Shiva vs State of Madhya Pradesh

P.N.S. Chouhan, J.

Smt. Lotkuwar was a desertee on 5.5.1985. On the date in the afternoon she was returning from Parasia Bazar alongwith her cousin Kamalwati (P.W. 3) and her aunt Smt. Bhujlo (P.W. 4). When they were passing through the jungle near Kolhukeda village the appellants met them, Appellant Shiva was holding a chakoo. He drove away kamalwati and Bhujlo at the point of knife. Appellant Mahabat then caught held of Lotkuwar and took her towards the bushes. Soon thereafter he was jointed by Shiva. Both of them then committed forcible sexual intercourse with Lotkuwar. Reaching home she informed her parents about the incident. The next day at 14.30 hours she lodged the first information report Ex. P. 1 in Police Chowki Neuton, P.S. Parasia which is at a distance of 15.00 Kms. form village Kajra where the prosecutrix was then residing. An offence u/s 376 and minor offence of I.P.C. were resistered. Lotkuwar was sent for medical examination. Dr. (Mrs.) S.L. Dhole (P.W. 2) vide report Ex. P. 4. did not find any external or internal injury on her person. Since she was found to accustomed to saxual intercourse the doctor did not give any opinion about rape. However, she prepared two slides of swabs taken from the vagina of Lotukuwar and sent them to the police station. Clothes worn by prosecutrix were also seized. The appellants were taken in custody and got medically examined. Their underwears were also seized. They were found capable of sexual intercourse. All these clothes as also the slides were sent for chemical examination. Chemical Examiner''s report is Ex. P. 15 which shows that seminal stains and human spermatozoa were detected on the Sari, petticoat seized from the complainant and the underwear seized from appellant Shiva. Similarly the slides prepared from the vaginal smear were also found having seminal stains and human spermatozoa. The clothes seized from appellant Mahatab did not have any such stains. The appellants are residents of Kolhukheda. At the time of the incident they were not known to complainant and kamalwati but Bhujlo knew them because her parents were resideing in village Kolhukheda. Thus, the identity of the miscreants was communicated to the complainant and others by Bhujlo. The learned trial Court held the prosecution case proved and convicted the appellant Shiva u/s 506-B, 341 and 376 I.P.C. vide judgment dated 23.4.1986 passed in S.T. No. 5/86 of Chhindwara Sessions Division and sentenced him to six months'' R. I. one months'' S. I. and four years'' R. I. respectively. He convicted appellant Mahatab under sections 341 and 376 I.P.C. and sentenced him to S.I. for one month and R.I. for four years, respectively. Directions were given for concurrent running of the sentences. In this appeal the appellants challenge their convictions and sentences aforsesaid.

Appellants'' learned counsel firstly assailed the first information report as delayed. The first information report was lodged after twenty-four hours. The police chowki is at a distance of 15.00 Kms. from the village. From the evidence of prosecutrix it is clear that she is an illiterate aboriginal lady and is so poor that could not afford to pay bus fare for going to Bazar. In such circumstances considering the pace of life in villages of tribal belts there is no reason to hold the first information report as delayed.

Then it was contended that from the evidence of Shivkumar (P.W. 7) Chowkidar of village Kajra it is clear that Lotkuwarbai was known in the village for her immoral character. On five or six occasions in the past village-panchayat met to discuss this issue. No such question was put to Lotkuwar in her cross-examination touching her character. Therefore, it will not be fair to give undue importance to the aforesaid statement of Shivkumar.

Appellants learned counsel then contended that in view of the negative medical evidence the prosecutrix must be held to be a lair. She has stated that she received injuries in the course of resistence but the doctor did not find any. She has claimed that at the time of the incident she had tucked in her Sari towards the back

. During investigation she produced a petticoat which was found by the Chemical Examiner having seminal stains. It is common knowledge that a lady wearing Sari in the fashion described by the prosecutrix would not be wearing the petticoat. This should be considered sufficient to discredit her testimony. Since no such suggestions were put to her in cross-examination her testimony is not liable to be rejected on these conjectures. As far absence of injuries is concerned, her statement does not countain any statement that she received any serious injury which could have left marks on her body. Therefore, absence of injury on her person is also not a factor to render prosecution evidence doubtful more so because the prosecutrix was grown up, married and used to sexual intercourse. In a secluded place when she was over powered by two men one of whom was armed with a knife it can be understood that she could not have offerred such violent resistence which might have left perceptible marks of injury on her person.

Lastly, it was argued that from the evidence of Kamalwati and Bhujlo it is seen that these ladies after leaving the prosecutrix on the scene of occurrence went to a short distance and came across a number of grziers one of whom was Bhaglal (P.W. 5). These ladies informed them about the incident and they immediately went towards the scene of occurrence but did not find any one there. It is noteworthy that Bhaglal who has given evidence to this effect was declared hostile. As such his evidence cannot be considered sufficient to disprove the prosecution case. Ture it is, as emphasised by the learned counsel for the appellants, that pieces of bangles seized from the place of occurrence during investigation were disowned by the prosecutrix as belonging to her. But in view of the consistent testimony of prosecutrix, P. Ws. 3 and 4 which finds indirect corroboration in the evidence of Shivkumar Chowkidar and Page Sao as also the report of the Chemical Examiner this fact must be held to be of no significance.

With reference to sentence the submission is that ten years have passed and, therefore, the appellants may not be sent back to jail. Considering the serious nature of the offence the substantive jail term is a must and simply because of lapse of time which is a common factor in all the appeals as they generally mature for hearing after lapse of eight to ten years it will not be just and proper to accept the above submission.

It is, however, felt that when the appellants were convicted for offence u/s 376, I. P. C. there was no justification for their further conviction u/s 341 I.P.C.

In result the appeal is partly allowed. Conviction of both the appellants u/s 341, I. P. C. and sentence of one month''s R. I. are set aside. Conviction of Shiva u/s 506-B and 376 I.P.C. and sentences awarded are upheld. Conviction of appellant Mahatab u/s 376 I.P.C. and sentence of four years; R. I. are also upheld. Both are on bail. They are directed through their counsel to appear before the Chief Judicial Magistarate, Chhindwara on 6th of October, 1994 to bear the result of this appeal and to undergo the sentence.