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2004 DIGILAW 598 (MP)

Ashok v. State of M. P.

2004-07-30

ASHOK KUMAR TIWARI

body2004
JUDGMENT 1. Appellants have been convicted by learned 16th Additional Sessions Judge, Indore under section 376, 450 and 506(ii) of Indian Penal Code vide judgment dated 26th October, 1993 passed in Sessions Trial No. 122/1992. 2. Briefly stated, prosecution's case is that on the date of incident prosecutrix (PW 1) was sleeping at her house. Her children were also sleeping with her. Her husband (PW 2) was not there as he had gone on his duty. At the mid of the night, her door was knocked at and due to knocking, the door got opened and prosecutrix (PW 1) woke up. She saw that appellants entered into her house. Appellant Suresh pressed her mouth and appellant Ashok waived knife and threatened her that if she raises cries, knife will be thrust into her body. Thereafter, appellant Ashok committed rape on her. When he completed the act, appellant Suresh committed rape on her. After having committed rape, both appellants ran away from there. 3. In the morning, the prosecutrix (PW 1) went to police station Aerodrome, Indore. There she made First Information Report Ex. P-1. 4. Police sent her to District Hospital, Indore where Dr. Shanta Saraf (PW 5) examined her and prepared report Ex. P-9. Her petticoat was sealed by Dr. Shanta Saraf (PW 5). That petticoat and the slide of her vaginal smear were sent for chemical examination. Police prepared the site map and recorded the statements of the witnesses. After due investigation, charge sheet was put up against the appellants. 5. Learned trial Court framed charge under sections 376, 450 and 506 (ii) of Indian Penal Code. Appellants abjured their guilt and were put to trial. After trial, they were convicted and sentenced under section 376 of IPC to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 5,000/-; Section 450 of IPC to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 3,000/-; and section 506(ii) of IPC to undergo rigorous imprisonment for 3 years and in default of payment of fine they were directed to undergo further rigorous imprisonment for 2 years and 1 year respectively. Hence, appellant Ashok has filed Criminal Appeal No. 574/93 and appellant Suresh has filed Criminal Appeal No. 649/93. Since these two appeals arise out of one and the same judgment and order of conviction, therefore, they are being disposed of by this common judgment. Hence, appellant Ashok has filed Criminal Appeal No. 574/93 and appellant Suresh has filed Criminal Appeal No. 649/93. Since these two appeals arise out of one and the same judgment and order of conviction, therefore, they are being disposed of by this common judgment. 6. It is well settled by now that if the testimony of the prosecutrix is truthful and wholly reliable, conviction could be based upon it without seeking for corroboration from any other source. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Yet her testimony will have to be judged on the principle of probabilities just as the testimony of any other witness. If the version of the prosecutrix is such that it is difficult to accept it on its face value then some evidence would be required to be searched which would lend assurance to her testimony. Assurance short of corroboration as understood in the context of an accomplice would do. The star witness of the prosecution is the prosecutrix (PW l) herself. Her version, if believed, would lead to conviction and if not, would lead to acquittal. 7. The prosecutrix (PW 1) has deposed that appellants got unlatched her back side door and they entered her house. According to her version thereafter appellants committed rape on her one by one. The incident is said to have taken place in the intervening night of 24th and 25th of September, 1991 and report is said to have been made on 25.9.1991 at 9.50 a.m. Thereafter, she was sent for medical examination and Dr. Shanta Saraf (PW 5) examined her on the same day. In medical examination no mark of any injury on the private parts or any other part of the body of the prosecutrix was found. The prosecutrix is a grown-up lady. In the circumstances of the case, it was expected of her that she must have offered some resistance. But, it appears that she has not tried to resist. She has tried to offer explanation for her not resisting the appellants by saying that appellants threatened her that if she tries to raise any alarm, they will thrust knife into her body. This explanation for not raising her cries does not sound well. But, it appears that she has not tried to resist. She has tried to offer explanation for her not resisting the appellants by saying that appellants threatened her that if she tries to raise any alarm, they will thrust knife into her body. This explanation for not raising her cries does not sound well. The prosecutrix (PW 1) has deposed that the latch of her back door is such that it gets unlatched when the door is knocked at. Firstly, she must had made some arrangement so that shutters of the door could not be got opened so easily, in the night particularly when she was alone and her husband had gone out on his duty. Secondly, when she had not made any arrangement regarding the safety of the door, she must have rose up immediately when she heard some sound of knocking and opening of the door. But, she has not done so. From her testimony, it appears that she was sleeping on the floor; she remained in the lying position till appellants entered there and pressed against her mouth. She must have raised cries no sooner she saw some one in her house from back door at so high time in the night. Thus, her conduct as emerges out from her own version is some what un-natural and doubtful. 8. The prosecutrix (PW 1) has deposed in her examination-in-chief that after committing rape, she became unconscious. She has not deposed as to when she recovered and came to her senses and what she did after gaining her senses. She had simply said that next day in morning; she made an oral report Ex. P-l at police station Aerodrome, Indore. She had not told anything in her examination-in-chief as to where her husband was on duty and when did he return from duty. She has also not deposed that she herself went to his husband and told him about the incident or she flushed any message to her husband. She has also not deposed that her husband had arrived at his house. She has deposed in paragraph 9 of her testimony that she had gone alone for making report at police station. She has also stated that her 'husband met her at police station Aerodrome itself at about 3.00 a.m. 9. She has also not deposed that her husband had arrived at his house. She has deposed in paragraph 9 of her testimony that she had gone alone for making report at police station. She has also stated that her 'husband met her at police station Aerodrome itself at about 3.00 a.m. 9. The prosecutrix's husband (PW 2) had deposed in his statement that when he returned from his duty and reached to his house, his wife told her that appellants have committed rape on her. Her husband has given a contradictory statement regarding as to where he was posted at the relevant time. He says that he was posted in Andhra Pradesh on that time and then changing his version, he stated that he was posted at Indore in Revati Range B.S.F. Any man of ordinary prudence may not forget exactly where he was posted at a time when such unfortunate incident takes place with his own wife. The above situation of his memory regarding the happening creates a serious doubt and the very story of the prosecution and the testimony of the prosecutrix become doubtful. 10. Here it is again noteworthy that prosecutrix'x husband (PW 2) in paragraph 4 of his statement has very clearly stated that on getting the information regarding the incident, he straightway reached to his house where his wife met him and she told him about the incident. Then again changing his version, he deposes that his wife met him at police station Aerodrome. According to his statement, in charge of Revati Range BSF Shri Khan informed him about the incident. The prosecutrix (PW 1) has nowhere stated that she sent any information to her husband's office. There is no evidence that any police official sent any information to the office of the prosecutrix's husband. How the' in charge of Revati Range BSF Shri Khan came to know about the incident and how the husband of the prosecutrix reached at police station Aerodrome when prior to that no conversation between him and prosecutrix took place. These are some of the factors which cast shadow of doubt on the veracity of the prosecutrix as also her husband and the straightway arrival of the prosecutrix's husband at the police station make the prosecution story very much doubtful. 11. These are some of the factors which cast shadow of doubt on the veracity of the prosecutrix as also her husband and the straightway arrival of the prosecutrix's husband at the police station make the prosecution story very much doubtful. 11. The above situation coupled with the fact that absence of any mark of injury particularly on ,the private parts and on any part of the body of the prosecutrix (PW 1) probablise absence of any coitus. The testimony of the prosecutrix is hardly acceptable on its face value and the required assurance to her testimony is also not available. Learned counsel for the State has contended that the report of chemical examination Ex. P-10 lends support to prosecution story as according to this report the presence of semen on the petticoat and slide of the prosecutrix and on underwear of appellant Suresh is confirmed. Only this much piece of evidence is not sufficient to hold the appellants guilty and in this report the presence of above has not been found on pubic hairs. It has also not been proved beyond doubt that prior to the time when the petticoat of the prosecutrix was sealed no cohabitation between her and husband took place. Perhaps to negative this argument, the prosecutrix seems eager to make out the absence of her husband (PW 2) on the date of incident and also to make out that he did not meet her at the house before she left for police station and he met her at police station itself for the first time after the incident. 12. It emerges from the close scrutiny of the testimony of the prosecutrix (PW 1) that it is not so truthful and wholly reliable that the conviction could be based upon it without seeking for any assurance much short of corroboration. Even such assurance is not available in this case. The facts and circumstances of the case are suggestive of absence of any coitus and any of the ingredients of the offences punishable under sections 376, 450 and 506 Part II of Indian Penal Code are not established beyond any reasonable doubt hence the appellants are entitled to get the benefit of doubt. 13. Consequently, these appeals are allowed. The appellants are acquitted of the charge under sections 376, 450 and 506 Part II of Indian Penal Code. The appellants are on bail. 13. Consequently, these appeals are allowed. The appellants are acquitted of the charge under sections 376, 450 and 506 Part II of Indian Penal Code. The appellants are on bail. Their bail bonds are hereby discharged. The fine amount, if deposited, shall be refunded to them. A copy of this judgment shall be kept in the record of Criminal Appeal No. 649/1993.