1997 Supreme(MP) 877

IN THE HIGH COURT OF MADHYA PRADESH
DIPAK MISRA, J.
Hakim - Appellant
Vs.
State of M.P. - Respondents
Cr. Appeal No. 842 of 1993 (J)
Decided On : 30-09-1997

Headnote:(1) Indian Penal Code, 1860 – S. 376 – trustworthy testimony of prosecutrix duly corroborated by other witnesses and medical opinion – offence proved.

       (2) Indian Penal Code, 1860 – S. 376 – reliable testimony of prosecutrix – corroboration from medical evidence is not required.

       (3) Indian Penal Code, 1860 – S. 376 – offence under – 7 years RI is sufficient punishment.

        Short Note

       1. In this appeal from jail the appellant calls in question the propriety of the judgment of conviction and order of sentence passed by the learned Special Judge – cum Sessions Judge, Sehore in Special Case No. 4/92 convicting him under section 376 of the Indian Penal Code (in short 'the IPC') and sentencing him to undergo rigorous imprisonment for a period of 10 years.

       2. Held: On a perusal of the impugned judgment I notice that the learned trial Judge has believed the testimony of the prosecutrix, her uncle as well as her father and has also placed reliance upon the medical report, Ex. P.9. To appreciate the submission of the learned counsel for the appellant that the evidence of the prosecutrix is impregnated with infirmities and contradictions and is not worthy of credence, I have closely and carefully scrutinised her evidence. The victim girl has narrated about the carrying the food for her father in forenoon of the date of occurrence. She has stated about the approach of the accused from the behind and gagging of her mouth. Her description in regard to scratching of the neck portion is quite graphic. She has also vividly deposed about the sexual assault committed by the accused; her losing consciousness and her information to her uncle and father; and her medical examination. In the cross – examination she has clearly stated about her protest, raising of alarm and her becoming unconscious. On a perusal of the evidence of PW 2, Babulal, I find that he was apprised of the incident in quite promptitude and he had noticed the injuries on the neck portion of the victim girl. Nothing has been elicited to discard the version of this witness as untrustworthy. Similar is the evidence of father of the prosecutrix, PW 3. PW 4 is the Sarpanch of the village who has stated that the victim girl was in tears and had narrated her fate of woe before the Panchayat though she had not described the overtact in detail. PW 9, the Doctor who had initially examined the prosecutrix has prepared the report, Ex. P.9, wherein she had mentioned that she had noticed 25 abrasions on both sides of the neck of the victim girl. Appreciating the evidence of the prosecutrix and her relatives in juxtaposition with that of the examining doctors, it becomes beamingly clear that the accused had applied force and under coercion ravished the prosecutrix.

       3. The learned counsel for the appellant has strenuously urged that when the doctor, PW 9, has stated that no positive opinion could be given about rape the prosecution story should have been discarded as implausible. The learned trial Judge has considered that the doctor had opined that one finger could be entered into the private part of the victim girl and that might be possible because of the sexual intercourse. Relying on that part of the report he has observed that there is corroboration from the medical evidence with regard to sexual assault. That apart in every case corroboration from medical evidence is not a prerequisite to hold the accused guilty of the offence of rape. If the version of the prosecutrix is unimpeachable, reliable and totally worthy of credence conviction can be based on the basis of her testimony alone. In the case at hand the surrounding circumstances make the testimony of the prosecutrix totally believable. It is noticed that 25 abrasions on both sides of the neck were found by the doctor. The number of injuries clearly reflect the uncontrolled passionate proclivity of the accused. She had immediately narrated the incident before her uncle and father, and later on in the evening they proceeded to the police station which was 11 kms away to lodge the report. The prosecutrix has stood imbedded in her version in spite of trenchant cross – examination. She has not shown any sign of equivocation. The other witnesses namely, PWs. 2, 3 and 4 have also remained unshaken. The doctors who had examined her have lent support in entirety. When none of the material witnesses has treaded the path of tergiversation, there is no reason not to believe the prosecution story. The vehemence with which the place of malicious contrivance and roping in is high – lighted, is of no consequence as it is quite improbable to conceive that the prosecutrix or her father or for that matter her uncle would falsely implicate the accused because of a minor land – dispute. It is very difficult to believe that in tradition bound society of ours a young girl of 15 years would come forward to implicate a family rival in a case of rape, more particularly, when she had already been given in marriage and waiting for her 'Gauna' to take place. Her reputation and honour are the bottom core of her social existence, and she would not stake it for family vengeance. Analysed in the above spectrum the conclusions arrived at by the learned trial Judge cannot be found fault with and, in fact, they convincingly withstand close scrutiny.

       4. Now to the question of sentence. Mrs. Saxena, the learned counsel for the appellant has submitted that the sentence imposed is quite excessive. It is her submission that the accused was quite young at the time of occurrence and has suffered enough for his folly. On a perusal of the record I find that the accused was of 25 years at the time of occurrence. He was not that young not to understand the consequences of his action. However, taking into consideration the entire range of facts, I am of the considered opinion that 7 years of rigorous imprisonment would meet the ends of justice. Accordingly the custodial sentence is reduced to 7 years.

       5. Subject to the aforesaid modification in sentence, the Criminal Appeal is dismissed.