REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1279 OF 2001

Nehru @ Jawahar              ………Appellant     

Versus    

State of Chhatisgarh …….. Respondent        

JUDGMENT

Dr. ARIJIT PASAYAT, J

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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

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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

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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

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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

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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.

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………………………J. (Dr.  ARIJIT

PASAYAT)

………………………J. (P.P.NAOLEKAR)

New Delhi June 13, 2008

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