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Madhya Pradesh High Court · body

2006 DIGILAW 1257 (MP)

Jagdish Gir v. State of M. P.

2006-11-08

RAKESH CHANDRA MISHRA

body2006
JUDGMENT 1. This appeal is preferred against the judgment dated 31.1.1991 passed by the Sessions Judge, Khandwa in Sessions Trial No.45/1989, whereby the appellant was convicted under section 376 of the IPC and sentenced to undergo RI for a period of seven years and to pay a fine of Rs. 200/- and, in default, to further undergo RI for one month. 2. The prosecution story, in short, may be narrated as under:- (a) On 13.2.1989 at about 4:30 p.m. in village Ghoghalgaon, the appellant, a milk vendor residing in front, had gone to the house of the prosecutrix to recover an amount of Rs. 3/- due as price of milk supplied. Although, he was asked to stay for a while yet, he went back to his house and standing at the door thereof insisted that she should pay the money by coming there only. However, when the prosecutrix along with her one year old son reached his house, the appellant being a well built man, dragged her inside by catching hold of her hand, on being resisted slapped her, closed the door from inside, taped a piece of cloth on to her mouth and another to that of her son and also separated him from her. Then, he threw the prosecutrix on the ground and forcibly committed sexual intercourse with her. Thereafter, he removed the cloth from the mouth of the prosecutrix and asked her not to tell about the incident to anybody else. However, immediately after coming out of the house of the appellant, the prosecutrix started crying and narrated the cincident to Ramlal (DW 1), who was residing in the neighbourhood, her mother-in-law Neelabai (PW 4) and husband Jhavar Puri (PW 3). (b) It was on the report lodged by the prosecutrix that a case under sections 376 and 342 of the IPC was registered against the appellant. She was sent for medical examination to the District Hospital Khandwa. In view of the fact that the prosecutrix was a married woman aged about 25 years, who already had two vaginal deliveries, Dr. Smt. M. Ubeja (PW 5) expressed inability to give any definite opinion as to the commission of rape on the basis of physical examination only. However, the Lady Doctor prepared two slides from the vulva and posterior for-nix, cut pubic hair of the prosecutrix and preserved the same along with her yellow petticoat for chemical analysis. Smt. M. Ubeja (PW 5) expressed inability to give any definite opinion as to the commission of rape on the basis of physical examination only. However, the Lady Doctor prepared two slides from the vulva and posterior for-nix, cut pubic hair of the prosecutrix and preserved the same along with her yellow petticoat for chemical analysis. These exhibits were sent to Forensic Science Laboratory, Sagar where it was found that the petticoat and the slides contained seminal stains and human spermatozoa. (c) The appellant was arrested on 22.2.1989 and was also subjected to medical examination. Dr. Suresh Raka (PW7) found him capable for performing sexual intercourse. (d) After due investigation, charge sheet for the offences punishable under sections 376 and 342 was presented against the appellant in the Court of CJM, Khandwa, who committed the case to the Court of Sessions for trial. 3. On being charged with the offence of rape only, the appellant abjured the guilt and pleaded false implication. From the suggestions made to the prosecutrix (PW 1), it was made to appear that she was compelled to lodge a false report against the appellant by her husband, who was entertaining a suspicion as to existence of an immoral relationship between the two. 4. To bring home the charge, as many as seven witnesses including the prosecutrix (PW 1), her husband Jhavar Puri (PW 3) and mother-in-law Neela Bai (PW 4) were examined by the prosecution. One of its witnesses namely Ramlal (DW 1), was also produced by the appellant to prove his innocence. Interestingly enough, his cross-examination with reference to his previous statement to police (Ex. P-10), that could not be used to confront him, was also permitted (Laxman Kalu Nikallo v. State of Maharashtra [ AIR 1968 SC 1390 ] referred to). 5. According to the version of the prosecution, the incident of rape had allegedly taken place on 13.2.1989 at about 4:30 p.m. and the FIR (Ex. P-1) was lodged on 14.2.1989 at 7:45 a.m. at the police station which was situated at a distance of 14 km. from the place of occurrence. On being asked to explain the delay, the prosecutrix (PW 1) stated that the matter was reported by her husband and brother-in-law to police in the night following the occurrence but, in turn, they were directed to bring her for lodging the report. from the place of occurrence. On being asked to explain the delay, the prosecutrix (PW 1) stated that the matter was reported by her husband and brother-in-law to police in the night following the occurrence but, in turn, they were directed to bring her for lodging the report. But, this explanation was categorically refuted by the Head Constable (Moharrir) Deo Pratap Singh (PW 2). However, it is well settled that in a case of rape, the delay in lodging the FIR, by itself, cannot be fatal to the prosecution and the weight to be attached to such a delay will depend on other facts and circumstances of the case. 6. Even though, the prosecutrix (PW 1) substantially reiterated the allegations as recorded in her FIR (Ex. P-l) by the Head Constable Deo Pratap Singh (PW 2) nearly 15 hours after the alleged sexual assault, yet her testimony does not inspire confidence in the light of the following admitted facts brought on record: (i) Had she raised any alarm while being dragged inside by the appellant, persons residing in the vicinity would have come there as the house of the appellant, as shown in the spot map (Ex. P-2) prepared by the Investigating Officer Shambhu Singh Udawat (PW 6), was situated in the middle of the village. (ii) Admittedly, she did not make any hue and cry in the house of the appellant even after the cloth placed over her mouth was removed. (iii) After being subjected to the alleged sexual assault, she made her exit not through the main door of the appellant's house. As per her statement, she was required to scale the common wall situated between the house of the appellant and the adjacent Dhaba, run by his aunt Neelabai, who was not present at the relevant point of time, and to climb down scaffolding on the other side to effect her departure through the entrance of the Dhaba. 7. Another significant admission was made by Jhavar Puri (PW 3), the husband of the prosecutrix that on return from his work he was informed by a cousin of the appellant namely Om Gir, that the prosecutrix was inside the house of the appellant. According to him, while proceeding towards the house of the appellant, he saw the prosecutrix coming from the opposite direction and screaming that she was caught by the appellant. According to him, while proceeding towards the house of the appellant, he saw the prosecutrix coming from the opposite direction and screaming that she was caught by the appellant. He further stated that the prosecutrix narrated the incident to him on the way only. However, in the FIR (Ex. P-1), it was specifically mentioned that the misdeed of the appellant was described by the prosecutrix to her husband at their residence. This apart, his assertion that he had noticed a bleeding injury caused by broken bangle on one of the hands of his wife was also not corroborated by Dr. Smt. M. Ubeja (PW 5). According to her, only one abrasion, that could be caused due to fall on a rough surface, was found on the right thumb of the prosecutrix. However, it was not the case of the prosecutrix that the abrasion was sustained during the alleged sexual assault. But, in the circumstances as aforesaid, absence of any other injury on the body or private parts of the prosecutrix was not of much significance as she was a married lady who already had two vaginal deliveries. Further, the factum of sexual intercourse with her was duly confirmed by the report of FSL (Ex. P-9) indicating presence of seminal stains and human spermatozoa not only on the petticoat but also on the slides prepared by the lady doctor. 8. It is relevant to note that at the time of alleged rape, the prosecutrix was a married woman aged 25 years, whereas the age of the appellant as shown in the arrest memo (Ex. P-5) was only 21 years on the date of incident. However, the appellant did not dispute that he could be arrested on 22.2.1989 i.e. 7 days after the incident. Further, the opinion of Dr. Suresh Raka (PW 7) that he was capable for performing sexual intercourse was also not challenged. 9. Neelabai (PW 4), the mother-in-law of the prosecutrix, did support the fact that she had narrated the incident soon thereafter. However, Ramlal (DW 1), the other witness named in the FIR (Ex. P-1), with a view to proving the aforesaid item of evidence, admissible under sections 8 and 157 of the Evidence Act, deposed otherwise. According to this witness, he had seen the husband of the prosecutrix beating her and instigating her to make a false report against the appellant. 10. P-1), with a view to proving the aforesaid item of evidence, admissible under sections 8 and 157 of the Evidence Act, deposed otherwise. According to this witness, he had seen the husband of the prosecutrix beating her and instigating her to make a false report against the appellant. 10. The proposition of law that the victim of rape cannot be treated as an accomplice and therefore, no corroboration is necessary to act upon her evidence, is well settled. It is also true that a married woman, ordinarily, would not come forward to make a false charge of rape as it involves risk of losing love and respect of her own husband. For this, reference may be made to the decision of Hon'ble the apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujrat [ AIR 1983 SC 753 ]. As explained further, discrepancies, which do not go to the root of the matter and shake the basic version of the witnesses, cannot be annexed with undue importance; more so, when the all important "probabilities factor' echoes in favour of the version narrated by the witnesses. 11. Having regard to the entire evidence on record, the learned Sessions Judge did not commit any error in holding that the prosecutrix was subjected to sexual intercourse by the appellant. However, in view of an apparently unnatural conduct of the prosecutrix, the surrounding circumstances and the contradictions on material points, as highlighted above, it was not possible to rule out the probability that the intercourse was performed with her consent only. In other words, testimony of the prosecutrix on the - point of consent was not only unworthy of credit, but was also not in accordance with the probability factor. 12. Thus, in the facts and circumstances of the case, even after ignoring the delay in lodging the FIR, no implicit reliance could be placed upon the evidence of prosecutrix on the question of consent. The appellant, therefore, was entitled to benefit of doubt (Mohanlal v. State of Rajasthan [2003 SCC (Cri) 1383] relied on). Accordingly, the impugned conviction, recorded by the learned Sessions Judge cannot be upheld. 13. In the result, the appeal is allowed, the conviction under challenge of the appellant for the offence punishable under section 376 of the IPC and the consequent sentences passed against him are hereby set aside. Instead, he is acquitted of the offence. Accordingly, the impugned conviction, recorded by the learned Sessions Judge cannot be upheld. 13. In the result, the appeal is allowed, the conviction under challenge of the appellant for the offence punishable under section 376 of the IPC and the consequent sentences passed against him are hereby set aside. Instead, he is acquitted of the offence. His bail bonds stand discharged. The amount of fine, if recovered, be returned to the appellant.