NEHRU @ JAWAHARversusSTATE OF CHHATTISGARH

                         [2008) 9 S.C.R. 1186


A                      NEHRU @ JAWAHAR
                                   V.
                    STATE OF CHHATTISGARH
                (Criminal Appeal No. 1279 of 2001)
                           JUNE 'i3, 2008
B
        [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 1Oth 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 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 the
0
  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 ad-
E mittedly the FIR was lodged at 11 AM but strangely the Doctor claimed
  that she examined the victim at 9.15A.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
F   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
G 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 9.15 P.M. We referred to
  the original document on record and therefore we find no sub-
  stance in this plea of learned counsel for the appellant that ex-
  amination was at 9.15 A.M.
H
                  NEHRU @ JAWAHAR v. STATE OF                       1189
                CHHATTISGARH [DR ARIJIT PASAYAT, J.]

            6. So far as the question of consent is concerned, learned A
      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?                                    B
           A (Witness stated yes, thereupon question was repeated,
           then she stated that) it-is not correct."
...                                         (Underlined for emphasis)
                                                                            c
           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 room. Thereupon D
           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 E
           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."                                            F
           8. Above being the position the plea of consent is without
      substance.
            9. The appeal lacks merit, deserves dismissal, which we
      direct.                                                       G
           10. We record our appreciation for the able manner in which
      Mr. Shishir Pinaki, learned Amicus Curiae assisted the Court.
                 "-,
      K.K.T.                                        Appeal dismissed.
                                                                            H