Buddh Sai and Another vs State of M.P.

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 20-11-1995 passed by Sessions Judge, Ambikapur, District Sarguja in Sessions trial No. 172/1995 holding the accused/appellants guilty u/s 376(2)(g) IPC and sentencing each of them to undergo rigorous imprisonment for ten years. Case of the prosecution in short is that, on 26-2-1995 at about 10 a.m. FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged between 14 and 16 years alleging that on 25-2-1995 at about 5 p.m. when she was returning home along with her cousin Dev Sai (PW-2) after attending some marriage function in the village, accused/appellants followed her. As her cousin was in an intoxicated condition, he could not keep pace with her and ultimately he fell down. Thereafter, accused/appellants caught hold of her and in the meanwhile her cousin left the spot and went to his house. Thereafter, taking advantage of her loneliness, accused/appellants dragged her to the nearby field and committed forcible sexual intercourse with her one after the other after removing her underwear. Though she raised an alarm, none came to her rescue. The prosecutrix sustained injuries on her wrist on account of her bangles being broken. She also sustained injuries on her knees and legs because of being dragged by the accused/appellants. Based on this FIR, offence under sections 376/34 IPC was registered against the appellants and the prosecutrix was medically examined by Dr. (Smt.) Kiran Bhugajwal (PW-4) on 26-2-1995 at 8 a.m. vide Ex. P-11 and likewise the accused/appellants were also medically examined on that day at about 8.30 a.m. by Dr. Rajesh Bhugajwal (PW-5) vide Ex. P-13 and P-15. After investigation challan was filed by the police on 22-3-1995 for the said offence.

So as to hold the accused/appellants guilty, prosecution has examined 06 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the trial Court convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of this judgment. Hence, this appeal.

Counsel for the appellants submits that present is a case where the accused/appellants have been falsely implicated in the case and a highly improbable story has been put forth by the prosecution. He submits that medical report of the prosecutrix does not support the case of the prosecution. He submits that though the slides of vaginal smear were sent for chemical examination to the Forensic Science Laboratory, no report to this effect has been submitted by the prosecution and in the absence of such report it cannot be determined that the accused/appellants were involved in commission of rape on the prosecutrix. He submits that as per the statement of the prosecutrix when she was lifted away by the accused/appellants, one Rupni had seen them doing so but she has not been examined by the prosecution. He further submits that as per the statement of the prosecutrix she narrated the entire incident to Sitamani and Hiramani but they too have not been examined by the prosecution. According to him, though the prosecutrix has stated that she was dragged by the accused/appellants but she has not sustained any injury on her body. He submits that as the prosecutrix had enjoyed the dance for throughout the night, just to save herself from the questioning of her father about her absence in the house, she has falsely implicated the accused/appellants. He further submits that statement of the prosecutrix has not been supported by Dev Sai (PW-2) that the incident was narrated by her to her father. He submits that as the prosecutrix was scolded by her father, she has falsely implicated the accused/appellants in the case. According to him, medical report of the accused/appellants shows that smegma was present on their penis and therefore it is to be presumed that the accused/appellants have not committed rape on the prosecutrix. He submits that neither the accused/appellants nor the prosecutrix have suffered any injury in their private part and in these circumstances the incident of rape on the prosecutrix by the accused/appellants gets falsified. According to him, in the event of rape that too by two persons, the prosecutrix was bound to suffer some injury on her person.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that statement of the prosecutrix alone is sufficient to convict the accused/appellants for the offence of rape. He submits that medical report of the prosecutrix Ex. P-11 duly supports the case of the prosecution. According to him, very prompt and named report was lodged by the prosecutrix and minor contradictions in her statement are of no help to the accused/appellants especially when the same has been duly supported by Dev Sai (PW-2). He further submits that non-examination of Rupni, Sitamani and Hiramani is not fatal to the case of the prosecution because the prosecutrix herself has made specific allegations against the accused/appellants. He submits that even if no FSL report has been submitted by the prosecution, statement of the prosecutrix and the medical report Ex. P-11 makes it clear that she was subjected to rape by the accused/appellants. In respect of presence of smegma, it is submitted by the counsel for the State that medical examination of the accused/appellants was done after 26� hours of the incident and therefore this point is not available to them.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-1) has stated in her evidence that on the date of incident she was studying in class VI. According to her, as on the date of incident there was some marriage function in the house of Moharsai, she had gone there in the company of Hiramani and Sitamani and that at about 6 p.m. her cousin came there and told her that she was being called by her mother. When she was returning home, as due to intoxication her cousin was not in a position to walk properly, he fell down behind the house of one Jeevanlal. Thereafter, the accused/appellants dragged her about 100 ft. away but her cousin Dev Sai got her freed from their clutches and took her to his house where he started vomiting. About 5-10 minutes thereafter, the accused/appellants came there also and dragged her away to the field and at that time her cousin had fallen asleep. Thereafter, first the accused/appellant Khobind threw her on the ground, removed her underwear and committed forcible sexual intercourse with her and then the said act was repeated by accused/appellant Buddh Sai also. According to her, though she had raised an alarm, nobody came to her rescue. At the time of incident, her bangles were broken as a result of which she sustained injuries on her wrist. On account of being dragged by the accused/appellants, she had sustained injuries on her left knee. After the incident was over at 7 p.m., accused/appellants ran away from the spot. She has further stated that the act of her being lifted away by the accused/appellants, was seen by Rupni. After the incident, she went to the house of Mohar Sai and narrated the incident to Hiramani and Sitamani and then on the next day to her father and mother and then the report Ex. P-1 was lodged and she was medically examined. She is stated to have stayed in the house of Mohar Sai for the whole night and in the next morning she was scolded by her father as to why she did not come home in the night. Thereafter, village Panchayat was convened and when no decision was taken there, after consultation with the family members, the report was lodged. On the date of incident her age is stated to be 15 years. Dev Sai (PW-2) - cousin of the prosecutrix has supported the version of the prosecutrix stating that on the date of incident when the accused/appellants were dragging away the prosecutrix, he made them to understand and got the prosecutrix freed and took her home but then as he was intoxicated he went to sleep and did not know as to what happened subsequently. Though in cross-examination he has stated that prosecutrix was scolded by her father, he has categorically denied that a false report has been lodged on account of pressure of her father. Dr. M.K. Jain (PW-3) is the witness who conducted ossification test of the prosecutrix and stated the age of the prosecutrix to be about 14 to 16 years. Dr. (Smt.) Kiran Agrawal (PW-4) who medically examined the prosecutrix and given her report Ex. P-11 has stated that she noticed abrasions on her left wrist, right knee and left leg. Her hymen was old torn and for confirmation of rape being committed on the prosecutrix, vaginal slides were prepared and sent for chemical examination and so for determination of age she was referred to the radiologist for ossification test. This witness has admitted that in medical report she has not mentioned about the duration of injury but then she has stated that they were caused within 24 hours there-from. According to her, private part of the prosecutrix was developing and that it is not necessary that if a woman is subjected to sexual intercourse, she should necessarily sustain injury on her thigh. Dr. Rajesh Bhujagwal (PW-5) who medically examined the accused/appellants and given his report Ex. P-13 and P-15 has stated that they were capable of performing sexual intercourse. According to him, smegma was present on the private part of both the accused/appellants. R.K. Mishra (PW-6) is the investigating officer who has supported the case of the prosecution.

Evidence thus makes it clear that the prosecutrix was subjected to forcible sexual intercourse by both the accused/appellants on 25-2-1995 and the statement of the prosecutrix (PW-1) has been duly supported by Dev Sai (PW-2) and to some extent by the medical evidence also which says that certain injuries were noticed on her body. This Court finds no force in the argument of the counsel for the appellants that the appellants have been falsely implicated in the case as there is no evidence on record to show as to why the prosecutrix would do so. This Court also finds no force in the argument of the counsel for the appellants that as the prosecutrix remained out of the house throughout the night, she has falsely implicated the accused/appellants just to save herself from the wrath of her father. This Court also finds no force in the argument of the counsel for the appellants that in the absence of FSL report it cannot be said that the prosecutrix was subjected to rape by the accused/appellants. Statement of the prosecutrix which has been supported by Dev Sai (PW-2) and to some extent by the medical evidence also, appears to be fully consistent and inspires full confidence of this Court. This Court finds no force in the argument of the counsel for the appellants that smegma was present on the penis of both the accused/appellants as the record itself goes to show that they were medically examined after 26� hours of the incident and that being so presence of smegma loses its significance. Similarly, non-examination of Rupni, Sitamani and Hiramani cannot be said to be fatal to the prosecution. From the record it appears that case diary statements of Johan, Hiramani, Mendli, Rupni and Sitamani were recorded by the police but if these persons have not been examined in the Court, the appellants cannot have any benefit of the same. The manner in which a tender aged girl has been ravished by the accused/appellants in spite of an alarm raised by her, speaks volumes about the seriousness of the offence. In view of the aforesaid factual discussion, the findings recorded by the Court below convicting and sentencing the accused/appellants being based on due appreciation of the evidence on record, cannot be interfered with in this appeal. Appeal thus being without substance is liable to be dismissed. It is dismissed as such. The appellants are said to be on bail, their bail bonds stand cancelled. They be sent to jail immediately to serve out the remainder of the sentence.