Rajoo alias Ramakant and Others vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 14/12/1990 passed by the Additional Sessions Judge, Sihora Camp Katni in ST No. 85/1989, whereby the appellant No. 1 was convicted for commission of offence u/s 376 of IPC and the appellants No. 2 and 3 were convicted for commission of offence u/s 376/34 of IPC and each of them was sentenced with 10 years'' RI with fine of Rs. 500/-, in default of payment of fine, three months'' RI was also directed. The present appeal was decided vide order dated 5.9.2006 passed by the Single Bench of this Court whereby the appeal filed by the appellant No. 1 was dismissed and the appeal filed by the appellants No. 2 and 3 was accepted. The appellants No. 2 and 3 were acquitted from all the charges.

In Criminal Appeal No. 140/2008 Hon''ble the Apex Court vide judgment dated 9.8.2012 reversed the order dated 5.9.2006 passed by the Single Bench of this Court on the ground that the appellant Rajoo @ Ramakant was not represented and no Advocate from the Panel of the Legal Services Authority was appointed to argue the matter on his behalf and to assist the Court, and therefore that was the violation of the provisions of the Article 39-A of the Constitution of India. Hence, it is directed that the appeal may be decided afresh after providing legal aid to the appellant Rajoo @ Ramakant.

Since the order passed by the Single Bench of this Court is reversed only for Criminal Appeal No. 3/1991, therefore the present appeal is again considered on merits. The remaining appellants who were acquitted by the order passed by the Single Bench of this Court were again summoned. Shri S.K.P. Verma, Advocate represents all the appellants in the case and thereafter the arguments are heard.

The prosecution''s case, in short, is that on 6.12.1988 at about 6:00 PM in the evening the prosecutrix (PW-2) was working in some shop of an apple vendor situated at Talaiya Katni for sorting of the apple. At the time of the incident the prosecutrix was going to get her Chappal repaired, in the meantime the appellants and other accused persons held her and took her to a darker place where she was thrown on the earth. The accused Vijay @ Cheeni removed her underwear and committed rape upon her. Thereafter all the accused persons committed rape upon her one by one. They threatened the prosecutrix not to lodge any FIR. The prosecutrix on the same very day lodged an FIR Ex.P-1 at Police Station Katni. She was sent for her medico legal examination. Dr. Rupa Lalwani (PW-3) examined her at the Government Hospital, Katni and gave her report Ex.P-14. She did not find any injury to the prosecutrix, but blood was oozing from her private part, and therefore two slides were prepared and handed over to the concerned Constable for their forensic analysis. The various accused persons were arrested and sent for their medico legal examination. After due investigation, a charge sheet was filed before the Additional Chief Judicial Magistrate, Katni who committed the case to the Sessions Court, Jabalpur and ultimately it was transferred to the Additional Sessions Judge, Sihora Camp Katni.

The appellants-accused abjured their guilt. They did not take any specific plea in the matter but they have stated that they were falsely implicated in the matter. However, no defence evidence was adduced.

The learned Additional Sessions Judge after considering the evidence adduced by the prosecution convicted all the accused persons for commission of offence punishable u/s 376 or 376/34 of IPC. The accused Vijay @ Cheeni and Rajoo @ Ramakant were convicted for the offence u/s 376 of IPC and remaining accused persons were convicted for the offence u/s 376/34 of IPC and sentenced as mentioned above.

In compliance to the judgment dated 9.8.2012 passed by Hon''ble the Apex Court in Criminal Appeal No. 140/2008 the matter is again heard. I have heard the learned counsel for the parties.

Shri S.K.P. Verma, Advocate who has appeared for all the appellants has submitted that the prosecutrix did not sustain any injury either external or internal, and therefore her allegation about the gang rape appears to be fictitious. After lodging the FIR, she had given some applications to the SHO Katni that some of the accused persons were not guilty of the offence. She had lodged an FIR against them due to wrong information given by others. For example, an application Ex.D-2 was given for the accused Shyam that he was not at all involved in the crime. Similarly, in her cross examination, she had left so many persons including the appellants No. 2 and 3. Looking to her method of pick & choose, her testimony is not believable against the accused Rajoo @ Ramakant. Hence, all the appellants may be acquitted.

On the other hand, the learned counsel for the State has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct and there is no basis by which any interference may be done in the appeal.

After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal of the appellants can be accepted? And whether the sentence directed by the trial Court against the appellants can be reduced?

The prosecutrix (PW-2) has stated her age to be 14 years before the trial Court. No educational record was submitted for consideration of her age. Dr. Rupa Lalwani (PW-3) had examined the prosecutrix and gave her report Ex.P-14. She found her to be 12-14 years of age and referred her for the ossification test to consider and assess her age. No ossification test report was submitted by the prosecution before the trial Court. However, Dr. Rupa Lalwani found that the secondary sex characteristics of the prosecutrix were not properly developed. Her pubic and axillary hair were in the stage of growing. Similarly, her breast were under developed, and therefore she assessed the age of the prosecutrix to be 12-14 years. In this connection, the learned counsel for the State has cited the judgment of Hon''ble the Apex Court in the case of Bishnudayal Vs. State of Bihar, in which Hon''ble the Apex Court relied upon the doctor for assessment of the age of the prosecutrix on the basis of development of her secondary sex characteristics. In the light of the judgment of Hon''ble the Apex Court in the case of Vishnu Dayal (supra), the opinion given by Dr. Rupa Lalwani can be accepted and it is proved that the prosecutrix was below 16 years of age at the time of the incident.

The prosecutrix has stated that she was held by the accused Shyam and others. She was shown a dagger and thereafter accused Vijay @ Cheeni took her to a darker place in the street. Her Sari as well as underwear was removed and the accused persons committed rape one by one. The eye-witness Sheela (PW-5) has turned hostile. She did not support the story told by the prosecutrix. The prosecutrix also accepted in para 2 of her statement that the accused Vijay @ Cheeni committed rape upon her in the beginning and thereafter accused Rajoo @ Ramakant had done intercourse upon her. She has accepted that the remaining accused persons did not commit any rape upon her. They were sitting at the spot. If the details of the cross examination done upon the prosecutrix may be considered, then it would be clear that except the accused Vijay and Rajoo @ Ramakant, she did not tell against any of the accused persons about the crime or her being dragged away. Initially it was stated that Shyam was the person who took her in a darker place, but thereafter she has submitted an application Ex.D-2 that accused Shyam was not that person. Under such circumstances, except the accused Rajoo @ Ramakant and Vijay, the prosecutrix gave a clean chit to all the others. The overt-acts of the accused Lalla and Munna Singh were not established to show their common intention either with the accused Rajoo @ Ramakant or Vijay. Hence, the appellants Lalla and Munna Singh could not be convicted for the offence u/s 376 of IPC either directly or with the help of Section 34 of IPC. The learned Additional Sessions Judge committed an error in convicting these two appellants for such offence, therefore their appeal can be accepted.

Vide the order dated 5.9.2006 the Single Bench of this Court has decided various appeals relating to the impugned judgment. Out of them, accused Vijay has not filed any appeal before Hon''ble the Apex Court, and therefore Hon''ble the Apex Court has observed in the judgment dated 9.8.2012 that other accused persons have accepted the judgment passed by the Single Bench of this Court, and therefore in the present appeal the matter is to be considered for the appellant Rajoo @ Ramakant only. So far as the guilt of the appellant Rajoo is concerned, the prosecutrix has alleged that Rajoo @ Ramakant was the second person who committed rape upon her. It is true that the prosecutrix could not identify some of the accused persons and she has accepted that she could not identify some of the accused persons. However, no such fact was brought in favour of the appellant Rajoo @ Ramakant. The prosecutrix has lodged an FIR Ex.P-1 at about 10:30 PM in the night i.e. within four and half hours of the incident. According to her version, the appellant Rajoo @ Ramakant was known to her, and therefore a named FIR was lodged by the prosecutrix. It is true that the Police Station was only a half kilometer away from the spot and the FIR could be lodged within one hour of the incident and it was lodged after four and half hours. But looking to the age of the prosecutrix it was natural for her to go to her house and to intimate her parents about the incident and thereafter the parents could go to lodge an FIR along with the prosecutrix. Under such circumstances, where the prosecutrix was in panic after the incident, it was natural that such delay could be caused in lodging the FIR, hence if the FIR was lodged after four and half hours of the incident, then it cannot be said that it was highly delayed. There will be no negative effect of delay in lodging the FIR.

The learned counsel for the appellant has submitted that the prosecutrix did not sustain any internal or external injury in the incident, whereas blood was oozing from her vagina due to her monthly period. The slides prepared by Dr. Rupa Lalwani were sent for the forensic analysis, but no report of those slides was submitted before the trial Court till the disposal of the case, and therefore it was not proved that any intercourse was done by anyone with the prosecutrix. Such contention of the learned counsel for the appellants cannot be accepted. It is mentioned by the Dr. Rupa Lalwani that the prosecutrix was habitual for intercourse, and therefore two fingers could be inserted in her vagina easily. Under such circumstances, if 1-2 persons had done intercourse with the prosecutrix, then it was not necessary that she would have sustained any internal injuries. Similarly, it is established by the prosecutrix that she was shown a dagger by the accused persons, and therefore she could not resist. Under such circumstances, there was no possibility to cause any external or internal injury in the incident. Therefore, if the prosecutrix did not sustain any injury either external or internal, then she cannot be disbelieved on this count that no intercourse was done with her.

No enmity of the appellant Rajoo @ Ramakant is established either with the prosecutrix or anyone who was related with the prosecutrix, and therefore there was no possibility of false implication of the appellant Rajoo @ Ramakant in the case. Under such circumstances, where the testimony of the prosecutrix was duly corroborated by the FIR and there was no enmity between the prosecutrix and her relatives with the appellant where she has accepted in the cross examination that other accused persons did not commit any intercourse upon her, which indicates her fairness in making allegations, hence the testimony of the prosecutrix is trustworthy, and therefore it is proved that the appellant Rajoo was the person, who committed the intercourse with the prosecutrix and since the prosecutrix was below 16 years of age at the time of incident, the appellant Rajoo had committed rape upon the prosecutrix. The trial Court has rightly convicted the appellant Rajoo @ Ramakant for commission of offence punishable u/s 376 of IPC.

So far as the sentence is concerned, the jail authorities have informed that the appellant Rajoo is released after execution of the entire sentence. When the entire sentence is executed, there is no need to discuss about the sentence inflicted upon the appellant Rajoo, because it makes no difference at present.

On the basis of the aforesaid discussion, the appeal filed by the appellants Lalla and Munna Singh is hereby allowed. Their conviction as well as sentence directed by the trial Court is hereby set aside. They are acquitted from the charges of offence u/s 376 or 376/34 of IPC. Whereas the appeal filed by the appellant Rajoo @ Ramakant is dismissed in toto. His conviction as well as sentence directed by the trial Court for the offence u/s 376 of IPC is hereby maintained.

The presence of the appellants Lalla and Munna Singh is no more required, therefore it is directed that their bail bonds shall stand discharged.

The appellant Rajoo @ Ramakant has already been released from the jail after execution of the jail sentence, hence no order is required about his custody etc. A copy of this judgment be sent to the trial Court with its record for information.