Thakur Deen Kori vs State of Madhya Pradesh

This criminal appeal has been filed against the judgment dated 26/11/2007 passed by V Additional Sessions Judge (Fast Track), Rewa in

ST.No.07/2007, whereby learned Sessions Judge found the appellant guilty for the offence punishable under Section 376 of the IPC and sentenced

him to undergo R.I. for seven years with fine of Rs.1,000/-with default stipulation.

Brief facts of the case are that on 15/12/2006 at 2:00 P.M. when the prosecutrix (PW/11) (her name and identity imposed by law contained in

Section 228A of IPC is not disclosed) was alone at her house situated at Village Maidani, District Rewa and her husband Satyanarayan Vishwakarma

(PW/9) had gone to Radha Mohan School. The appellant entered into the prosecutrix house and caught hold her and throw down her on the bed and

committed rape with her. Appellant also threatened her to kill if she narrated the incident to anybody and went out from her house. Thereafter,

prosecutrix informed her husband on mobile about the incident. On that, her husband came to the house and thereafter prosecutrix and her husband

went to the house of Ramnaresh Singh (PW/6), who was an Advocate and narrated the incident to him. After that prosecutrix went to Police Station

Chorhata, District Rewa and lodged the report (Ex.P/9), which was written by B.D. Tripathi (PW/13) the then S.H.O., Police Station Chorhata,

District Rewa and Crime No.353/06 was registered for the offence punishable under Sections 376, 506 B of the IPC against the appellant. During the

investigation of that crime B.D. Tripathi (PW/13) went to the spot and prepared spot map (Ex.P/5). He also sent the prosecutrix for medical

examination to the District Hospital, Rewa, where Dr Kiran Bala Mishra (PW/1) examined her and gave report (Ex.P/1). She also prepared the slides

of her vaginal swab and also seized petticoat and underwear, which were wore by the prosecutrix at the time of her examination and sent it to Police

Station Chorhata through Constable Ramesh pratap(PW/8) in a sealed packet, which was seized by Head Constable Shripal (PW/4) and prepared

seizure memo (Ex.P/2). During investigation B.D. Tripathi (PW/13) also recorded the statement of the prosecutrix (PW/11), Satyanarayan

Vishwakarma (PW/9) and Ramnaresh Singh (PW/6) and on 16/12/2006 he arrested the appellant and prepared arrest memo (Ex.P/12) and sent the

appellant to District Hospital, Rewa for medical examination along with an application (Ex.P/13), where Dr. M.K. Tiwari (PW/5) examined the

appellant and gave report (Ex.P/4) to the effect that the appellant is able to commit intercourse. He also seized underwear, which was wore by the

appellant at the time of his examination and sent it to Police Station Chorhata through Constable Abid Khan (PW/10) in a sealed packet, which was

seized by SHO B.D.Tripthi (PW/13) and prepared seizure memo (Ex.P/3). B.D. Tripathi (PW/13) also sent all the seized articles for chemical

examination to Forensic Science Laboratory, Sagar along with a draft (Ex.P/10) through S.P. Rewa. After completion of the investigation, Police filed

charge-sheet against the appellant before the Judicial Magistrate First Class, Rewa who committed the case to the Court of Sessions, where S.T.

No.7/2007 was registered.

Learned V ASJ (Fast Track), Rewa framed the charges under Section 376, 506-II of the IPC against the appellant and tried the case. Appellant

abjured his guilty and took the defence that he has falsely been implicated in the case. However, after the trial learned V Additional Sessions Judge

acquitted the appellant from the charge punishable under Section 506-II of the IPC, but found him guilty for the abovementioned offence and

sentenced him as aforesaid. Being aggrieved by the impugned judgment appellant has preferred this appeal.

Learned counsel for the appellant submitted that there are many contradictions and omissions in the statements of the prosecution witnesses.

Ramnaresh Singh (PW/6) clearly admitted in Para-4 of his cross-examination that the prosecutrix lodged the report after consulting him. Husband of

the prosecutrix Satyanarayan Vishwakarma (PW/9) also admitted in Para-4 of his cross-examination that when he reached the house after receiving

the information on mobile, at that time prosecutrix was wearing maxi (nightgown), while the prosecutrix deposed that the appellant committed rape

with her after removing her sari from her body. It is further submitted that the distance between the Police Station and the place of incident is merely

5 km. and the incident alleged to have been occurred on 15/12/06 at 2:00 p.m., while the prosecutrix lodged the report at 7:15 p.m. i.e. after six hours

of the incident and there is no explanation regarding delay in lodging the FIR. The prosecutrix herself mentioned in the FIR that she went to the Police

Station with an Advocate namely Ramnaresh Singh (PW/6), which shows that the FIR was lodged by the prosecutrix with the help of an Advocate

and the story is an afterthought. Appellant has not committed any offence and a false story was concocted by the prosecutrix and her husband with

the help of Advocate Ramnaresh Singh (PW/6). Regarding incident, the statement of the prosecutrix is also not supported by the statement of Dr

Kiran Bala Mishra (PW/1), who medically examined the prosecutrix soon after the incident and gave the report (Ex.P/1). Dr Kiran Bala Mishra

(PW/1) clearly deposed that at the time of examination she did not find any injury on the body of the prosecutrix and it was not possible to give any

definite opinion about recent sexual intercourse with her. It is submitted that if the appellant had committed rape with the prosecutrix, then she might

have sustained injuries on her body. On the strength of aforesaid learned counsel submitted that the learned trial Court without appreciating the

prosecution evidence properly, wrongly found the appellant guilty for the aforesaid offence.

On the other hand learned counsel for the State submitted that from the prosecution evidence guilt of the appellant is clearly proved beyond

reasonable doubt, so the learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offence.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant under Section 376 of the

IPC are liable to be set aside for the reasons stated in the memo of appeal and raised during the argument.

Regarding incident, prosecutrix (PW/11) clearly deposed that on the date of incident i.e. 15/12/2006 at around 1:30 p.m. when she was watching

T.V. in her house and her husband went to Radha Mohan School, appellant entered into the house and throw down her on the bed and committed rape

with her and also threatened her to kill if she narrated the incident to anybody and went out from the house. Thereafter, she informed the incident to

her husband on mobile. On that, her husband returned to the house at 2:30 p.m. Then, she narrated the incident to her husband and went along with

him to the Police Station Chorhata and lodged the report (Ex.P/9). Her statement is also corroborated by the report (Ex.P/9) lodged by her, which was

also proved by B.D. Tripathi (PW/13), who wrote that report. Regarding incident, her statement is also corroborated by the statement of her husband

Satyanarayan Vishwakarma (PW/9) to whom she narrated the incident soon after the incident. Satyanarayan Vishwakarma (PW/9) clearly deposed

that on the date of incident when he was working at Radha Mohan School her wife (prosecutrix) called him on mobile and told that the appellant

committed rape with her. On that when he went to his house by bicycle, his wife (prosecutrix) told him that appellant entered the house and committed

rape with her. Regarding incident, her statement is also corroborated from the statement of Ramnaresh Singh (PW/6) to whom she also narrated the

incident. He also deposed that on the date of the incident at 5:00 p.m. when he reached his house from the Court, prosecutrix (PW/11) and her

husband Satyanarayan Vishwakarma (PW/9) came to his house and at that time prosecutrix told him that appellant committed rape with her and also

threatened to kill her. On that, he took the prosecutrix and her husband to Police Station Chorhata to lodged the report.

Although, the incident is said to have occurred on 15/12/2006 at 2:00 p.m., while the prosecutrix lodged the report at 7:30 p.m., but the prosecutrix

has clearly stated in her statement that at the time of incident she was alone at her house and after the incident she informed her husband on mobile,

who came at 2:30 p.m. and thereafter she went to Police Station Mahila Thana, where Police did not lodge her report, then she went to Police Station

Chorhata and lodged the report. Hon’ble Apex Court in the case of Satpal Singh Vs. State of Haryana, (2010) 8 Supreme Court Cases 714 held

“In case of sexual offences, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to

take the matter to the Court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be

adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that ""ordinarily the family of the victim would not intend

to get a stigma attached to the victim"". Delay in lodging the First Information Report in a case of this nature is a normal phenomenonâ€. So, only on

the ground that the incident occurred at 2:00 PM, while the FIR was lodged at 7.00 PM, the prosecution story cannot be doubted.

Although Kiran Bala Mishra (PW/1), who has medically examined the prosecutrix soon after the incident has stated that she did not find any injury

on the body of the prosecutrix, since the prosecutrix was a married lady, no definite opinion regarding rape could be given. But, prosecutrix was a

married lady and was habituated for intercourse. She has stated that the appellant committed rape with her on the bed. Thus in these circumstances,

mere absence of injuries or conclusive opinion of the medical examiner regarding rape cannot be a ground for the acquittal of the accused having

regard to the positive and substantive evidence of the prosecutrix and the other prosecution witnesses.

Although, prosecutrix admitted that soon after the incident she and her husband went to Advocate Ramnaresh Singh’s house and told the

incident to him and thereafter she lodged the FIR, but only on that ground that before the incident prosecutrix went to Ramnaresh Singh’s house,

who is an Advocate and narrated the incident to him, the story cannot be said to have been afterthought. Appellant has cross-examined prosecutrix

(PW/11) at length, but nothing has come out in her cross-examination which cast a shadow of doubt over her veracity. If the appellant had not

committed rape with the prosecutrix, why would have she lodge a false report against the appellant.

Learned trial Court in his judgement elaborately discussed the prosecution evidence and the point raised by that appellant as well and after

appreciation of all the prosecution evidence found the statement of prosecutrix trustworthy. Thus, in the considered opinion of this Court learned trial

Court did not commit any mistake in believing the prosecutrix statement and finding the appellant guilty of the offence punishable under Section 376 of

the IPC.

As far as sentence is concerned, learned trial Court convicted the appellant for the offence punishable under Section 376 of the IPC and

sentenced him to undergo R.I. for seven years, which is minimum sentence prescribed under the I.P.C. So this Court does not find any reason to

interfere with the sentences given by the trial Court.

In the ultimate analysis, I find no merit in the appeal and consequently, the appeal stands dismissed.

The period of custody during trial shall be adjusted towards the period of substantive sentence of imprisonment.