Ramkumar and Another vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 26.2.1998 passed by Additional Sessions Judge Jashpur Nagar in Sessions Trial No. 26/1998 convicting the accused/appellants for the offence punishable under Sections 366 and 376(2)(g) IPC and sentencing each of them to undergo RI for five years and pay fine of Rs. 500/- u/s 366 and R1 for ten years with fine of Rs. 500/- u/s 376(2)(g) IPC, plus default stipulations. Facts of the case in brief are that on 15.11.1997 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 16 years at the relevant time alleging that on 14.11.1997 at about 10 p.m. she along with her uncle Changluram, brother Anandram, Jaisingh and Dhanmati had gone to enjoy fair held in some other village. Allegedly, while returning to her village in the company of those persons, Jaisingh and Anandram again got back to fair to purchase certain articles and when she along with her uncle Changluram and friend Dhanmati was sitting on a rock waiting those two persons to get back from the fair, three persons came there from fair side and started asking certain obscene questions from them on which her uncle told them that they were waiting for their colleagues who had gone to the fair for purchasing certain article Thereafter, two boys slapped her uncle Changluram who then left their company out of fear and at the same time those very boys dragged her towards the jungle and in spite of protest being made by her, they did not leave her. Both the boys then threw her on the ground and committed forcible sexual intercourse with her one after the other on account of which she was feeling pain in her private part. It is further alleged that after commission of offence, the accused/appellants had threatened her of dire consequences if she disclosed the incident to anyone. Subsequently, the prosecutrix returned home and disclosed the entire incident to her sister-in-law and then after arrival of her parents she informed about the same to her mother also. It is further alleged that the prosecutrix then accompanied her mother towards the fair side and on the way in a betel shop both the accused/appellants were standing who were identified by her and then the report was lodged. Based on this report, offence u/s 376 /34 IPC was registered against the appellants. Prosecutrix was medically examined on 18.11.1997 by Dr. (Smt.) J. Minj (PW-10) and after completion of investigation, charge-sheet was filed on 12.12.1997 for the offence u/s 376(2)(g) IPC. Court below however framed the charge against them under Sections 363, 366 read with 34 and 376(2)(g) IPC.

In support of its case the prosecution has examined 15 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of the judgment.

Heard counsel for the parties and perused the material available on record.

Counsel for the appellants submits that medical report of the prosecutrix does not support the case of the prosecution and therefore conviction of the accused/appellants u/s 376(2)(g) IPC is not sustainable in the eye of law. He further submits that on account of village politics the accused/appellants have falsely been implicated in the case. According to the counsel for the appellants, the Court below has erred in law while ignoring the fact that the prosecutrix has been totally inconsistent in making statement before the Court and that her version has not been supported by any other source.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the Court below has made a proper appraisal of the evidence of the witnesses before arriving at a conclusion that the act of the accused/appellants comes within the four corners of sections 366 and 376(2)(g) IPC. In other words, according to the State counsel, the findings recorded by the Court below being fully justified do not call for any interference in this appeal.

Prosecutrix (PW-1) has stated that on the date of incident she along with Changluram, Dhanmati Bai, Anand and Jaisingh had gone to enjoy village fair and while returning from there, Jai Singh and Anand got back in the midway. According to her, when they were waiting for them to get back, three boys including the accused/appellants came there and uttered obscene words at the and threatening to detain in the police station they took her in the jungle and committed forcible sexual intercourse with her one after the other. She has further stated that while being subjected to sexual intercourse, she was making struggle to come out of their clutches but did not succeed. She has further stated that at the relevant time she was 14 years of age and that on being told by her, her brother stopped the accused persons who then disclosed their names to the village Kotwar and the Sarpanch already present there. In cross-examination this witness has clarified that when the accused persons were beating Changluram, on account of fear he ran away towards the place of fair. Though there appear to be certain contradictions in the Court statement and the case diary statement of this witness, being insignificant they are required to be ignored. Changluram (PW-2) supporting the case of the prosecution has stated that while returning from village fair along with the prosecutrix and other persons, accused persons met them on the way, made certain inquiry and posing themselves to be the police people took the prosecutrix with them and then on account of fear he ran away towards the place of fair. Dhanmati (PW-3) - one of the girls who was with the prosecutrix has stated that an attempt was made to take her also but she somehow managed to get rid of the accused persons. According to this witness, after the incident the prosecutrix narrated the entire incident to her. Madan Ram (PW-4) - the village Kotwar has supported the case of the prosecution and stated that he was informed by Changluram (PW-2) and Dhanmati (PW-3) about the incident and that the prosecutrix (PW-1) identified the accused persons and informed that it is they who had subjected her to rape. Anand Kumar (PW-5) has not supported the case of the prosecution and has been declared hostile. Patras (PW-6) - father of the prosecutrix has stated that at the relevant time his daughter (prosecutrix) was aged about 14 years. According to him, in the morning he came to know that his daughter was taken to police station as she was subjected to rape. Josphina (PW-7) - mother of the prosecutrix has stated that when the prosecutrix did not return home, she made a search for her and thereafter when she got back home, narrated the incident to her. Prosecutrix also informed this witness that after seeing the accused persons she could identify them. Thereafter, this witness went towards the place of fair along with the prosecutrix where accused/appellants met her and they were identified by the prosecutrix. Nikodin (PW-8) has stated that he was informed by the mother of Changluram that the prosecutrix was subjected to rape by the accused/appellants. Mohd. Ramjan Ali (PW-9) is the witness to seizure of certain articles made under Ex. P-3, P-4 and P-5. Dr. (Smt.) J. Minj (PW-10) is the witness who medically examined the prosecutrix and gave her report Ex. P-6 stating that no injury was noticed by her on the person of the prosecutrix and she was habitual to sexual intercourse. Dr. R.N. Dubey (PW-I1) is the witness who medically examined the accused/appellants and gave his reports Ex. P-8 and P-9 stating that they both were capable of committing sexual intercourse. G.K. Bhagat (PW-12) is the witness to seizure of slides and a sealed packet made under Ex. P-10. B.B.S. Rajput (PW-13) is the investigating officer who has duly supported the case of the prosecution. Radheshyam Panda (PW-14) is the witness who assisted in the investigation. Jagatraj (PW-15) is the witness who recorded the FIR and assisted in the investigation. As per the FSL report Ex. P-11, spermatozoa was found on the underwear and skirt of the prosecutrix (Articles A-1 and A-2), underwear and slides of accused Ramkumar (Article - C and D), slides of accused Shobhanath (Article F). Evidence of the prosecutrix (PW-1) which has been duly supported by Changluram (PW-2), Dhanmati (PW-3) goes to show that after beating Changluram (PW-2) and thus driving him away the accused/appellants took the helpless prosecutrix to the jungle and made her the victim of their lust turn by turn. Even the FSL report Ex. P-11 also makes it clear that spermatozoa was present on articles A-1, A-2, C, D and F (described above). Since there is ample evidence available on record to indicate the sexual victimization of the prosecutrix at the hands of the accused/appellants, the findings of the Court below convicting the accused/appellants under Sections 366 and 376(2)(g) IPC are absolutely justified and no interference is warranted with the same. Accordingly, the appeal being without substance is liable to be dismissed and it is dismissed as such. The accused/appellants are on bail. Their bail bonds stand cancelled. They be sent to jail forthwith to serve out the remaining part of the sentence imposed on them.