Guddu @ Gudda vs State of M.P.

A.K. Awasthy, J.

Appellant/accused Guddu @ Gudda has filed the Criminal Appeal No. 83, of 2002 and appellant/accused Mohan @ Raghunath has filed the Criminal Appeal No. 669 of 2000 against the judgment and order dated 06.04.2000 in Sessions Trial No. 16/1999 delivered by learned First Additional Sessions Judge, Ratlam of their conviction and sentence u/s 366 of the IPC for the rigorous imprisonment of 4 - 4 years and fine of Rs. 1,000.00 Rs. 1,000.00 and in default RI of 6 - 6 months. Appellant Guddu was also convicted and sentenced u/s 376 of the IPC for the rigorous imprisonment of 7 years and fine of Rs. 5,000.00 and in default RI of 6 months.

The prosecution case is that on 11.09.1998 at about 09.30 p.m. at Village Ukala Road, Ratlam when prosecutrix Lata (PW-2) aged about 13 years was alone in her house, the accused Guddu and Mohan came to her house and accused Gudda told her that he will provide her the Sari and bangles and when Lata (PW-2) refused to accompany both the accused persons dragged her out from the house and threatened her that if she will not go with them, she will be killed. Lata (PW-2) was taken to Village Karmadi and kept her in the house of Kalu (PW-1) where accused Gudda committed the rape with her. The report Ex.P/2 was lodged by Jankibai (PW-3), mother of the prosecutrix. The prosecutrix came back to her house on the next day and she was sent for her medical examination to Civil Hospital, Ratlam. Dr. Sarojani Ben Patel (PW-5) examined her on 16.09.1998 and found the reddishness on her private part and the report is Ex.P/3. Dr. D.C. Boriwal (PW-6) took the X-rays of elbow and vide his report Ex.P/5 opined that the age of the girl was about 16 years. The accused was examined on 03.10.1998 by Dr. C.S. Verma (PW-7) who has found the accused capable of doing the sexual intercourse. During the invesigation Y.S. Chauhan (PW-11) has sent the slides of the vaginal swab to FSL and according to FSL report the slides and garments of the prosecutrix were containing the blood and semen. Y.S. Chauhan (PW-11) after investigation has filed the charge-sheet against the accused persons under Sections 376 and 366 of the IPC.

Both the accused persons have abjured the guit and pleaded false implication due to enmity.

The appellants have assailed the conviction on the ground that the testimony of prosecutrix Lata (PW-2) is not reliable and the impugned judgment is not tenable.

Lata (PW-2) has stated that when she was, with her younger brother, in her house, both the accused threatened her and took her to the Village Karmadi and kept her in the night in the house of Kalu (PW-1) who is the brother-in-law of accused Mohan. That accused Guddu forcibly committed the sexual intercourse with her. Prosecutrix Lata (PW-2) is unmarried girl of 13 years. She has studied upto of 5th Class. Lata (PW-2) has not contradicted her earlier police statement. She has no reason to falsely implicate the accused persons. The unmarried minor girl will not invent false story of her abduction and rape as the same will effect her marriage prospects and cause the humiliation in the society.

Kalu (PW-1), who is the brother-in-law of accused Mohan, has stated that both the accused brought a girl in his house and they lived with the girl in the house for the whole night. Kalu (PW-1) has further stated that both the accused were directed by him to hand over the girl to her parents and in the early morning accused with the girl had left the house. In the cross-examination of Kalu (PW-1) only three questions were asked. There is nothing whatsoever to create an iota of doubt in the veracity in his statement. His version is reliable and trustworthy.

Dr. Sarojani Ben Patel (PW-5) has examined the prosecutrix and found the reddish mark on her private part and she has further opined that the hymen of the prosecutrix was intact. The slides of the swab from the vagina was prepared by her and the garments of prosecutrix was seized and sealed and handed over to the police. From the FSL report, it is evident that the slides and the garments of prosecutrix were stained with the semen and the blood. The injury on the private part of the prosecutrix and the presence of semen and blood on her private part is in consonance with the story of the prosecution.

From the statements of Lata (PW-2) and her mother (PW-3), it is clear that the age of the prosecutrix was about 13 years. The version of the lady doctor is that the prosecutrix was below 16 years. In the ossification report Ex.P/5, the age of the prosecutrix is mentioned in between 16 to 18, the margin of 2 years on either side is possible in determining the age by the X-ray of the joints. Consequently, the learned Trial Court has rightly held that the age of the prosecutrix at the relevant time was about 13 years. From the statements of prosecutrix Lata (PW-2), Kalu (PW-1) and medical examination report and the presence of the semen and blood in the slides and the garments of the prosecutrix, it is proved beyond reasonable doubt that the accused persons had kidnapped the prosecutrix and accused Guddu has committed the rape with her. In the backdrop of the factual aspects highlighted above, the learned Trial Court has rightly held the accused Guddu guilty for the offence punishable under Sections 376 and 366 of the IPC and too Mohan was for the offence punishable u/s 366 of the IPC.

The sentence of the imprisonment awarded to the appellants is proportionate to the nature of offence committed by them. The accused persons are poor rustic villagers of the Scheduled Tribes community. Thus, the fine imposed on them is hereby set-aside.

The appeal is partly allowed. The conviction and substantive sentence against the appellants accused is hereby maintained but the fine imposed on the appellants accused persons is set-aside. Appellant Mohan be taken in custody to undergo the jail sentence.