Nehru @ Jawahar vs State Of Chattisgarh

State of Chhatisgarh ........ Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J

1

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)

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

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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