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Khushal vs State Of M.P. on 13 September, 2006

Madhya Pradesh High Court
Khushal vs State Of M.P. on 13 September, 2006
Author: A Shrivastava
Bench: A Shrivastava


JUDGMENT

A.P. Shrivastava, J.

1. Appellant was tried under Section 376(1) of I.P.C. and found guilty for committing rape with the prosecutrix on 18-8-1997 and sentenced to undergo rigorous imprisonment for seven years in ST No. 125/ 98. Judgment was pronounced by the Additional Sessions Judge, Sheopurkalan.

2. Being aggrieved by the aforesaid judgment of conviction and sentence, the present appeal has been filed by the appellant on the following grounds:

1. First Information Report is delayed.

2. Act was committed with the consent of the prosecutrix as no injury has been found on the private part of the person of the prosecutrix and also medical opinion is not definite.

3. Report was lodged as her mother-in-law was aware of the act.

3. In short, the prosecution story is that in the early hours at about 3 a.m. on 18-8-1997 when the prosecutrix was sleeping in her room and her husband and father-in-law had gone to field, appellant came in the house of the prosecutrix, pressed her mouth, threw her on the cot and committed sexual intercourse. On hearing the cries of the prosecutrix, the mother-in-law and other persons of the locality came in the house of the prosecutrix and she informed the incident. The report was lodged on 19-8-1997 at 1.30 p.m. Police registered Crime No. 41/97 and First Information Report recorded as Ex. P-1. Prosecutrix was sent for medical examination through requisition letter Ex. P-4 and lady doctor examined her on 28-8-1997. Spot map was also prepared which is Ex. P-2. The sealed packet was also received which was seized vide Ex. P-5 and after completion of the investigation, charges-sheet was. filed before the Magistrate Court and the case was committed for trial to the Sessions Court. The appellant was found guilty for committing offence under Section 376 of I.P.C. and convicted accordingly.

4. This is not in dispute that the appellant is known to the prosecutrix and he is relative of the husband of the prosecutrix and his residence is also slightly away from the residence of the prosecutrix.

5. In the trial Court, prosecution examined only four witnesses namely prosecutrix (P.W. 1), her mother-in-law Jana (P.W. 2), Dr. Sheela Kushwah (P.W. 3) and R. D. Maurya (P.W. 4) the Investigating Officer.

6. The incident described by the prosecutrix (P.W. 1) is that she was all alone in the house. Her husband and mother-in-law had gone to the field for watching the crops. At about 3:00 a.m., the appellant came to her house. She was lying in the cot. He caught hold of her and committed sexual intercourse with her. When she tried to cry the appellant pressed her mouth. He committed the act nearly about five minutes. Thereafter, she came outside. On her cry, her mother-in-law Jana (P.W. 2) and other people of the locality came there and she narrated the story to her mother-in-law then only in the morning went to lodge the report at Police Station which is Ex. P-1. The petticoat which she was wearing at the time of commission of the act was seized by the Police. She also told that the appellant is the relative of her husband and he is known to her and also identified by her on the night of incident. In cross-examination, para 13, she deposed that the houses of Dal Singh and Maan Singh are adjacent to her house. She also narrated that her mother-in-law came first, then other people came there. Ram Singh, Dal Singh and Maan Singh were also present later on. But this fact was omitted in the First Information Report. She, in para 15, clarified that in her house, there is a rough door and it can be opened from inside and outside too. In cross-examination, she stated that the appellant had not given any threat before committing rape and no injuries were sustained by the prosecutrix during the incident.

7. Jana (P.W. 2) is the mother-in-law of the prosecutrix. She told that the prosecutrix is her daughter-in-law. She was all alone in the house and she came to her and informed about the incident. At that time, other persons were also present. Her daughter-in-law informed that the appellant forcibly caught her and then went to lodge the report. At the time of incident, she was along with her husband on the hut which is situated in the field. Her son, husband of the prosecutrix, was in another field. She also corroborated this fact that the door can be opened either from inside or outside.

8. Dr. Sheela Kushwah (P.W. 3) examined the prosecutrix on 20-8-1997. No in-jury was found on the external or in the internal private parts and also on the person of prosecutrix. She is habitual to have sexual intercourse and no definite view can be given about the recent rape. The report is Ex. P3. slides and petticoat were also sealed by the lady doctor.

9. R. D. Maurya (P.W. 4) has conducted the investigation of the case. The witness informed that the prosecutrix lodged the report in the police station which is Ex. P. 1 and she was sent for medical examination. On 21-8-1997, he went to the spot and prepared the spot map which is Ex. P-2 and also taken statements of the prosecutrix and other witnesses. In cross-examination, para 6, the witness stated that the prosecutrix did not inform that she was thrown on the ground and then the appellant committed rape. According to the witness, it was only reported that the sexual intercourse was done on the cot. On hearing the cry of the prosecutrix, her mother-in-law and other persons of the locality came there.

10. Now first, I will consider about the submission made by the learned Counsel for the appellant that how First Information Report is delayed. As per the First Information Report Ex. P1, it shows that the incident took place on 18-8-1997 at 3.00 a.m. and the report was lodged on 19-8-1997 at 1.30 p.m. The distance shown from the spot to the police station is 10 kms. In the statement of the prosecutrix (P.W. 1), in para 6, it has come out that in the morning, she went to lodge the report. This fact has not been clarified by the defence during the cross-examination of the witness. Her mother-in-law also narrated that when her daughter-in-law informed about the incident, thereafter, she went to lodge the report. R. D. Maurya (P.W. 4) in his examination, para 1, stated that the report was lodged on 19-8-1997 at about 1.30 p.m. No witness has told that the report was lodged on the next date and no explanation is given by the prosecution regarding the delay of FIR. It appears that the incident took place in the early hours at about 3.00 a.m. It appears that the incident took place between the intervening night of 18th and 19th of August, 1997 and the incident has been recorded as took place in the early hours of 18-8-1997. Apart from this, if we do not accept this mistake from the evidence of prosecutrix and mother-in-law Jana (P.W. 2), the prosecutrix informed about the incident to her mother-in-law soon after the occurrence of the incident.

11. It has been laid down by the Apex Court in the case of State of Rajasthan v. Shri Naryan has held that in rape cases if prosecutrix is a married rural woman and the accused was in her relation, delay in filing complaint not sufficient to doubt the prosecution version. Prosecutrix and her husband having no strong reasons to falsely implicate accused.

12. The testimony of the prosecutrix and her mother-in-law cannot be discredited by the defence during the cross-examination. Prosecutrix has categorically stated that at the time of incident appellant came to her house and committed rape with her. Some minor contradictions appeared but these are not enough to discard the prosecution story. Therefore, in such circumstances, the submission as made by the learned Counsel for the appellant that the FIR is delayed is not sufficient.

13. The submission as made by the counsel for the appellant, it appears that the incident took place in the night and the prosecutrix is a willing party because in the late hours of night the doors of the house were unlocked by the prosecutrix and when her mother-in-law saw the appellant/accused, for the sake of her chastity, she lodged the false report against the appellant. In this behalf he relied on a judgment in Criminal Case No. 224/01 Jeevra Khan v. State of M.P. in which the accused was acquitted on the basis of that the prosecutrix was a consenting party. The fact of this case is different. In that case the question comes whether, the prosecutrix was a consenting party or not. On going through the evidence of the prosecutrix, it is clear that she was going to take bath outside her house nearby hand-pump where the appellant winked. On seeing the sign of wink, she entered again in the house, thereafter, she was followed by the appellant and thereafter, he closed the door. It is said that, thereafter, appellant undressed her and committed rape upon her and the Court ultimately found in the case that the prosecutrix was a consenting party and acquitted the accused.

14. In the present case, the prosecutrix categorically stated that when the appellant entered in her house and committed rape on her, she was alone at that time. As soon as the appellant ran away from the spot she cried and her mother-in-law came there and the prosecutrix narrated the incident to her. The submission is that why the doors were opened in the late hours is satisfactorily explained by the prosecution by the evidence of prosecutrix (P.W. 1) and her mother-in-law Jana (P.W. 2) because both have stated that the door was locked and it can be opened from inside and outside. Therefore, it cannot be said that prosecutrix purposely unlocked the door in the night. The sub-mission that as her mother-in-law saw the appellant, therefore, prosecutrix lodged this false report has no force, because mother-in-law came thereafter hearing the cry of the prosecutrix.

15. Regarding the consent, the Apex Court clarified the position in judgment rendered in the case of State of Maharashtra v. Prakash in which it is laid down that the consent for the purpose of Section 375, I.P.C. required voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

16. In this case, the incident was reported to the police and the story narrated in the FIR fully supported by the prosecutrix and if she being a consenting party then she could not have told the incident to her mother-in-law because she was all alone in the house and on hearing the cry, her mother-in-law came on the spot and she narrated the incident immediately after the occurrence of the commission of act. During the evidence of the prosecutrix, it does not appear that she has any enmity with the appellant or any motive to falsely implicate the appellant for such heinous crime.

17. Regarding the absence of injury on the person of the prosecutrix, it appears that the prosecutrix is a married woman. It is not necessary in all cases of rape or sexual assault that the injury is must. It is a settled view that in every case version of the prosecution should not be corroborated by the medical evidence and on the single testimony of the prosecutrix alone, a conviction can be made if the evidence of the prosecutrix is reliable and credible.

18. Therefore, in view of the above discussion and from the facts and circumstances of the case, it is found that the appellant committed rape with the prosecutrix without her consent and the trial Court has rightly convicted the appellant under Section 376 of I.P.C.

19. Regarding the sentence, the learned Counsel for the appellant relied on a decision of the Apex Court rendered in the case Ramkumar v. State of Haryana 2006 (2) MPWN SN 137. In that case it is held that under Section 376, I.P.C. minimum sentence of 7 years’ rigorous imprisonment but it may be reduced in peculiar facts and circumstances of the case and in that case the Court reduced the sentence of 7 years’ RI to 3 years’ RI.

20. In a recent judgment reported in State of M.P. v. Santosh Kumar in which the Apex Court has held that under Section 376(1) and (2) the Court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for “adequate and special reasons.” If the Court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum. In order to exercise the discretion of reducing the sentence, the statutory requirement is that the Court has to record “adequate and special reasons” in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated.

21. In this case, regarding the reduction for sentence no special or adequate reasons have been found for reduction of sentence. Therefore, the conviction and sentence as recorded by the trial Court is affirmed. Consequently, the appeal is dismissed and disposed of accordingly. Bail bonds of the appellant stand discharged. He is directed to surrender before the trial Court and serve out the remaining part of the sentence.

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