Jokhi vs State of M.P. and Others

A.K. Shrivastava, J.

By this appeal preferred u/s 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment of conviction and order of sentence dated 9-3-1999 passed by 3rd Additional Sessions Judge, Shivpuri in Sessions Trial No. 187/92 whereby he has been convicted u/s 376(2), IPC and has been sentenced to suffer R.I. of 10 years and fine Rs. 5000/-, in default further R.I. of one year.

In brief the case of the prosecution is that in the after noon of 18-9-1992 the prosecutrix who is an innocent child of 6 years, was accompanying her mother, lateron her mother Kusum Bai, as she was walking little fast proceed ahead, later on the prosecutrix came to her, she was weeping. The mother noticed that the private part of the prosecutrix is stained by blood and blood was squeezing, on being asked, she said that appellant committed this hateful sin. The mother of the prosecutrix approached the appellant and asked why he has done such a sin, in reply when he denied, the mother of the prosecutrix snatched the towel which he was wearing and found the blood stains on his underwear. The mother of the prosecutrix narrated the incident to her husband and thereafter alongwith Chaukidar they went to lodge the report on the same day, i.e., 18-9-2002 at 5 p.m. The first information report is Ex. P-6 which was lodged by Brakhlal (P.W. 4).

On lodging the FIR criminal law was set in motion. The prosecutrix was immediately sent for medical examination and she was examined on the same date, i.e., 18-9-2002 by Dr. Veena (P.W. 1). Her report is Ex. P-1. In furtherance to his investigation, the Investigating Officer arrested the accused, seized his undergarments, as well as that of the prosecutrix, recorded the statement of the witnesses and after completion of the investigation, a charge-sheet was submitted in the Competent Court, who on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial.

The learned Trial Judge after perusing the charge-sheet framed charge punishable u/s 376, IPC. Needless to emphasis the appellant abjured his guilt. His defence is of maladroit implication.

In order to prove the charge, prosecution examined as many as 9 witnesses and placed Exs. P-1 to P-17 the documents on record. In his defence the accused/appellant did not choose to examine any witness.

The learned Trial Judge after X-raying the evidence came to hold that appellant did not commit the offence punishable u/s 376(2), IPC and eventually convicted him and passed the sentence which I have mentioned hereinabove. Hence, this appeal.

In this appeal Shri Sanjay Gupta was appointed as amicus curiae and I must mention here that he has placed all the arguments possible in the case. According to the learned Counsel if the evidence is scanned in its entirety one can say that no offence is proved.

Refutting the aforesaid submission of the learned Counsel, it has been contended by Smt. Kusum Sharma, learned Counsel appearing for the State that feme-sole who had seen only six springs has been brutally ravished by the appellant to satisfy his dirty thirst according to her not only the offence is proved but this Court should not adopt any leniency while passing the sentence. According to her, the appeal sans substance and same be dismissed.

After having heard the learned Counsel for both the parties, I am of the view that this appeal deserves to be dismissed.

At the outset, I think it germane to discuss the evidence of the prosecutrix because it is well settled in law that in a case falling u/s 376, IPC no corroboration is required and the sole testimony of prosecutrix is to be seen and if it is found to be worth reliable, a conviction can be passed on the basis of her sole testimony. On the basis of this backdrop I shall now consider the evidence of the prosecutrix.

The prosecution has examined the prosecutrix as P.W. 2. She was examined on 20-12-95. On that date she was 10 years. The learned Trial Judge after putting certain questions to her came to hold that she understand the questions and is able to answer and thereafter she was examined. In her evidence the prosecutrix says that the appellant took her away at a well and lay over her, at that time he was wearing a shirt and a towel. She further says that she was wearing a panty, the appellant thereafter took off her panty and also opened the knot of his towel thereafter she narrated that how the appellant intercoursed with her. After the commission of the offence the prosecutrix narrated the incident to her mother. Lateron she was taken to the hospital.

This child witness (prosecutrix) was cross-examined at length but she remained embedded in her version. On minutely scrutinizing the evidence of this witness only, singular inference is gathered that the appellant who at the relevant point of time was more than 18 years just to satisfy his dirty thirst committed such a vile sin and ravished a feme-sole who had seen only 6 springs.

On going through the evidence of the prosecutrix, it is perceivable that on committing such a hateful act, the blood came out from her private part and it was squeezing when the innocent prosecutrix reported the incident to her mother. The evidence of the prosecutrix in this regard has been corroborated by the evidence of her mother Kusum Bai (P.W. 3), who had specifically said that the prosecutrix came to her, she was weeping. She noticed that the blood was squeezing from her private part and her last cloth of the body (panty) was stained by blood. On being asked by her, the prosecutrix said that this shameful act was done by the accused/appellant, as a result of which she went at the spot where the appellant was sitting and asked him why he has done this hateful act and on being denied by him, she snatched the towel which he was wearing and noticed that the undergarment of the appellant was also stained by blood.

Smt. Kusum Bai, immediately narrated the incident to her husband Brakhlal (P.W. 1) and thereafter they went to lodge the FIR.

The evidence of the prosecutrix is fully corroborated, by the medical evidence. The lady doctor Veena Kumar (P.W. 1) on examining the prosecutrix found her hymen to be torned and there was swelling. The blood was coming out from her vagina. Her report is Ex. P-1. If the evidence of the prosecutrix and her medical report coupled with the evidence of lady doctor is kept in juxtaposition it would reveal that just to satisfy his lascivious, this vile sin was committed by the accused/appellant.

I have seen the reasons assigned by the learned Trial Judge and I find them to be cogent and I do not wish to deviate myself from those reasoning as they are based on evidence and by this judgment, I hereby gave my stamp of approval to those reasonings.

The case of the prosecution is fully proved and no case law is required to justify the decision. But, I shall be failing in my duty if I may not rely the latest pronouncement of the Apex Court wherein sufficient light has been drawn by the Apex Court in a case where innocent female child is ravished. In this context, it shall be condigned to rely the decision of State of Rajasthan Vs. Om Prakash, . In this decision Their Lordships has held that in a case of child rape the approach of the Court should be sensitive so as to provide proper legal protection to the victim.

So far as the question of sentence is concerned, according to me, the learned Trial Court has rightly passed the sentence of 10 years. In the present factual scenario no leniency is to be adopted because the appellant just to satisfy his perverse lust for sex ravished the innocent female child who was only 6 years at the time of occurrence.

In the result, there is no substance in the appeal, the same is hereby dismissed. Before parting with the case I must record my thanks to Shri Sanjay Gupta who was appointed as amicus curiae, for the valuable assistance given by him.