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Lodhiya vs The State Of M.P. on 3 April, 2018

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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

Criminal Appeal No.1090 of 2001
Lodhia. .. Appellants.

Vs.

State of M.P.
through Police Station Bhagwanpura,
District Khargone … Respondent.

***********************
Shri M. Sankhla, Advocate for the appellant through Legal Aid.
Shri Abhishek Soni, Govt. Advocate for the respondent/State
***********************
JUDGMENT

(Reserved on 24.03.2018)
(Delivered on 3rd April, 2018)

The appellant has filed the present appeal being
aggrieved by the judgment dated 3.8.2001 passed by the learned
Additional Sessions Judge, Khargone in Sessions Trial
No.303/2000, by which, he has been convicted for the offences u/s.
366 and 376(1) of the Indian Penal Code (IPC) and has been
sentenced to undergo 3 years and 7 years’ RI with fine of
Rs.1,000/- on each count respectively with default stipulation.

2. As per prosecution story, FIR was lodged by Smt.
Nooribai on 10.4.2000 against four unknown persons that they
forcibly abducted her daughter aged about 15 years. She was alone
in the house and she could not identify them. By that time, she
called others, the accused persons took her daughter and fled away.
The FIR was registered for the offences u/s. 451, 363, 366 and 34
of the IPC against four unknown persons. The police started
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investigation and arrested the accused persons viz. Lodhia others
on 10.6.2000 vide Ex. P./8; Munim vide Ex. P/9, Nehru vide P/10.
The seized articles viz. Cloth of the prosecutrix were sent for
forensic examination to FSL, Rau on 4.7.2000 vide Ex. P/11. As
per FSL report (Ex. P/12) given by the FSL, semens were found
over the articles A, B and D/1. The police recorded the statement
of the prosecutrix. After usual investigation, challan was put up
before the learned Judicial Magistrate, First Class, who committed
the case to the Court of Sessions against 5 accused persons.

3. The prosecution examined Dr. Vandana Sarkanungo as
P.W.1, who medically examined the prosecutrix, but did not give
any definite opinion about the rape. R.P. Singh was examined as
P.W.2, who recovered the prosecutrix from the custody of the
present appellant. Dr. D.S. Badole was examined as P.W.3, who
examined the appellant and found that he was capable of sexual
intercourse. The complainant i.e. mother of the prosecutrix lodged
the report stating that four persons forcibly took her daughter from
her house. The father of the prosecutrix viz. Mangilal was
examined as P.W.5, who was witness of recovery of his daughter
from the custody of the appellant. The prosecutrix was examined
as P.W.6, who was minor at that point of time. The Court has asked
certain questions and the trial Court found her capable of giving
answers correctly. Before the Court, the prosecutrix specifically
deposed that the appellant who took her and kept her in his house
for a period of two months and committed rape several times.

4. Banshilal (P.W.7), Ganesh (P.W.8) and B.S. Sisodia,
Sub Inspector (P.W.9) were also examined. The accused abjured
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their guilt. In defence, accused examined Laxmanrao as D.W.1 in
order to prove the age of the prosecutrix and Jatan as D.W.2 in
order to prove the marriage of the appellant with the prosecutrix.

5. The learned trial Court after appreciating the evidence
on record has acquitted four accused viz. Nehru, Raju, Surpal and
Munim, but convicted the appellant for the offence u/s. 366 and
376(1) of the IPC and sentenced, as aforesaid. Hence, this appeal.

6. Shri Sankhla, learned counsel appearing for the
appellant, has argued that the appellant has wrongly been
convicted by the learned trial Court. The learned trial Court has
assessed the age of the prosecutrix as of more than 18 years, but
failed to believe the evidence put forth by the appellant that she
herself went with him and she was a consenting party and she lived
with him for a period of two months on her own accord as wife,
therefore, he is liable to be acquitted.

7. On the other hand, Shri Soni, learned counsel appearing
for the respondent, argued in support of the impugned judgment by
submitting that the prosecutrix before the police as well as before
the Court has specifically deposed against the appellant that he
forcibly took her and committed rape upon her.

8. I have heard the learned counsel appearing for the
parties and perused the record.

9. The complainant – Nooribai (P.W.4) lodged the report
and deposed before the Court that at the relevant time, she was
sleeping with her daughter in the house and at 12.00 pm. in the
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night, four persons forcibly took her daughter. She tried to rescue
her daughter, but could not succeed. Immediately thereafter, she
called her relatives viz. Banshilal (P.W.7) and Ganesh (P.W.8).
Immediately after abduction, a reaction of Nooribai (P.W.4) was
normal whose statement is duly supported by the prosecutrix
(P.W.6), Banshilal (P.W.7) and Ganesh (P.W.8). It is also not in
dispute that after a period of two months, the prosecutrix was
recovered from the custody of the present appellant. The
prosecutrix, who was examined as P.W.6, has also specifically
deposed before the Court that the appellant and his friends had
forcibly took her against her wishes and he kept her for a period of
two months and committed rape upon her. Thus, there was enough
material before the trial Court to convict the present appellant. The
statement of the prosecutrix remained uncontroverted.

10. The apex Court in the case of Deepak V/s. State of
Haryana : (2015) 4 SCC 762 has held as under :-

“24. 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 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
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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
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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.”

11. In view of the above, this appeal fails and is hereby
dismissed. Even otherwise, the appellant has served out the
complete sentence imposed upon him and has been released from
jail on 18.4.2007. Said information is received vide letter dated
23.3.2018 of the Jail Superintendent, Central Jail, Indore.

( VIVEK RUSIA )
JUDGE
Alok/
Digitally signed by Alok Gargav
Date: 2018.04.04 13:27:15 +05’30’

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