Madhya Pradesh High Court
Vijaysingh vs State Of Madhya Pradesh on 20 November, 2001
Equivalent citations: 2002(1)MPHT136
JUDGMENT S.L. Kochar, J.
1. This appeal has been filed by the appellant against judgment dated 19-12-89 passed by the Second Additional Sessions Judge, Khargone, in S.T. No. 187 of 1989 convicting appellant Vijay Singh for the offence under Section 376, IPC and sentenced to undergo RI for 10 years and fine of Rs. 500/-, in default RI for six months, under Section 452, IPC, RI for one year and fine of Rs. 200/-, in default RI for one month under Section 342, IPC, RI for six months and under Section 506B, IPC, RI for six months. Appellant Kadva was also convicted and sentenced but because of his death, his appeal has abated as per Court's order dated 12-8-98. The Trial Court has also ordered all the substantive sentences to run concurrently.
2. The prosecution case, in nutshell, is that prosecutrix Lata (P.W. 3) was all alone in her house on 8-3-89. Her mother had gone to Rajasthan before one month from the date of occurrence, her elder sister Bharti had also gone to house of her friend. On 8-3-89 in the evening at 7.00 p.m. appellant Vijaysingh and deceased appellant Kadva came to the house of prosecutrix and asked the whereabouts of her mother and sister. Appellant Vijaysingh demanded a glass of water. The prosecutrix went to next room for bringing water. She was followed by appellant Vijaysingh, who caught hold of the prosecutrix from her waist, threw her on the ground and also gagged her mouth. Kadva threatened prosecutrix and as per direction by the appellant Vijay, he went out of the room and bolted the room from outside. Appellant Vijay at the point of dagger committed forcible sexual intercourse with the prosecutrix against her consent and Will. She was also threatened to face dire consequences if she will lodge the report in the police station. Prosecutrix immediately rushed to house of her elder sister Nirmala and disclosed about incident. First Information Report was not lodged on the same day or immediately because there was no member of the family of the prosecutrix available in the house. Her brothers had also gone to Indore. Report was lodged on 11-3-89 after arrival of her brother Ghanshyam.
3. After lodging of the First Information Report, the police stepped into investigation and filed charge-sheet against the accused persons for the offences under Sections 376, 342, 452, 506 II read with Section 34, IPC. The Trial Court framed the charges for these offences against appellant Vijay, who abjured his guilt. The prosecution examined as many as 15 witnesses for proving the guilt of the accused persons and convicted appellant Vijay and Kadva for the aforesaid offences.
4. Shri Jaisingh, learned counsel for the appellant vehemently argued and submitted, that because of delay in lodging First Information Report Exh. P-3, and because the prosecution has not established the identity of the appellant legally and properly by adducing cogent and reliable evidence, abnormal conduct of the prosecutrix, prosecutrix being major girl and was also a consenting party, there is inconsistency between the ocular version and medical evidence and the witnesses were having inimical terms with the appellant, the conviction of the appellant is not sustainable. On the other hand, Shri A. Salim, Panel Lawyer for the State, has supported the judgment and finding arrived at by the Trial Court and prayed for dismissal of the appeal.
5. Having heard rival contentions of the parties and after perusing the entire record of the case this Court is of the opinion that the Trial Court has rightly convicted the appellant and there is no substance and force in the contentions raised by the learned counsel for appellant.
6. Though there is delay in lodging the First Information Report, the incident occurred on 8-3-89 at 7.00 p.m. whereas First Information Report was lodged on 11-3-89 but this delay has been satisfactorily and properly explained by the prosecution. In the First Information Report Exh. P-3 as well as in the statement the prosecutrix P.W. 3 Lata has given very cogent, plausible and reasonable explanation for not lodging the report immediately. According to her, on the date of incident she was all alone in the house, her mother had gone to Rajasthan, her elder sister has also gone to house of her friend, her brothers were at Indore. Because of this, she being a young girl could not dare to go to the police station for lodging the report, specially when she was also threatened for direct consequences, if she would lodge the report against the appellant. In spiteof threat she immediately rushed to the house of her another married sister Nirmala (P.W. 4) and disclosed the entire incident. Thereafter, her brother-in-law Amarlal (P.W. 14) (husband of Nirmala, P.W. 4) had gone to Indore for intimating the brother of prosecutrix named Ghanshyam and after arrival of Ghanshyam, First Information Report of the incident was lodged. According to witnesses, the accused was also a bully of the area. The Supreme Court in State of Rajasthan v. N.K. (accused), AIR 2000 SC 1812, held :
"A mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case over-board. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reasons assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution.
7. The Supreme Court in State of Karnataka v. Manganna (AIR 2000 SC 2231) relying on State of Punjab v. Gurmeet Singh (AIR 1996 SC 1393) held in para 15 :--
"The Courts cannot overlook the fact that in sexual offence delay in lodging of FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police complain about the incidents which concern the reputation of the prosecutrix and honour of her family. It is only after giving it a cool thought that complaint of sexual intercourse offence is generally lodged."
8. There is no substance in the submission that the prosecution has not established the identity of the appellant on the ground that prosecutrix in her deposition has stated in Para 11 of her deposition that she was having no acquaintance with the appellant Vijay. In the same para she has stated specifically that she was knowing Vijay prior to the date of incident because he was visiting the house of Shri Tiwari the neighbour of her sister for purchasing liquor. The question of identity of the appellant also cannot be raised because in the First Information Report name of appellant Vijay was specifically mentioned by the prosecutrix and in Court also she has identified both the accused persons.
9. The testimony of prosecutrix Lata has also been challenged on the ground that while she was going to the house of her sister Nirmala (P.W. 4) she was questioned by the persons as to why she was weeping but she did not disclose about the incident and she also did not narrate the incident to her brother-in-law Amarlal (P.W. 14). This criticism has no substantial force because the prosecutrix who was ravished mercilessly at the point of dagger and was under pain and agony because of criminal assault, could not be expected to narrate such an ugly incident while going on road having tears in her eyes and fear in her mind and heart because of threat delivered by the accused persons and this cannot be attributed to her abnormal conduct.
10. For the purpose of establishing the age of the prosecutrix, the prosecution has examined Vindo Kumar Pandit (P.W. 5) Assistant Teacher of middle school, Khargone where the prosecutrix was studying in 7th class and according to school register her date of birth was 3-8-1975. Prosecutrix has also stated in her statement that she was studying in 7th class. Prosecutrix has also stated that at the time of incident she was wearing frock. According to ossification test evidence given by Dr. Kailash Malviya (P.W. 6) age of the prosecutrix could be 16 to 18 years on the date of her examination i.e., 13-3-89. According to lady doctor Dr. Viraj Bhalke (P.W. 13) could be between 14 -16 years of age in view of the school certificate, external appearance and statements given by Dr. Viraj Bhalke (P.W. 13) and report given by Dr. Kailash Malviya (P.W, 6) prosecutrix could be a girl of 16 years or below 16 years of age on the date of incident. The factum of age would not be helpful to appellant because no suggestion was given to prosecutrix about she being a consenting party. At one point of time, appellant has disputed the identity and according to him he was not known to the prosecutrix and at the same time he is also contending that prosecutrix was a consenting party. This contradictory argument cannot be accepted.
11. It has been argued by the counsel for the appellant that on external part of the body of the prosecutrix doctor did not find any injury though it is alleged by the prosecutrix that she was thrown on the ground. This submission has no bearing in the facts and circumstances of the present case because the sexual assault was made with the prosecutrix at the point of dagger and because of fear and terror she submitted herself. This cannot be construed as that the prosecutrix was a consenting party. The Supreme Court in State of Himachal Pradesh v. Manje Ram (AIR 2000 SC 2798) held :
"Submission of body by prosecutrix under fear of terror cannot be construed consenting sexual act."
12. The version of prosecutrix Lata (P.W. 3) has duly corroborated by Gourishankar (P.W. 1) who saw the accused persons coming out from the house of prosecutrix in the evening and disclosure about the incident to Nirmala (P.W. 4) the sister of the prosecutrix. The version of the prosecutrix is also duly corroborated by Nirmala (P.W. 4) her sister before whom she had narrated the entire incident immediately and also by the statement of Amarlal (P.W. 14).
13. The medical evidence adduced by the prosecution is also strongly supports the prosecution case. According to Dr. Smt. Viraj Bhalke (P.W. 13) the hymen of the prosecutrix was found torn at six o'clock and blood was oozing in its touch, her vagina admitted one finger and prosecutrix was feeling pain on its touch. There was cut on perineum.
14. Not only the medical evidence but Forensic Science Laboratory report and Serologist report of Calcutta Exh. P-19 also establish beyond all reasonable doubt the prosecution case proving the guilt of the appellant for commission of forcible sexual intercourse against her consent and Will. In Forensic Science Laboratory Report Art. A frock, Articles B-l and B-2 slides of vaginal swab, Art. C underwear of the prosecutrix. In the First Information Report Ex. P-3, prosecutrix has very specifically stated that after the incident and till lodging of the report, she did not take bath and was wearing the same frock and underwear and the same were seized by the police. In Mandanlal v. State of Jammu and Kashmir (AIR 1998 SC 386) the Supreme Court held :
"Presence of semen and human spermatozoa on clothes of the prosecutrix was also strong corroborative piece of evidence to prosecutrix version even if it has not been established that human spermatozoa was that of accused."
15. Relying on the statement of Dr. Smt. Viraj Bhalke (P.W. 13) in Para 16 that forcible intercourse with the prosecutrix would have been done within two days from the date of her examination though this fact is not mentioned in the medical report Ex. P-14. Learned counsel for the appellant submits that this opinion of the doctor about the date and time of incident is not tallying with the date and time of the incident given by the prosecution. This contention has no legal basis because first of all in the original medical examination report Ex. P-14 of the prosecutrix such opinion is hot mentioned and in Court the doctor in cross examination has expressed only a possibility. She did not give this as a conclusive opinion.
16. The appellant could not lay strong foundation by adducing cogent and reliable evidence for establishing that the appellant has been falsely implicated because of inimical terms with the brother-in-law of the prosecutrix named Amarlal (P.W. 14). A mere suggestion to this effect is neither here nor there. This suggestion has been refuted by this witness.
17. In cross-examination of P.W. 15, the appellant has got proved Rojnamcha Sanha No. 206, dated 8-3-1989 marked as Exh. D-3 showing the fact of lodging of the report by one Gopibai for the offence under Section 354, IPC, against the appellant. This document goes against appellant, showing the fact that prior to commission of rape upon the prosecutrix Lata (P.W. 3) and appellant/deceased Kadva is said to have molested the modesty of another woman Gopibai.
18. It would be just and proper to mention here that the Trial Court should have framed charge under Section 376(2)(g) of the IPC which defines the commission of gang rape. For this offence 10 years minimum punishment is prescribed. Non-framing of charge under this section would not give any benefit to the appellant because he is the main accused and perpetrator of the crime.
19. Thus, in view of the foregoing discussions on facts and legal position involved in the case, I find no merit in appeal and dismiss the same.
20. Criminal Appeal dismissed.