PANJI Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 13.12.1989 delivered by the 2nd Additional Sessions Judge, Raipur in Sessions Case No. 21/1987 whereby the Appellant No. 1 Panji was convicted for offence under Section 376 I.P.C. and the Appellants No. 2 & 3 Khamhan &, Faggu were convicted under Section 376 read with Section 34 I.P.C. and each Appellant was sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 500/- each and in default to undergo R.I. for 2 months.

(2.) BRIEFLY stated the factual matrix is that on 23.10.1986 at about 6.00 P.M. while the prosecutrix, a married woman, went to fetch water from the canal, the Appellants were already present there. The Applicant No. 1 Panji caught the hand of the prosecutrix and dragged her to a nearby place. When the prosecutrix shouted, the Appellant-Faggu gagged her mouth with a piece of her saaree. The Appellant Khamhan caught hold of the hands of the prosecutrix and Appellant Panji committed rape on the prosecutrix. During the commission of rape by the Appellant-Panji, Suklabai P.W.2, mother of the prosecutrix, arrived at the place of occurrence. The Appellants ran away on seeing her. The prosecutrix narrated the incident to her mother and returned home. Thereafter she went to the Mirchi Badi and informed the incident to her father Ramji, the village Kotwar. Vide Ex. P.1 F.I.R. was lodged on 24.10.1986 at 9.30 P.M. at P.S. Abhanpur situated at a distance of 18 kilometers from the place of occurrence. Prosecutrix was sent for medical examination. Dr. Sarita Dubey P.W. 5, on examination, did not find any external injury or evidence of violence on the body of the prosecutrix. She found an old vaginal tear. The prosecutrix did not complain of any pain. No bleeding from the vagina was seen. She could not give any definite opinion regarding the sexual intercourse with the prosecutrix. Vaginal slides of the prosecutrix prepared by Dr. Sarita Dubey and the petticoat of the prosecutrix seized vide Ex. P. 2 on 24.10.1986 were sent for examination to the Forensic Science Laboratory, Sagar. Vide report Ex. P. 13, no seminal stains and human spermatozoa was detected on these articles. However, presence of blood was confirmed on both. The accused-Appellants were examined by Dr. V.K. Tamrakar P.W. 6 on 29.10.1986 who found the Appellants capable of performing sexual intercourse. After completion of investigation, the Appellants were prosecuted.

(3.) SHRI Kishore Bhaduri, learned Counsel for the Appellants has assailed the conviction of the Appellants on the ground that the testimony of the prosecutrix is wholly unreliable since it is not corroborated either by medical evidence or by the report of Forensic Science Laboratory. It was also urged that the prosecutrix has made a specific assertion in her evidence that report of the incident was lodged on the night of the occurrence itself at Police Station Abhanpur which has been suppressed by the prosecution. Referring to paragraph-11 of the testimony of the prosecutrix, it was argued that medical evidence ought to have been forthcoming in view of what was stated by the prosecutrix regarding the injuries sustained by her. It was also contended that Ramji, the father of the prosecutrix and village Kotwar, to whom the prosecutrix had narrated the incident, was also not examined by the prosecution for which adverse inference ought to have been drawn against the prosecution. It was lastly contended that in view of the testimony of the prosecutrix in paragraph 2 and her admission in paragraph 10 as also the admission made by the Investigating Officer B.K. Uike P.W. 8 in paragraph 13 that there was a group rivalry in the village and father of the prosecutrix had been removed from the post of Kotwar on the complaint of the villagers, it could not be ruled out that the Appellants have been falsely implicated. Reliance was placed on Sheikh Zakir v. State of Bihar : A.I.R. 1983 S.C. 911, State of Rajasthan v. SHRI Narayan : A.I.R. 1992 S.C. 2004, Pratap Misra and Ors. v. State of Orissa : A.I.R. 1977 S.C. 1307 : 1977 Cri.L.J. 817, Sanjay v. State of Haryana 2005 (3) CCC (S.C.), State Government of Manipur v. Kakchingtabam Gourachandra Sarma 1968 Cri.L.J. 1390. On the other hand SHRI Ashish Shukla learned Government Advocate has argued in support of the impugned judgment while contending that corroboration by medical evidence was not expected to be forthcoming since the prosecutrix is a married woman. He also argued that the evidence of the prosecutrix was worthy of credence and conviction of the Appellants on the sole testimony of the prosecutrix by the learned trial Judge was proper.