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2005 DIGILAW 560 (MP)

Shanu v. State of M. P.

2005-04-28

S.K.PANDE

body2005
JUDGMENT 1. Second ASJ, Sehore, in ST No. 82/2003 vide impugned judgment dated 14.10.2003 recording conviction of appellants under section 376 (2)(g) of the IPC sentenced them to undergo RI for a period often years and to pay fine Rs. 2,500/-, in default to suffer further imprisonment for a period six months. Being aggrieved, appellants have preferred this appeal under section 374 (2) Cr.P.C. 2. The prosecutrix (PW 1), a married woman aged about 26 years, on 6.3.2003 lodged the report (Ex. P-3) to the effect that on 5.3.2003 she had been to the house of Ibrahim Bhai. Thereafter she had been to the grocery shop where appellants were standing. She wanted to return to village Kakadkheda, as such, appellants asked her to accompany. Near nala, appellants forcibly committed sexual intercourse with her. On the basis of report aforesaid, prosecutrix (PW 1) was sent for medical examination. Dr. Ruhi Sadana (PW 2) examined the prosecutrix. No mark of external-internal injury was seen on any part of the body. The prosecutrix was habitual of sexual intercourse, therefore, on the basis aforesaid no such opinion as to alleged incident of sexual assault was recorded. Completing the investigation, appellants were charge-sheeted. Appellants abjured the guilt. Appellant Aslam has contended that the prosecutrix in fact borrowed some money from his mother The prosecutrix was not willing the repayment instead, threatened him to be falsely implicated. Appellant Shanu has contended that agricultural land of his father is adjacent to the land of prosecutrix. On account of some dispute he has been falsely implicated. The Court below, in ST No. 82/03, vide order impugned, on the basis of statement of prosecutrix (PW 1) held that appellants forcibly committed sexual intercourse with her. As such, recording conviction under section 376 (2) (g) of IPC sentenced them to undergo RI and payment of fine, in default to suffer further imprisonment for the period aforesaid. 3. The prosecutrix. (PW 1), a married woman, has stated that at about 6 p.m. she had been to the house of Ibrahim Bhai. Thereafter, she had been to the grocery shop where appellants were standing. Since appellants are her neighbourers, they asked her to accompany on way back to village Kakadkheda. At about 8 p.m. while she was returning to village Kakadkheda, near Nala appellants caught her and forcibly committed sexual intercourse. Thereafter, she had been to the grocery shop where appellants were standing. Since appellants are her neighbourers, they asked her to accompany on way back to village Kakadkheda. At about 8 p.m. while she was returning to village Kakadkheda, near Nala appellants caught her and forcibly committed sexual intercourse. Thereafter, appellants deserted her and on return she narrated the incident to her mother Ajija Khatam (PW 5). PW 5 Ajija Khatam has stated that at about 9 p.m. the prosecutrix (PW 1) on return narrated the incident to the effect that on way she was forcibly subjected to sexual assault by the appellants. Next day, she was taken to the police station. The prosecutrix (PW 1) has stated that she lodged the report (Ex. P-5) with the police. PW 2 Dr. Ruhi Sadana has stated that the prosecutrix (PW 1) was examined on 6.3.2003. No mark of external-internal injury was seen on any part of the body. Vagina was admitting two fingers. She was habitual of sexual intercourse. On the basis aforesaid, no opinion as to alleged incident of rape could have been recorded. Report (Ex. P-6) to this effect was written. Apart from the aforesaid, there is no other piece of evidence to state that prosecutrix (PW 1) was subjected to sexual assault-rape by the appellants. 4. In Dilip and another v. State of M.P. [2001 (2) BLJ 89 = (2001) 9 SCC 452 ] it has been held that the prosecutrix in a sexual offence is not an accomplice arid there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In Rajkumar and another v. State of M.P. [(2000) CrLJ 1896], in the matter of scrutiny-reliance on sole testimony of the prosecutrix, it has been held: "Conviction in a rape case depends to a large extent upon the credibility of the prosecutrix. There must be some reassuring guarantee that her version is truthful and fully reliable. In Rajkumar and another v. State of M.P. [(2000) CrLJ 1896], in the matter of scrutiny-reliance on sole testimony of the prosecutrix, it has been held: "Conviction in a rape case depends to a large extent upon the credibility of the prosecutrix. There must be some reassuring guarantee that her version is truthful and fully reliable. Her testimony may be sterling variety and unimpeachable character and in such a case, there is no need of corroboration of her testimony and it is in this category of cases that the Supreme Court has held in a catena of cases that corroboration is not a sine qua non for a conviction in a rape case. But in case of a grown up prosecutrix whose testimony suffers from basic infirmities and is not fully reliable, it cannot form the sole basis for conviction. The 'probabilities factor' should not •render her testimony as unworthy of credence. Her evidence must inspire confidence and it should be . fully reliable to dispense with the necessity of corroboration. Seeking corroboration should not be insisted upon as a rule but there are cases, and there can be no straight-jacket formula for every case. It is necessary for the Court to evaluate, scrutinise and weigh the evidence of the prosecutrix in right perspective. The beacon light is furnished by the caveat in Gurmit Singh's case (State of Punjab v. Gurmii Singh [AIR 1996 SC 1993]): 'Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty? The Court must deal rape cases with utmost sensitivity, taking every precaution that an innocent person is not punished in a zeal to deal with such cases with a stern hand. The evidence must be appreciated in the totality of the background of the entire case and not in isolation'. There can be no conviction if the circumstances as a whole indicate that no reliance can be placed upon the testimony of the prosecutrix." 5. The prosecutrix (PW 1), in cross-examination, has admitted that her brother Anish is an accused of committing murder of his father and mother. There can be no conviction if the circumstances as a whole indicate that no reliance can be placed upon the testimony of the prosecutrix." 5. The prosecutrix (PW 1), in cross-examination, has admitted that her brother Anish is an accused of committing murder of his father and mother. At about 6 p.m. she had been to village Kakadkheda to meet Ibrahim Bhai to inform that he has been called by the said accused languishing in jail at Bhopal. Thereafter she had been to the grocery shop where appellants associated her. On the way at about 8 p.m., appellants subjected her to sexual assault-rape. Near the Nala appellants dragged her to the adjacent field and forcibly made her to lie. Thereafter appellant Shanu removed her salwar and forcibly committed sexual intercourse with the assistance of appellant Aslam. Appellant Aslam committed sexual intercourse with her with the assistance of appellant Shanu. Thereafter she was deserted. On return, she narrated the incident to her mother Ajija Khatam (PW 5). The prosecutrix (PW 1) and PW 5 Ajija Khatam have admitted that one Ramgopal was present at their residence. There is nothing in the statements of these witnesses that prosecutrix ( PW 1) narrated the incident to said Ramgopal also. Prosecutrix (PW 1) did not apprise any other person of village Kakadkheda that she was subjected to rape by the appellants. Admittedly, appellants are neighbourers of prosecutrix (PW 1). She did not apprise any of the family members of these boys that on way they had subjected her to sexual intercourse-assault-rape. 5A. Report (Ex. P-3) was lodged next day on 6.3.2003 at about 10:15 a.m. She was sent to the hospital for medical examination. P.W. 2 Dr. Ruhi Sadana, on examination, did not find mark of external-internal injury on any part of her body. It is contended that appellants, 2 in number, manhandled the prosecutrix in the field and forcibly committed sexual intercourse, in the circumstances mark of violence must have been present on the body of the prosecutrix. Absence of mark of violence on any part of the body makes the statement of the prosecutrix a little bit suspicious. PW 2 Dr. Ruhi Sadana, in her report (Ex. P-6), has recorded a note that clothes worn by the prosecutrix during the incident have been changed. As such were not retained for further action. Absence of mark of violence on any part of the body makes the statement of the prosecutrix a little bit suspicious. PW 2 Dr. Ruhi Sadana, in her report (Ex. P-6), has recorded a note that clothes worn by the prosecutrix during the incident have been changed. As such were not retained for further action. Two slides of vaginal secretion were prepared, sealed and handed over to the police. These articles vide memo dated 8.4.2003 (Ex. P-4) were sent to the FSL. PW 6 O.N. Dwivedi, SI, in cross-examination has admitted that the articles were sent. However, report of the FSL has not been produced during trial. 5B. Prosecutrix (PW 1), filing IAS No.1221 and 1222 of 2004 in this Court, has submitted: "The complainant (she) and accused persons have amicably settled the disputed the complainant (she) does not wish to prosecute the matter any more. The complainant (she) does not want to prosecute the matter any more and as such files these applications for recording compromise." 6. DW 1 Banne Khan, maternal uncle of appellant Aslam, has stated that the prosecutrix (PW 1) had borrowed the money from his sister, i.e., mother of appellant. Since mother of appellant Aslam was demanding the money, prosecutrix (PW 1) threatened to the effect that her son (appellant) shall be falsely implicated in any criminal case. DW 2 Raees has stated that agricultural land of father of appellant Shanu is adjacent to the land of prosecutrix (PW 1). There had been a dispute between the father of appellant Shanu and the family members of the prosecutrix (PW 1). On the date of alleged incident, appellants were aged 18 years. It is contended that statement of prosecutrix (PW 1) is highly unbelievable that at about 6 a.m. she could have been to the house of Ibrahim Bhai. As stated, at about 7:30-8 p.m. she intended to return to village Kakadkheda tram the grocery shop. Having been manhandled and dragged into the field, no marks of external injury have been caused to her. As stated, she was subjected to rape by appellants. However, no mark of external injury on any part of vagina was seen at the time of medical examination. FSL report in relation to vaginal slides also has not been tendered in evidence. 7. From the aforesaid, it would be unsafe, to act on the sole testimony of prosecutrix (PW 1). As stated, she was subjected to rape by appellants. However, no mark of external injury on any part of vagina was seen at the time of medical examination. FSL report in relation to vaginal slides also has not been tendered in evidence. 7. From the aforesaid, it would be unsafe, to act on the sole testimony of prosecutrix (PW 1). Her testimony alone seems to be highly unbelievable and has not been corroborated on any point from any other piece of evidence. Relying on the aforesaid sale testimony of the prosecutrix (PW 1), the Court below erred in recording conviction of appellants undersection 376 (2) (g) of the IPC. 8. Consequently, the appeal is allowed. Setting aside the conviction-sentence passed by the Court below vide impugned judgment in ST No. 82/03, appellants stand acquitted of the charge under section 376 (2) (g) of the IPC. They be set at liberty at once.