Rajmal and Another vs State of M.P.

G.S. Solanki, J.—Appellants have preferred this appeal being aggrieved by judgment and finding dated 9.10.1995 passed by Special/Sessions Judge, Sehore in Special Case No. 118/94 whereby the appellants have been convicted u/s 376(2)(g) of IPC and sentenced to R.I. for 10 years and fine of Rs. 2000/-, in default of payment of fine to undergo further R.I. for six months. The prosecution case, in short, is that prosecutrix Julie Bai (PW-1) belongs to the Bedani caste, who earns her livelihood by singing and dancing. Anokhilal (PW-5) and Babulal (PW-3) contacted her and her maternal uncle Gudda Bedia (PW-2) and booked her to perform in some domestic function at village Hirapur on 7.4.1994. As agreed, on 7.4.1994 prosecutrix and her maternal uncle reached to Bhopal, where Anokhilal met them and boarded them in a private bus along with appellants Rajmal and Vishnu resident of Hirapur. It is alleged that appellants stopped the bus before 2-4 Kms from Hirapur and took the prosecutrix and her maternal uncle near tube well, where appellants proposed the prosecutrix to have sexual intercourse and when she refused, the appellants abused prosecutrix and her uncle. It is further alleged that appellant Vishnu grappled with Gudda Bedia and dragged him towards the road and at the same time appellant No. 1 Rajmal dragged the prosecutrix behind a Mango tree and committed rape on her, thereafter, prosecutrix and her uncle tried to stop and board in a Jeep but appellant No. 1 Rajmal restrained prosecutrix thereafter that Jeep had gone ahead. The prosecutrix reached to village prosecutrix Hirapur and narrated the whole incident to Anokhilal and Babulal. It is alleged that Babulal informed the prosecutrix that her maternal uncle had already reported the matter to the police, thereafter, prosecutrix also lodged the report (Ex. P-1).

During investigation, prosecutrix was examined by Dr. Neera Shrivastava (PW-6), she prepared MLC report (Ex. P-8). She prepared two slides of her vaginal swab and sealed her petticoat and handed over the same to a constable, who prepared seizure memo Ex. P-10. Slides and petticoat were sent for chemical examination along with the memo of Supdt. Of Police, Sehore (Ex. P-15). Assistant Chemical Examiner found human spermatozoa on the slides and petticoat.

Appellants were arrested and medically examined. Appellant No. 1 Rajmal was found capable of doing sexual intercourse, his semen slide was prepared, same was handed over to a police constable and sent to Assistant Chemical Examiner, who found spermatozoa on the same.

After usual investigation, appellants were charge sheeted before Special Judge, Sehore. Special Judge framed charges u/s 3(2)(5) of S.C./S.T. (Prevention of Atrocities) Act and Section 376(2)(g) of IPC.

On appraisal of evidence on record, learned Special Judge acquitted the appellants from the charges u/s 3(2)(5) of SC/ST (Prevention of Atrocities) Act, however, appellants have been convicted u/s 376(2)(g) of IPC, as mentioned hereinabove.

Learned counsel for appellants has submitted that the learned trial Court has failed to appreciate the evidence on record in its proper perspective. He has further submitted that Gudda (PW-2) maternal uncle of prosecutrix lodged report (P-11) in which there is no allegation of rape against the appellants. Counsel has further submitted that prosecutrix and her uncle Gudda were not known to the appellants. Prosecutrix herself admitted that she did not know the name of appellants till the lodging of the FIR (Ex. P-1). There was no test identification parade conducted by the prosecution, despite that the learned trial Court believed the version of the prosecutrix. Counsel has further submitted that the prosecutrix belongs to a community, the girls of which are normally involved in singing and dancing and the prosecutrix herself has accustomed herself in sexual activities. Learned counsel for the appellant has submitted that appellants were not known to the prosecutrix till the lodging of the FIR, there was no test identification parade conducted in this case. Counsel has further submitted that prosecutrix herself admitted that once she lodged the report against one Nannu regarding abduction and rape and thereafter compromised with him, in the community of prosecutrix, normally girls are involved in sexual activities before marriage and after marriage they leave this profession. The prosecutrix herself admitted that she is unmarried. In view of the above, the version of the prosecutrix cannot be said to be reliable. He has placed reliance on the decision of Tameezuddin @ Tammu Vs. State of (NCT) of Delhi, and Radhu Vs. State of Madhya Pradesh,

Learned counsel for the State has supported and justified the finding and judgment passed by the trial Court.

I have perused the impugned judgment, evidence and other material on record. Prosecutrix (PW-1) deposed that Anokhilal (PW-5) and Babulal (PW-3) booked her for singing and dancing in some domestic function, in connection of which she had gone to Bhopal along with her maternal uncle Gudda (PW-2). As per the prosecutrix, the appellants stopped the bus before 2 Kms. from Hirapur, took her and her uncle near a tube well. She further deposed that appellants offered her a sum of Rs. 50/- to have sexual intercourse with her and when she refused to do so, Vishnu dragged her uncle towards the road and Rajmal committed rape on her. Thereafter her uncle stopped a Jeep and boarded in that jeep, but Rajmal restrained her to board on that Jeep. She further deposed that when she reached to Hirapur and narrated about the incident to Anokhilal and Babulal, they took her to the police station where report (Ex. P-1) was lodged. Gudda (PW-2) supported the version of the prosecutrix. Gudda (PW-2) deposed that Anokhilal met them at Bus Stand, Bhopal and boarded them on the bus along with the appellants for Hirapur. He further deposed that Rajmal committed rape on prosecutrix before him.

Anokhilal (PW-5) and Babulal (PW-3) supported the prosecutrix to the extent that they booked her for singing and dancing in some domestic function. Anokhilal further deposed that prosecutrix and her uncle met him at Bus Stand, Bhopal, thereafter, Anokhilal and Babul did not support the prosecution story, they were declared hostile.

On careful scanning of evidence on record, I am of the view that Gudda (PW-2) improved his version before the Court because he admitted that he lodged the report (Ex. P-11) at the police station, which did not find place in the report lodged by the prosecutrix (Ex. P-1), thus the version of this witness cannot be said to be believable regarding commission of rape. It is well established principle of law that conviction can be based on single testimony of prosecutrix, if same is found worthy of credence. Counsel has placed reliance on the decision of Tamizudding''a case (supra), in which the Apex Court observed that there was no occasion for prosecutrix and her husband to have come to factory as no payment was due to him on any account as well as the person alleged to be present in the premises of factory was also not examined, therefore, prosecutrix and prosecution story became doubtful. In Radhu''s case (supra), statement of prosecutrix was found full of discrepancies and there were glaring discrepancies in the statements of mother and father also, therefore, reliance was not placed on the testimony of prosecutrix.

In the instant case, on careful scanning of evidence of prosecutrix, I am of the view that statement of prosecutrix is corroborated by the statement of Gudda (PW-2) to the extent that she was dragged by Rajmal. It is true that she admitted that she did not know the appellants till the lodging of the FIR, however, at the same time she also stated that Anokhilal told her that he will send her and her uncle along with Rajmal and Vishnu to Hirapur. Subsequently, she identified Rajmal during trial and deposed in Para 20 of her statement that he is the person, who raped her and restrained her from boarding in the Jeep. In these circumstances, it is not a case of misidentity.

It is also true that she admitted that once she lodged report against one Nannu regarding abduction and thereafter compromised the matter and in her community girls are normally involved in sexual activities, but that doesn''t mean that the prosecutrix or other girls of her community are public property, they also have the right to privacy and right to live, woman of even easy virtue is entitled to privacy and it cannot be invaded by any person as observed by the Apex Court in the matter of State of Maharashtra and another Vs. Madhukar Narayan Mardikar, . In State of Haryana Vs. Prem Chand and others, the Apex Court has observed that factors like character or reputation of victim are wholly alien to very scope and object of S. 376, they can never serve either as mitigating or extenuating circumstances for imposing sub-minimum sentence with the aid of proviso to S. 376.

In the instant case, on careful scanning of evidence on record, it reveals that appellant No. 1 Rajmal committed rape on the prosecutrix and appellant No. 2 Vishnu dragged her uncle towards the road, thus, the trial Court has erred in holding the common intention of both the appellants for committing rape of prosecutrix. Prosecutrix specifically stated that appellant No. 1 Rajmal committed rape on her against her will and her version is also corroborated by the medical evidence as 6 abrasions were found on her body by Dr. Neera Shrivastava (PW-6) and the FIR (Ex. P-1), thus in my opinion, the prosecution has succeeded in proving the offence of rape against appellant No. 1 Rajmal, however, the case of appellant No. 2 Vishnu would not fall u/s 376(2)(g) of IPC.

In the result, the appeal of appellant No. 2 Vishnu is allowed. Conviction and sentence recorded against him is set aside. Appeal of appellant No. 1 Rajmal is partly allowed. He is convicted u/s 376 of IPC instead u/s 376(2)(g) of IPC and is sentenced to R.I. for 7 years instead of 10 years and fine of Rs. 2000/-, in default of payment of fine he has to undergo further R.I. for 6 months. Appellants are on bail, their bail bonds and surety bonds stand discharged. Appellant No. 1 Rajmal is directed to surrender before the concerned trial Court on or before 27.7.2011. Set off period of Rajmal spent as under trial be given by the trial Court at the time of preparation of supersession warrant.