Guddu Alias Shivram vs State of M.P.

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 26-6-1997 passed by Additional Sessions Judge, Ambikapur, District Sarguja in Sessions Trial No. 08/1997 convicting the accused/appellant under sections 450 and 376(2)(g) IPC and sentencing him to undergo rigorous imprisonment for five years with fine of Rs. 500 u/s 450 and rigorous imprisonment for ten years with fine of Rs. 1,500 u/s 376(2)(g) IPC. Facts of the case in brief are that on 5-11-1996 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) - a married lady aged about 18 years alleging that on 4-11-1996 at 8 p.m. she was all alone in her house as her husband Malik Ram (PW-2) had gone for fishing, co-accused Dholalal and the present appellant came there and demanded water from her. When she offered water to the co-accused, he put off the earthen lamp burning in her house, threw her on the floor and when she tried to raise her cries, he had gagged her mouth. Present appellant is alleged to have held her legs and co-accused after removing her as well as his own clothes committed forcible sexual intercourse with her and after commission of the offence both of them left the spot. Thereafter, the incident was narrated to her husband and to the in-laws in the next morning and then FIR Ex. P-1 was lodged. Based on this FIR, offences under sections 450 and 376/34 IPC were registered against the accused/appellant as also the co-accused Dholalal but as the co-accused was minor he was prosecuted before the Juvenile Court whereas against the present appellant the challan was filed by the police on 30-11-1996 under sections 450 and 376(2)(g) IPC and subsequently the court below also framed the charge against him under the same sections.

In support of its case, prosecution has examined 05 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment.

Counsel for the appellant submits that a very improbable story has been put forth by the prosecutrix as according to her husband Malik Ram (PW-2) the incident was not informed to him on the same day but on the next day and all this shows that the accused/appellant has been falsely implicated in the case. He submits that names of the accused persons were not known to the prosecutrix and the same were disclosed to her by one Mohar Lal who has not been examined by the prosecution. According to him, medical report of the prosecutrix also does not support the case of the prosecution as the medical report says that there was no external or internal injury on the person of the prosecutrix. He further submits that the accused/appellant has not committed rape on the prosecutrix and therefore he cannot be convicted u/s 376(2)(g) IPC.

On the other hand supporting the judgment impugned counsel for the respondent/State submits that as the husband of the prosecutrix has been declared hostile, his statement loses its credibility. However, according to the State counsel the prosecutrix (PW-1) has been very firm and based on her statement the conviction of the accused/appellant is fully justified. He submits that the defence of false implication has not been taken by the accused/appellant in the Court below and therefore at this stage he cannot take such defence. He submits that a named FIR has been lodged by the prosecutrix and therefore it cannot be said that at the time of lodging FIR prosecutrix was not aware of the names of the accused persons.

Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellant and that on the date of incident when she was sleeping in her house alone as her husband had gone for fishing, the accused/appellant and co-accused Dholalal came there and demanded water from her which she gave to them. Then again they demanded water and this time also she kept the urn of water near the door. Thereafter, the earthen lamp kept near the door was put off and both the accused persons entered her house and caught hold of her. When she started raising cries while getting rid of them, the accused/appellant held her legs and co-accused after making her lie on the ground committed forcible sexual intercourse with her and then both of them left the spot. According to this witness though her husband returned home, on account of fear of being beaten she did not inform the incident to him on the same day but she informed the same to him on the next morning and then the report was lodged. She was sent for medical examination and her petticoat was seized. In cross-examination, she has admitted the fact that one Manik Kanwar was residing near her house and opposite her house there is a lane where people used to pass by. She has further clarified that it is co-accused Dholaram who had put off the earthen lamp. She has categorically stated that she did not know Nan Bargah but the said person was also arrested by the Police and released a day thereafter. In paragraph No. 8 the prosecutrix has stated that the co-accused committed sexual intercourse for half an hour but in spite of the cries raised by her nobody from the neighbourhood came out. According to her when she was lying on the ground, the accused/appellant stretched her legs and in the same posture the co-accused was committing sexual intercourse with her. She has denied that on account of her legs being stretched by the accused/appellant, the co-accused could not have committed the offence of rape. This witness has admitted that after the accused persons had left the spot, she went to sleep in her room and did not narrate the incident to anyone including Brajmohan, Mohar Sai and Mani Kanwar and that she informed the same to her husband, mother-in-law and father-in-law in the next morning and then the report was lodged. She has categorically denied that as the present appellant had seen her in an objectionable condition with the co-accused, the report was lodged by her. Several other suggestions put to this witness have also been denied by her.

Malik Ram (PW-2) - the husband of the prosecutrix in paragraphs 1 and 2 of his evidence has stated that on the date of incident he had gone for fishing and his wife was all alone in the house. When he returned home, nothing was informed by the prosecutrix on that day but in the next morning she informed him about the incident and then he and the prosecutrix went to his parents'' house and thereafter the report was lodged. Prosecutrix had informed him that she knew the two persons who had come to her house and then this witness has been declared hostile. In cross-examination done by the Public Prosecutor this witness has stated that he was informed by the prosecutrix that in his absence the accused persons entered her house, threw her on the floor and co-accused Dholaram subjected her to bad work whereas the accused/appellant had held her legs. However, when he was cross-examined by the defence counsel, he has stated that he did not know the accused persons and he was informed by Nan Bargah that some persons were making noise in his house and then he enquired from his wife as to who was shouting to which she informed him that she did not know those persons. In the next morning when he again asked his wife as to the persons who had come his house, she did not disclose their names and even Nan Bargah and Mani Kanwar had not disclosed their names but Moharlal and another person told him that the accused persons had entered his house and then the report was lodged. Dr. S.P. Jaiswal (PW-3) who medically examined the prosecutrix has stated in her evidence that there was no external or internal injury on the body of the prosecutrix, two fingers easily entered her vagina, her hymen was old ruptured and she was a married lady no opinion regarding recent intercourse could be given, Ganesh Ram Chouhan (PW-4) is the witness who recorded FIR Ex. P-1 and seized petticoat of the prosecutrix in presence of the witnesses vide Ex. P-3 and he has supported the case of the prosecution. Arvind Tiwari (PW-5) is the investigating officer who has duly supported the case of the prosecution.

Minute examination of the evidence shows that on the date of incident both the accused persons went to the house of the prosecutrix when her husband was not there and taking advantage of her helplessness co-accused committed forcible sexual intercourse with her which being facilitated by the accused/appellant by holding her legs stretched. Though the accused/appellant might not have had physical relations with the prosecutrix, the act of holding her legs at the time of commission of offence by the co-accused and thus facilitating the crime, he cannot escape from the rigour of section 376(2)(g) IPC because it is a settled legal position that in a case of rape no corroboration is required and if the statement of the prosecutrix alone inspires full confidence of the Court it is sufficient to convict the accused. In the case in hand, evidence of the prosecutrix appears to be very natural and trustworthy as in a very simple manner she has described as to in what manner she was ravished by the co-accused duly assisted by the appellant herein. It is also a settled legal position that on proof of common intention of the group of persons to commit the offence of rape, actual act of rape by even one individual forming the group, would fasten the guilt on other number of the group, although he or they have not committed rape on the victim or victims. Here in this case there is ample evidence that both the accused persons entered the house of the prosecutrix and after asking water from her the co-accused put off the earthen lamp burning there, made her lay down on the ground committed forcible sexual intercourse with her and during the commission of this act, the accused/appellant was holding her legs. There is absolutely no evidence as to why the prosecutrix would falsely implicate the accused/appellant. In view of above, the findings recorded by the Court below in convicting and sentencing the accused/appellant as mentioned above are fully justified and warrant no interference in this appeal. Appeal thus being devoid of substance is liable to be dismissed. It is dismissed as such. Accused/appellant is on bail. His bail bond stand cancelled and he is directed to be sent to jail forthwith for serving out the remaining part of the sentence.