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Madhya Pradesh High Court · body

2002 DIGILAW 293 (MP)

Malkhan Singh v. State of M. P.

2002-03-11

N.G.KARAMBELKAR

body2002
JUDGMENT 1. This common judgment shall dispose of the aforesaid two appeals as they arise out of judgment dated 18.1.1997 in Sessions Trial No. 76/1992 passed by IInd Additional Sessions Judge, Vidisha, convicting the appellants under section 376(2) (G) Indian Penal Code and under section 506 Part II Indian Penal Code and sentencing them to ten years rigorous imprisonment and fine of Rs. 2.000/- and in default one year's rigorous imprisonment under section 376(2) (G) Indian Penal Code, and sentencing them to one year's rigorous imprisonment under section 506 (Part II) Indian Penal Code. Both the sentences were to run concurrently. 2. Appellants were tried for offences' under section 376(2) (G) of Indian Penal Code and section 506 (Part II) of Indian Penal Code and section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, the appellants were acquitted of the charge under section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and convicted and sentenced as stated above. 3. This fact, in particular, had not been disputed that prosecutrix PW 2, Kumari Lusiya, aged about 28 years, was at the time of incident posted as an Assistant Teacher in Government Primary School, Bagod. She was living all alone in the village. 4. Prosecution story runs thus that on 4.3.1992 prosecutrix Kumari Lusiya was returning from Vidisha to village Bagod to attend her School. She boarded Maheshwari bus at 11.30 a.m. at Vidisha and alighted from the bus at about 1.00 p.m. at a point called Zero Chain Puliya from where her school at Bagod is about a kilometer away, After alighting from the bus she proceeded on foot towards her school to village Bagod. At a nearby place where she alighted from the bus there is a tapara of Chowkidar named Baldar Khan who was cited as prosecution witness, but was not examined by the prosecution, instead was examined as defence witness. The prosecutrix noticed three persons standing near tapara of Baldar Khan, who were talking among themselves. She passed from nearby the tapara of Baldar Khan and had hardly gone some distance when she suspected someone following her. She noticed that those. three persons were following her. The prosecutrix noticed three persons standing near tapara of Baldar Khan, who were talking among themselves. She passed from nearby the tapara of Baldar Khan and had hardly gone some distance when she suspected someone following her. She noticed that those. three persons were following her. After she had covered some distance, she again felt as if someone had come closer to her and, therefore, she moved on one side giving way to the persons coming behind to go ahead. But the persons coming behind did not overtake her, instead caught hold of her hands from behind. She did not like it and objected to this act of the accused. According to prosecutrix, it was appellant Maharajsingh who had caught hold of her hands. She raised alarm calling the name of Baldar Khan but appellant accused Maharajsingh took out a knife and threatened her with dire consequences. if she raised alarm. In the meantime, appellant Musab Khan also joined Maharajsingh and he showed a knife threatening her with dire consequences, if she raised any alarm. Then the two dragged her towards a canal at some distance. There also she tried to raise alarm, but again was threatened with dire consequences. There she was made to lie on the ground near a Babool tree. When she tried to raise .alarm, appellant Maharajsingh placed knife on her neck and thereafter tried to throttle her neck and thereafter she was forcibly made to lie on the ground near a Babool Tree. Appellants Musab Khan and Malkhansingh then removed her clothes. She was at that time wearing salwar kurti. According to her, her salwar kurti and inner garments were also removed by the two appellants Musab Khan and Malkhansingh. Thereafter, appellant Musab Khan was the first to have committed sexual intercourse with her followed by appellants Maharajsingh and Malkhansingh. Having satisfied their lust, they left the place and while leaving, appellant Musab Khan intimidated her that she will also meet the same fate which Madam Rekha of village Dhamoda met, if she made a report in the police. 5. After the appellants-accused had left the place, prosecutrix left for her home at Bagod. From her home, she went to school at about 3.00 p.m. On the next day also, i.e. on 5th March, she attended the school and in the evening she went to Vidisha. Another teacher Mangalsingh also accompanied her to Vidisha. 5. After the appellants-accused had left the place, prosecutrix left for her home at Bagod. From her home, she went to school at about 3.00 p.m. On the next day also, i.e. on 5th March, she attended the school and in the evening she went to Vidisha. Another teacher Mangalsingh also accompanied her to Vidisha. She had taken casual leave for 6th and 7th, and 8th was Sunday. At Vidisha, she stayed with one Mr. Shukla. According to prosecutrix, at Vidisha she met Mr. Dutta, Deputy Director of Education and told him about the incident and also that three boys are after her life and, therefore, she was not in a position to go back to Bagod and requested him that she may be attached to some other school or some other place. According to her, Mr. Dutta had attached her to a school at Khamkheda from 10th Mar.ch. She was at Vidisha on 9th and attended the office of Deputy Director of Education at Vidisha. 6. The prosecutrix, for the first time, on 12th March told about the incident to her colleague Mr. Mangal Singh who was also a teacher, who in turn told about the incident to PW 3 Kaluram, who was also a teacher. PW Kaluram was president of District Teachers Association at the relevant time. Prosecutrix went to him on 14.3.1992 in connection with her problem about the incident and, therefore, PW 3 Kaluram took her to the residence of Superintendent of police, Vidisha on 14.3.1992 because offices of the Collector and Superintendent of Police were closed on that day. Prosecutrix handed over a typed complaint (Ex. P-2) to the Superintendent of Police, who forwarded it to police concerned. Prosecutrix then went to Kotwali Vidisha where report Ex. P-7 was taken down on the basis of typed complaint Ex. P-2. Crime was registered at zero number at Kotwali Vidisha. Police Vidisha sent the prosecutrix for medical examination and PW 1 Dr. Manju Singhal on 14.3.1992 examined the prosecutrix at 6.45 p.m. She had also seized the clothes that prosecutrix was then wearing and handed over to the police constable who had brought the prosecutrix for examination. Police Vidisha then sent the FIR and relevant papers to police station Satpada as the village Bagod fell within the jurisdiction of police station Satpada. Manju Singhal on 14.3.1992 examined the prosecutrix at 6.45 p.m. She had also seized the clothes that prosecutrix was then wearing and handed over to the police constable who had brought the prosecutrix for examination. Police Vidisha then sent the FIR and relevant papers to police station Satpada as the village Bagod fell within the jurisdiction of police station Satpada. On the basis of FIR registered at zero crime number, at police station Vidisha, police Satpada registered crime No. 37/92 on 15.3.1992 at 7.30 hours. Appellant Musab Khan was arrested on 29.3.1992 and other two accused were arrested on 26.3.1992. They were also subjected to medical examination. . 7. Lady doctor Mrs. Singhai while examining the prosecutrix referred the case to Medico Legal Centre, Gandhi Medical College, Bhopal for expert opinion and also for confirmation of age. Dr. C.S. Jain, Medical. Officer of Medico-legal Institute, Gandhi Medical College, Bhopal had examined the prosecutrix on 17.3.1992. Detailed reported of Dr. Jain is Ex. P-9. 8. After completing the remaining formalities and investigation, i.e. to say. recording of statement of witnesses, preparation of spot map etc., charge-sheet was filed and accused were tried of the offences as mentioned earlier. 9. Learned trial Court after detailed appreciation of prosecution evidence came to the conclusion that as regards offence under section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, it was not proved and, therefore, appellants were acquitted of the said charge. However, the learned trial Court concluded that charge under section 376(2) (G) Indian Penal Code and section 506 Part II Indian Penal Code were proved beyond doubt, and therefore, convicted the appellants as mentioned earlier. 10. The appellants have challenged the findings of the trial Court on the grounds inter alia that the learned trial Court has not properly appreciated the evidence and has erred in holding the appellants guilty of offences under section 376(2) (G) and section 506 Part II Indian Penal Code. It was emphatically argued that the FIR was delayed by almost 11 days without satisfactory explanation, yet the trial Court has condoned the delay. It was also contended that in the FIR names of the appellants do not find place, neither there is any description about them and identification parade was not held. It was emphatically argued that the FIR was delayed by almost 11 days without satisfactory explanation, yet the trial Court has condoned the delay. It was also contended that in the FIR names of the appellants do not find place, neither there is any description about them and identification parade was not held. The appellants were not known to the prosecutrix, and therefore, under these circumstances, identification of appellants in the dock at the trial was a very weak type of evidence and should not have been given any weight, and in the circumstances, appellants were entitled to acquittal. It was also argued that oral testimony of the prosecutrix, besides delay in making FIR was not corroborated by medical evidence as well as oral evidence and, therefore, prosecutrix should not have been believed and her testimony should not have been made a basis for conviction of appellants. Discrepancy in the FIR and in the statement of the prosecutrix during trial were pointed out and it was contended that on that basis also, she did not appear to be a truthful witness and her oral testimony should have been rejected. It was also contended that the prosecutrix after the incident did not tell about the incident to anybody including her colleagues in the school till 12th March, 1992, although she had ample opportunity to do so. She did not even tell about the incident to her landlord and his son Halkesingh who was treated as brother, and therefore, this abnormal conduct of the prosecutrix renders her oral testimony unbelievable, and should not have been accepted by the trial Court. 11. On perusal of the record, it appears that the appellants raised a defence plea in the trial that they had strained relations with Jai Singh Master. Jai Singh and the prosecutrix are colleagues, and therefore, the prosecutrix had falsely implicated them at the instance of Jai Singh. 12. I have heard the two sides at great length and very closely examined the record. 13. It is true that there has been a .delay of more than ten days in making the FIR, but the point to be examined and considered is whether the delay has to be considered only in terms of days or it has to be examined in the totality of circumstances. 13. It is true that there has been a .delay of more than ten days in making the FIR, but the point to be examined and considered is whether the delay has to be considered only in terms of days or it has to be examined in the totality of circumstances. By now, it is well settled that delay alone will not adversely affect the credibility of the prosecution case if it could be explained satisfactorily. 14. In the instant case, Prosecutrix is an unmarried young girl living all alone in the village, where she is an Assistant School Teacher. When she on her way to school in a broad day light, near a public way, is forced to sexual intercourse by three young persons, who make her submit on the point of knife. The way she was molested and subjected to forcible sexual intercourse was quite naturally enough to render her nervous and frightened. She must have been upset and the threat given' by the appellants must have been echoing in her mind that she would also meet the same fate of Madam Rekha. It appears that in some similar incident in respect of Madam Rekha had happened in the past. It was not, therefore, unnatural on her part if she did not muster courage to narrate the incident to her colleagues immediately on reaching school on the following day. But it appears that she thought it wise to apprise about the incident to her Boss Deputy Director of Education, Vidisha on 6.3.1992. She availed casual leave for two three days so as to utilise the period for getting her transfer from Bagod where she felt insecure, after the threats were given by the three rapists: She has stated that she had told Mr. Dutta, Deputy Director of Education about the incident and prayed for her transfer or attachment to some other place as she was insecure and was not prepared to go back to the same school. This is, found in the statement of Mr. Vimal Dutta recorded by the Police under section 161 Code of Criminal Procedure. It is unfortunate that the prosecutor who was conducting the case did not think it necessary to have examined Mr. Dutta as prosecution witness and for that prosecutrix could not be blamed. It is not only Mr. This is, found in the statement of Mr. Vimal Dutta recorded by the Police under section 161 Code of Criminal Procedure. It is unfortunate that the prosecutor who was conducting the case did not think it necessary to have examined Mr. Dutta as prosecution witness and for that prosecutrix could not be blamed. It is not only Mr. Dutta who was not examined by the prosecution, but other relevant witnesses like Baldar Khan, Babusingh and Mangalsingh were not examined for the reasons best known to the prosecution. The prosecutrix succeeded in getting her. attachment to another school at Khamkheda on 10.3.1992 and just thereafter she narrated the incident to one of her colleagues named Mangal Singh who, in turn, narrated it to PW 3 Kaluram who happens• to be the President of District Teachers Association. . 15. From these facts of the case, it is very clear that the prosecutrix brought the matter to the notice of President of Teachers Association as she individually had probably no courage to make report and to face the situation. In such circumstances, Mr. Kaluram took her to Superintendent of Police, Vidisha, were a typed complaint was submitted. If we examine the sequence of events and prevailing circumstances in which the prosecutrix was put, it could easily be appreciated that there was no intention on her part to suppress the incident, but she was so much frightened that she first tried for her transfer or attachment and after having secured it, she came forward to make a report. Therefore, in the facts and circumstances of the case, number of days by which the FIR is delayed is not very relevant and it cannot be said that the report was delayed. The learned trial Court has given cogent reasons for holding that FIR was not delayed in the circumstances of the case and this Court also is not inclined to take a different view of the matter. 16. Next we come to the argument by learned defence counsel that the conduct of prosecutrix in not disclosing the incident to her colleagues and even to Halke makes the story somewhat doubtful. 17. I have already discussed this aspect of the case in the foregoing paragraphs. The prosecutrix did speak about the incident to Mr. 16. Next we come to the argument by learned defence counsel that the conduct of prosecutrix in not disclosing the incident to her colleagues and even to Halke makes the story somewhat doubtful. 17. I have already discussed this aspect of the case in the foregoing paragraphs. The prosecutrix did speak about the incident to Mr. Dutta, Deputy Director of Education on 6.3.1992 when she met him in connection with her transfer or attachment to some other place in the back-ground of the incident and the threats .to her life at the hands of three boys. Therefore, it cannot be said that she did not disclose it to anybody at the earliest. Thereafter she disclosed this fact to Mangal Singh, who was also a teacher and thereafter she met PW 3 Kaluram and narrated the story. As already stated that in fact the prosecutrix was very much frightened because of the incident and the subsequent intimidation given by the accused persons and, therefore, she could not muster courage to report the matter or to disclose it to anybody before she could manage her transfer to some other place, and if it is seen in this context, there was no delay in disclosing the incident to Mr. Mangal Singh on 10.3.1992, after she got her attachment to other school. 18. As regards non-disclosure of the incident to Halkesingh, defence witness Halke Singh himself has explained that it was just possible that she did not think it proper to tell him about the incident as she treated him like her younger brother. It has to be seen that after all defence witness Halke Singh was not closely related to her nor a very mature person and also for that reason the prosecutrix did not think it proper to narrate such an incident to her younger brother. Therefore, the conduct of the prosecutrix in not disclosing the incident immediately after the incident was not unnatural or abnormal in the circumstances of the case, and therefore, no adverse inference could be drawn on this count. 19. It was argued that the medical evidence did not support the prosecution as no external injury was found on the person of the prosecutrix by Dr. Shrimati Singhai who first examined her. 19. It was argued that the medical evidence did not support the prosecution as no external injury was found on the person of the prosecutrix by Dr. Shrimati Singhai who first examined her. Absence of external injuries was not possible in the background of the statement of the prosecutrix, who has stated that she was dragged and forcibly made to lie on the ground. 20. There appears no merit in this argument. Firstly because the prosecutrix was medically examined after ten days of the incident and external injuries on her person, particularly in the nature of scratches, bruises and contusions are likely to disappear with the lapse of time. However, it is not true that external injuries were not found. Report of Medico-legal Expert dated 17.3.1992 does mention the injuries. The report Ex. P-9 shows that on physical examination contusion was found present on the right anterior aspect of leg 6 cm below tibial tuberocity 4 x 3.5 cm in size. It was diffused at borders, underneath tenderness was found present. Besides this tenderness was present on the back at the level of L1 to L3. However, no external injury at that moment was visible. On local examination, the expert found that on separation of thigh, patient felt pain in lower abdomen in genital region. The lady doctor who first examined had herself reported the case to medico-legal expert for expert opinion. However, she had opined that sexual intercourse might have been done with Miss Lusiya. The two medical experts in their opinion had found that hymen was torn at posterior aspect about 6 O'clock position and also one old healed shrunken tag was found. Besides this, one oblique radiated healed tear at 5 O'clock position was also found. Vaginal orifice admitted one little finger with difficulty. The doctor has not stated that the prosecutrix was habitual to sexual intercourse and that did not appear also from the outcome of the examination. Medico-legal expert in his report has observed that injuries of genitelia were in hidden part and was of the opinion that injuries were result of sexual intercourse resulting into trauma and may be within one to two weeks duration. This medical evidence certainly corroborates version of the prosecutrix. 21. There is another significant aspect of the story. It is true that report was lodged on 14.3.1992 in respect of the incident of 4.3.1992. This medical evidence certainly corroborates version of the prosecutrix. 21. There is another significant aspect of the story. It is true that report was lodged on 14.3.1992 in respect of the incident of 4.3.1992. The prosecutrix- was fully aware of the effect of delay in making the report. She, therefore, could have easily changed the date of incident, if she really wanted to concoct the story. It was not very difficult for her to change the date of incident so as to reduce the period between the date of incident and the date of reporting the matter. It was not done simply because the prosecutrix did not want to conceal the truth. 22. The most important point that has been raised by the learned defence counsel is about the identification of the appellants. It was argued that appellants were not known to the prosecutrix, and therefore, their identification during investigation was very necessary when the• FIR did not mention their names or even description, and therefore, omission to hold identification parade was very fatal to the prosecution case and in this background, identification of the appellants by the prosecutrix in the dock during trial should not have been given weight. It was argued that omission to hold identification parade and identification in the dock itself, the appellants were entitled to benefit of doubt. 23. It is true that names of appellants did not find mention in the FIR and their description is also missing. It is equally true that identification parade was not held by the investigating officer, but the prosecutrix on her part, has, in her statement at the trial has identified the appellants giving details of roles played by each of them at different stages. Prosecutrix was examined on 27.8.1992, about five months after the incident. She has narrated, while supporting, FIR how she was threatened, how she was caught hold how she was unclothed and how each of appellant committed sexual intercourse with her turn by turn. It was broad day light in the month of March when the alleged incident took place and there was no question that prosecutrix might have found it difficult to see the physical appearance of each of appellant. She saw them right from the point when at about 1.00 p.m. they followed her when she was moving towards village Bagod. It was broad day light in the month of March when the alleged incident took place and there was no question that prosecutrix might have found it difficult to see the physical appearance of each of appellant. She saw them right from the point when at about 1.00 p.m. they followed her when she was moving towards village Bagod. Thereafter, she -was forcibly taken to nearby place and after unclothing her, sexual intercourse was committed by the three appellants, one after the other. It is quite natural that the prosecutrix had ample time to see the appellants and it was not difficult for a lady of her age to remember identity of the accused after five months, because she was subjected to forcibly sexual intercourse by these three, despite protest. Therefore, there is no reason to disbelieve the prosecutrix if she could identify the accused in dock after five months of the incident. This was the first opportunity for her to have identified the accused, who had indulged in sexual intercourse with her. She could not be blamed for the lapse on the part of investigating agency in not holding the identification parade after arrest of the accused. The legal position is very settled now that prosecutrix in a rape case cannot be disbelieved if her testimony inspires confidence about the truth of the incident, even if there has been lapses on some points in the investigation. 24. In the case of State of West Bengal v. Mir Mohammad Omar and others [JT 2000(9) SC 467] the Apex Court was of the view that the function of the criminal Courts should not be wasted -in picking out the lapses in investigation. It was also observed that flaws. in investigation, if made basis of acquittal, criminal justice would be a victim. 25. In another cases of Ramanbhai Naranbhai Patel v. State of Gujrat, [ (2000) 1 SCC 358 ], it was held that identification of accused for the first time in Court by eye-witnesses when they did not know him earlier and when no test identification parade has been held, was a weak type of evidence. But it was held that it was not totally irrelevant or inadmissible. It was observed that real credence of such evidence would depend upon the facts and circumstances of each case. But it was held that it was not totally irrelevant or inadmissible. It was observed that real credence of such evidence would depend upon the facts and circumstances of each case. In that case before the Apex Court, the two eye-witnesses themselves were assaulted and seriously injured in broad day light and they could have easily seen the faces of appellants and their appearance. The Court was, therefore, of the view that identification of the accused would well .remain imprinted in their minds. Therefore, it was held that even in absence of test identification parade, their evidence could not be rejected, because in the circumstances, it was much possible to infer that they would be interested in roping in innocent persons. 26. Let us examine this aspect from another angle. Accused were admittedly not known to the prosecutrix, and therefore, also, there appears no reasonable ground to believe that she would identify them in the dock during trial just to falsely implicate them. 27. As regards defence plea that appellants were falsely implicated at the instance of one Master Jai Singh, the plea could not be substantiated by any convincing evidence. It can hardly be believed that an unmarried girl and a teacher by profession shall ruin her future inviting disrepute, simply for the sake of Jai Singh who is simply a colleague. 28. There are some minor discrepancies in the statement of prosecutrix Miss Lusiya as regards her statement in Court and in the FIR. But those discrepancies are not enough to reject her whole testimony, as regards her statement that three accused appellants committed sexual intercourse with her against her wishes and under threats. 29. Taking into consideration the totality of circumstances in which the prosecutrix was placed and taking into consideration the oral testimony of the prosecutrix duly corroborated by medical evidence, this Court is inclined. to believe her testimony. 30. As a result of aforesaid discussion, it is found that prosecution has well established the guilt of accused-appellants beyond reasonable doubt. The learned trial Court has given cogent reasons for believing the prosecutrix and this Court is not inclined to take a different view. 31. In the result, conviction and sentence of the appellants under the impugned judgment is affirmed and the appeal is dismissed.