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Madhya Pradesh High Court · body

2006 DIGILAW 118 (MP)

Kailash v. State of M. P.

2006-01-19

RAKESH SAKSENA

body2006
JUDGMENT 1. Appellants have filed this appeal against the judgment dated 6.8.2004 passed by the Sessions Judge, Katni, in Sessions Trial No. 197 of 2002 convicting the appellants for the offence under section 376 (2) (g) of IPC and sentencing them to rigorous imprisonment for ten years and fine of Rs. 2.000/- each, in default of payment of fine rigorous imprisonment for three months. 2. In short, the prosecution story is that the prosecutrix, who was working as Assistant in Aanganbadi in village Badagaon, had gone to attend the pulse polio meeting on 18.9.2002, at P.H.C. Barhi. After the meeting she boarded the Katni Bus and alighted on way for going to Kuthia Mehgavan for hearing Ralllsita Bhajall. When she was standing at about 5.30 p.m., appellants came there on a motor cycle and offered her lift. which she accepted as they were known to her. After crossing the railway line accused Dinesh Jain turned motorcycle towards forest and stopped it and thereafter both the appellants after pressing her mouth lifted and took her in the forest whore appellant Kailash removed her underwear and committed rape on her first and thereafter he pressed her mouth and appellant Dinesh committed rape. Prosecutrix resisted the act of appellants. In the scuffle the belt of one of the accused got broken and came to her hands. Her bangles and necklace also got broken. Her underwear also remained at the spot. After the occurrence she went to Police Station Barhi on foot and lodged the report (Ex. P/4) at 2.45 a.m. on 19.9.2002. Prosecutrix was sent to Govt. Hospital, Katni, where Dr. Sunita Verma (PW 9) performed her medical examination. During investigation, at the instance of prosecutrix spot map (Ex. P/3) was prepared and vide seizure memo (Ex. PI2) pieces of ragzine-belt, broken bangles, broken necklace, a Bindi and an underwear were seized from the spot. Petticoat worn by the prosecutrix was also seized by doctor. Petticoat, slide of vaginal swab and underwears of appellants, seized from them on their arrest, were sent to FS.L. Sagar. After further requisite investigation the charge sheet was filed and the case was then committed for the trial. 3. Learned trial Court framed the charge under section 376 (2) (g) read with section 34 of IPC against the appellants. Appellants abjured the guilt and pleaded false implication. After further requisite investigation the charge sheet was filed and the case was then committed for the trial. 3. Learned trial Court framed the charge under section 376 (2) (g) read with section 34 of IPC against the appellants. Appellants abjured the guilt and pleaded false implication. According to them, the prosecutrix was not a woman of good character. Her husband had abandoned her and lived at Allahabad. Appellant Kailash happened to be the Sarpanch of the village and had political rivalry with Rajesh Singh, Panch. Rajesh Singh entertained serious grudge against Kailash as well as against appellant Dinesh as he happened to be the close friend of him and helped him in all affairs. It was also stated in the statement under section 313, CrPC that on the day of alleged incident there was Barsi of the aunt of the appellant Kailash and he was busy in the ceremony and feast for whole of the day. 4. Prosecution, to substantiate its case, examined 12 witnesses. Appellants in their defence also examined three witnesses. 5. Learned trial Court relying upon the prosecution evidence held the appellants guilty and convicted and sentenced them as mentioned above. 6. Learned counsel for the appellants, Shri S.S. Tiwari, submitted that both the appellants are respected persons of the village. Appellant Kailash is a Sarpanch and appellant Dinesh is a doctor. Since, they happened to be the close friends of each other and appellant Dinesh and his father lived in the house of Kailash and Dinesh supported Kailash in political affairs also, both of them were falsely implicated on the move of Rajesh Singh, Panch, who had affairs with prosecutrix. He submitted that the prosecution story was unnatural and the evidence of prosecutrix was not corroborated by the medical evidence and the FSL report. Though it was stated by the prosecutrix that she had suffered injuries by broking of bangles and on her hips and legs but no such injuries were found by the doctor on her medical examination. No spermatozoa were detected in the slide of vaginal swab. He submitted that except the lodging of the first information report there is no evidence that prosecutrix narrated the incident to any other person including her Jeth and Jethani, with whom she lived. No spermatozoa were detected in the slide of vaginal swab. He submitted that except the lodging of the first information report there is no evidence that prosecutrix narrated the incident to any other person including her Jeth and Jethani, with whom she lived. He submitted that it was doubtful that any incident had occurred near the way to village Kuthia, as it is not proved that there was any meeting at P.H.C. Barhi about the pulse polio and that there was any Bhajan Kirtan programme at village Kuthia Mehgavan. 7. Per contra, learned counsel for the State Shri T.K. Modh submitted that the evidence of prosecutrix was fully reliable as it was corroborated by the first information report lodged by her soon after the occurrence at about 2.45 a.m in the morning and by the medical examination report wherein injuries were found on the hands and back of the prosecutrix. He submitted that the prosecution story was further corroborated by the spot map and the articles recovered from the spot. According to him, it cannot be expected from a lady to put her prestige at stake merely on saying of any other person, therefore, the finding of conviction recorded by the Court below is justified. 8. On perusal of the evidence of prosecutrix (PW 10) it is seen that she deposed that when the appellants had stopped the motorcycle on the pretext of going for urination and she was sitting there, then both the accused had lifted and taken her towards the bushes where Kailash removed her underwear and threw it away and forcibly committed sexual intercourse with her. At that time Dr. Dinesh Jain had pressed her mouth and thereafter Kailash pressed her mouth and Dr. Jain committed the intercourse. According to her, she had resisted and in that course she had scratched on the face of Dr. Jain. She deposed that when she was dragged, she had suffered injuries on her legs and as at the time of occurrence there was no cloth beneath her, she had suffered injuries on her hips and legs also, which she had pointed out to lady doctor who examined her. She deposed that her bangles had also got broken. When we examine the evidence of Dr. She deposed that her bangles had also got broken. When we examine the evidence of Dr. Sunita Verma (PW 9) who examined injuries of prosecutrix, it is found that the prosecutrix though had some superficial abrasions on her back and abdomen and a contusion on left thigh, yet no injury was found on her wrists and legs. In the opinion of the doctor, no definite opinion could be given about the rape since two fingers entered the vagina of the prosecutrix. On appreciation of the evidence of prosecutrix in the light of medical evidence it appears doubtful that forcible sexual intercourse was committed with her. Though it is said that in the resistance glass bangles were broken, but no injuries were found on her forearms and no corresponding injuries or dragging marks were found on her legs and hips. 9. Another important aspect of the case is about the absence of spermatozoa in slides prepared by the doctor of the vaginal swab of the prosecutrix. According to FSL report (Ex. P/12-A), no spermatozoa were detected in the slide which was marked as 'B'. When the prosecution story is that two persons had committed sexual intercourse with the prosecutrix and had ejaculated, then it was highly unnatural and improbable that the sperms would not have been found in the vaginal swab. It is not a case where the slides were prepared after inordinate delay after the occurrence. The incident had occurred in the night of 18.9.2002 and prosecutrix was examined on 19.9.2002 around 1 p.m. by the doctor. Learned counsel for the State has drawn my attention to the case of Prithi Chand v. State of H.P. [ AIR 1989 SC 702 ] wherein the apex Court held that mere absence of spermatozoa cannot cast doubt on the correctness of the prosecution case. With due respect and regard to the above precedent. I am of the opinion that the facts and circumstances of the present case are totally different from the above case. In Prithi Chand's case (supra) the age of the prosecutrix was around 11-12 years and according to medical evidence, she had not developed secondary sex characters. Doctor had found sings of inflammation around vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tenderness all around. In Prithi Chand's case (supra) the age of the prosecutrix was around 11-12 years and according to medical evidence, she had not developed secondary sex characters. Doctor had found sings of inflammation around vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tenderness all around. The hymen was bleeding on touch and vagina admitted one finger with difficulty and apart from the medical evidence the Court had found strong reliable and dependable evidence of the prosecution witnesses, which clearly proved that the prosecutrix was raped by the accused. In the present case, allegation is that the rape was committed by two persons and no definite opinion about rape could be given by doctor. In such circumstances the absence of spermatozoa in the slide cast a serious doubt on the veracity of the testimony of prosecutrix. 10. Besides that, the story given by the prosecutrix that she was returning after attending the pulse polio meeting from PHC, Barhi, has been contradicted by Dr. Raj Kumar Jain (PW 8), who in para 6 of his statement deposed that on 18.9.2002 there was no meeting pertaining to pulse polio on 18.9.2002. Dr. Jain (PW 8) had also medically examined the accused persons. On examination he did not find any external injury on the body of Dinesh whereas, according to prosecutrix, with her free hand she had scratched on the face of Dr. Dinesh. There is no evidence that the accused had assaulted or threatened the prosecutrix in any manner. According to the prosecutrix, only her mouth was pressed by accused persons, her hands and legs were free. In such circumstances, had the incident occurred as described by the prosecutrix, he would have rendered the attempt of rape futile or at least some injuries would have been received by the accused persons also. 11. The defence of the appellants is that they have been falsely implicated on the move of Rajesh Singh, who is Panch in the village panchayat Kailash happened to be the Sarpanch and Rajesh Singh wanted to remove him from the post of Sarpanch. He promoted the prosecutrix to make false allegation of rape against him and his close friend co-accused Dinesh, who always stood beside him. He promoted the prosecutrix to make false allegation of rape against him and his close friend co-accused Dinesh, who always stood beside him. In this light if we examine the evidence of DW 1 Santosh Kumar Tiwari, he has deposed that appellant Kailash is Sarpanch of the village and Dinesh and his father lived in the house of Kailash. He deposed that Rajesh Singh had contested the election of Panch and in order of bring Sarpanch of his party, worked against Kailash, who was Sarpanch. There was long standing political rivalry and enmity between Kailash and Rajesh Singh and their fathers. He deposed that Rajesh was very close to prosecutrix and used to move frequently with her. It is also deposed that on 18.9.2002 there had been barsi of the aunt of Kailash and Kailash was busy in the rituals for whole of the day till 9.00 p.m. 12. Learned counsel for the appellants pointed out that the accused were arrested on 19.9.2002 itself. Had they been involved in the offence, they would have not remained available to police on the very next day. DW 2 Gaya Prasad and DW 3 Rajesh Kumar Garg, who are residents of village Kuthia Mehgavan, have deposed that there was no ritual celebration in village on 18.9.2002. Their evidence appears to be natural. On due appreciation of evidence of Dr. Rajesh Kumar Jain (PW 8), to the effect that there was no pulse polio meeting on 18.9.2002 at P.H.C. Barhi and the evidence of DW 2 Gaya Prasad and DW 3 Rajesh Kumar that there was no religious programme in village Kuthia Mehgavan on that day it appears that there was no occasion for the prosecutrix to have gone in Katni Bus and alighted near bifurcation leading to village Kuthia Mehgavan, where she would have been given lift by the accused persons. 13. It is also important to note that, though according to prosecutrix, before the rape was committed, her underwear was removed and thrown away by accused Kailash and the same was seized by the police on the next day from the spot itself, yet, according to F.S.L. report (Ex. PIl2-A), human spermatozoa were found on it. This makes the testimony of prosecutrix still more suspicious. When the aforesaid underwear was not on the body of prosecutrix or worn by her after the occurrence, how' the sperms were found on underwear. PIl2-A), human spermatozoa were found on it. This makes the testimony of prosecutrix still more suspicious. When the aforesaid underwear was not on the body of prosecutrix or worn by her after the occurrence, how' the sperms were found on underwear. So far as the presence of sperms on the petticoat of the prosecutrix is concerned, it is also suspicious. In para 23 of her statement the prosecutrix deposed that she had changed her petticoat at the police station itself and it was handed over to constable, who had handed it over to doctor, whereas Dr. Sunita Verma (PW 9), who examined the prosecutrix, deposed that she had herself seized the petticoat after getting it removed from the body of prosecutrix at the hospital. She denied that petticoat was handed over to her by the police. In such circumstances the seizure of petticoat and presence of sperms on the same is doubtful. 14. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove its case beyond the reasonable doubt. Hence, the conviction of the appellants deserves to be set aside. 15. In the result, the appeal is allowed. The conviction of appellants is set aside and they are acquitted. They be released, if not required in any other case.