LexNEHRU @ JAWAHAR versus STATE OF CHHATTISGARH
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A B [2008) 9 S.C.R. 1186 NEHRU @ JAWAHAR V. STATE OF CHHATTISGARH (Criminal Appeal No. 1279 of 2001) JUNE 'i3, 2008 [DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.] Penal Code, 1860 - s. 376 - Rape - Conviction by Courts below - Plea of inconsistency in prosecution version c and consent by the victim - Held: In view of the records of the case no inconsistency found - Statement of the victim does not disclose her consent - Conviction justified. Appellant-accused was tried u/s 376 IPC. Accused took the plea that the prosecutrix consented to the act. D Prosecutrix told her age to be 14 years. In her statement she narrated how she struggled to free herself from the accused. Trial Court found her age to be around 16 years, but found absence of consent and convicted the accused. High Court confirmed the conviction. E In appeal to this Court, appellant contended that con- viction was not called for as the prosecution case was inconsistent as the prosecutrix was said to have been examined by the Doctor (PW 7) at 9.15 A.M., while FIR was lodged at 11 A.M; and that the Prosecutrix in her cross- F examination stated that she had consented to the act. Dismissing the appeal, the Court HELD: The appeal lacks merit. Though the Doctor(PW 7) stated that she had examined the prosecu- G trix 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 clearly mentioned ~ the time of examination to be 9.15 P.M. Therefore there is no substance in the plea that examination was at 9.15 A.M. H 1186 NEHRU @ JAWAHAR v. STATE OF 1187 CHHATIJSGARH [DR. ARIJIT PASAYAT, J.] In view of the answers to the questions in cross-examina- A tion of the Prosecutrix, the plea of consent is also without substance. [Paras 5, 8 and 9] [1388-F,G &H; 1189-F & G] CRIMINALAPPELLATEJURISDICTION: CriminalAppeal No. 1279 of 2001 B From the Judgment and Order dated 5.5.2000 of the High Court of Madhya Pradesh at Jabalpur in Crl. Appeal No. 531 of 1989 Shishir Pinki for the Appellant. c Atul Jha, Dr. Manish Singhvi, D.K. Sinha and Rajesh Srivastava for the Respondents. The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J. 1.Challenge in this appeal is to D 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, E 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. F 2. According to prosecution in the morning of 1 Oth June, 1988 the accused had taken the advantage of the helpless- ness of the victim and committed rape on her. First Information Report was lodged around 11 A.M., and she was sent for medi- cal examination. The accused after his arrest on 12t11 June, 1988 G was sent for medical examination. Certain articles were also· ' sent for chemical examination. After completion of the investi- gation, charge sheet was filed and the accused pleaded inno- cence and false implication. The prosecution in order to estab- lish the accusations examined several witnesses including the H .. ' ~· ~ : . \>s j ..... 1188 SUPREME COURT REPORTS [2008] 9 S.C.R. A prosecutrix who was examined as PW2 and the Doctor, who was examined as 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 B the plea of consent, the prosecution rely on clause six of Section 375 l.P.C. to contend that consent was of no consequence as she was below 16 years of age. In any event, there was no evi- dence 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 c was no consent as claimed by the accused. Accordingly the con- viction was recorded and the sentence of seven years imprison- ment was imposed alongwith fine of Rs.100/-. As noted above the High Court in the appeal
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