Manoharlal vs State

Hon''ble Shri. Justice A.K. Shrivastava

Feeling aggrieved by the judgment of conviction and order dated 20.3.1998 passed by learned Special Judge Ratlam, in Special Case No. 18/1997 convicting the appellant u/s 376 IPC and thereby sentencing him to suffer 7 years RI and fine of Rs. 1,000/-in default further RI of 2 months, this appeal has been filed u/s 374(2) of the Code of Criminal Procedure, 1973 by the accused. The facts leading to disposal of this appeal lie in a narrow compass. As per the prosecution, the prosecutrix is a member of Scheduled Caste community. On 30.7.1997 she went to Bajna in a bus and alighted from the bus at 10 PM. At the bus stand there is a Dharmshala and nearby it there is a gumti. She was sitting at the gumti at that juncture, appellant arrived and inquired about her. He also gave offer to accompany him up to his room by giving an understanding to her that nobody will outrage her modesty and she may go in the morning. But said offer was not accepted by the prosecutrix and she firmly denied to accompany the appellant. However, the appellant by catching hold of her hand carried her to his house which it was found to be locked. When the appellant had gone to bring the key to open the lock in between the prosecutrix again came back in the Dharmshala nearby the bus stand. Again the appellant arrived there and told that he has brought the key and again asked her to accompany. But firmly again the prosecutrix did not accept his offer. Thereafter the appellant by catching her hand carried her up to his room. It is said that in the night he committed rape twice with the prosecutrix.

In the morning the prosecutrix stated the incident to one Riaz who was being treated by her to be a brother and with him she went to Police Station Bajna and lodged the FIR.

On lodging of the FIR, the criminal law was triggered and set in motion. After registering the case against the appellant, the Investigating Agency sent her for medical examination. Her statement u/s 161 Cr.P.C. was also recorded. After the investigation was over, a charge sheet was submitted before the learned Special Court where the appellant was charged u/s 376 and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 which appellant denied. The prosecution thereafter examined the witnesses and also proved the documents. The defence of appellant is of false implication. However, in support of his defence he did not choose to examine any witness.

The learned Trial Judge on the basis of evidence placed on record, found the charge u/s 376 IPC to be proved and eventually convicted the appellant and passed the sentence, which I have mentioned hereinabove.

In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

The contention of Shri Vivek Singh, learned Counsel for the appellant is that the prosecution has utterly failed to prove its case. Further he submits that even if it is assumed that appellant committed sexual intercourse with the prosecutrix, since she is a major women and was a consenting party, no offence has been committed by him. Hence, it has been prayed that by allowing this appeal the impugned judgment of conviction and order of sentence be set-aside and appellant be acquitted from the charge u/s 376 IPC.

On the other hand, Shri Rawal, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned Trial Judge convicting the appellant and, therefore, this appeal be dismissed.

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

On bare perusal of the testimony of the prosecutrix this Court finds that the prosecutrix was sitting nearby the Dharamshala situated nearby the bus stand at 10 PM since she alighted from the bus at that juncture, appellant arrived and inquired about her why she is sitting there and should the police be called to send her behind the bars. Thereafter appellant gave offer to her to accompany with him up to Dharamshala under the pretext that he is living with his children and wife. Under this pretext, the prosecutrix accompanied him up to his room in the Dharamshala but she did not find any children there. On the other hand, one person was sleeping inside the room who was suffering from fever. That person did not allow the prosecutrix and appellant to sleep in that room. Thereafter appellant told that after bringing the key of his house he will carry the prosecutrix to his residence. After the departure of the appellant, the prosecutrix again came back to the Dharamshala where she was staying nearby the bus stand. Again appellant arrived in the said Dharamshala and woke up her and also insisted to accompany him and forcibly carried her to his house but in her residence also she did not find any children. Although she was brought under the pretext that accused is living along with his family members mother and father etc. The appellant closed the door from inside and despite the prosecutrix resisted, he committed rape over her. Specifically she has stated about hetero sexual intercourse in positive words. She further says that appellant also gave threat to her that several wrestlers are under him and, therefore, on account of fear she did not scream. After the appellant left the room, the prosecutrix ran away from his house and came back to the Dharamshala where she was staying. Thereafter again appellant came there and asked her to accompany him but she refused. There is no cross-examination in regard to the consent or the appellant did not commit any sexual intercourse with the prosecutrix. Thus, from the testimony of prosecutrix no where it is gathered that she gave any consent or was willing to have sexual intercourse with the appellant. True, the prosecutrix is a major married women, but this would not mean that she is having any lax of moral. Similarly, there is no law that if a major women is sexually intercoursed by a man, it would be deemed that she is a consenting party. The consent and the willingness is to be considered from the evidence and the surrounding circumstances which is totally lacking in the present case.

The contention of learned Counsel for the appellant that prosecutrix gave her consent and willingness to have sexual intercourse with the appellant cannot be accepted for another reason that if she would have been a consenting party she would not have narrated the incident to Riaz (PW-3) to whom it is being said that she was treating the said witness to be her brother. Apart from this, if she would have been a consenting party she would not have gone to lodge the FIR. I do not find any merit in the contention of learned Counsel for the appellant that witness Riaz (PW-3) has not supported the case of the prosecution and, therefore, the case of prosecution is not proved. To me, if an accused is charged u/s 376 IPC, the testimony of the prosecutrix alone is to be considered and no corroboration is needed but her testimony should inspire full confidence. I do not find any infirmity in the testimony of the prosecutrix. On the contrary, her testimony is found to be clear, cogent and trustworthy. Learned Trial Court did not err in relying upon her testimony.

True lady Dr. Sarojniben Patel (PW-1) has stated that no injury was found on the private part of the prosecutrix or there was any other external injury. But, her testimony is to be considered with this angle that she is a major married women and, therefore, certainly no injury would come on her private part.

I have given my anxious and bestowed consideration to the reasonings assigned by learned Trial Judge holding the charge u/s 376 IPC to be proved against the appellant and I do not find any reason to deviate from those reasonings since they are based upon correct appreciation and marshalling of the evidence.

Resultantly, this appeal fails and is, hereby, dismissed. The appellant is on bail. His bail bond shall stand cancelled only after he surrenders on or before 31.10.2012 failing which, the learned Trial Court shall issue perpetual arrest warrant against him and shall also issue notice by taking suitable action against his surety. However, in case appellant surrenders in the Trial Court on or before 31.10.2012, his bail bonds shall stand cancelled. Upon surrendering by the appellant on or before the specified date, the learned Trial Court shall send him to jail to serve out the remaining part of the sentence and shall intimate the Registry of this Court in this regard. The Registry is, hereby, directed to send the record posthaste to the learned Trial Court so as to reach much prior to the specified date along with the original bail bond papers. A photocopy set of the bail bond papers be retained in the record of the file.