of fine to serve as a sort of some deterrence.
7. For the foregoing reasons, this appeal is partly allowed. The conviction and sentence of both the appellants for offence under Section 366, IPC are set-aside. They are acquitted of that offence. The conviction of appellant Dayaram for the offence under Section 376, IPC is maintained by slightly altering it to one under Sub-section (1) of Section 376, IPC. The sentence of 4 years rigorous imprisonment awarded on this count by the trial Court is reduced to the period of imprisonment already undergone by appellant Dayaram with imposition of fine of Rs. 1,000/- (one thousand) on him. In default of payment, of fine, he shall undergo rigorous imprisonment for one year. The fine shall be paid within such time as may be fixed by Chief Judicial Magistrate, Khandwa.