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Thakurdeen Kori vs The State Of Madhya Pradesh on 28 May, 2018

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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

SINGLE BENCH : RAJEEV KUMAR DUBEY, J

Criminal Appeal No.2598/2007
Thakur Deen Kori
Vs.
The State of Madhya Pradesh

For the appellant: Shri Satish Chaturvedi, advocate.

For the respondent: Shri Amit Sharma, Panel Lawyer.

JUDGMENT

Reserved on 21/05/2018
Delivered on 28/05/2018

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.

2. 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
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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
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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.

3. 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.

4. 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
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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.

5. 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.

6. 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.

7. 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
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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.

8. 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
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nature is a normal phenomenon”. 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.

9. 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.

10. 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.

11. 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.

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12. 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.

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

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

(Rajeev Kumar Dubey)
JUDGE

as/
Digitally signed by ANURAG SONI
Date: 2018.05.28 19:29:53 +05’30’

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