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Judgment
Rohit Arya, J
As both appeals; Cr. Appeal No.542 and 597 of 2014 under section 374 Cr.P.C., at the instance of the convicts arise against the common judgment
dated 24/02/2014 passed by Special Judge Jahuba in Special Sessions Trial No.42/2013, they have been heard and decided by this common judgment.
(I) Cr. Appeal No.542/2014:
Both the appellants Kegu son of Badiya Bhabhar Bhil & Mukesh son of Dalla Bhabhar Bhil have been convicted under section 323 or in the alternate under section
323 read with section 34 IPC and sentenced each them to suffer 06 months rigorous imprisonment with fine of Rs.1,000/- each & under section 376(2)(g) read with
section 376(2) IPC and sentenced to suffer ten years rigorous imprisonment with fine of Rs.10,000/- each with default stipulation.
 (HH) Cr. Appeal No.597/2014:
Both the appellants, Mukesh son of Narsingh Bhabhar Bhil and Tolsingh s/o Kaliya Damar Bhil have been convicted under section 323 or in the alternate under
section 323 read with section 34 IPC and sentenced each them to suffer 06 months rigorous imprisonment with fine of Rs.1,000/- each & under section 376(2)(g) read
with section 376(2) IPC and sentenced to suffer ten years rigorous imprisonment with fine of Rs.25,000/- each with default stipulation.
All the sentences to run concurrently.
The accused have been acquitted from the offence under section 5(g)(l) of the Protection of Children from Sexual Offences Act, 2012.
The State has not preferred any appeal against acquittal of the appellants. Hence, the same has attained finality.
The prosecution story, in brief; is that on 08/10/2013 about 7.30 am, Ms.Ramila daughter of Kasaria [P.W.4 (for short, 'the prosecutrix')] left her
home to the field to bring lady fingers (bhendi) and while returning, reached near the field of Kahudu wala on the banks of Nevadi river the accused
Mukesh son of Narsingh caught hold of her hand, on her screaming the co-accused, namely; Tolsingh son of Kaliya, Kegu son of Dadiya and Mukesh
son of Dalla came out of the bushes. The co-accused Kegu threw a stone which hit at the back of the prosecutrix. The accused Mukesh son of
Narsingh caught hold of her hand, dragged inside the field and committed rape. Thereafter, the co-accused Tolsingh has also committed rape on her.
Both the co-accused, Mukesh and Kegu were standing nearby the place of occurrence. On hearing her further shriek, Meetu (P.W.6) working in the
nearby field has reached the place of occurrence. On seeing him (Meetu), all the accused took their heels away. Thereafter, Akram (P.W.7) had also
reached the scene of occurrence and narrated the whole story to him. After reaching home alongwith them, the prosecutrix had again narrated the
entire incident to her mother, Nanibai (P.W.5).
The complainant reached police station and FIR was lodged (exhibit P/4). After completion of investigation; the challan was submitted.
The investigation was carried out by Rajeshsingh Baghel (P.W.3). The prosecutrix was sent for medical examination (exhibit P/1), Police reached
the place of incident and prepared spot map (exhibit P/5), the broken pieces of bangles were seized in the presence of pancha witnesses (exhibit P/6),
the accused were arrested in the presence of pancha witnesses (exhibits P/8 to 11) and recorded statements of witnesses. The accused Mukesh son
of Narsingh and Tolsingh were sent for medical examination (exhibits P/2 and P/3). Dr. Sandeep Thakur (P.W.2) examined them and after
examination, he has handedover in sealed covers to the police their underwears, semen slides and blood samples for DNA to the police. The police
sent all the above sealed items (prosecutrix and the accused-appellants) to the Regional Judicial Scientific Laboratory, Rau, Indore (Madhya Pradesh)
for chemical examination (exhibit P/12) and were received by it (exhibit P/13).
The Special Judge while carefully examining the evidence of prosecutrix, her statement under section 164 Cr.P.C., and the other evidence has
found that there is consistency in the statements of witnesses.
On account of overwhelming evidence of occurrence of the incident and involvement of the accused-appellants, spot map (exhibits P/5), medical
examination report (exhibit P/1) and evidence of prosecutrix as well as the other material available on record, the trial court has concluded that the
accused/appellants have committed the offence. Accordingly convicted and sentenced the accused/appellants as stated above.
While criticizing the impugned judgment, learned counsel for the appellants submits that:
(i) firstly; the medical examination report (exhibit P/1) and the statement of Dr. Urmila Choyal (P.W.1) suggest that no definite opinion was given by the doctor P.W.1
about the alleged intercourse with the prosecutrix as there are no marks of injuries on her body though it was alleged that co-accused Kegu had thrown a stone
hitting her at back;
(ii) secondly; the prosecutrix in paragraph 43 of her statement has stated that she worn glass bangles whereas the police seized broken pieces of plastic bangles
(exhibit P/6) and that too near the banks of river and not from the spot where the alleged rape was said to be committed;
(iii) thirdly, there is rivalry between the family of the prosecutrix and the accused inasmuch as in a murder case of deceased Rammu occurred three months prior to the
date of incident, one Kheema brother-in-law of the prosecutrix and her father, Kasaria are accused and in jail. The accused persons, namely; Mukesh son of Narsingh
Bhabhar Bhilm, Tolsingh s/o Kaliya Damar, Kegu son of Badiya Bhabhar Bhil & Mukesh son of Dalla Bhabhar Bhil are witnesses in the said case. Hence, it is a case
of false implication. Besides, there are various contradictions and omissions in the Court statement of the prosecutrix and other witnesses but, ignored the same by
the trial Judge while convicting the appellants through the impugned judgment;
(iv) fourthly; the Special Judge has committed grave illegality having relied upon the evidence led by cited witnesses while concluding that the appellants committed
the offence;
(v) fifthly, there is no cogent material established on record that the appellants have committed the offence;
(vi) sixthly, there is no previous criminal conduct of the appellants;
 (vi) seventhly; the appellants are poor agriculturists;
(vii) eighthly; the appellants aged about 25,
27, 40 and 22 years at the time of incident, hence, their future will be spoiled in the midst of hardened criminals inside the jail if conviction is
maintained.
Under the circumstances, prays for acquitting the appellants from the offence.
Learned counsel for the appellants placed reliance on the judgments of Hon'ble Supreme Court in the cases of State of Karnataka Vs. Manjanna,
(2000) 6 SCC 188, Motilal Vs. State of Madhya Pradesh (2008) 11 SCC 20 and Raju and others Vs. State of Madhya Pradesh (2008) 15 SCC 13 3to
bolster his submission.
Alternately, learned counsel submits that he does not wish to challenge the finding of conviction recorded by the trial Court. However, it is submitted
that the incident is of the year 2013 and there is no previous criminal past proved by the prosecution, the appellants are poor agriculturists. No overt
act has been alleged by the prosecutrix against the appellants in Cr. Appeal No.542/2014 except they were standing and aided the coaccused at the
time of commission of offence. They have already undergone about 02 years and 04 months jail sentence and they are on bail since the year 2015.
They have not misused the said liberty. The appellants in Cr. Appeal No.597/2014 are in jail and have undergone about 08 yeas 03 months jail
sentence. Hence, the jail sentence may be reduced to the period already undergone by each of the appellants with fine as deem fit and proper by the
Court.
Per contra, learned Public Prosecutor has supported the impugned judgment and findings arrived at by the trial Court and submitted that the
conviction in question is well merited. Hence, no interference is warranted. However, he fairly admits the period of jail sentence undergone of each of
the appellants based on the report of the Jail Superintendent, District Jail Jhabua dated 06/02/2020 and placed the same on record.
Heard.
Before adverting to the contentions so advanced, it is expedient to reproduce the medical examination report of the prosecutrix (exhibit P/1)
conducted by Dr. Urmila Choyal (P.W.1):
“She is average built young female. Her secondary sexual character well developed. Hymen ruptured. Vaginal admits one finger easily. No mark of injury seen over
body and private part.
Mud seen on atero lateral aspect of both thighs. Mud cleanced with wet cotton. No visible injury seen.
Opinion:
No definite opinion could be given. However, I have prepared vaginal slide and swab sent for examination in sealed pack. Her weared petticoat is also sent for
examination in sealed pack.â€
It is apposite to reiterate the law of land as laid down by the Hon'ble Apex Court in series of cases before examining the contentions advanced by
learned counsel for the appellants.
It is well settled that a prosecutrix in a rape case is not to be treated as an accomplice. She in fact, is a victim of the crime and her deposition in Court
has to be treated as that of an injured witness in an incident of physical violence. Therefore, same nature of care and caution must be attached in the
evaluation of her evidence and no more as she is a competent witness under section 118 of the Evidence Act. She being a victim of sexual assault and
not an accomplice, her evidence does not require corroboration from any other evidence similar to illustration (b) to section 114 of the Evidence Act
which requires of corroboration of deposition of an accomplice to make it worthy of credit. However if for some reason, the Court is hesitant to place
reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in the
case of an accomplice. Her testimony cannot be discredited on a stray instances of minor contradictions or omissions. Furthermore, in a case where
prosecutrix is an adult and of full understanding the Court having made a statement under section 164 Cr.P.C., in consonance with her deposition
recorded during trial, the trial Judge can base conviction on her evidence, unless; the same is shown to be infirm and not trustworthy with glaring
contrary evidence on the face of the record [State of Puinjab Vs. Gurmit Singh (1996) 2 SCC 38 4and Dinesh alias Buddha Vs. State of Rajasthan,
(2006) 3 SCC 771, paragraphs 11, 13, 14 and 15]; relied upon.
Turning to the facts of the case, there is consistency in the statement of prosecutrix under section 164 Cr.P.C., before the Court and during trial in
the Court, in the matter of occurrence of the incident, commission of rape and raising alarm by her and presence of witnesses, Meetu (P.W.6), Akram
(P.W.7) and narrated same story to her mother Nanibai (P.W.5) and lodging of the FIR. Though Dr. Urmila Choyal (P.W.1) has stated that no
definite opinion can be given about the alleged rape, nevertheless; the doctor has not said that no intercourse was committed in the field and she also
found mud on thighs of the prosecutrix which gives credence to the statement of prosecutrix alleging that she was thrown on the field by the accused
persons before commission of rape and thereafter she was subjected to sexual intercourse by the two accused, appellants in Cr. Appeal No.597/2014.
It may be observed that to complete the offence of rape even mere penetration of penis in vagina is sufficient. No amount of physical injury on the
body and on the private part of the prosecutrix are required for completion of offence. It would be profitable to quote the following passage from Modi
in Medical Jurisprudence and Toxicology (21st. Edition):
“Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial
penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the
purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains.â€
The same has been followed by the Hon'ble Supreme Court in the cases of Wahid Khan Vs. State of M.P., (2010) 2 SCC 9 and Parminder alias
Ladka Pola Vs. State of Delhi (2014) 2 SCC 592.
The contention of false implication due to alleged rivalry in the family in fact is more of desperation than of substance for the reason that howsoever
serious rivalry is between the families; in the tradition bound non-permissive society of India, muchless; tribal community girl or a woman would be
extremely reluctant even to admit such incidence of rape or outrage of modesty or invasion on her chastity against her wishes as she would be
conscious of the danger of social indignation and humiliation ostracized by conservative society of the community.
Therefore, as against such compelling factors if a female rises to the occasion and label charge of outraging her modesty or commission of rape by
accused persons, the Court of law is required to address the charge with complete seriousness treating it to be a genuine charge rather than fabricated
and deal with such charge with utmost seriousness and sensitivity. The evidence of the victim of sexual offence is entitled to great weight
notwithstanding absence of corroboration.
The observations of the Hon'ble Supreme Court in the case of Rameshwar Vs. State of Rajasthan, AIR 1952 SC 5 4are apposite in the context of the
factual matrix of the case in hand, quoted below:
“19. … The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the
necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge....â€
The Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217 observed as under:
“In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should
the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief
or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for
corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of
probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon....â€
and followed by the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550.
Further, the prosecutrix in fact neither admitted nor expressed knowledge to the suggestion that the present accused persons are witnesses in the
alleged murder case as discussed in paragraphs 36, 42 and 49 of the judgment by the trial Court.
The findings of the trial Court are based on critical evaluation of evidence of the prosecutrix (P.W.4), her statement under section 164 Cr.P.C., before
the Court and consistent evidence of investigating officer Rajeshsingh Baghel (P.W.3), Nanibai (P.W.5), Meetu (P.W.6) & Akram (P.W.7) and the
documents placed on record from exhibits P/1 to P/16.
The contention of learned counsel for the appellants alleging contradiction on seizure of broken pieces of bangles in the statement of prosecturix
(P.W.4) and the statement of investigating officer, Rajeshingh Baghel (P.W.3) in the considered opinion of this Court in fact is an abortive attempt of
hairsplitting of the evidence. There is positive evidence of 04 to 05 broken pieces of bangles worn by the prosecutrix were seized by the investigating
officer from the spot. As a matter of fact, there is sufficient consistency in the statements of aforesaid witnesses as regards broken pieces of bangles
worn by the prosecutrix at the time of commission of rape on her and recovery thereof from the place of incident by the investigating officer.
Moreover, even otherwise, the minor contradictions and omissions shall not dislodge the prosecution case. There is impeccable finding of commission
of rape on the prosecutrix by the accused persons bearing in mind the principles of law reiterated by the Hon'ble Supreme Court (supra).
There is no cavil of doubt about the principles underlying the judgments cited by learned counsel for the appellants. As a matter of fact, the law
reiterated by this Court (supra) is in well consonance with the principles laid thereunder. Either of the judgments cited by learned counsel are of no
assistance to the appellants.
The conviction and sentences of the appellants deserve to be and are hereby maintained.
The upshot of the discussion results in failure of both the appeals. Accordingly, dismissed.
The appellants in Cr. Appeal No.597/2014 (Mukesh and Tolsingh) are reported to be in jail.
The appellants in Cr. Appeal No.542/2014 (Kegu and Mukesh s/o Dalla Bhabar Bjil) are reported to be on bail. Their bail bonds stand cancelled.
Therefore, they are directed surrender before the trial Court within fifteen days from today to serve out the remaining part of the jail sentence, failing
which the trial Court may issue arrest warrant for taking them into custody immediately thereafter with following further condition:
(i) the medical examination of the appellants be conducted by the concerned jail authorities through the jail doctor and if it is prima facie found that they are having
any symptoms of COVID-19, then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately.
Learned Public Prosecutor is directed to send an e-copy of this judgment to all the concerned including the concerned Jail Superintendent and
Station House Officer of the police station for information and necessary action.
It is made clear that this e-copy judgment be treated as Certified copy in terms of the advisories issued by the High Court from time to time.
Registry is directed to send an e-copy of this judgment immediately alongwith scanned relevant details and documents relating to the appellants in
Cr. Appeal No.542/2014 for necessary compliance. The original record of the appeals be transmitted to the trial Court as early as possible.
Photocopy of the judgment be placed in the connected appeal.