Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 108 (MP)

NANDLAL YADAV v. STATE OF M. P.

2002-01-30

UMA NATH SINGH

body2002
UMA NATH SINGH, J. ( 1 ) THIS is an appeal from the judgment and findings recorded by the learned Sessions Judge Tikamgarh, in the Sessions Trial No. 112/87, whereby the accused/appellant was convicted of offences under Ss. 376 and 342 and sentenced to 5 years R. I. and 1 year R. I. respectively. ( 2 ) SUCCINCTLY narrated the facts of the case are that appellant Nandlal Yadav was working as a Meth (Supervisor), being the incharge of supply of materials, in a construction work of a hospiral, at Village Vaisa, where prosecutrix Harbu (also referred to by name 'awadh') was also working as a labourer. On the date of incident i. e. 2-4-1987 at about 12 O'clock in the day time, the appellant asked the prosecutrix to bring some utensils from his house situated at a distance of about a furlong from the place of work. At that time a number of other labourers including Chiman (PW/4) were also present. When the prosecutrix went inside a rear side room of the house to bring utensils, the appellant, taking advantage of that situation, entered the room and bolted the door from inside. He threw the prosecutrix on the ground, gagged her with a towel and performed forcible sexual intercourse. Thereafter the accused came out and the prosecutrix bewailingly went straight to her house which was situated at a distance of about a furlong from that of the appellant and informed her mother-in-law Suggun (PW/2) about the incident. A report of the incident (Ex. P1) was lodged after two days on 4-4-1987 by the prosecutrix who was accompanied by her husband Pritam (not examined ). The prosecutrix was sent for medical examination. Her clothes, said to be stained with semen, were seized and sent for Chemical Examination. The accused was arrested after about 52 days. After investigation, a challan was laid and charges were drawn up. The accused denied the charges and pleaded false implication on account of a grudge harboured by Pritam, husband of the prosecutrix, who had been stopped by the appellant from constructing a house by the side of his house on a Government land. After investigation, a challan was laid and charges were drawn up. The accused denied the charges and pleaded false implication on account of a grudge harboured by Pritam, husband of the prosecutrix, who had been stopped by the appellant from constructing a house by the side of his house on a Government land. The trial Court on an appreciation of the evidence on records, recorded the above convictions and sentences against the accused, mainly on the ground that the evidence of the prosecutrix does not suffer from any serious infirmity and it is fully corroborated by the testimony of her mother-in-law, Suggun (PW/2 ). ( 3 ) HEARD Shri S. C. Datt, Senior Counsel, with Shri Sidharth Datt, Advocate, for the appellant and Shri R. K. Verma, Panel Lawyer, for the State. Shri Datt led the Court through the appeal records and pointed out certain infirmities in the impugned judgment. He contended that the defence of the appellant was of complete denial whereas the learned trial Judge has appreciated the evidence on a wrong premise as whether the prosecutrix was a consenting party. He further contended that the FIR was lodged after inordinate delay and it did not contain a mention of calling a Panchayat to settle the matter, nor did it contain an explanation for lodging a delayed FIR. The defence, further-more, contended that the medical examination of the prosecutrix did not notice any injury, not even a minor abrasion, nor could the doctor give a definite opinion about the sexual intercourse. The doctor, who conducted the medical examination, was not produced to prove the report. The defence also contended that, on her own admission, when the prosecutrix reached the house of the appellant, his 13 years old daughter, Meva, examined as (DW/2), was present there and she had asked the prosecutrix to go to the rear side room for collecting the utensils. The defence questioned as why Pritam, husband of the prosecutrix, who accompanied her to the Police Station for loding a report, was not produced as a prosecution witness. It was pointed out that according to the prosecutrix, Village Panchayat was called to settle the matter which could not succeed as the Panchayat did not believe in her version of the incident. It was pointed out that according to the prosecutrix, Village Panchayat was called to settle the matter which could not succeed as the Panchayat did not believe in her version of the incident. Further, the prosecutrix admitted in her cross-examination that at the instance of her family members she sat for two days on the door of the accused for settling the matter. Her statement also revealed that she returned from the mid way to the Police Station on the persuasion of the accused. On the other hand, Shri R. K. Verma appearing for the State, heavily relied on the testimonies of the prosecutrix and her mother-in-law and contended that the impugned judgment is well merited and does not call for interference in appeal. ( 4 ) ON a close scrutiny of the records, a careful re-appraisal of the evidence led by both the parties, and at a length hearing of the rival contentions, I am of the view that the defence pleas are not devoid of merit and, hence deserve due consideration in as much as the prosecution evidence need to be appreciated in the context of preponderant improbabilities pointed by the defence. So far as the evidence of the prosecutrix such as that relied upon by the Trial Court is concerned, there are a number of improbabilities that can go to the roots of the matter. They include the typical conducts of the prosecutrix which appear to be wholly inconsistent with ordinary course of human nature and create a reasonable doubt about the credibility of the entire edifice of the prosecution case and further question the very foundation of the incident. They include the typical conducts of the prosecutrix which appear to be wholly inconsistent with ordinary course of human nature and create a reasonable doubt about the credibility of the entire edifice of the prosecution case and further question the very foundation of the incident. Such conducts which suffer from a propensity to betray the prosecution endeavour to prove its case to the hilt by adducing other evidence also, are, namely, that the prosecutrix returned home from the mid way on persuasion of the accused while going to lodge a report; that she could give no apparent reason for delaying the FIR if, as per her own admission in para 17 of the cross-examination, her husband had returned home on the date of incident itself; that she also admitted, in her cross-examination, to have attended a Panchayat for settling the matter but pleaded ignorance about its out-come, whereas as per the evidence of Gutte (PW/5) an independent witness, the prosecutrix wanted to settle the matter in the Panchayat for money and did not express a desire to lodge a report, therefore, the Panchayat disbelieved her version of the incident, and that she sat at the door of the accused for 2-3 days at the instance of her family members and did not take a recourse to law by lodging a report at the police station. Thus, her conducts on multiple counts and particularly the last one seriously demerited the veracity of her evidence, even though in the same breath in the next sentenceof her cross-examination, which also fell short of explanation, she stated that she sat at the door of the accused, on his advice for settling the matter. On this circumstance also, the evidence of Gutte (PW/5) appeared to inculpate her, when he stated that after having failed in Panchayat, she sat for 2-3 days at the door of accused. Curiously enough, there is no cross-examination of Gutte (PW/5) on this point. Gutte (PW/5), being the Village Kotwar, is an independent witness and it is not open to the prosecution to disown his evidence if he was not declared hostile and cross-examined on material circumstances. Curiously enough, there is no cross-examination of Gutte (PW/5) on this point. Gutte (PW/5), being the Village Kotwar, is an independent witness and it is not open to the prosecution to disown his evidence if he was not declared hostile and cross-examined on material circumstances. To the extent, he contradicted the prosecutrix in his evidence, the prosecution case stood eclipsed, unless, there was some evidence to lend assurance to the testimony of the prosecutrix which for the foregoing reasons does not appear to be convincing enough to need no other support. ( 5 ) THE prosecution evidence appears to suffer from yet another disability when the prosecutrix stated that the daughter of the accused aged about 13 years was present in the house who had guided her to collect the utensils from a rear side room. Thus, it is improbable that the accused would have indulged in an act of forcible sexual intercourse with the prosecutrix by throwing her on ground when his teenaged daughter was around. So also it is improbable that the prosecutrix, who being a rustic lady of 25 years of age, would have helplessly succumbed to his lust when she has deposed to have put up a stiff resistance and also raised a hue and cry. It appears less than convincing and it is necessary to ask as why her cry could not attract the people of locality when as per Exp/p4 the spot map, there were other houses in the neighbourhood. It appears unbelievable that, despite a stiff resistance, the prosecutrix would not have suffered any injury on her person in the struggle, nor any damage to her clothes and bangles. Though the prosecution sent the seized incriminating articles for Chemical Examination, no report of such kind was placed on records. Her two brothers-in-law were also engaged as labourers in the same construction work. They were not informed about the incident and also not called to witness-box on the incriminating circumstances that existed prior to the alleged acts of wrongful confinement and rape. The mother-in-law of the prosecutrix Suggun (PW/2) in her examination-in-chief stated that the day she was informed about the incident by the prosecutrix, she along with others had gone to the Police Station and informed the Police Sub Inspector about the incident. The mother-in-law of the prosecutrix Suggun (PW/2) in her examination-in-chief stated that the day she was informed about the incident by the prosecutrix, she along with others had gone to the Police Station and informed the Police Sub Inspector about the incident. Thus, it seems that the prosecutrix did not even inform her mother-in-law immediately after the incident though, as per her statement, she had returned home straight-way from the spot of the incident, or else the FIR would have been lodged in time. Suggun (PW/2) in her cross-examination also admitted that on the day of incident itself, husband of the prosecutrix, Pritam had returned home, therefore, there appeared to be no valid reason to delay the FIR unless the prosecutrix herself wanted it, which she did, for one reason or the other. Suggun (PW/2) contradicted the prosecutrix in saying in para 3 of her cross-examination that no Panchayat was called in the village, nor did the prosecutrix sit on the door of the accused. Thus, having regard to the facts and circumstances of the case, it is not safe to rely on the contradictory evidence of the prosecutrix (PW/1) and her mother-in-law Suggun (PW/2 ). Other witnesses namely, Prabhudayal (PW/3), a witness of seizure of clothes, has denied any such seizure in his presence. Chiman (PW/4) was declared hostile as he did not support the prosecution case. The statement of J. N. Shukla (PW/6) was mainly confined to drawing up of the spot map. As regards the statement of the appellant under S. 313 Cr. P. C. he hasdenied a suggestion that he had asked the prosecutrix to sit on his door. He has also mentioned that a Panchayat had been called after 3 days and both of them the appellant as well as the prosecutrix-appeared before that. He pointed out that the prosecutrix wanted to extract money from him and a rumour about the incident had been spread due to enmity. In his detailed answer to the question No. 47, he stated that on a vacant Government land, Pritam, husband of the prosecutrix and his brother, wanted to construct a house which he had objected and, therefore, they harboured a grudge and falsely implicated him in this case. The defence has produced Kara Bai (DW/1), wife of the appellant and Meva (DW/2), his daughter, who have denied any such incident. Kara Bai (DW. The defence has produced Kara Bai (DW/1), wife of the appellant and Meva (DW/2), his daughter, who have denied any such incident. Kara Bai (DW. 1) has also attributed enemity to the husband of the prosecutrix which gets full corroboration from Chandan Lal (DW/3), a neighbour of the appellant. This witness goes to say in his cross-examination that the prosecutrix wanted to settle the matter for money but the Panchayat had not budged and had rejected her version of the story. Thus the very genesis of the incident in respect of the alleged offence under Ss. 376 and 342, IPC appears to be far from truth. Hence it would be inexpedient to go further and deal with another segment of the findings of the learned Trial Judge as regards the question of consent on the part of the prosecutrix. ( 6 ) IN a recent judgment of the Apex Court in the matter of Dilip v. State of M. P. AIR 2001 SC 3049 : (2001 Cri LJ 4721), a judgment of conviction of the High Court was set aside on the grounds, that none was attracted to the place even though, the prosecutrix alleged to have raised hue and cry at her maximum; that the medical evidence did not corroborate her testimony; and that the version of the prosecutrix was found to be not tallying with that of her maternal aunt to whom she said to have narrated the incident. The instant case appears to be similarly situated for the facts that the doctor, who examined the prosecutrix, was not produced to prove the medical report which, otherwise, did not notice any injury on her body; that the Chemical Examination report was not placed on records of the case, and that the evidence of the prosecutrix and her mother-in-law Suggun (PW/2) contradicted each other. ( 7 ) A reliance was placed on a judgment of the Apex Court in the matter of Suresh N. Bhusare v. State of Maharashtra, AIR 1998 SC 3131 : (1998 Cri LJ 4559 ). In this case, the medical evidence did not corroborate the testimony of the prosecutrix inasmuch as there was absence of struggle marks. Further, the conduct of another witness said to be corroborating the prosecutrix, was also found to be wholly inconsistent with his testimony, therefore, the conviction recorded by the High Court was set aside. In this case, the medical evidence did not corroborate the testimony of the prosecutrix inasmuch as there was absence of struggle marks. Further, the conduct of another witness said to be corroborating the prosecutrix, was also found to be wholly inconsistent with his testimony, therefore, the conviction recorded by the High Court was set aside. ( 8 ) THE defence has also placed reliance on a decision of this High Court in the matter of Raj Kumar v. State of M. P. (2000 Cri LJ 1896 (MP ). The High Court refused to accept the evidence of the prosecutrix because she was not found to be of such character whose testimony could be accepted without corroboration. The Court also found that there was no reassuring guarantee that her testimony was truthful and reliable. ( 9 ) IN the premises discussed herein above, I hold that the impugned judgment is not sustainable on facts as well as in Law. Hence the conviction and sentence of the appellant are set aside and he is acquitted of the charges under Ss. 376 and 342, IPC. Accordingly the bail bonds furnished by the appellant shall stand discharged. Appeal allowed. .