Shankersingh vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present criminal appeal being aggrieved with the judgment dated 29.8.1997 passed by the Sessions Judge, Damoh in ST. No. 10/1997 whereby, the appellant has been convicted of offence under Section 376(1) of I.P.C. and sentenced to five years rigorous imprisonment with fine of Rs. 3000/-, in default of fine, six months rigorous imprisonment.

The facts of the case in short are that the prosecutrix (PW 1) was resident of Village Rakri Imlia Mangarh (Police Station Nohta, District Damoh). On 15.11.1996 at about 8.00 to 9.00 a.m., she went to Village Imlia for shopping and at about 4.00 p.m., when she was coming back to her Village Rakri, near a culvert of Gadar the appellant Shankar Singh detained her. He had shown a sum of Rs. 20/- to have cohabitation with the prosecutrix. The prosecutrix refused to do so then he had committed a forceful rape upon her. A threat was given by the appellant that if any information about the incident is given to anyone then her eyes would be removed. However, the prosecutrix went to her house and intimated about the incident to her husband Jivanlal (PW 2), father-in-law Tikaram and brother Mukunda. In doing aforesaid activity, sufficient time was consumed and due to night, she could not go to the Police on the same day. On the next day morning she along with her husband went to the Police Station, Nohta and lodged an FIR Ex. P/1. She was sent for her medico legal examination. Dr. Beena Yadu, examined the prosecutrix and gave her report. No internal or external injury was found on her. After due investigation, charge sheet was fled before the JMFC, Damoh who, committed the case to the Court of Sessions.

The appellant abjured his guilt. He took a plea that husband of the prosecutrix was making kachhi liquor and amongst other villagers, the appellant had objected and therefore, he was falsely implicated in the matter. However, no defence evidence was adduced.

The Sessions Judge, Damoh after considering the prosecution''s evidence convicted and sentenced the appellant as mentioned above.

I have heard the learned counsel for the parties at length.

In the present case, the prosecutrix (PW 1) was a 30 year old married woman and therefore, there is no dispute relating to her age. The prosecutrix (PW 1) has stated that when she was coming from Village Imlia to Rakri, near a culvert the appellant met her in the way and tendered a sum of Rs. 20/- to have cohabitation. On her refusal, he did a forceful cohabitation with her and gave a threat that if she tells anyone about the incident, he would remove her eyes. However, she went to her house and informed about the incident to her husband Jivanlal (PW 2), father-in-law Tikaram and brother Mukunda. Due to night she could not go to the Police Station and therefore, she had lodged an FIR on the next day.

The FIR Ex. P/1 was lodged on 16.11.1996 at about 11.30 a.m. It is duly proved by the prosecutrix (PW 1) and SHO Naval Yadav (PW 3). In the statements of the prosecutrix, Jivanlal and Naval Yadav, it is established that Police Station was 22 kms. away from the Village of the prosecutrix. She had stated in para 8 that she left for the Police Station in the morning and at about 10.00 a.m., she reached to the Police Station. It is natural that after reaching of the prosecutrix at the Police Station some time must have been required to observe the preliminaries in lodging the FIR and therefore, if FIR is registered at 11.30 a.m., then it cannot be said that it was lodged with delay. Hence the trial Court has rightly found that the FIR was lodged within time.

The appellant took a plea that he was falsely implicated due to enmity. According to him Jivanlal, husband of the prosecutrix, was making illicit liquor and since some villagers including the appellant prohibited him in doing so, the appellant was falsely implicated in the matter. However, such defence taken by the appellant appears to be baseless. Jivanlal and the prosecutrix did not accept the suggestion of enmity given by the appellant. No villager or any reputed citizen of the locality was examined to prove that Jivanlal was making illicit liquor and therefore, it was not proved that Jivanlal was making illicit liquor and therefore, quarrel took place between the appellant and him. Similarly, the appellant could not show his status in the Village as to whether he was Sarpanch, Member of Panchayat or a Social Worker so that he would have prohibited Jivanlal from making illicit liquor. Being a citizen, if he would have told Jivanlal not to prepare illicit liquor then no answer has been given by the appellant to the question, that out of such villagers who prohibited the husband of the prosecutrix and how many of them were falsely implicated in the matter. If villagers have told Jivanlal not to prepare illicit liquor then due to that enmity Jivanlal would have falsely implicated so many villagers and a case of gang rape would have been lodged. Under these circumstances, the appellant could not have proved his defence. No enmity between the appellant and husband of the prosecutrix is established and it cannot be said that the appellant was falsely implicated in the matter.

Learned counsel for the appellant has also submitted that it is stated by the prosecutrix that she refused offer of the appellant and thereafter, the appellant did a forceful cohabitation with her. In such circumstances, she should have suffered various external and internal injuries. In this context, he has further submitted that Dr. Beena Yadu, who performed the medico legal examination of the prosecutrix was not examined before the trial Court and MLC report was not proved. However, the prosecutrix (PW 1) has stated in para 6 that she tried to escape from the appellant but, in doing so, she did not sustain any injury. She was a married woman and therefore, there was least possibility of any internal injury upon her at the time of incident. Under these circumstances, due to absence of any injury it cannot be said that no offence was committed upon the prosecutrix. In this connection judgment passed by the Apex Court in the case of Ram Singh @ Chhaju Vs. State of Himachal Pradesh, (2010) CLT 594 : (2010) CriLJ 1655 : (2010) 1 Crimes 120 : (2010) 1 JT 666 : (2010) 1 SCALE 669 : (2010) 2 SCC 445 : (2010) 2 SCR 95 : (2010) 2 UJ 1097 , may be referred in which it is held that if doctor found that victim being a married woman was used to sexual intercourse, hence absence of any injury on her private parts has no significance. Similarly, it is held that much importance cannot be given in absence of injury on prosecutrix because it is not an inevitable rule that in absence of injuries, prosecution must necessarily fail to establish its case. In the light of the aforesaid judgment given by the Apex Court in the case of Ram Singh (supra) if medical report is not proved and the external or internal injuries caused to the prosecutrix were not established then only by that reason the testimony of the prosecutrix cannot be discarded. In the present case, when the prosecutrix has stated that no external injury was caused to her, then it was not necessary for the prosecution to establish the injuries of the prosecutrix.

The learned counsel for the appellant has also submitted that if the prosecutrix did not resist at the time of incident then certainly she was a consenting party. However, the contention advanced by the learned counsel for the appellant cannot be accepted. Consent of the prosecutrix can be examined on various factors. Looking to the facts of the case if prosecutrix did not resist at the time of incident then possibility cannot be ruled out that the surface of the ground where the crime was committed was not rough. She has stated that on her shouting, no one had come because the place of incident was a lonely place. If the appellant was a stout person, he could have overpowered the prosecutrix so that she could not resist much and therefore, in the absence of injuries it cannot be said that the prosecutrix was a consenting party. For the sake of argument, if it is presumed that the prosecutrix was a consenting party and she received the offer of the appellant and obtained the money then no one came to the spot so that the prosecutrix would have been scared that he would tell about the incident to her family members and in such circumstance, there was no reason for the prosecutrix to tell about the incident to her husband and family members but, it is established by the prosecutrix and her husband Jivanlal (PW 2) that not only she told about the incident to her husband in the evening but, on the next day she had lodged an FIR Ex. P/1 at Police Station, Nohta. Looking to such conduct of the prosecutrix, she was not at all a consenting party.

Learned counsel for the appellant has submitted that the trial Court took a support of document Ex. P/6, a report from Forensic Science Laboratory in which information is given that on saya and the vaginal swab slides of the prosecutrix semen particles were found but it was not proved that those semen particles were of the appellant and therefore, the trial Court could not take any support of that report and law laid by the Madhya Pradesh High Court in the case of Kanchhedi and Others Vs. State of M.P., (1991) JLJ 6 cannot be applied in the present case. It is true that the prosecutrix had a liberty to have a co-habitation with her husband in the intervening night between the date of incident and the date of FIR and therefore, law laid in the case of Kanchhedi (supra) cannot be directly applied in the present case. However, if that report is deleted from the evidence even then there is no reason to disbelieve the prosecutrix.

If prosecutrix was the consenting party then she should not have informed about the incident to anyone including her husband. In this context the judgment passed by the Apex Court in the case of Sheikh Zakir Vs. State of Bihar, AIR 1983 SC 911 : (1983) 1 SCALE 644 : (1983) 1 SCALE 614 : (1983) 4 SCC 10 : (1983) 3 SCR 312 may be perused in which it was held that the prosecutrix immediately informed about the incident to her husband and her such conduct is relevant and an admissible evidence under Section 157 of the Cr.P.C. Under these circumstances, looking to the conduct of the prosecutrix and in absence of enmity between the appellant and husband of the prosecutrix, testimony of the prosecutrix is believable that intercourse was done with the prosecutrix without her consent and against her will and therefore, the appellant has committed an offence under Section 376(1) of the I.P.C. The trial Court has rightly convicted the appellant for that offence.

So far as the sentence is concerned, it would be apparent that the appellant has faced the trial and appeal for 18 years but, being first offender a latitude has already been given by the trial Court that a jail sentence less than the minimum prescribed sentence has been imposed by the trial Court. Hence, looking to the overt act of the appellant it is not possible to further dilute the sentence imposed upon him. There is no need to interfere in the quantum sentence imposed by the trial Court.

On the basis of the aforesaid discussion, there is no reason to accept the appeal fled by the appellant. Consequently, it is hereby dismissed by confirming the conviction as well as the sentence imposed by the trial Court upon the appellant.

The appellant is on bail, he is directed to surrender before the trial Court without any delay so that remaining sentence be executed upon him.

A copy of the judgment be sent to the trial Court along with its record for information and compliance.