Prathvi Alias Prati vs State Of Madhya Pradesh

1- The appellant has preferred the present appeal being aggrieved with the judgment dated 07-12-2009 passed by learned Special Judge (SC/ST

Act), Guna in S.S.T.No.30/2009 whereby the appellant has been convicted of the offence under Sections 376, 342 and 450 of IPC and sentenced to

7 years RI with fine of Rs.2,000/-, 6 months RI and 3 years RI with fine of Rs.500/- and in default of payment of fine 6 month's additional

imprisonment.

2- Case of the prosecution in short is that on 12-02-2009 when prosecutrix (PW-10) was at her home along with her sisters and brother and her

parents were out of the home because of labour work, at about 2:00 pm appellant/accused came and committed rape over the prosecutrix (PW-10)

who was deaf and dumb and mentally retarded. According to prosecution case, the appellant was caught hold by mother of the prosecutrix Pana

Bai (PW-2) on spot when she reached at her house but he by pushing her, ran away from the spot. After such incident, mother of the prosecutrix

Pana Bai (PW-2) informed her husband Ishwar on cellphone. Thereafter, they went to Police Station Bamouri to lodge the report of the

matter but the officials of aforesaid Police Station asked them to come with prosecutrix. Thereafter, they went to AJK Police Station, Guna where

the FIR was registered at crime No.02/2009 for the offence under Sections 376, 454, 342 of IPC and under Section 3(1)(xii) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Prosecutrix was sent for her medico legal examination. Dr. Sharda Bhola (PW-1)

examined the prosecutrix and gave her report Ex-P/1. She found no internal or external injury over the body of prosecutrix. Doctor prepared two

slides of vaginal swabs and also obtained clothes of the prosecutrix. After seizing such articles, those were given to the concerned constable for the

purpose of forensic science examination. Those articles were sent to the Forensic Science Laboratory, which gave a report ExP/15 and opined

that sperm and semen particles were found on the slide as well as on undergarments. After due investigation, the charge-sheet was filed

before the Court of JMFC, Guna who committed the case to the Court of Sessions and ultimately it was transferred to Special Judge (SC/ST Act),

Guna.

3- After filing of charge-sheet, case was committed to the Court of Session. The appellant/accused abjured his guilt. The trial was conducted.

On behalf of prosecution, 13 witnesses were examined and on behalf of defence no witness was examined. Trial Court after considering the

evidence convicted the appellant as referred above, therefore, this appeal.

4- The learned counsel for the appellant submitted that the appellant was falsely implicated in the matter due to enmity and FIR has been lodged

with three days delay. There was no cogent and plausible reason assigned by the complainant in lodging the FIR with such delay, therefore

either prosecutrix was the consenting party or the appellant is falsely implicated due to enmity. It is further submitted that since there was land dispute

between the family members of prosecutrix and the appellant as the lands of both the persons are at one place and on that dispute, some quarrel took

place between the father of prosecutrix and appellant, therefore, intentionally, the appellant has been falsely implicated in the present crime. The

prosecutrix was examined by Dr. Sharda Bhola (PW-1) and opined that there is no external or internal injury over the body of prosecutrix and no

definite opinion in relation to recent intercourse was given. According to the doctor, hymen of prosecutrix was found ruptured and she was habitual for

intercourse. For the purpose of confirming the alleged rape she also collected the vaginal swab of prosecutrix and clothes on which semen particles

and sperm were found by FSL in its report EX-P/15.

5- The learned counsel for the appellant further submits that Sushila Bai (PW-3) who was stated to be present on the spot, did not support the

prosecution story, therefore, declared hostile. There are several discrepancies and inconsistencies in the statement of Pana Bai (PW-2) who isÂ

almost the sole witness of the incident as the prosecution case is roaming around the said witness. In all, only witness Pana Bai (PW-2) was the

witness from whom all the witnesses got the information. Sushila Bai (PW-3), the lady who was present on the spot, did not support the

prosecution story. The children with whom prosecutrix was playing, just prior to commission of rape, out of them, Malti (PW6) was examined and

this child witness did not state that the accused/appellant had forcibly taken the prosecutrix into the house or prosecutrix resisted for that. Dr. Sharda

Bhola (PW-1) who medically examined the prosecutrix, opined that no sign of recent intercourse is present and prosecutrix was found habitual for

intercourse and her hymen was found ruptured much earlier.

6- Uncle of the deceased Kallu (PW-4) was examined by the prosecution and said witness seems to be an hearsay witness and this witness did

not confirm the allegation of rape committed by the appellant. He only stated that he listened about commission of rape by the appellant over her

niece -prosecutrix (PW-10).

7- Learned counsel for the respondent/State opposed the prayer made by the appellant and submitted that the prosecution has proved its case

beyond reasonable doubt and there was sufficient material available against the appellant, therefore, he was rightly convicted by the trial Court. Thus,

prayed for dismissal of appeal.

8- Heard learned counsel for the parties at length and perused the evidence available on record.

9- The first and foremost question in the present is that whether appellant -Prathvi alias Prati committed rape on the prosecutrix (PW-10) or not.

For the purpose of proving such charge, prosecution examined the prosecutrix herself (PW-10), her mother Pana Bai (PW-2) and child witnessÂ

Malti (PW-6) and all the witnesses categorically stated that appellant -Prathvi alias Prati had committed rape on the prosecutrix (PW-10). Even

the prosecutrix (PW-10), who was deaf and dumb and mentally retarded, examined through an expert before the trial Court, given the indications in

relation to commission of rape by the appellant -Prathvi alias Prati. Merely because in medical evidence, no sign of scuffle was there and no

external injury was found, it cannot be said that the prosecutrix (PW-10), who was a deaf and dumb and mentally retarded girl, was a consensual

party, hence, no benefit can be given to the appellant . The Hon'ble Apex Court in the matter of Thaman Kumar Vs. State of Union Territory of

Chandigarh, (2003) 6 SCC 380, laid down the law in relation to prevailing of oral evidence over the medical evidence as under:

“The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total

absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of

the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the

weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are

not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn

in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category t may legitimately be inferred that the

oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such

inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity

available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into

consideration in judging the reliability of ocular testimony.â€​

10- Appellant took the plea in his statement under Section 313 of Cr.P.C. relating to enmity, however, some suggestions were given to the

witness about the enmity. It was suggested to the mother of prosecutrix Pana Bai (PW-2) and child witness Malti (PW-6) that there wasÂ

quarrel took place between the accused appellant and father of prosecutrix (PW-10), however, none of the witnesses accepted such suggestions. No

defence evidence is adduced to show that enmity. Once the plea of enmity between the parties has not been established by the defence,

therefore, no benefit under the said head can be given to the accused appellant.

11- Learned counsel for the appellant invited theattention of this Court that FIR was delayed but on the basis of such delay, no benefit can

be given to the appellant. Mother of the prosecutrix Pana Bai (PW-2) categorically stated that when she came back to her house from jungle, she

found that the doors of her house was closed from inside and on knocking, the appellant -Prathvi alias Prati came out and ran away from the spot. The

aforesaid story was supported by the child witness Malti (PW-6) who stated that when she along with her other sisters and brother including

prosecutrix (PW-10) were playing, at that time accused appellant -Prathvi alias Prati came and dragged the prosecutrix (PW-10) into the house

and on asking him that what he is doing, he threatened her to leave the place. This witness in para 3 of her statement, stated that she saw the

appellant -Prathvi alias Prati committing rape on the prosecutrix (PW-10) from window.

12- As far medical evidence is concerned, Dr. Sharda Bhola (PW-1) examined the prosecutrix (PW-10) and opined in regard to sexual intercourse.

This doctor further averred that the prosecutrix (PW-10) was mentally retarded and she was deaf and dumb. The mention of pregnancy of three

months also find place in the statement of this witness.Â

13- From all the statements and evidence produced on record, it is clear that the prosecutrix (PW-10) was deaf and dumb and she was

mentally retarded and the appellant -Prathvi alias Prati by taking the advantage of this, committed rape over her. Although there is no evidence

on record in relation to carrying pregnancy by the prosecutrix (PW-10) but the evidence led by the prosecution indicates that for past long

time, the appellant -Prathvi alias Prati was indulged in such criminal act.Â

14- On the basis of aforesaid discussions no enmity between the father of prosecutrix and the appellant could be established. The prosecutrix (PW-

10) being mentally retarded does not appear to be the consenting party (and she cannot be in any manner) and FIR has been lodged with

some delay but reasonable explanation has been given for that, therefore, there is no reason to disbelieve the testimony of mother of

prosecutrix. Under these circumstances, it cannot be said that the testimony of prosecutrix and her mother Pana Bai (PW-2) was notÂ

corroborated by medical evidence.

15- It is settled view of the Apex Court that testimony of prosecutrix does not require any medical corroboration. Her testimony can be

accepted if it is not doubtful otherwise. The Hon'ble Apex Court in the case of “Prahlad Singh Vs. State of Madhya Pradeshâ€Â {1998 (1) JLJ

84} and “State of Maharashtra Vs. Chnadra Prakash Kewalchand Jain†(AIR 1980 SC 658) held that single testimony of the

prosecutrix may be accepted if it is not otherwise doubtful, no corroboration is required to accept the testimony of prosecutrix. In the

present case, since the prosecutrix was deaf and dumb therefore, by indications she narrated about commission of rape and even otherwise mother

of prosecutrix Pana Bai (PW-2) herself caught hold the appellant -Prathvi alias Prati in her house. The mental condition of the prosecutrix as

described clearly indicates that she was not a consenting party. She told about the incident to her mother by indications and a mother can

very well gather from such indications and thereafter she had lodged the FIR. Under these circumstances, there is sufficient corroborative

evidence. No reason is established to discard the testimony of prosecutrix otherwise. Under these circumstances, it is proved beyond doubt

that the appellant had committed rape upon the prosecutrix and hence the trial Court has rightly convicted the appellant for the offence

under Sections 376, 450 and 342 of IPC.

16- So far as the sentence part is concerned, the trial Court has recorded minimum sentence prescribed for the offence, therefore, there is no

possibility to reduce that sentence recorded against the appellant.

17- On the basis of aforesaid discussions, the appeal filed by the appellant is not acceptable, hence, the appeal filed by the appellant is hereby

dismissed. The conviction as well as sentence recorded by the trial Court is confirmed.Â

18- As per record, appellant has not been admitted to bail and his jail sentence has not been suspended by this Court but since the judgment of

conviction was passed on 07-12-2009 and it is almost 9 years, therefore, most probably appellant -Prathvi alias Prati would have been released by

the Jail Authorities. Looking to such confusion, the District Judge, Guna is directed to look into the fact that whether appellant -Prathvi alias Prati

has served his jail sentence or not and if he has served his jail sentence and not required in any other matter, then he be set free from jail and if he is

still in jail in the present matter, then he be released forthwith. If some how bail order of appellant escaped attention of this Court or is not

available in record and some sentence is still left to be served then appropriate proceeding be ensured for serving remaining part of jail

sentence of appellant.

19- Copy of the judgment be sent to the trial Court without any delay so that the judgment of this Court may be complied with as early as

possible.