Laxman And Ors vs The State Of M.P on 24 November, 2017

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 2163 of 2000

1. Laxman, son of Bandhan Uraon, aged about 30 years,

2. Shivprasad, S/o Amru @ Amarsingh, aged about 42 years,

3. Rama s/o Bandhan Uraon, aged about 25 years,

All resident of Village Shivpur, P.S. Baikunthpur, Distt. Koria (MP)

—- Appellants

Versus

 The State of M.P.

—- Respondent

For Appellants : Shri Vishnu Koshta, Advocate.
For Respondent/State : Shri Adil Minhaj, Panel Lawyer.

Hon’ble Shri Justice Pritinker Diwaker

Judgment On Board

24/11/2017

This appeal arises out of the judgment of conviction and order of

sentence dated 8.8.2000 passed by the Additional Sessions Judge,

Baikunthpur, Distt. Koria in S.T.No.163/1999 convicting each of the

accused/appellants under Sections 376(2)(g), 363 366 of IPC and

sentencing them to undergo RI for 10 years, pay a fine of Rs.200/-; RI

for 3 years, pay a fine of Rs.200/-; and RI for 3 years, pay a fine of

Rs.200/- with default stipulations respectively.

02. As per prosecution case, on 25.2.1999 at about 8 pm when the

prosecutrix came out from her house to attend the call of nature, the

appellants caught hold of her, took her to a nearby kitchen garden,
when she tried to raise alarm, appellant No.3 Rama gagged her mouth

by inserting a piece of cloth and then appellants No. 1 2 (Laxman

Shivprasad) committed rape upon her one after another. Unnumbered

FIR (Ex.P/1) was registered at the instance of prosecutrix on 26.2.1999

at 10 am at Police Outpost – Charcha and thereafter numbered FIR

(Ex.P/14) was registered on the same day at 2.30 pm against the

appellants under Sections 376/34 of IPC. The prosecutrix was sent for

medical examination which was conducted by PW-13 Dr. Shobha

Chaturvedi vide Ex.P/13. As per medical report, no definite opinion

could be given by the doctor regarding forcible sexual intercourse and

there was no injury, either external or internal, on her person. Vaginal

slides of the prosecutrix were prepared as Articles C1 C2 and sent to

FSL. Likewise, petticoat of the prosecutrix (Article A) and underwear of

accused/appellant Laxman (Article B) were also seized and sent to

FSL. As per unexhibited FSL report, spermatozoa was found on all

these articles. Appellants Laxman and Shivprasad were also medically

examined by PW-7 Dr. DK Chikanjuri and they were found capable of

performing sexual intercourse vide Ex.P/9A and P/10A respectively. To

determine the age of the prosecutrix, she was sent for x-ray

examination and as per report Ex.P/11 of the Radiologist (PW-8 Dr. MK

Jain), her radiological age was found to be 14-16 years. After filing of

charge sheet, the trial Judge framed charges under Sections 363, 366

and 376(2)(g) of IPC against the accused/appellants.

03. So as to hold the accused/appellants guilty, the prosecution

examined as many as 13 witnesses. Statements of the

accused/appellants were also recorded under Section 313 of Cr.P.C. in

which they denied the circumstances appearing against them in the
prosecution case, pleaded innocence and false implication. In their

defence they examined one Dr. Rajni Sharma as DW-1.

04. The trial Court after hearing counsel for the respective parties and

considering the material available on record, by the impugned

judgment convicted and sentenced the accused/appellants as

mentioned in para-1 of this judgment.

05. Learned counsel for the appellants submits as under:

 that on account of previous enmity between the appellants and

the family of the prosecutrix, they have been falsely implicated.

The factum of enmity between them has been admitted by the

prosecutrix also.

 That as per statement of the prosecutrix she was subjected to

gang rape by two appellants, however, as per her medical report

there was no injury, external or internal, on her person, which

goes to show that the appellants have been falsely implicated

and no such offence has ever taken place.

 That as per medical report of the prosecutrix she was found to be

habitual to sexual intercourse.

 That there is no conclusive piece of evidence regarding age of

the prosecutrix.

 That there is no allegation against appellant No.2 Rama that he

committed rape with the prosecutrix and therefore, under no

circumstances he can be convicted under Section 376(2)(g) of

IPC.

06. On the other hand, supporting the impugned judgment it has been
argued by the State counsel as under:

 that the prosecutrix is very firm in her version and nothing could

be elicited from her by the defence to make her evidence

doubtful or shaky.

 Even if no injury has been found on the person of the

prosecutrix, considering her unrebutted statement the appellants

can be convicted for the offence.

 That the prosecutrix has categorically stated that as there was

enmity between the appellants and her family, on that count the

appellants committed rape with her.

 That as per FSL report spermatozoa was found on the

underwear of the appellant Laxman, apart from the clothes and

vaginal slides of the prosecutrix, and no explanation has been

offered in this regard by appellant Laxman.

07. Heard counsel for the respective parties and perused the material

on record.

08. PW-1 prosecutrix has stated that on the date of incident she was

at her house along with her maternal grand-mother Bifaiya and at

around 8 pm she went out of her house for urination, at that time her

maternal grand-mother was cooking food, when she came out the

appellants caught hold of her, took her to the nearby kitchen garden of

her father, when she tried to raise alarm, appellant Rama inserted a

piece of cloth into her mouth and thereafter, she was subjected to rape

in the kitchen garden by appellants Laxman and Shivprasad one after

another. At that time, appellant Rama had gagged her mouth on

account of which she could not raise alarm. She states that at that time
PW-5 Kashi was passing through the said place and hearing some

noise when he asked as to who is there, the accused persons left her

and fled from the spot and then she informed Kashi about commission

of rape upon her by the accused persons. After reaching home she

also narrated the incident to her aunt Baikunwar, uncle and maternal

grand-mother and on the next morning report was lodged. She states

that her medical examination was done and her wearing apparels were

seized.

In cross-examination she admits that her father is in jail for the

last 10 years and her three elder brothers who are married have

ousted her from the house. She also admits that the accused persons

are in possession of 12 acres of land of her father and that she is

interested in getting the said land vacated but the accused persons are

not giving back her land. However, she has denied the suggestion that

because of the said dispute she has lodged a false report and states

that in fact on account of this dispute only the accused persons have

committed rape on her. She states that no crop was standing on the

field in question and it was a sort of garbage, it was a moonlit night and

that the field was grassy, therefore, she did not sustain any injury. She

has denied all the adverse suggestions put to her by the defence.

09. PW-2 Bifaiya, maternal grand-mother of the prosecutrix has

stated that the prosecutrix is about 16-17 years of age and she was

residing with her. She has stated that on the date of incident at about

7-8 pm the prosecutrix had gone out to ease herself and after some

time she returned and informed her that the appellants Rama

Laxman and one another person, whose name she does not
remember, have committed bad work with her and when Kashi reached

there, the accused persons fled from the spot. She also remained firm

in cross-examination. PW-3 Baikunwar has stated that on the date of

incident at about 8-9 pm when she was in her house, her husband was

not there, the prosecutrix came to her weeping and informed that she

was subjected to bad work by the accused persons when she had

gone out to ease herself. PW-4 Rajulal, PW-5 Kashiram and PW-6

Anarkali have turned hostile. PW-7 Dr. DK Chikanjuri medically

examined the appellants Laxman and Shivprasad and found them

capable of performing sexual intercourse vide Ex.P/9A and P/10A

respectively. PW-8 Dr. MK Jain, Radiologist, examined the prosecutrix

to determine her age and opined that her radiological age appears to

be in between 14 and 16 years. He has stated that while opining so he

had considered the variation of two years on either side. PW-9

Shyamlal Mishra, Patwari, prepared the spot Ex.P/5. He has stated

that stones were not there on the place of occurrence. PW-10

Kanhaiya Prasad Gupta, Head Constable, did part of investigation.

PW-11 JA Maravi, investigating officer, has duly supported the

prosecution case. PW-12 Mukteshwar Singh registered the FIR. PW-13

Dr. Shobha Chaturvedi medically examined the prosecutrix vide

Ex.P/13 and according to her, no definite opinion could be given

regarding forcible sexual intercourse and there was no injury, either

external or internal, on her person.

DW-1 Dr. Rajni Sharma has merely stated that considering the

medical report (Ex.P/13A) of the prosecutrix she appears to be habitual

to sexual intercourse.

10. Close scrutiny of the evidence makes it clear that relations

between the prosecution and the appellants were not cordial as there

was an old land dispute between their families. On the date of incident

i.e. 25.2.1999 at about 8 pm when the prosecutrix had gone out of her

house for urination, the appellants caught hold of her, took her to a

nearby kitchen garden and when she tried to raise alarm, appellant

No.3 Rama gagged her mouth by inserting a piece of cloth and then

appellants No. 1 2 (Laxman Shivprasad) committed rape upon her

one after another. The prosecutrix thereafter informed about the said

incident to her maternal grand-mother (PW-2 Bifaiya), aunt Baikunar

(PW-3) and uncle Rajulal (PW-4). A very prompt report was lodged by

the prosecutrix. In her lengthy cross-examination, the defence has

utterly failed to elicit anything from her to make her evidence

untrustworthy or doubtful. Though PW-4 Rajulal and PW-5 Kashiram

have turned hostile, but version of the prosecutrix finds due

corroboration from the evidence of PW-2 Bifaiya and PW-3 Baikunwar.

So far as previous enmity between the parties is concerned, the

prosecutrix has specifically denied the suggestion that on account of

previous enmity she had lodged a false report. Rather, in the given

facts and circumstances of the case, it can safely be taken as a motive

with the appellants to commit this offence.

11. True it is that as per medical evidence no injury, external or

internal, was noticed on the person of the prosecutrix but that alone is

not sufficient to discard the otherwise reliable evidence of the

prosecutrix. It has come in the unrebutted evidence of the prosecutrix

that the place of occurrence was grassy and further, PW-9 Shyamlal

Mishra, Patwari, who prepared the spot map has also stated in cross-
examination that no stones were there on the place of occurrence.

Even otherwise, according to the prosecutrix, while she was being

subjected to rape by appellants No. 1 2, appellant No.3 had inserted

a piece of cloth in her mouth and as such, she was not in a position to

resist the offence. This apart, vaginal slides of the prosecutrix (Articles

C1 C2), her petticoat (Article A) and underwear of accused/appellant

Laxman (Article B) were also seized and sent to FSL and as per

unexhibited FSL report, spermatozoa was found on all these articles.

However, no explanation has been offered by appellant Laxman in this

regard in his statement under Section 313 of Cr.P.C.

12. Admittedly, appellant No.3 Rama has not committed forcible

sexual intercourse with the prosecution, but he was actively facilitating

the other appellants in commission of the offence. As per Section

376(2)(g), where a woman is raped by one or more in a group of

persons acting in furtherance of their common intention, each of the

persons shall be deemed to have committed gang rape within the

meaning of this sub-section. Being so, conviction of the appellant No.3

Rama under Section 376(2)(g) is also in accordance with law.

13. As regards conviction of the appellants under Sections 363

366 of IPC is concerned, from the unchallenged oral and medical

evidence available on record, it is evident that on the date of incident

the prosecutrix was minor, aged in between 14 16 years. The

defence has not adduced any evidence, either by way of suggestions

in cross-examination or by filing any documents in relation to age of the

prosecutrix, which could suggest otherwise. Thus, their conviction

under the aforesaid sections is also based on proper appreciation of
the evidence and needs no interference by this Court.

14. In the result, the appeal fails and is, accordingly, dismissed. The

appellants are reported to be on bail, therefore, their bail bonds stand

cancelled and they are directed to be taken into custody forthwith to

serve out the remaining part of the sentence.

Sd/

(Pritinker Diwaker)
Judge
Khan

Leave a Comment

Your email address will not be published. Required fields are marked *