HARISINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THE present appeal has been filed by the accused/appellants, Harisingh and Narayan have been convicted for the offence under sections 376/511 read with section 109, Indian Penal Code. Kamalsingh has been convicted under section 376/511, Indian Penal Code and sentenced to R.I. for 5 years and fine of Rs. 2,000/ - in default of payment of fine, R.I. for 3 months. Each of the appellants Harisingh and Narayan have also been sentenced to R.I. for 5 years and fine of Rs. 2000/ - each, in default of payment of fine, R.I. for 3 months. The prosecution case is that in the intervening night of 8th and 9th October, 1983, the prosecutrix Kumari Najma Rizvi was sleeping in her house after taking her meals. At about 12.00 O'clock, accused/appellants knocked the door of her house. The prosecutrix enquired as to the names. The accused disclosed that they were Kamalsingh, Harisingh and Narayan. Complainant asked what was the purpose of their visit. The accused absused and asked her to open the door and tried to open it. The prosecutrix ran away jumping out from the window in the petticoat and kurta. All the three accused persons chased her and caught hold of the prosecutrix near the house of Dinesh Seth. They caught hold of her and dragged by catching hold of her hair and hand and she was taken behind the quarter of the procecutrix. Accused Harisingh was carrying a torch. Accused Narayan tore petticoat of the prosecutrix and removed the underwear she was wearing. Accused Kamalsingh put knife over the neck and asked if the prosecutrix will cry, she will be killed. Kamal asked Harisingh and Narayan to catch hold of the prosecutrix and he would perform the sexual intercourse. On that, Harisingh and Narayan caught hold of her and Kamal sat in between her legs. The prosecutrix gave leg blow. Irked by it, accused Kamal inflicted fist injuries over the mouth of the prosecutrix. On that, Hari asked Kamal to catch hold of the prosecutrix. He told that he would perform the act and tried to perform the sexual intercourse. The prosecutrix bit in the hand of Hari. On resistance by prosecutrix, all the accused persons in anger gave beating to the prosecutrix and dashed her head over the ground. She became unconscious. When she regained consciousness, she found herself totally wet. She reached the house of Ramu Ahir to cover her body, but Ramu Ahir was frightened. He asked her to go elsewhere otherwise the accused would beat him. On the repeated request made by the prosecutrix, a cloth was given by Ramu by which she covered herself. The villagers assembled in the morning. She disclosed the incident to Suresh, Prahlad Nai, Chowkidar, Nanabhai Patel etc. She went along with Pawan Pathak to lodge the report which is Ex. P/12. Investigation Officer recovered tom kurta (lady shirt) (Ex. P/13). Spot map was prepared which is Ex. P/15. Torn petticoat was seized as per seizure memo Ex. P/16. On 9th October, 1983, the prosecutrix was referred for medical examination. Dr. Ali examined her. The report of Dr. Ali is Ex. P -4/a. Thereafter, on 10 -10 -1983, woman Assistant Surgeon Dr. Tiwari examined her and submitted her report Ex. P/11. The doctor opined that attempt was made to commit the sexual intercourse. The accused persons were arrested on 28 -10 -1983 at Piparia vide arrest memo Ex. P/1. Knife was recovered from Narayan pursuant to the memorandum under section 27 of the Evidence Act. Seizure memo is Ex. P/14. Seizure memo of knife is Ex. P/10. Torch was recovered from Hari Singh pursuant to the information contained in the memo Ex. P/8 vide seizure memo Ex. P/9. Petticoat, underwear of the prosecutrix and vaginal smear slides were sent for chemical examination. The report is Ex. P/17.

(2.) THE accused abjured the guilt and they have contended that they have been falsely implicated in the case. The learned counsel Shri Surendra Singh for the appellants submitted that the act of the accused/appellants does not fall within the purview of section 376/511, Indian Penal Code. At the most, the case would fall within section 354, Indian Penal Code. He has further submitted that the incident took place in the year 1983. About 17 years have passed thereafter, and sentence of 5 years R.I. is too harsh. The learned counsel placed reliance on Malkiat Singh vs. State of Punjab, : AIR 1970 SC 713 and State of M.P. vs. Babulal, : AIR 1960 MP 155. He has also placed reliance on Damodar Behera vs. State of Orissa, : 1996 Cri L.J. 346 to submit that the evidence is lacking to show that accused were determined to have sexual intercourse in all events. Hence, the case would fall in the category of indecent assault and not attempt to commit the rape. Another decision on which the learned counsel has placed reliance is Hari Mohapatra vs. State of Orissa, : 1996 Cri.L.J. 2952 so as to contend that the preparation alone does not fall within expression "attempt". Reliance was on the decision of this Court in State of M.P. vs. Babulal, : AIR 1960 MP 155. The prosecution examined 9 witnesses. No witness was examined in defence. P.K. Bose (PW -1) has proved the arrest memo of the accused. Ramgopal (PW -2), head constable has received slides and cloths vide Inquest P/2 and P/3. Dr. M.K. Upadhyaya (P.W. 4) had medically examined the accused persons. Dr. (Smt.) Sushila Tiwari. (PW -6) and Dr. Ahmad Ali (PW -3) had medically examined Ku. Nazma respectively on 9 -10 -1983 and 10 -10 -1983. Ku. Nazma has been examined as PW -7. The two other witnesses examined are (i) R.P. Singh, Sub -Inspector of police station Budhni and (ii) Dhirendra Bajpai, station house officer, incharge of police station, Shahaganj. Ku. Nazma Rizvi was examined by Dr. Ahmad Ali (PW -3). His report is Ex. P/4. The prosecutrix was physically examined by Dr. Ali on 9 -10 -1983 the very next day. As many as 7 injuries were found on her person. - SHARP wound, slightly obliquely placed on left side of upper lip. Watery mucose discharge present in wound, edges are indurated and also tender 2.5 cm x 0.5 cm x 0.5 cm. Whole face is badly swollen, spreaded differently and both lids of both eyes are badly swollen and she is unable to open the eyes. Sub conjunctival haemorrage present in both the eyes. AN abrasion on scalp, behind the left ear, over mastoid region of scalp 1 cm x 1 cm x superface. ABRASION on mucose membrane of inner aspect of both the lips. Multiple abrasion present all over the face. REDISH bruise over the Rt. side of back below the angle of the Rt. scapula -2 cm x 1 cm. ABRASION on Rt. knee joint at its anterior aspect 3 cm x 3 cm area. She also complained of pain in many parts of the body, on both the thighs and both breast. The doctor has opined that the injury No. 1 was simple in nature and was caused by hard and sharp object. Injury No. 2 was advised for X -ray and nature was to be determined after X -ray was done. All other injuries were simple and could be caused by hard and blunt object. She was referred to the Woman Assistant Surgeon, Budhni for examination of her private part. Dr. Ahmad Ali (PW -3) has proved his report (Ex. P/4). His signature in the portion 'A' to 'A'. The doctor has stated that he knew the complainant. She was working as Nurse under Budhni Centre. Shahganj Hospital is also under the said center. He has denied the suggestion that he had prepared the report subsequently and he was sure that the swelling was not result of excessive weeping. He has further deposed that injury No. 6 could be caused if a persons falls with force. The injury No. 7 could be caused by fall.

(3.) THE prosecutrix was further examined by woman Assistant Surgeon Dr. Smt. Sushila Tiwari of district hospital, Sehore. Doctor has found that on her person, there was lacerated wound at the posterior part of vagina 2 mm x 2 mm in diameter, blood was oozing through it. Hymen was ruptured, P.V. could not be done due to severe pain. Two vaginal smears slides were prepared, sealed and handed over to the constable. The doctor has opined that rape had been attempted. For age verification, Radiological examination was advised. Dr. (Smt.) Sushila Tiwari (PW -6) has proved her report (Ex. P/11). She has deposed that lacerated wound was near posterior part of vagina and she has mentioned the size as per her estimation, the injury was of small size and could not be measured by tape. Deapth could not be measured because it was in the shape of abrasion. It could be caused by nails. The medical examination of the accused was performed by Dr. M.K. Upadhyaya (PW -4) on 30 -10 -1983, on the person of the accused/appellant Narayan Singh. Doctor found as many as 8 injuries. Out of them, 5 were contusions, two were abrasions. The injuries were found over right hand little finger and left fore -arm. Three contusions over right and two contusions over left thigh. The doctor opined that Injury No. 1,2 and 3 were caused more than 8 days earlier and Injury No. 4 to 8 were caused within 24 hours. The medical report of accused Narayan is Ex. P/5. Kamalsingh was also medically examined. Fourteen injuries were found on the person of Kamal Singh. Injury No. 1 was abrasion which was below left clavical. Index finger of the right hand was also having semi healed injury. Other similar injury was found on the dorsal portion of left hand which is an abrasion. An abrasion on the Rt. Knee joint. An abrasion was also found above the right ankle joint. Several injuries were found over the leg on different parts of it, in the from of abrasions. The doctor opined that Injury No. 1 and 3 to 12 were caused more than 8 days prior to the medical examination. Injury No. 13 was caused within 24 hours and disability of non -movement of left elbow was found. The report of medical examination of Kamal Singh is Ex. P/6 on record.