2008 ALL SCR 1689
A. PASAYAT AND P.P. NAOLEKAR, JJ.
Nehru @ Jawahar Vs. State Of Chhattisgarh
Criminal Appeal No.1279 of 2001
13th June, 2008
Petitioner Counsel: SHISHIR PINAKI
Respondent Counsel: ATUL JHA, Dr. MANISH SINGHVI, D. K. SINHA, RAJESH SRIVASTAVA
Penal Code (1860), S.376 - Rape - Victim girl below 16 years of age - Plea of consent disproved by evidence of victim girl - Plea of accused that prosecutrix was medically examined even before filing of FIR - Documentary evidence, however, disproving the plea - Conviction maintained.(Paras 5-9)
Dr. ARIJIT PASAYAT, J.:- Challenge in this appeal is to the judgment of a learned Single Judge of the Madhya Pradesh High Court upholding the conviction of the appellant for offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the 'IPC'). But the sentence of seven years as was imposed by the trial court i.e. the Court of Session Judge, Rajnandgaon was reduced to five years and fine of Rs.20,000/- was imposed under Section 357(1) of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). It was held that in case the fine is not paid within the stipulated time, custodial sentence of seven years as imposed by the trial court shall be maintained.
2. According to prosecution in the morning of 10th June, 1988 the accused had taken the advantage of the helplessness of the victim and committed rape on her. First Information Report was lodged around 11 A.M., and she was sent for medical examination. The accused after his arrest on 12th June, 1988 was sent for medical examination. Certain articles were also sent for chemical examination. After completion of the investigation, charge-sheet was filed and the accused pleaded innocence and false implication. The prosecution in order to establish the accusations examined several witnesses including the prosecutrix who was examined as PW-2 and the Doctor, who was examined as PW-7. The investigating officer was examined as PW-9. PW-8 was the Sub-inspector posted in the Rajnandgaon police station. Before the trial court the prosecutrix stated the age of the victim to be 14 years. Since the accused was taking the plea of consent, the prosecution relied on clause six of Section 375, I.P.C. to contend that consent was of no consequence as she was below 16 years of age. In any event, there was no evidence of any consent. The trial court found the age of the victim to be around 16 years. But it came to the conclusion that there was no consent as claimed by the accused. Accordingly the conviction was recorded and the sentence of seven years imprisonment was imposed alongwith fine of Rs.100/-. As noted above the High Court in the appeal filed by the appellant maintained the conviction and sentence of five years and enhanced the fine to Rs.20,000/-. It was indicated that in case the fine was paid the same was to be given to the victim and in case it was not paid, the sentence imposed by the trial court was to be maintained.
3. In support of the appeal learned counsel for the appellant submitted that there are certain suspicious circumstances; firstly admittedly the FIR was lodged at 11 A.M. but strangely the Doctor claimed that she examined the victim at 9.15 A.M. Secondly the victim in her cross-examination had clearly stated that her consent was there.
4. Learned counsel for the respondent-State on the other hand submitted that the submissions are without substance and are contrary to the evidence on record.
5. We shall first deal the question as to the time when the victim was examined by the Doctor. Though the Doctor PW-7 stated that she had examined her at 9.15 A.M., there is some confusion. Ex.P.8 is the document by which the police officer sent the victim for medical examination. The doctor has clearly mentioned the time of examination to 9.15 P.M. We referred to the original document on record and therefore we find no substance in this plea of learned counsel for the appellant that examination was at 9.15 A.M.
6. So far as the question of consent is concerned, learned counsel for the appellant referred to cross-examination of the victim, more particularly question No.10. The question and the answer given by the prosecutrix read as follows :
"Q. Is it true that as accused didn't take the wood therefore, you have falsely accused him?
A. (Witness stated yes, thereupon question was repeated, then she stated that) it is not correct." (Underlined for emphasis)
7. The answers at paragraphs 13&14 also relevant, they read as follows:
"13. Having taken me inside the school accused unloaded the wood stack I was carrying on my head and told me to go inside the room but I didn't go into the room. Thereupon accused caught hold me-when I shouted accused gagged me and thereafter he took me inside the room and made me to lie thereafter he lifted my petticoat. When I hit him with the leg he caught hold my leg. I had beaten him with the hand also thereupon accused caught hold my hand, when accused released my mouth, I tried to yet, he again gagged me.
14. The flooring of the room of the school is of stone where accused had made me lie on the ground. I tried to release myself from the grip of the accused with the result my body waist had scratched."
8. Above being the position the plea of consent is without substance.
9. The appeal lacks merit, deserves dismissal, which we direct.
10. We record our appreciation for the able manner in which Mr. Shishir Pinaki, learned Amicus Curiae assisted the Court.