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Madhya Pradesh High Court · body

2007 DIGILAW 1263 (MP)

State of M. P. v. Babloo and others

2007-12-06

A.K.GOHIL, A.P.SHRIVASTAVA

body2007
JUDGMENT Gohil, J. -- 1. This State appeal is against acquittal of the respondents under section 376 (2) (g) of IPC, read with section 3(2)(v) of the S.C.S.T. (Prevention of Atrocities) Act. The respondents were tried in Special Case No. 282/1997 for the offence under section 376 (2) (g) IPC read with section 3(2)(v) of the S.C.S.T. (Prevention of Atrocities) Act and vide judgment dated 10th August, 1998, the respondents were acquitted. 2. As per prosecution story, complainant is a blind lady. She was residing in the house of Rampyari Bai and used to sleep in the cattle house belonging to that lady. She is a poor lady and she used to pull on her life at the mercy of others. Two there days after Diwali, in the year 1997 when she was sleeping in the cattle house, all the co-respondents came there and the respondents had committed rape with the complainant with the help of Rampyari Bai. When she cried Rampyari Bai stopped her and said that if you will cry or will say to anybody, you will be killed and put to fire. However, the complainant on the basis of their voice identified the persons those who had committed rape with her. They were Neelu, Bablu, Manju and Pappu belonging to the same village, as they were talking with Rampyaribai. Rampyaribai did not allow her to go out from the house. Thereafter, the complainant narrated the story to Sarpanch Imrat Singh and Chaukidar and thereafter on 16.11.1997, Chaukidar informed to Police Station, Gulabganj and FIR was lodged. It was also submitted that earlier also during Navratri period all the four respondents had committed rape with her. But as she was threatened by Rampyari Bai, therefore, she did not lodge the report. Thereafter she was referred for medical examination. The slide of vaginal smear was prepared, sealed and referred to chemical examination. The matter was investigated and charge sheet was filed. The trial Court examined as many as eight witnesses and after considering the prosecution evidence found that the prosecution has failed to establish the allegations and charges levelled against the respondents and acquitted them, against which the State has preferred this appeal against acquittal after obtaining leave. 3. We have heard learned counsel for the parties and perused the evidence on record. 4. 3. We have heard learned counsel for the parties and perused the evidence on record. 4. The trial Court found that the testimony of complainant is not at all reliable and not corroborated and supported by any other evidence and found that though the corroboration and support from other evidence is not necessary, but it was considered that the evidence of the complainant should be of a sterling quality, reliable on the face of it and should inspire confidence. It was found that there was a delayed FIR and it is not supported by medical evidence. Though in the undergarments of the prosecutrix and on the slide of the vaginal human smear were found but the smear found on the slide and of the accused persons were not found sufficient for chemical examination. Therefore there is no evidence that they were matched. Nothing was mentioned in the FIR that earlier also at the time of Navratri, the similar incident was repeated by the respondents. Dr. Aparna Tiwari (PW 6) had not found any injury either on the part of body of the complainant or on the private parts. The prosecutrix is a married woman having six children, therefore, it was not possible for the doctor to give any opinion about the sexual intercourse. The trial Court also found that this fact was also not mentioned in the FIR or in her 161 statement, Ex. D-3 that any tablet was administered to her in the tea by Rampyari Bai so that she became unconscious for the time being and she could not cry because her mouth was pressed by the respondents. 5. As per prosecution story, Rampyari Bai was the co-accused who was helping the respondents and was threatening the complainant but because she died, therefore, charge sheet was not filed against her. The Court found that there are material contradictions and omissions in the statement of the complainant that Rampyari Bai had taken money or Rs. 25/- each from the respondents. The trial Court also found that the complainant has narrated the incident to Munnibai, Ramkobai, Daulatsingh and two women belonging to the house of Jairam but all those were not cited as witnesses by the prosecution. Only Ramkobai was examined as PW 3, who has not supported the prosecution and deposed that the complainant has not narrated any incident to her and she was declared hostile. 6. Only Ramkobai was examined as PW 3, who has not supported the prosecution and deposed that the complainant has not narrated any incident to her and she was declared hostile. 6. On the question of identification of these respondents, as the complainant was a blind lady, naturally she was unable to see them and to identify them, though it was the case of the prosecution that she identified the respondents on the basis of their voice but the trial Court found that neither any identification parade on the ground of voice was conducted nor she could identify any person on the basis of their voices in the Court. The trial Court also found that the complainant was not accustomed from the voices of the respondents as she had not heard their voice earlier before the incident nor there was any occasion to hear their voice, therefore, it was held that in such circumstances it would be very difficult to identify the persons on the basis of their voice as she also could not identify them in the Court. Imrat Singh (PW 2) and Bheeka (PW 1), who is the village Chaukidar, have also not supported the prosecution in the same way as it was before the police. It was submitted that in the village there are two parties, one belongs to Keshav Singh and the other belongs to Khilan Singh and Imrat Singh brought the complainant with a view to falsely implicate the members of opposite party. Therefore, the false implication at the behest of Imrat Singh was not ruled out. 7. We have considered this aspect whether the statement of complainant alone is capable to inspire confidence and is reliable and whether the finding of acquittal can be reversed. It is true that in a offence like rape complainant is not accomplished, therefore, it is not necessary that her evidence should be supported or corroborated by other witnesses or by other evidence, but it is also necessary that her statement should inspire confidence and whatever incident she has narrated should be consistent, whether she is really the victim or was acting at the behest of some other person. As the Court has held that she may be acting at the behest of Imrat Singh (PW 2), who was having enmity with other party, the false implications cannot be ruled out. As the Court has held that she may be acting at the behest of Imrat Singh (PW 2), who was having enmity with other party, the false implications cannot be ruled out. She may be a victim but the question is whether the respondents are the same persons who were involved in the commission of crime, there is no conclusive and positive evidence on record. Simply on the basis of evidence of identification on voice, which is also not proved, the finding of acquittal cannot be reversed. No doubt, evidence of voice identification is a very weak kind of evidence. Unless there is firm and full proof evidence that a person is conversant with the voice of another person, or having constant touch of that voice or capable to recognize a person on the basis of voice, the same cannot be considered as reliable or a strong piece of evidence. Here, in this case the voice was not known to the complainant and she could not recognize the respondents in the Court. 8. In the matter of voice identification in the case of Kirpal Singh v. State of Uttar Pradesh [ AIR 1965 SC 712 ] the Supreme Court has held as under: "The identification of a person by the timbre of his voice depending upon subtle variation in the overtones when the person recognizing is not familiar with the person recognised is risky. But where the accused, the Court further proceeded, was known to the witnesses and for more than a fortnight before the date of occurrence he had met the accused on several occasions and the witnesses had heard the accused and his brothers calling deceased to come out of the hut, the identification of the accused and his brothers by their voice was not improbable. 9. When there is no evidence that the complainant was familiar with the voice of the respondents and she had heard the voice first time on that day and was not frequently hearing their voices, it will not be proper to place reliance on the aforesaid evidence and to reverse the finding of acquittal. 10. Thus, in such circumstance the finding of acquittal cannot be reversed on that kind of evidence. 10. Thus, in such circumstance the finding of acquittal cannot be reversed on that kind of evidence. Therefore, after considering the prosecution evidence on record and looking to various lapses in the prosecution evidence, it appears that the learned Judge has not committed any illegality in acquitting the respondents as there is no clinching, reliable and convincing evidence on record to reverse the finding of acquittal and to convert it into a finding of conviction. There is no eye witness account in the case that the incident was witnessed by anybody on her cries were heard or she left any mark on the body of the respondents which were capable of identifying them. 11. Thus, considering the totality of the facts and circumstances of the case, we are of the view that no case is made out to interfere in this appeal against acquittal. Consequently, the appeal is dismissed.