Madhya Pradesh High Court
Milan Dhimar vs The State Of M.P. on 4 October, 2018
1
Cri.A.No.1341/1998
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P. GUPTA)
Criminal Appeal No. 1341 / 1998
Milan Dhimar
Vs.
State of Madhya Pradesh
Shri Manish Datt, learned Senior Advocate with Shri Pawan Gujar,
Advocate for the appellant / accused
Shri Manish Kumar Soni, learned Govt. Advocate for the
respondent / State.
____________________________________________________________
JUDGMENT
(04-10-2018) This criminal appeal has been filed assailing the impugned judgment dated 1.6.1998 passed by the Sessions Judge, Panna, in Ses- sion Trial No.65/97 whereby the appellant has been convicted under Sections 450, 376 and 506 Part-II of the IPC and sentenced him to un- dergo RI for 5 years with fine of Rs.500/-, RI for 5 years with fine of Rs.500/- and RI for 1 year, respectively with default stipulation as men- tioned in the judgment. All the sentences are ordered to run concur- rently.
2. The prosecution case, in short, is that on 12.5.1997 the pros- ecutrix lodged a report in the police station Simariya, District Panna to the effect that she resided in village Hardua (Byarma). By the side of the house of the prosecutrix, resided Bhagchand (devar). Her mother-in-law used to reside next to the house of Bhagchand. By the side of Bhagc- hand, the appellant resided. On 11.5.1997 husband of the prosecutrix had gone out of the village for selling Belva and she was sleeping along with her two daughters and one son, at that time, in the night at about 12 O'clock, the appellant came over there, got the door opened and 2 Cri.A.No.1341/1998 thereafter, he pushed her, due to which, she fell down. The appellant pressed her mouth and threatened her that if she cried he would kill her as he was having knife. Thereafter, the appellant forcibly committed sexual intercourse with her and ran away. Thereafter, she screamed then her brother -in-law (Devar) Bhagchand came over there and the prosecutrix told him about the incident. On day time at 15:30 p.m. the report was lodged at the Police station Simariya, District Panna in Crime No.48/97 under Sections 376 and 506 Part-II of the IPC against the ap- pellant. Thereafter, the criminal law set in motion. The prosecutrix (PW-
1) was sent for medical examination to the District Hospital, Panna. The spot map was prepared and the clothes and other articles were seized.
After recording the statements of the witnesses and arrest of the appel- lant / accused, the Police filed charge sheet for the offence under Sec- tions 450, 376 and 506 Part-II of the IPC against the appellant / accused before the Court of JMFC, Pawai, District Panna, from where the case was committed to the Court of Session for trial.
3. During trial, learned trial Court framed charge for commis- sion of offence under Sections 450, 506 Part-II and 376 of the IPC against the appellant/accused to which the appellant-accused abjured his guilt and pleaded complete innocence and also claimed to be tried. His defence was that he has been falsely implicated because of the dis- pute with Bhagchand and it is a case of consent.
4. Learned trial Court after considering the evidence adduced by the parties and on the basis of the material available on record con- victed and sentenced the appellant as mentioned above.
5. This appeal has been filed on the ground that the statement of the prosecutrix is not reliable and there is no substantial corrobora- tion of her testimony with the independent evidence. The version of the prosecutrix is itself contradictory and inconsistent and also contradic-
3 Cri.A.No.1341/1998tory to the medical evidence. Learned trial court has erred in relying on the solitary testimony of the prosecutrix (PW-1) while in defence, a dis- pute of the appellant with Bhagchand has been proved. Apart from it, the statements of the prosecution witnesses are full of contradictions, omissions and improvements. Hence, no implicit reliance can be placed on such kind of testimony. Learned trial court has failed to consider the surrounding circumstances of the incident which are clearly indicating that if act of sexual intercourse was done by the appellant / accused, the same was done with the consent of the prosecutrix. Hence, the appeal be allowed the appellant / accused be acquitted of the aforesaid offence.
6. Learned GA has argued in supported of the aforesaid judg- ment of the trial court and prayed that the appeal be dismissed.
7. Having considered the contentions of learned counsel for the parties and on perusal of the record, it is found that the statement of the prosecutrix (PW-1) with regard to rape with her by the appellant is not discardable. The prosecutrix (PW-1) has categorically stated that at the time of incident she opened door to attend call of nature and thereafter while going back in the room and closing the door the appel- lant suddenly came and pushed the door, due to which, she fell down and the appellant gagged her mouth and said that if she cried he would kill her and at that time he was having Chhura with him. She being frightened had not made any endeavor to resist the appellant and sur- rendered before the appellant and the appellant committed sexual in- tercourse with her. When the appellant ran away she made cry then her brother-in-law Bhagchand (PW-11) came on the spot. She narrated the incident to him. She disclosed the incident to other villagers then she lodged the report Ex.P/1 on day time. She was medically examined and her petticoat was taken. H. R. Pandey (PW-10) In-charge of Police Sta- tion Simariya, has stated that on 12.5.1997 he recorded FIR Ex.P/1 as nar-
4 Cri.A.No.1341/1998rated by the prosecutrix and sent the prosecutrix for medical examina- tion. Dr. Pushpa Dwivedi (PW-9) has stated that on 13.5.1997 at District Hospital, Panna she examined the prosecutrix as the prosecutrix was married lady and habitual of sexual intercourse, therefore, no definite opinion can be given with regard to commission of rape with her as there was no mark of resistance on her person. Her petticoat containing white stains was seized and vaginal swab was prepared. The aforesaid articles were handed over to the Police and the report Ex.P/7 was pre- pared. Bhagchand (PW-11) has corroborated the testimony of the pros- ecutrix and one Bakhatraj (PW-2) has also stated that in the morning Bhagchand (PW-11) disclosed the incident and the people were called in the house of the prosecutrix before them the prosecutrix also told about the incident. However, other people Bhamiya (PW-5); Surajdeen (PW-6) and Laxmiprasad (PW-7) have become hostile but on account of non-supporting the prosecution story by these witnesses, the evidence of other witnesses cannot be ignored or doubted.
8. Samajhrani (PW-3) wife of Bhagchand has also stated that at the time of incident when she heard cry of the prosecutrix (PW-1) she with her husband went to the house of the prosecutrix where the pros- ecutrix told the fact of the incident. But the prosecutrix (PW-1) and Bhagchand (PW-11) have not stated that Samajhrani (PW-3) had also reached on the spot at the time of incident. In such circumstances her statement is insignificant and cannot be taken into consideration in sup- port of the prosecution version. Investigating officer H. R. Pandey (PW-
10) has also stated that during the incident the appellant was arrested and sent for medical examination. Dr. Hemant Sinha (PW-12) has stated that on the request of Police Station Simariya, the appellant was exam- ined and found him to be capable of sexual intercourse and sample of his semen was taken and his undergarment was also taken and handed over to the Police and the report Ex.P/12 dated 21.5.1997 was prepared.
5 Cri.A.No.1341/1998Head Constable Nirankar Singh (PW-4) has stated that on 13.5.1997 as per seizure memo Ex.P/3 he seized clothes and sample of vaginal swab from District Hospital, Panna and his statement is also supported by the statement of Constable Nandkishore (PW-8) who brought the aforesaid articles from District Hospital, Panna at Police Station. Investigating officer H. R. Pandey (PW-10) has also stated that the seized articles were sent to the FSL vide letter Ex.P/8 and the report Ex.P/9 was received. As per the report Ex.P/9 on the vaginal swab and petticoat, presence of stains of semen was confirmed.
9. The aforesaid evidence prima facie establishes the fact that the appellant entered into the house of the prosecutrix during 12 O'clock at night and committed sexual intercourse with her without her consent and will under the threat to kill her.
10. The credibility of the aforesaid evidence has been chal- lenged by learned counsel for the appellant with the contention that the appellant has been falsely implicated because there was a dispute of Rs.500/- taken by Bhagchand from the appellant and this fact has been proved by the statement of the defence witness Ramkesh (DW-1) who stated that Bhagchand borrowed Rs.500/- from the appellant and when the appellant demanded money two-three times, lastly Bhagc- hand asked the appellant that he would not return money, whereupon a quarrel took place between them and Bhagchand threatened him that if in future he makes demand, he would be implicated in a false case like rape and Bhagchand with the help of the prosecutrix who is wife of his elder brother implicated the appellant in this case. But the aforesaid contention and the defence appear to be very unnatural. Merely on the aforesaid dispute with regard to meager payment of Rs.500/- ordinarily a person cannot be implicated in the false case like rape and the dispute was with Bhagchand and the wife of Bhagchand has not made any com- plaint. The prosecutrix who resided separately cannot implicate the ap-
6 Cri.A.No.1341/1998pellant in a false case because Bhagchand wanted to take revenge with the appellant. Hence, the trial court has not committed any error in considering the defence version to be untrue.
11. Further the contention of learned counsel for the appellant is that the prosecutrix was a consenting party as there was no sign of any resistance on the person of the prosecutrix and the prosecutrix did not raise any alarm during the course of commission of sexual inter- course. In this regard, learned trial court has placed reliance on the statement of the prosecutrix (PW-1) and Bhagchand (PW-11) and rightly held that at the time of incident the appellant was having sharp weapon like Chhura with him and he threatened the prosecutrix stating that if she cried he would kill her and ultimately, the prosecutrix had surren- dered before the appellant. The nature of every woman is different. It is not necessary for every woman to resist to such an extent that she may sustain internal or external injury on her person. Therefore, the state- ment of the prosecutrix that due to fear, she did not resist, appears to be natural. Further, immediately after commission of rape when the ap- pellant ran away the prosecutrix made hue and cry and hearing her cry, her brother-in-law Bhagchand (PW-11) reached on the spot and the prosecutrix apprised him of the incident and also to the village people and on the day time she lodged the FIR Ex.P/1. The aforesaid evidence points out that appellant committed sexual intercourse with the pros- ecutrix forcefully in other words without her consent and will.
12. In view of the aforesaid discussions, it is considered view of this Court that the prosecution has succeeded to prove the offence punishable under Sections 450, 376 and 506 Part-II of the IPC against the appellant beyond reasonable doubt. Hence, this appeal is dismissed. The finding of conviction and sentence awarded by the trial court is hereby affirmed. The appellant is on bail. His bail bonds stand cancelled. He is directed to surrender forth with before the trial court and the trial 7 Cri.A.No.1341/1998 Court shall send him to jail for serving out remaining part of his jail sen- tence in accordance with law.
A copy of this order be sent to the trial court and the jail au- thorities for information and compliance.
(J.P.GUPTA) JUDGE JP/-
Digitally signed by JITENDRA KUMAR PAROUHADate: 2018.10.05 18:14:32 +05'30'