Wali Mohammad vs The State Of M.P. on 4 December, 2017

-: 1 :- Criminal Appeal No.1411 of 1998.

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Vivek Rusia )

Criminal Appeal No.1411 of 1998.

Wali Mohammad s/o Piru Ajmeri
VERSUS
State of Madhya Pradesh
*****
Shri Manish Yadav, learned counsel for the appellant
(through Legal Aid).
Shri Amit Singh, learned Govt. Advocate for the
Respondent/State.
*****

J U D G M E N T

( Delivered on this 4th day of December, 2017 )

THE appellant has filed the present appeal
being aggrieved by judgment dated 16.11.1998 passed in
Sessions Trial No.101/1998 by which he has been convicted
under Section 376 (1) of IPC and sentenced to undergo 7
years RI with fine of Rs.1,000-00 and in default of payment
of fine, 2 months additional RI.

[2] As per the prosecution story, the prosecutrix
is a resident of Village Bhardavad. On 12.05.1998 near
about 10.00 AM she reached to the field for cutting the trees,
then the appellant accused came and caught hold her. She
shouted then he put her stole (dupatta) in her mouth and
strangulating her neck. Thereafter he removed her clothes
and committed rape. Immediately Yusuf and Shabbir came
there then the accused ran away. The prosecutrix tried to

-: 2 :- Criminal Appeal No.1411 of 1998.

escape her, due to which she received some injuries on neck,
wrist and hand. On her complaint the police has registered
the case under Crime No.75/1998. The prosecutrix was
medically examined and slides were prepared. The spot map
was prepared and stole (dupatta) and broken bangles were
seized from the spot. The accused was arrested and he
denied the involvement in the crime and submitted that he
has been falsely implicated.

[3] After completing the usual investigation,
challan was filed and the case was committed to the Sessions
Court. The prosecution examined Balmukund as PW-1 who
has refused to recognize the accused and he has turned
hostile. Thereafter the prosecution examined Brajesh Kumar
Dubey as PW-2 and on whose evidence the FIR; consent for
medical test and seizure were proved. Dr. Suresh Jain was
examined as PW-3 who has found that the accused is
capable of doing intercourse.

[4] The prosecution examined Yusuf Khan as
PW-4 as eye-witness who has clearly denied the incident and
turned hostile. Thereafter Ismile was examined as PW-5.
The prosecution examined Ayyub, husband of the
prosecutrix, as PW-6 who has also turned hostile. In cross-
examination by the Public Prosecutor he has admitted that
his brother has informed that rape has been committed with
the prosecutrix and they consulted to submit the report to the
police station. In further cross-examination by the defence
lawyer he has denied every thing. Dr. Smt. Beena Mehta was
examined as PW-7 who deposed that she has not found any
injuries on the private part and there is no sign of immediate

-: 3 :- Criminal Appeal No.1411 of 1998.

intercourse with the prosecutrix. The prosecutrix Lalibai was
examined as PW-10 who has narrated the entire story and
supported the case of the prosecution and her version
remained unchanged during cross-examination also.
Shabbir who was examined as PW-11 as eye-witness has
also turned hostile. Nandsingh, Head Constable was
examined as PW-14 who has recorded the statement of the
prosecutrix.

[5] In defence, the examination of the accused
was done and the accused has simply denied the questions
put by the Court.

[6] The learned Third Additional Sessions
Judge vide judgment dated 16.11.1998 has believed the
statement of prosecutrix came to the conclusion that the
appellant has committed rape on her and accordingly
convicted and sentenced him as stated above. Hence, the
present appeal before this Court.

[7] Shri Manish Yadav, learned counsel
appearing on behalf of the appellant (through Legal Aid)
submits that the incident said to have taken place at 1.30 PM
on 12.05.1998 and FIR was lodged at 9.45 PM hence there
was a delay of 8 to 9 hours. He further drawn attention of
this Court towards the statements of Ayyub and Shabbir who
have turned hostile. According to the prosecutrix they came
to the spot at the time of incident. He further submits that
even the husband of the prosecutrix has turned hostile and
did not support the prosecution case. The prosecutrix was
the consenting party at the time of incident and she made
complaint only when Yusuf and Shabbir came to the spot.

-: 4 :- Criminal Appeal No.1411 of 1998.

Hence, the appellant has wrongly been convicted.

[8] Shri Amit Singh, learned Govt. Advocate
appearing on behalf of the Respondent/State argued in
support of the judgment and submitted that the case of the
prosecution has been fully supported by the prosecutrix and
other witnesses are not the material witnesses, therefore,
they have supported the prosecution. The evidence of the
prosecutrix is alone is sufficient to convict the appellant.

[9] The incident said to have taken place at 1.30
PM and the FIR was recorded at 9.45 PM. The prosecutrix
said that her husband came in the evening and thereafter
entire incident was narrated to him. The husband of the
prosecutrix has admitted in the cross-examination that he
consulted with the others and thereafter lodged an FIR. The
police station is 20 kms away from the house of the
prosecutrix and the reasons for the delay is also mentioned in
the FIR. Therefore, the delay of 10 hours cannot be said to
much delay and the appellant is not entitled for any benefit.

[10] The statement of the prosecutrix was
recorded under
Section 161 of the Code of Criminal
Procedure in which she has narrated the entire story and in
the Court also she has deposed that rape was committed on
her by the accused appellant. In cross-examination her
version remain unchanged which alone is sufficient to
convict the accused appellant. No material has been
produced by the accused to demonstrate that there was a
consent by the prosecutrix.

[11] So far as the question of delay is concerned,
the Apex Court in the recent judgment in the case of Deepak

-: 5 :- Criminal Appeal No.1411 of 1998.

v/s State of Haryana [(2015) 4 SCC 762] has held as
under :-

“15. The Courts cannot overlook the fact that in sexual offences
and, in particular, the offence of rape and that too on a young
illiterate girl, the delay in lodging the FIR can occur due to various
reasons. One of the reasons is the reluctance of the prosecutrix or
her family members to go to the police station and to make a
complaint about the incident, which concerns the reputation of the
prosecutrix and the honour of the entire family. In such cases, after
giving very cool thought and considering all pros and cons arising
out of an unfortunate incident, a complaint of sexual offence is
generally lodged either by victim or by any member of her family.
Indeed, this has been the consistent view of this Court as has been
held in
State of Punjab vs. Gurmit Singh Ors.[ (1996) 2 SCC

384)].

16. Keeping this well settled principle in mind, we find that the
FIR in this case was lodged on 04.04.2007 when the prosecutrix
disclosed to her mother of the incident first time as to what had
happened with her hardly two weeks before the date of disclosure
and the mother, in turn, immediately made a complaint to the
police station and disclosed to the SI, who visited her place on
coming to know of the incident. The late disclosure of the offence by
the prosecutrix was also well justified by her in her statement
recorded under
Section 164 of the Code and also in her evidence
wherein she said that the appellant had taken her photographs and
had also recorded her talks with him on mobile. The accused was,
as per her version, threatening her from raising any kind of alarm
with the use of such evidence in his possession.

17. The conduct of the prosecutrix, in this regard, therefore,
appears to us to be most natural. She did not inform the incident
immediately to the parents and waited for two weeks to eventually
disclose to her mother. It was for the reason that the appellant was
all along threatening the prosecutrix of the dire consequences with
the use of the evidence, which he was having with him against her.”

[12] So far as the conviction based on the sole
testimony of the prosecutrix is concerned and the issue of
consent, the Apex Court has also considered the same in
paras 24 to 27 which are reproduced below :-

“25. In order to enable the court to draw presumption as
contained in
Section 114-A against the accused, it is necessary to
first prove the commission of sexual intercourse by the accused on
the prosecutrix and second, it should be proved that it was done
without the consent of the prosecutrix. Once the prosecutrix states
in her evidence that she did not consent to act of sexual intercourse

-: 6 :- Criminal Appeal No.1411 of 1998.

done by the accused on her which, as per her statement, was
committed by the accused against her will and the accused failed to
give any satisfactory explanation in his defence evidence on this
issue, the court will be entitled to draw the presumption under
Section 114-A of the Indian Evidence Act against the accused
holding that he committed the act of sexual intercourse on the
prosecutrix against her will and without her consent. The question
as to whether the sexual intercourse was done with or without
consent being a question of fact has to be proved by the evidence in
every case before invoking the rigour of
Section 114-A of the Indian
Evidence Act.

25. Coming now to the case in hand, we find that the prosecutrix,
in her sworn testimony, in clear terms has said that she did not give
her consent for commission of the act to the appellant and that he
committed the act of sexual violence on her against her will. The
appellant was not able to give any satisfactory explanation in his
statement recorded under
Section 313 of the Code nor was he able to
adduce any defence evidence to rebut the presumption contained in
Section 114-A of the Indian Evidence Act, 1872 against him. So far
as commission of sexual intercourse is concerned, it is proved with
the medical evidence that it was performed by the appellant with the
prosecutrix.

26. We are alive to the law laid down by this Court wherein it is
ruled that in a case of rape, no self- respecting woman would ever
come forward in a court just to make a humiliating statement
against her honour such as is involved in the commission of rape on
her. The testimony of the prosecutrix in such cases is vital and
unless there are compelling reasons, which necessitate looking for
corroboration of her statement or where there are compelling
reasons for rejecting of her testimony, there is no justification on the
part of the court to reject her testimony.

27. In the instant case, our careful analysis of the statement of
the prosecutrix has created an impression on our minds that she is a
reliable and truthful witness and her testimony suffers no infirmity
or blemish whatsoever. That apart, as observed supra, even the
medical evidence supports the commission of sexual violence on her
and we need not elaborate on this issue any more in the light of
concurrent finding of the courts below having been recorded against
the appellant holding in clear terms that sign of commission of rape
on her by the appellant stood proved by medical evidence beyond
reasonable doubt. Indeed, even the appellant had not disputed the
factum of commission of sexual intercourse by him on the
prosecutrix because as taken note of, the appellant’s only defence
was that since the prosecutrix had consented to the commission of
the sexual act, no offence of rape was made out against him. This
argument we have already rejected.”

[13] In the light of foregoing discussion, I do not
find any merit in this appeal, which fails and is accordingly
dismissed. Since the appellant is on bail by the order passed

-: 7 :- Criminal Appeal No.1411 of 1998.

by this Court on 13.01.1999, his bail bonds stand cancelled
and he is directed to surrender forthwith to serve out the
remaining period of his sentence.

[14] Copy of this judgment with record be send
back to the Trial Court.

[ VIVEK RUSIA ]
JUDGE
Sharma AK/*

Anl Kumar Sharma
2017.12.07
14:17:29 -08’00’

Leave a Comment

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