Madhya Pradesh High Court
Miyanlal S/O Golan Das vs State Of M.P. on 27 January, 1999
Equivalent citations: 1999CRILJ2227
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. In these three appeals from jail, the accused-appellants have called the question the defensibility of the judgment passed in S.T. No. 231/96 by the learned First Additional Sessions Judge, Chhindwara. The accused-Miyanlal and Faggu have been found guilty for offences punishable under Sections 363, 366 and 376(2)(g) of the Indian Penal Code (in short 'the IPC') and have been sentenced to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 363, I.P.C.; for five years under Section 366, IPC; and for a period often years for the offence punishable under Section 376(2)(g), IPC and to a fine of Rs. 100/- each, in default, to suffer rigorous imprisonment for one month. There is a direction for concurrent running of sentences. The accused-appellant Pyarelal has been sentenced to rigorous imprisonment for a period of three years under Section 363, IPC and five years for the offence punishable under Section 366, IPC with a stipulation that both the sentences would run concurrently.
2. The prosecution case, in brief, is that on 26-6-1996 the accused persons caught hold of the prosecutrix and took her to a 'Nala.' On the way Pyarelal left the other accused persons near a well and his participation in the crime ended there. Thereafter the other two accused persons committed sexual intercourse with the prosecutrix. It is alleged that the act was repeated by each of them. After the matter was reported at the Police Station, a crime was registered for the offences punishable under Sections 363 and 366, IPC against the accused-Pyarelal and under Sections 363, 366 and 376(2)(g), IPC against the other two accused. After completing all other formalities, charge-sheet was placed before the competent Court which, in turn, committed the matter to the Court of Session.
3. The accused persons abjured their guilt and took the positive plea that they had been falsely implicated. It was further plea of the accused-Faggu that the prosecutrix wanted to marry him and he has showed disinclination, he had been falsely implicated. The plea of alibi was also canvassed.
4. In furtherance of its case, the prosecution examined 18 witnesses in toto. P.W. 1 is the prosecutrix, P.W. 2 is Mendhakobai who had accompanied the prosecutrix; P.W. 3 is Laxman Sahu; P.W. 4 is Allobai; P.W. 5 is Dr. (Mrs.) Pratibha Shrivastava who had examined the prosecutrix; P.W. 6 is Anakhlal, P.W, 7 is Sewak; P.Ws.8,9,10,11,12,13,17 and 18 are the formal witnesses; P.W. 14 is Y. K. Naik who was the Station House Officer of P. S. Umreth on the date of incident; P.W. 15 is Inderwati, the mother of the prosecutrix; P.W. 16 is Khaddi, the father of the prosecutrix; P.W. 17 is Faggulal and P.W. 18 is R. C. Shabir. Apart from examining these witnesses the prosecution also brought number of documents on record.
5. The defence chose not to adduce any evidence.
6. On consideration of the oral, documentary and medical evidence, the learned trial Judge found the accused persons guilty of the offences and sentenced them as has been indicated above.
7. Assailing the aforesaid conviction, Mr. Satish Pateriya, learned counsel for the accused-appellants has contended that the learned trial Judge has completely erred in his appreciation of evidence inasmuch as the version of the prosecutrix is totally improbable. It is his submission that the finding of guilt is incompatible to the material on record. The learned counsel has argued that the prosecution version as has been putforth during the trial does not show unimpeachability and the acceptance of the said version by the learned trial Judge clearly exhibits the vulnerability of his reasonings. It is canvassed by him that a conjoint appreciation of the oral evidence and the medical testimony would go a long way to show that the allegations of sexual intercourse are adroitly contrived and do not deserve acceptance. It is also submitted that the version of the prosecutrix has not received any corroboration from the medical evidence, and hence her testimony should not have been relied upon. The learned counsel has also contended that the learned trial Judge has placed reliance on the F.S.L. report though the same has not been brought on record in accordance with the procedure established in law.
8. Resisting the aforesaid submissions of the learned counsel for the appellants, Mr. P. D. Gupta, learned Govt. Advocate has contended that the conclusions arrived at by the learned trial Judge are impregnable inasmuch as he has done a threadbare analysis of the material on record and his scrutiny cannot be found fault with. The learned counsel for the State has proposed that the version of the prosecutrix alone is enough to sustain the order of conviction, and as in the case at hand, she has stood embedded in her version, the impeachability of the same cannot be assailed by the defence to get the benefit of an order of acquittal.
9. To appreciate the rival submissions raised at the Bar, I have carefully perused the judgment of the learned trial Judge and gone through the evidence on record with the assistance of the learned counsel for the parties.
10. P.W. 1 is the prosecutrix herself. She has deposed that while she was returning from the market to her house along with Medhkobai at about 6 p.m. the accused persons caught hold of her, dragged her and after reaching near the well Pyarelal left the place and the other two took her to the nearby 'Nala'. She has clearly stated that Miyanlal and Faggu made her to lie down on the sand, threw sand on her face and gagged her mouth with a towel. Her efforts to protest with her hands became futile as Faggu caught hold of her hands. She has further stated that the accused Faggu took off her clothes and ravished her. Thereafter, Miyanlal had sexual intercourse with her. In her examination in chief she has stated that after she came to her village she informed the Sarpanch, Anakhlaj about the incident. She has also stated during investigation her 'sari' and 'petticoat' were seized. She has totally denied any kind of consent on her part. In her cross-examination she has stated that she had shouted when the accused persons caught hold of her and some people came running but as they could not see her or the accused persons, they went back. She has further deposed that she was ravished twice by each of the accused persons. She has stated that she had sustained external injuries. She has also deposed that after the act the two accused persons slept on the sand and she also lay down and after the accused persons slept, she ran to her village and informed Medhkobai. She has admitted that in the night she could not find her way and, therefore, she could not reach the village before the morning. She has disputed any kind of relationship or acquaintance with the accused persons.
11. Medhkobai has been examined as P.W. 2. She has stated that the accused-Faggu had assaulted her with shoes and she being scared had to come back to the village. She has stated that she informed the matter to one Allobai, P.W. 4, and they went in search of Faggu but he was not available at home. She has further deposed that the prosecutrix met her in the morning and narrated the whole incident. She has also stated that the prosecutrix had no acquaintance with any of the accused persons.
12. Allobai has been examined as P. W. 4, who has supported the prosecution version. P.W. 5 is Dr. (Smt.) Pratibha Shrivastava, who had examined the prosecutrix. As per her report, Ex. P/3 there were bloodstains on her leg and around her private part and the hymen was absent. She has also noted that the prosecutrix was in her periods and it was the second day at the time of her examination. She has stated that no final verdict could be given about the fact that she had been subjected to sexual intercourse. It appears from her evidence that on the 'petticoat' and 'sari' of the prosecutrix she had noticed some semen like stains. She has deposed that she had sent the seized articles and the slides for F.S.L. report. In her cross-examination she has stated that without the F.S.L. report she could not opine with certainty that the prosecutrix was subjected to sexual intercourse P.W. 6, Anakhlal has proved the seizure report. P. W. 7 is the Sarpanch who has deposed that the prosecutrix had intimated her immediately about the incident. He has also stated that in his presence the police seized the 'sari', blouse and 'petticoat' of the victim. He has also stated that the broken bangles were seized from the spot. The learned trial judge on scrutiny of the aforesaid evidence has believed the prosecution version. While doing so, he has also relied upon the F.S.L. report which was brought on record but was not proved in evidence. Learned counsel for the appellants has strenuously urged that the said report should not have been taken into consideration by the prosecution, as the same does not enjoy the status of evidence and hence cannot be utilised against the accused without affording an opportunity for confrontation. The submission of the learned Counsel for the accused-appellants on this score, deserves acceptance. The learned trial Judge has, in fact, committed illegality in relying upon said report. I am of the considered view that the said report has to be ignored. In that event, the question that arises for consideration is whether bereft of F.S.L. report the conviction can be sustained.
13. A victim of rape stands on a different footing. There is no need to look for corroboration. In this context, I may profitably refer to the decision rendered in the case of State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, wherein the Apex Court has held as follows :
There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity.
Thus, in the aforesaid background it is to be seen whether the testimony of the prosecutrix is reliable and trustworthy. Before I proceed to deal with the credibility of the evidence of the prosecutrix, it is profitable to refer to Section 114A of the Evidence Act. The said provision reads as under:
114-A. Presumption as to absence of consent in certain prosecutions for rape. In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of Sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent, of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent; the Court shall presume that she did not consent.
14. The aforesaid provision enables the Court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. The legislature has brought in the aforesaid provision because of the obtaining social backdrop. I may hasten to state here that the Apex Court in the case of State of Karnataka v. Mahabaleshwar Gourav Naik AIR 1992 SC 2043 : 1992 Cri LJ 3786 went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide the prosecution case cannot be thrown away over board. The purpose of referring to the aforesaid decision and the provision enumerated under Section 114A is to appreciate the fact that an offence of rape is not only an offence against a person but an offence against the entire society. In this backdrop version of the prosecutrix is to be appreciated and scrutinised. The learned Counsel for the appellants has strenuously urged that the version given by the prosecutrix is improbable and even if the allegation of sexual intercourse is accepted then also it can safely be concluded that there was consent on her part. As far as false implication is concerned the plea taken by the accused that the prosecutrix had expressed her desire to marry Faggu and on his refusal she has made this frustrated move by implicating the accused person in a case of rape. This plea is unbelievable because of its intrinsic improbability because a woman, by no stretch of imagination, would implicate two persons in a case of rape because one of them had refused to marry her. I am of the considered view the plea does not deserve consideration because it is contrary to ordinary human conduct. The learned Counsel has also contended that the version of the prosecutrix is not trustworthy as she had spent a considerable length of time with the accused persons; could only reach her village on the next morning; and her friend Medhkobai had not taken any steps to gather people and go in search of accused persons; though she had come back to her village quite early in the evening hours on the date of occurrence. As far as spending of time by the prosecutrix is concerned, it is worthwhile to note that she has categorically stated that she was ravished twice by each of the two accused persons and after the act when they got into their sleep, she could leave the place. It is apparent that the two accused persons after satisfying their carnal desire did not bother themselves about her existence and went off to sleep. A panick-striken young girl could not have left earlier but had to wait till the accused persons got into their sleep. There is no reason to doubt the aforesaid statement of the prosecutrix. It cannot be said that she remained there out of her own volition. It cannot also be said that she surrendered to the desire of the accused persons by expressing her free-will. Even if she surrendered it was because of compulsion, terror and the instinctual proclivity to save oneself. As far as the conduct of Medhkobai is concerned, I also find not much abnormality in the same. She has deposed that she told Allobai and both of them went in search of Faggu. True it is, there is nothing on record to show that they had told any male persons or taken any steps to get hold of the accused persons. It is not out of place to state here that a large number of women still fail to report the matters relating to rape at the police station. Medhkobai might have her own reasons and she might have thought telling many people would have an adverse effect on the reputation of the prosecutrix. In any view of the matter her conduct cannot create a dent in the version of the prosecutrix. Quite apart from the above, the prosecutrix after reaching the village immediately told others and prosecution was launched in quite promptitude. The learned counsel for the appellants has contended when there is no positive corroboration from the medical evidence recording of conviction in the facts and circumstances of the case, would not be justified. The aforesaid submission, I am afraid, does not merit consideration as it is well settled that a conviction for an offence of rape can be recorded even in the version of the prosecutrix does not receive corroboration from the medical examination. The only aspect is to be seen that her version inspires confidence. In the case at hand, there are no circumstances which militate the credibility of the version of the prosecutrix. Her version inspires confidence. I am of the considered view that there was no consent on her part and she was ravished against her will. Resultantly, I uphold the conviction of the accused Miyanlal and Faggu.
15. Now I, shall proceed to deal with the conviction recorded against the accused-Pyarelal. Both the prosecutrix as well as Medhokobai have clearly implicated him. It is in their deposition that Pyarelal had participated in the crime till he went near the well. There is no reason to disbelieve the testimony of these witnesses. Hence, I am of the considered view that the conviction recorded against him is defensible.
16. Now, to the question of sentence. Mr. Pateriya, learned Counsel for the appellants has contended that the sentence imposed on the accused persons is quite excessive. It is also his submission that the accused were quite young at the time of the incident. He has submitted that they should be leniently dealt with. Pyarelal has been convicted for three years R.I. under Section 363, I.P.C. and for five years R. I. under Section 366, I.P.C. Considering the role ascribed to him in the entire crime and his limited participation, I am inclined to reduce the sentence to the extent of one year R.I. under Section 363, I.P.C. and two years R.I. under Section 366, I.P.C. with a stipulation that both would run concurrently. As far as other two accused persons are concerned, I do not find any reason to show leniency. Miyanlal was aged about 26 years and Faggu was aged about 32 years at the time of the occurrence. They were not young as putforth by Mr. Pateriya. While imposing sentence in a crime of this nature the Court is required to be conscious that a crime of rape not only corrodes the inner soul of the victim but also it creates an incurable dent in the psyche of the society. It is an assault on the dignity of life. In this context, I may profitably refer to the decision rendered in the case of State of Andhra Pradesh v. Bodem Sundara Rao AIR 1996 SC 530 : 1996 AIR SCW 4435, wherein the Apex Court held as follows at page 531 of AIR :
In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment.
17. Keeping in view the aforesaid pronouncement of law and in absence of any extenuating or mitigating circumstances, I am not inclined to impose less than the minimum as prescribed by the Legislature.
18. In view of the foregoing premises, the appeals filed by Miyanlal and Faggu are dismissed and with the aforesaid modification in sentence the appeal preferred by Pyarelal also stands dismissed.