Jaggu @ Jagannath vs State Of M.P.

It is seen from the record that the order sheet dated 10.08.2005, the Coordinate Bench of this Court was pleased to allow the application for suspension of sentence of the appellant. Owing to bail jump, the appellant was again arrested and again an application was filed for suspension of sentence which was allowed by the Coordinate Bench of this Court vide order dated 10.02.2010 and he was released on bail. Again he has jumped the bail and was only arrested in pursuance to the arrest warrant issued by Hon'ble Court. In pursuance to the perpetual warrant of arrest issued by this Hon'ble Court, the appellant was arrested and brought before this Court on 18.02.2020 and he was directed to be sent back to jail by the same escort. Again an application was filed seeking suspension of sentence of the appellant. The case was listed for hearing on 02.03.2020 and on the prayer was made by the counsel for the appellant for listing the case on 12.03.2020 for final argument. Now, the case is listed today.

With the consent of the parties, the matter is finally heard.

The appellant has been convicted under Section 376 of IPC and has been sentenced to suffer seven years' rigorous imprisonment with a fine of Rs.2000/- (Rs. Two Thousand Only), failing which he has to suffer further one and half years (eighteen months) rigorous imprisonment.

As per the prosecution story, a report was lodged by the prosecutrix which is Exhibit P-2 in respect of the incident said to have taken place on 04.12.2002 in the evening at 6:00 PM to the effect that the accused/appellant has committed an offence under Section 376 of IPC (Rape) with the prosecutrix. The report of the aforesaid incident was made in the next day. On the basis of complaint, an F.I.R. was got registered against the accused/appellant at Crime No.376/2002, Police Station Chachoda, District Guna for the offence punishable under Section 376 of IPC. During the course of the investigation, the police authorities have prepared the certain documents such as spot map and arrest memo etc.. The medical examination of the prosecutrix as well as appellant was conducted. Statement under Section 161 of Cr.P.C. was also got recorded by the prosecution. After completion of the investigation, the charge sheet was filed before the concerning Court and the matter was committed to the Session Court. The charges were framed against the accused/appellant. The accused/appellant has denied the charges put to the trial Court. The prosecution during the trial has examined as many as nine prosecution witnesses namely Dr. S.S.Gupta, Medical Officer, (PW-1), prosecutrix Mamta Bai (PW-2), Komal Bai (PW-3), Geeta Bai (PW-4), Radheshyam Sharma, Head Constable, (PW-5), Dashrath Singh (PW-6), Kadam Meena (PW-7), Arvind Sengar (PW-8) and Dr. Manisha Mittal (PW-9) in support of their case. In defense, Resham Bai (DW-1) was examined who is the sister of the accused/appellant. Thereafter, the statement under Section 313 of Cr.P.C. was recorded and the learned trial Court after hearing the parties at length and taking into consideration the oral as well as the documentary evidence has arrived at conclusion that the prosecution has established the case beyond reasonable doubt against the accused/appellant. Therefore, he was convicted under Section 376 (1) of IPC for seven years RI with fine of Rs.2000/- in lieu of fine amount further one and half year RI.

Learned counsel for the appellant has argued that the accused/appellant has been falsely implicated in the case. At the most, it can be a case of consent. It is submitted that from the statement of the prosecutrix, it is apparently clear that on the place of incident the crop has been cut down recently and the remaining stems (doudh) were on the field. It is submitted that if a forceful attempt to commit rape is being made by the accused/appellant on the prosecutrix then definitely there would be marks of scratches, rashes and injuries on the body of the prosecutrix but no such rashes and scratches or injuries were found in the medical evidence. It is further argued that the F.I.R. has been reported with delay of 22 hours, and the delay in lodging the F.I.R. has not been properly explained. It is submitted that the prosecutrix has narrated the incident in the evening to her sister but the despite of the same they have not made the report to Police Station. It is further argued that the medical evidence is not corroborated with the prosecution story. There is no opinion regarding the commission of rape given by Dr. Manisha Mittal (PW-9). Counsel for the appellant has further drawn attention of this Court to the statement of Dr. Manisha Mittal (PW-9) who has categorically stated that there were no injury marks on the private part of the prosecutrix. It is further argued that sister of the accused/appellant Resham Bai was examined as defense witness (DW-1) who has categorically stated that the prosecutrix used to take money from the accused/appellant. She has further categorically stated that threatening was given by the prosecutrix to the accused/appellant, she will get him falsely implicated in the case under Section 376 of IPC. It is further argued that there is no recovery of broken bangles from the place of the incident by the prosecution. Statement of prosecutrix (PW-2) has categorically stated that during the incident, her bangles was broken and she has told the aforesaid aspect to the police authorities but the despite of the same there is no seizure of broken bangles made by the prosecution. In such circumstances, the entire prosecution story could not be believed and the statement of the prosecutrix appears to be incorrect. It is argued that the appellant has suffered substantive custody period during the trial and has remained under custody almost 290 days. The appellant was bailed out vide order dated 10.08.2005. Thereafter, he was arrested and produced before this Court on 04.12.2009. The second application for suspension of sentence was allowed vide order dated 10.02.2010 and now he is in custody since 18.02.2020. Counsel for the appellant has relied upon the judgment passed in the case of Roop Singh Vs. State of M.P., reported in I.L.R. (2011) M.P., 2582 and prayed for setting aside of the impugned judgment of conviction. It is further submitted that the incident is of the year 2002 and he has faced the trial from almost 18 years.

Per contra, learned Public Prosecutor for the State has opposed the arguments of the counsel for the appellant and has contended that learned trial Court has not committed any error in convicting the appellant under Section 376 (1) of IPC for seven years RI with fine of Rs.2000/-. It is contended that the arguments advanced regarding delay in lodging the F.I.R. are concerned, the aforesaid aspect is considered by the trial Court in para 12 of the judgment. It is argued that the incident is said to have taken place on 04.12.2002 in the evening at 6:00 PM. The report was made on 05.12.2002 at 4:00 PM in the evening. Distance between the place of the incident and the police station was 14 kilometers. From the perusal of FIR in column 3, the reason for delay in lodging the F.I.R. has been explained by the prosecution. It is stated that her mother was not at home in the evening on 04.12.2002. Therefore, on the next day, when her sister called her mother and when her mother came to the house then her mother accompanied the prosecutrix and they both went to the police station to lodge the report. Thereafter, the FIR was got registered. The trial Court has considered the aforesaid aspect and has held that the delay in lodging the F.I.R. has been properly explained. Even otherwise it is only delay of 20 hours and the same is duly explained by the prosecution. In the statement of the prosecutrix (PW-2), she has explained the reason for delay in lodging the FIR. Thus, ground of delay in lodging the F.I.R. is of no help to the accused/appellant as the same has been properly explained, and has rightly been considered by the trial Court. As far as the arguments advanced by the counsel for the appellant are concerned, it is contended that the prosecutrix (PW-2) has categorically deposed in her statement regarding the commission of rape by the appellant with her. She has narrated the whole incident in detail in the F.I.R. as well as in her statement which remained uncontroverted despite of the extensive cross-examination of the prosecutrix. The statement of Komal Bai (PW-3) the sister of the prosecutrix as well as Geeta Bai (PW-4) mother of the prosecutrix has supported the prosecution version. He has further drawn attention of this Court to the statement of Dr. Manisha Mittal (PW-9) who has found the some injuries mark on the body of the prosecutrix but as the prosecutrix was major lady, therefore, no definite opinion regarding the commission of rape could be given by her. It is argued that there is nothing on record to disbelieve the statements of prosecutrix (PW-2) as well as her sister and mother. He has further drawn attention of this Court to paras 13, 15 and 18 of the judgment wherein the trial Court has given the findings. It is further argued that the F.I.R. is not encyclopedia of facts and events. It is merely an information given at the incident to the police authorities regarding the commission of cognizable offence. He has relied upon the judgment passed by the Supreme Court in the case of Susanta Das and Others Vs. State of Orrisa, reported in (2016) 4 SCC 371 wherein it has held as under :-

"23 ......''14. The first information report, as is well known, is not an encyclopedia of the entire case. It need not contain all the details."

The Hon'ble Supreme Court in the case of Motiram Padu Joshi and Others Vs. State of Maharashtra, reported in (2018) 9 SCC 429 wherein it has held as under:-

"14. Furthermore, as pointed out by the High Court, FIR is not an encyclopedia which should contain all the details of the incident. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case about the occurrence appear. Omission as to the names of the assailants or the witnesses may not all the times be fatal to the prosecution, if the FIR is lodged without delay. Unless there are indications of fabrication, the court cannot reject the prosecution case as given in the FIR merely because of omission. In the present case, FIR was registered without delay and prompt registration of FIR itself lends assurance to the prosecution case. The object of the FIR is to set the law in motion. Omission to give the names of assailants or the names of witnesses in the FIR is not fatal to the prosecution case. The High Court was right in observing that non-mention of the names of eye witnesses in the FIR can hardly be fatal to the prosecution case."

Even otherwise statement of the prosecutrix is duly corroborated with the statements of the other witnesses. Thus, it is contended that learned trial Court has rightly arrived at conclusion that the appellant has committed an offfence under Section 376 (1) of IPC and has rightly been convicted by the judgment of conviction vide order dated 26.05.2005. Learned Public Prosecutor for the State prayed for dismissal of the criminal appeal.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that the incident is said to have taken place on 04.12.2002 in the evening at 6:00 PM. The FIR of the aforesaid incident was registered on the next day i.e. 05.12.2002 i.e.  after  delay  of  approximately  24  hours. The  delay  has  been explained by the prosecution. The aforesaid aspect has been duly considered by the trial Court in para 12 of the judgment. When mother of the prosecutrix accompanied on the next day, then they both went to Police Station to lodge the report. From the perusal of the FIR, it is seen that the allegation regarding the commission of rape by the accused/appellant was narrated in the F.I.R. Even the statement recorded under Section 161 of Cr.P.C., there is no change in the statement. The statements remained consistent upto the examination before the trial Court. The extensive cross-examination was conducted by the counsel for the accused/appellant but the statement of the prosecutrix remained intact and the same was duly supported by the statement of Komal Bai (PW-3) and Geeta Bai (PW-4). Exhibit P-7 is the medical examination report of the prosecutrix given by Dr. Manisha Mittal (PW-9) wherein in a general examination the Doctor has found some injuries i.e. "linear abrasion size 2 cm x 0.5 cm present over 3rd and 5th finger of right foot on dorsal surface caused by hand and rough officet (may be pointed) duration within 12-24 hours. Simple in nature. Thus, there were injuries found on the body of the prosecutrix.

However, no definite opinion regarding the commission of rape could be given as she was a major and was habitual of sexual intercourse. It is settle principle of law that the conviction can be made on the sole statement of the prosecutrix if it is found to be worthy of credence. In the present case, the statement of the prosecutrix has remained uncontroverted despite of the extensive cross-examination. It is duly supported by the statements of other witnesses.

The Hon'ble Supreme Court in the case of Surajsinh Alias Sonu Surajsinh  Collectorsinh  Alias  Sevaram  Rajput  Vs.  State  of Gujarat, reported in (2017) 13 SCC 128 wherein it has held that " it is unreasonable to except from a witness to give picture-perfect report of incident and minor discrepancies have to be ignored."

The Hon'ble Supreme Court in the case of State of U.P. v. Munshi, reported in (2008) 9 SCC 390 where it has held as under :-

"Even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally."

The Hon'ble Supreme Court in the case of Narayanamma v. State of Karnataka, reported in (1994) 5 SCC 728 wherein it has held as under :-

"The fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear. The factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to the hymen."

The Hon'ble Supreme Court in the case of Narender Kumar v. State (NCT of Delhi) reported in (2012) 7 SCC 171 wherein it has held as under :-

"Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated."

The Hon'ble Supreme Court in the case of Lillu alias Rajesh and Another v. State of Haryana, reported in (2013) 14 SCC 643 wherein it has held as under :-

"12. In State of Punjab v. Ramdev Singh, (2004) 1 SCC 421, this court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."

Considering the aforesaid propositions, the Hon'ble Supreme Court in the case of Lillu alias Rajesh and Another v. State of Haryana, reported in (2013) 14 SCC 643 has observed that even if it is found that the prosecutrix is habitual of sexual intercourse then also the rape cannot be committed upon her owing to the fact that she is a woman of 'easy virtues' or woman of 'loose moral character'.

Considering the over all facts and circumstances of the case and the statement of the prosecutrix (PW-2) and other material witnesses i.e. PW-3 and PW-4, this Court does not find any infirmity in the judgment of conviction passed by learned trial Court. Accordingly, the judgment of conviction passed by the trial Court is affirmed. The appellant has remained in custody from 12.01.2003 to 22.02.2003 & 21.09.2004 to 26.05.2005 approximately 290 days during trial. The application for suspension of sentence was allowed by the Coordinate Bench of this Court vide order dated 10.02.2010 but owing to the bail jump he was arrested. During in the pendency of the criminal appeal he was granted the suspension twice but he has failed to comply with the directions issued by this Hon'ble Court. Therefore, he was taken into custody on 18.02.2020. Now, the appellant is in custody since 18.02.2020, therefore, he is directed to remain under custody to serve the remaining part of jail sentence.

The appeal sans merits and is hereby dismissed.