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Judgment
This appeal under Section 374(2) of the Code of Criminal Procedure has been filed being aggrieved by the judgment dated 2.2.1996 passed by
4 th Additional Sessions Judge, Sagar in Sessions Trial No.28/1995 convicting both the appellants for the charge under Section 376(2)(g) of Indian Penal Code (prior to amendment of 2013) (hereinafter shall be referred to as '' IPC '') and sentencing them to undergo rigorous imprisonment of ten years with fine of Rs.3000/- each and convicting accused Uttam Singh for the charge under Section 323 of the Indian Penal Code and sentencing him to pay the fine of Rs.1000/- with default stipulation.
The case of the prosecution in brief is that on 13.11.1993, the prosecutrix at about 12:00 in the noon was going alongwith Tiffin to the field where her husband Lalaram (PW.5) was working. When she reached Nakta Nala, accused persons, namely, Veeran alias Virenda Kuamr and Uttam Singh met and caught hold and they both committed rape upon her.
The first information report to the incident was lodged by the prosecutrix on the same day i.e. 13.11.1993 at about 6:15 pm vide Exhibit P/4. The prosecutrix was sent for medical examination. Dr.Smit Usha Saini (PW.1) medically examined the prosecutrix and proved her report vide Exhibit P/1. Spot map was prepared by T.I.R.S.Parmar (PW.8) in front of the witnesses. Accused persons were arrested and they were also sent for their medical examination.
After completion of the investigation, the Challan was filed before the Court of Judicial Magistrate First Class, Sagar, which committed the case to the Court of Sessions where the accused persons were tried.
The accused persons abjured their guilt and demanded trial by putting their defence that PW.5 Lalaram, the husband of the prosecutrix, came to purchase certain article at the shop of accused Virendra in a drunken state and asked some article on credit and on refusal, he created a scene and fell down as a result of which, he received the injury and, therefore, a false case got registered agasint them. Another defense has been taken by the accused persons that the prosecutrix and her husband are working on the field of one Shailendra Shrivastava, who had contested some election with Prithvi Singh. The father of accused Uttam Singh supported Prithvi Singh and due to the said enmity, the present appellants have been falsely implicated in this case.
The Trial Court disbelieved the defence put by the accused persons looking to the in-ocular testimony of the prosecutrix which may not be supported by the medical evidence being a married lady and accordingly convicted & sentenced them because the other circumstance supports the story of the prosecution alongwith the testimony of the Investigating Officer R.S.Parmar (PW.8).
Learned counsel for the appellants contends that it is a case of the false implication of the appellants on account of some election dispute of one Shailendra Shrivastava and Prithvi Singh and as the father of accused Uttam Singh supported the Prithvi Singh in the election, a false case got registered by Shailendra Shrivastava insisting the husband of the prosecutrix. The other part of the defence, which was taken, is the husband of the prosecutrix visited at the shop of accused Virendra and demanded some article on credit and on refusal, he created a scene and thereafter a false case got registered against the appellants. The third defence has been taken by the accused persons in the cross- examination is of the consent of prosecutrix but the Trial Court has not considered those defences in right perspective. It is also contended that if the statement of prosecutrix and her husband Lalaram (PW.5) is read over, it transpires the difference of the time of the incident, therefore, it prima facie appears to be a false case registered against the appellants and under such circumstances, the conviction and sentence as directed by the Trial Court may be set aside.
On the other hand, learned Panel Lawyer for the State contends that looking to the finding as recorded by the Trial Court, after due appraisal of the testimony of the prosecutrix and her husband Lalaram (PW.5), the medical opinion of Dr.Smt.Usha Saini (PW.1), which finds support from the testimony of the Investigating Officer R.S.Parmar (PW.8) and Dr.Arif Khan (PW.9), who performed the MLC (Exhbit P/9) of the husband of the prosecutrix and the FSL report, does not warrant any interference by this Court.
After hearing learned counsel for the parties, it is apparent that the first information report to the incident is prompt one as it was lodged by the prosecutrix on the same day i.e. 13.11.1993 at about 6:15 pm vide Exhibit P/4. If the statement of the prosecutrix and her husband Lalaram (PW.5) is visualized then it would appear that there is one discrepancy with regard to the time to come on the field but on the point of commission of the rape and thereafter the husband of complainant visited to the house of accused and there the assault was made as alleged finds support from the medical evidence. If the testimony of the prosecutrix is taken into consideration, it is apparent that when she was going alongwith Tiffin to the field where her husband Lalaram (PW.5) was working and sooner she reached Nakta Nala, the accused persons met and caught hold her and committed rape upon her.
In the cross examination made by the accused persons, they have taken the defence of consent putting a question that after commission of rape, the prosecutrix and accused picked up each other by force. While the other defence is of demanding certain article at the shop where the dispute took place and due to the said dispute, a false case got registered against them but the said defence has been disbelieved by the Trial Court. While the third defence was of the political rivalry because the father of accused Uttam Singh supported one Prithvi Singh, who had won the election against Shailendra Shrivastava with whom the husband of the prosecutrix was working.
In my considered opinion, all these three defences are inconsistent and none of the defence has been fully proved either by the cross examination or by the defence evidence. It is true that the prosecutrix is major and a married lady and her testimony is to be examined with a spirit that an innocent person should not be dealt with the charge of Section 376 of IPC but looking to her testimony, but remained in ocular on the issue of commission of rape by both the accused persons, finds support from the FSL examination (Exhibit P/8) and the defence of the accused has also not been brought on record in full force, in my considered opinion, the finding of conviction as recorded by the Trial Court for the charge under Section 376(2)(g) (prior to amendment of 2013) and looking to the medical evidence of the husband for the charge under Section 323 of IPC, interference by this Court is not warranted.
Accordingly, this appeal filed by the appellants being devoid of merit is dismissed upholding the judgment of conviction and the sentence as directed by the Trial Court vide judgment dated 2.2.1996 in Sessions Trial No.28/1995. As the appellants are on bail, thus, Chief Judicial Magistrate, Sagar is directed to issue warrant of arrest against the appellants and take them into custody for serving remaining part of their jail sentence.
A copy of this order be sent to the Chief Judicial Magistrate, Sagar and the Station House Officer concerned to take appropriate action. Learned Panel Lawyer for the State is also directed to take appropriate steps in this regard.