Sitaram vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 3.3.1997 passed by Additional Sessions Judge, Dhamtari, in Sessions Trial No. 174/1996 convicting the accused/appellant u/s 376(1) IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 2000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Facts of the case in brief are that on 5.10.1995 FIR (Ex. P-11) was lodged by the prosecutrix (PW-6) - a minor girl aged about 12 years at the relevant time, alleging that on 3.9.1995 while she was playing near her house, the accused/appellant came there and asked her whether she was interested in accompanying him to the jungle known as Angar Moti and when she asked him as to who else was going there along with him, appellant told her that it was his daughter. On this, the prosecutrix accompanied the accused/appellant on his bicycle to said jungle but near a temple he made her and his daughter to get down from the bicycle and after keeping his bicycle there itself he took her inside the jungle where he put off his full pant, spread it on the ground, asked her to lay over it, on resistance being offered by her he pressed her mouth, made her lie on the full pant spread by him, removed her underwear and that of his own also, threatened her not to raise her cries and then committed forcible sexual intercourse with her. It is alleged that on account of fear being beaten she kept silence and did not raise her cries though feeling pain. It is also alleged that after commission of the offence, the accused/appellant gave her Rs. 20/-, threatened her not to disclose the incident to anyone, brought her and his daughter back on his bicycle and after making her get down on the way he went away. On account of fear she did not disclose the incident to any one on the same day. Thereafter, on 25.9.1995 as she fell sick the accused/appellant on being asked by her father took her to hospital at Dhamtari for treatment and while returning there from on the way he again committed forcible sexual intercourse with her in the same manner. After this, he gave a gold nose ring and Rs. 15/- to her and asked her not to make disclosure of the incident to anyone. 2-3 days thereafter, on seeing the said nose ring when her father asked about it by scolding, she told him that it was given by the accused/appellant to wear and as her father had scolded her, she returned the same to the accused/appellant. It is alleged by her that when her uncle Sadaram visited her house, she informed him about the incident having taken place twice and then it is he who disclosed the same to her father. Thereafter, she went to police station along with her uncle and lodged the report. Based on this report, offence u/s 376 IPC was registered against the accused/appellant, prosecutrix was medically examined on 5.10.1995 vide Ex. P-3 by Dr. (Smt.) S. Singhal (PW-2) and after completion of investigation charge sheet was filed on 28.11.1995 for the said offence.

In support of its case, prosecution has examined 12 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. This apart, Jinendra Kumar (DW-1), Arun Kumar (DW-2) and Baisakhu Ram Sahu (DW-3) have also been examined by the defence in support of its case.

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

Counsel for the accused/appellant submits that due to previous enmity between the accused/appellant and father of the prosecutrix, the appellant has been falsely implicated in the case. He further submits that there is inordinate delay of about one month in lodging the FIR which has not been satisfactorily explained by the prosecution and this apart, the medical report of the prosecutrix also does not support the case of the prosecution. Counsel for the appellant further submits that the story put forth by the prosecution that in presence of his daughter the accused/appellant committed rape on the prosecutrix appears to be highly improbable. He further submits that had it really been a case of rape, normally she should have disclosed the same to her parents and that their non-examination is fatal to the case of the prosecution. He submits that there is no legally admissible evidence in respect of the age of the prosecutrix and therefore it cannot be said that on the date of incident she was minor.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that conduct of the prosecutrix appears to be very natural and that as a minor girl of 12 years of age has been subjected to rape by the accused/appellant by taking her away on the pretext of showing jungle to her and threatened her not to disclose the incident to anyone, the conviction and sentence saddled on him by the Court below are just and proper. According to the State counsel, the delay in lodging the FIR has been satisfactorily explained by the prosecution and merely on this ground the accused/appellant is not entitled for acquittal. He further submits that though the prosecutrix was medically examined on 5.10.1995 i.e. about one month after the first incident and 10 days after the second incident of rape, lady doctor medically examining her has opined that she might have been subjected to sexual intercourse. State counsel further submits that age of the prosecutrix has been duly proved by the prosecution by adducing evidence of the prosecutrix herself, the lady doctor (PW-2) and transfer certificate issued by the primary school Ex. P-6 in which her date of birth is recorded as 5.10.1983 and if it is taken into account, on the date of incident her age comes to about 12 years.

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

Prosecutrix (PW-6) has stated in her evidence that she knew the accused/appellant and has passed her V class from Gangrel school. On the date of incident when she was playing near her house, accused/appellant came there and asked about her willingness to go to a jungle known as Angar Moti and after coming to know that his daughter was also accompanying him she also expressed her readiness for the same. The accused/appellant is stated to have taken her and his daughter to the said jungle on bicycle and after keeping his bicycle on the way and leaving his daughter there itself, he took her inside the jungle, removed his pant, made her lie on the ground, removed her and that of his own underwear and committed forcible sexual intercourse with her by inserting his private part into that of her. After commission of offence, the accused/appellant is stated to have given her Rs. 20/- and threatened her of life in case she disclosed the incident to anyone. Thereafter, he took her and his daughter back on bicycle but after dropping her on the way he moved further. According to her she did not disclose this incident to anyone. 3-4 days thereafter she fell sick and was taken to Dhamtari for treatment by the accused/appellant and after treatment he had given her a gold nose ring. While returning from Dhamtari, on the way he again committed forcible sexual intercourse with her in the same manner and after committing the offence he gave he Rs. 15/-. This witness has further stated that after seeing the nose pin her father abused her and asked as to from where she got that and then she told him that it was given to her by the accused/appellant. However, on 26.9.1996 she returned the said nose pin to the accused/appellant but did not disclose the incident of rape to her father. According to this witness, when her uncle asked about the nose ring, she told him that it was given by the accused/appellant. On further being asked by her uncle, she told him the entire incident of rape to him and then went to the police station along with him and lodged the report. In cross examination, this witness has admitted that so many cases for making liquor were going on against her father in the Court and that as brother of the accused/appellant is a news reporter, her father and uncle used to suspect that through newspaper he was creating a problem in his liquor business and for that there was some ill-will between the two. Various suggestions put to this witness have been categorically denied by her and she remained very firm to the things deposed in examination-in-chief. Though there are certain contradictions in the statement of this witness, they being minor in nature are of no significance.

Dr. (Smt.) S. Singhal (PW-2) is the witness who medically examined the prosecutrix and gave her report Ex. P-3 stating that she appeared to be aged about 12 years, her secondary sexual characters started developing, no external injury was noticed, auxiliary and pubic hair were soft and scanty, breasts were developing, vagina admitted one finger with difficulty and hymen was tough. This witness has further opined that the prosecutrix was not habitual to sex and for determination of age she was referred to radiologist. In cross examination, she has stated that it could not be said that the prosecutrix was subjected to sexual intercourse just before her medical examination but she had sex. She has further stated that unless some hard object enters, the vagina does not get ruptured just because of playing games or cycling. Dr. A. Quadir (PW-1) is the witness who medically examined the accused/appellant and gave his report Ex. P-1 stating that he was capable of performing sexual intercourse. C.R. Sahu (PW-3) is the teacher of the school who has proved admission register vide Ex. P-5, Transfer Certificate vide Ex. P-6, mark-sheet vide Ex. P-1 and birth certificate vide Ex. P-8, all belonging to prosecutrix where her date of birth is recorded as 5.10.1983. Sadaram (PW-4) -uncle of the prosecutrix has stated that father of the prosecutrix had expired and her mother was physically handicapped and it is he who took care of her. According to this witness, at the relevant time the prosecutrix was studying in class VI. Raheshram Nishad (PW-5) is the witness to seizure of nose pin made under Ex. P-9. Mohan Maidhar (PW-7), Gyatri Bai (PW-8) and Chaitibai (PW-9) are just the hearsay witnesses. Bhagirathi Tandon (PW-10) and Gyandas (PW-11) - the witnesses to seizure of certain articles made under Ex. P-12, P-14 and P-15 have not deposed anything specific. B.S. Rajput (PW-12) is the investigating officer who has duly supported the case of the prosecution. Jinendra Kumar (DW-1) has stated that on 25.9.1995 the accused/appellant was working as labourer in the workshop. He has also proved the attendance register Ex. D-6 and admitted that after signing the register the labourer can go outside and for that there is no system of cross checking. Arun Kumar (DW-2) - the goldsmith has stated that appellant had purchased a gold nose pin on 7.4.1995 but thereafter he had not taken anything from his shop. Baisakhuram Sahu (DW-3) has stated that there was a meeting in the village on 3.9.1995 where the accused/appellant had agreed to give Rs. 5000/- for an idol of goddess Durga.

Minute examination of the evidence on record particularly that of the prosecutrix goes to show that on the date of incident when she was playing near her house, accused/appellant came there and asked about her willingness to go to a jungle known as Angar Moti and after coming to know that his daughter was also accompanying him she also expressed her willingness for the same. The accused/appellant took her and his daughter to the said jungle on bicycle and after keeping his bicycle on the way and leaving his daughter there itself, he took the prosecutrix inside the jungle and committed forcible sexual intercourse with her and after commission of offence, he gave her Rs. 20/- and threatened '' her of life in case she disclosed the incident to anyone. Again 3-4 days thereafter on the instructions of her father the accused/appellant took the prosecutrix to Dhamtari for treatment and gave her a gold nose ring. While returning from Dhamtari, on the way he again committed forcible sexual intercourse with her in the same manner and after committing the offence he gave he Rs. 15/-. By all this, it becomes clear that taking advantage of the age and her poor financial condition the accused/appellant subjected her to rape twice by giving some money and a nose-pin. Statement of the prosecutrix is duly corroborated by the doctor (PW-2) who medically examined the prosecutrix and gave her report stating that she appeared to be aged about 12 years, her secondary sexual characters started developing, no external injury was noticed, auxiliary and pubic hair were soft and scanty, breasts were developing, vagina admitted one finger with difficulty and hymen was tough. This witness has further opined that the prosecutrix was not habitual to sex and for determination of age she was referred to radiologist. As regards delay in lodging the report, it is a settled legal position that if the statement of the prosecutrix is trustworthy, in rape cases the delay is not always fatal to the case of the prosecution. In the matter of State of Himachal Pradesh Vs. Shree Kant Shekari, it has been held by the Apex Court as under:

The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any render prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar Vs. The State of Goa, .

Here in this case, there is ample material on record to show that the appellant tempted a minor girl aged about 12 years on the strength of money and subjected her to sexual assault. Moreover, as the plea of false implication has not been substantiated by the defence by leading sufficient evidence in that regard and therefore the same is turned down.

As a result, the appeal being without substance is liable to be dismissed and it is dismissed as such. Judgment impugned is hereby maintained. Accused/appellant is on bail. His bail bonds stand cancelled. He be sent to jail forthwith to serve out the remaining sentence imposed on him by the Court below.