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Madhya Pradesh High Court · body

2006 DIGILAW 116 (MP)

Rambharosa v. State of M. P.

2006-01-19

S.A.NAQVI

body2006
JUDGMENT 1. This appeal is preferred against judgment dated 14.5.1999 passed by II ASJ, Ashoknagar, in Sessions Trial No. 380 of 1998 whereby appellant Rambharosa has been convicted and sentenced to seven years' RI and fine of Rs. 5,000/- (Rupees five thousand only) in default, one month's RI and appellant Lalu has been convicted under section 376 read with section 34 of IPC and sentenced to seven years' RI and in default, further sentence of one year's RI. 2. As per prosecution, on 19.4.1998, at about 8 p.m. Guddibai was in her khalihan. Appellant Rambharosa and Lalu came there and caught hold of Guddibai. When she tried to raise alarm, appellant Rambharosa gagged her mouth and committed rape on her. Pinki cried, then Guddi's brother and father came there and appellants ran away. Guddibai became unconscious on the spot. Later on, first information report Ex. P-1 was lodged in police station. Guddibai was medically examined and after completion of investigation, charge-sheet under sections 376, 323 and 506B read with section 34 of IPC has been filed. The case was committed to the Court of Sessions. Appellants were charged under sections 376, 323 and 506B/34 of IPC. After completion of trial, appellant Rambharosa was convicted under section 376 and appellant Lalu was convicted under section 376 read with section 34 of IPC and sentenced as aforesaid. Against impugned judgment, appellants have filed this appeal. 3. It has been argued by learned counsel for the appellants that there is no evidence against appellants. All material witnesses of the prosecution have turned hostile. None deposed regarding rape or criminal intimidation against appellants. Impugned judgment is passed only on first information report and statements recorded under section 161 of CrPC. First information report and statements recorded under section 161 of CrPC are not substantial evidence and conviction cannot be based only on the basis of first information report and her statement. Learned trial Court committed illegality and therefore, findings of conviction recorded by it are perverse. Hence, judgment of conviction passed by learned trial Court be set aside with sentence as well. 4. Learned Public Prosecutor, on the other hand, has supported the impugned judgment and requested to dismiss the appeal. 5. Learned trial Court committed illegality and therefore, findings of conviction recorded by it are perverse. Hence, judgment of conviction passed by learned trial Court be set aside with sentence as well. 4. Learned Public Prosecutor, on the other hand, has supported the impugned judgment and requested to dismiss the appeal. 5. Appellants were charged under sections 376, 323 and 506B read with section 34 of IPC regarding commission of rape on Guddibai (PW l), causing simple hurt to her and criminal intimidation to the prosecutrix but Guddibai (PW l) and material witnesses Bhureram (PW 2), Niranjan Singh (PW 3), Bhaiyalal (PW 4), Lallu (PW 5) and Pinki (PW 9) turned hostile. In their deposition, they did not support prosecution version. Even Guddi (PW l) denied that appellants raped her, caused to her simple injury and criminally intimidated her. She stated in her examination-in-chief that at the time of incident, she was in khalihan and some unknown persons came from behind and assaulted her by stone and she became unconscious. When she became conscious in Kachnar Police Station, her father told her that they brought her from khalihan. There is no iota of evidence against appellants regarding charges levelled against them. 6. Learned trial Court also observed that all the witnesses including Guddibai (PW l) turned hostile and she has not deposed against appellants, but in para 15 of the judgment, it has been observed by the trial Court that looking to the circumstances of the case and evidence of Guddi, offence under section 376 of IPC against appellant Rambharosa and offence under section 376 read with section 34 of IPC against appellant Lalu has been proved. But what circumstances transpired learned trial Court to convict appellants have not been mentioned clearly in the impugned judgment. 7. On going through the documentary evidence and oral evidence on record, there appears no circumstance which leads to the conviction of appellants under section 376 of IPC or under section 376 read with section 34 of IPC. It appears that learned trial Court relied upon first information report Ex.P-l, statement of Guddi EX.P-3 recorded under section 161 of and CrPC convicted appellants and sentenced them as aforesaid. 8. It is settled law that first information report and statement recorded under section 161 of CrPC are not substantial pieces of evidence and only on the basis of these documents, conviction cannot be based. 8. It is settled law that first information report and statement recorded under section 161 of CrPC are not substantial pieces of evidence and only on the basis of these documents, conviction cannot be based. In a case reported in Vijendra v. State of Delhi [ (1997)6 SCC 171 ], apex Court also held that statement made before police officer during investigation cannot be used for any purpose except under section 27 or 32(1) of the Evidence Act. However, such a statement will be used to contradict the maker thereof in accordance with section 145 of Evidence Act. Conviction should be based solely on the evidence recorded during trial. In the recent judgment of this Court reported in Ashok and others v. State of MP. [ 2005(1) JLJ 258 = 2005(2) MPHT 262 ], it has been held that trial Court used inadmissible evidence to prove prosecution case, statements recorded under section 161 and 164 of CrPC are not admissible in enquiry or trial or for corroboration of evidence of witnesses in the Court. Provision of section 162 of CrPC is a valuable safeguard to accused. So it is crystal clear that the conviction cannot be based on the statement recorded under section 161 of CrPC as well as on first information report because first information report is also not substantive piece of evidence. It can be used only for corroboration of statement of witnesses recorded during trial, omission and contradiction. 9. On going through the evidence adduced by the prosecution, it appears that there is no evidence against appellants-accused of their involvement in the offence of rape. The prosecution has miserably failed to prove offence under section 376 of IPC against appellant Rambharosa and offence under section 376 read with section 34 of IPC against appellant Lalu. So, learned trial Court committed grave illegality in convicting appellants. The finding of trial Court is perverse. This appeal deserves to be allowed. 10. Consequently, appeal is allowed, impugned judgment dated 14.5.1999 is hereby set aside and appellant Rambharosa is acquitted from the offence punishable under section 376 of IPC and appellant Lalu is acquitted from the offence punishable under section 376 read with section 34 of IPC. Fine deposited by the appellants be refunded. Their bail bonds are cancelled.