In
The Supreme Court of India Criminal Appellate Jurisdiction Criminal Appeal No.
1279 of 2001
Nehru
@ Jawahar Vs State of Chhatisgarh
Judgment
Dr. Arijit Pasayat, J
1.
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 2 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 PW2 and the Doctor, who examined 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 rely 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 3 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 PM 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
4
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) 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 5 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.
6 J.(Dr. ARIJIT PASAYAT) J.
(P.P.NAOLEKAR) New Delhi June 13, 2008
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