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Madhya Pradesh High Court · body

2007 DIGILAW 446 (MP)

Vijay Singh v. State of M. P.

2007-04-12

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 30.8.2000 passed by Sessions Judge, Vidisha in ST No. 79/2000, by which the appellants have been convicted under section 450 of IPC and sentenced to undergo rigorous imprisonment for five years each with a fine of Rs. 500/- each. They have further been convicted under section 376 (2) (g) of IPC and sentenced to undergo rigorous imprisonment for ten years each with a fine of Rs. 500/- each with default stipulations. 2. In short, the story of the prosecution is that on 8.1.2000 at about 01 :00 a.m., when the prosecutrix was in her house and sleeping with her children and when her husband had gone to field, then somebody put her hand and she woke up. She saw that Vijay Singh Dangi was holding her hand and co-appellant Amar Gir was also present. Appellant Vijay pushed her to bed and pressed her mouth and committed sexual intercourse with her. Thereafter, Amar Gir also committed sexual intercourse with her and after completion of the act they threatened her and ran away from the spot. In the morning, at about 07:00 when her husband came from the field, then she informed about the incident to her husband and to Dhannalal and Parmanand. Then she went to the police station and lodged the report. Thereafter, the prosecutrix and both the appellants were examined by the doctor. After investigation, charge-sheet was filed. 3. The findings of conviction and sentence of the trial Court have been challenged by the learned counsel for the appellants on the ground that no offence is made out against the appellant Amar Gir. Regarding Vijay Singh, it is argued that either it is a case of consent or her has falsely been implicated as the husband of the prosecutrix had taken loan from appellant Vijay Singh and due to this he was falsely implicated by the prosecutrix. 4. Prosecution has examined, in all, seven witnesses. Out of which (PW 1) is the prosecutrix. Shivraj (PW 2) is the husband of the prosecutrix. Parman and (PW 3) is the person to whom the prosecutrix disclosed the incident. Rajkumar Sahu (PW 4), Husen Singh (PW 5) and S.K. Dashrath (PW 6) are the seizure witnesses while R.C. Aacharya (PW 7) is the Investigating Officer. 5. Out of which (PW 1) is the prosecutrix. Shivraj (PW 2) is the husband of the prosecutrix. Parman and (PW 3) is the person to whom the prosecutrix disclosed the incident. Rajkumar Sahu (PW 4), Husen Singh (PW 5) and S.K. Dashrath (PW 6) are the seizure witnesses while R.C. Aacharya (PW 7) is the Investigating Officer. 5. Prosecutrix (PW 1) stated that in the night both the appellants came in her house and threatened that if she cries then they shall press the throat of her daughter and caught her hand due to which her bangles were broken. Appellant Vijay Singh committed sexual intercourse with her. Thereafter, the same act was repeated by the appellant Amar Gir. She has stated that the act was not committed with her consent. Appellants threatened her not to report and ran away. In the morning, when her husband came from the field then she disclosed the incident to her husband and also called appellant Vijay Singh and informed that she is going to lodge the report. Then she went to the police station alongwith her husband and lodged the report which is Ex. P-l. She was sent to the hospital and police came to the village and collected the broken bangles and also prepared spot map. In cross examination para 7, she admits that last year, her husband had given his field to Vijay Singh on "Batai" and he had taken Rs. 10,000/- from the appellant Vijay Singh without any interest. When the report was lodged, at that time, the amount was not returned to the appellant Vijay Singh. In para 8, she stated that her marriage had taken place 20 years back. Her youngest daughter who was sleeping with her was aged about three years. She has also five sons. The eldest son is aged about 17 to 18 years, second son is aged about 16 years, the third is aged about 13 years, fourth is aged about 10-11 years and her fifth son is aged about 8 years. She denied that prior to the report there was any quarrel between the son of Amar Gir to her sons. In para 10, she stated that her children were sleeping in the adjoining room. She denied that prior to the report there was any quarrel between the son of Amar Gir to her sons. In para 10, she stated that her children were sleeping in the adjoining room. She also stated, in para 15, that when the appellant Vijay Singh completed the act she could not try to run away from there and she was sitting there then the appellant Amar Gir also committed the same act with her and, in all, about an hour time was taken. At that time, she had not cried. 6. Shivraj (PW 2) is the husband of the prosecutrix who deposed that at the night he was in the field but in the morning when he returned home, Vijay Singh was in his house, he went for milking the cow. When Vijay Singh returned to his house then his wife [prosecutrix] informed about the incident of night that both of them committed the act with her. Then he replied , "tks gks x;k lks gks x;k jgus nks" Thereafter, when the witness moved towards field then the prosecutrix followed him and asked to come alongwith her to report at Police Station, Pathari. Then, both the prosecutrix and the witness went for lodging the report and there prosecutrix lodged the report. From the police station, she was sent to the hospital for examination. He also admitted that he had taken Rs. 9,000/- from the appellant Vijay Singh and he had not returned the amount. The house of Amar Gir is also adjacent. He has no knowledge that there was any quarrel between his sons with the son of Amar Gir. But the prosecutrix had informed that there was a quarrel between them. 7. Parmanand (PW 3) has not supported the prosecution story and he denied that the prosecutrix had informed anything about the incident and ultimately turned hostile. 8. Rajkumar Sahu (PW 4) is the seizure witness, who put his signature on Ex. P-3, but he denied that anything has been seized in his presence. 9. Husen Singh (PW 5) seized the sealed packet which is Ex. P-4 and S.K. Dashrath (PW 6) proved the seizure memo Ex. P-5 by which the sealed packet and slides were seized from the hospital. 10. P-3, but he denied that anything has been seized in his presence. 9. Husen Singh (PW 5) seized the sealed packet which is Ex. P-4 and S.K. Dashrath (PW 6) proved the seizure memo Ex. P-5 by which the sealed packet and slides were seized from the hospital. 10. The main contention of the learned counsel for the appellants is that the prosecutrix is a grown up lady and her eldest son is aged about 17 to 18 years and she is having five children and all were sleeping in the adjoining room. According to the prosecutrix, both the accused committed the act for about one hour but she had not cried or at the time of act none came from the adjoining room in which grown up children of the prosecutrix were sleeping. 11. The testimony of the prosecutrix shows that she had not made any cry during the act and the conduct of the husband was also very unnatural because he was not interested to lodge the report in the police station. It is also submitted that from the medical report, no mark of violence has been shown on the body of the prosecutrix. If she was subjected to sexual assault by two persons, the injury must be present on her body. Counsel for the appellants, in support of the above contention, relied on State of Rajasthan v. Kishanlal reported in AIR 2002 SC 2250 in which the question of consent has been discussed, in which it is laid down that consent of prosecutrix - prosecutrix not raising alarm on being told by accused that he had come to have sexual intercourse - plea that prosecutrix was threatened with knife - belied by non-recovery of knife from accused statement by prosecutrix that accused had offered her 20/- Rs. for the act - shows intimacy between the parties - unnatural conduct of husband of prosecutrix of first asking prosecutrix if she has called accused and only then catching accused - probabilises the fact that sexual intercourse was by consent - accused liable to be acquitted. He also relied on Dilip and another v. State of M.P. reported in 2001 (2) BLJ 89 = 2001 (4) Crimes 105 (SC). 12. He also relied on Dilip and another v. State of M.P. reported in 2001 (2) BLJ 89 = 2001 (4) Crimes 105 (SC). 12. Counsel for the appellant relied on Bharat Singh S/o Jagannath v. State of M.P. reported in 2006 (2) MPLJ 141 in which it is laid down that explanation of prosecutrix regarding open door of her house does not appear to be true because normally a woman, in absence of her husband, cannot keep the door open for the whole night - on her medical examination no external or internal injury was found - the appellant was seen in the odd hours of night in or near the house of the prosecutrix just to save her chastity, she concocted a case against the appellant and made a complaint to her husband -- the prosecutrix, a married woman aged 35 years would not allow anybody to commit forcible sexual intercourse against her will and consent especially when she was sleeping inside her house with three children - she would not allow a single handed person to ravish her without putting stiffest resistance - on overall assessment of the statement of the prosecutrix and other witness, the prosecution has failed to prove its case beyond all reasonable doubt against the appellant. 13. Lastly, it is submitted by the counsel for the appellant that it was held in Bhujwal v. State of M.P. reported in 1996 (II) MPWN 39 that presumption as to commission of rape on the basis of prosecutrix statement - cannot be drawn when such statement does not inspire confidence. 14. In response to the above submissions, learned counsel for the State submits that the lower Court has considered all the prospects and held that both the appellants had committed sexual intercourse with the prosecutrix. It is also submitted that from the medical report and the report of Forensic Science Laboratory, it is corroborated that she was subjected to sexual assault and also relied on Om Prakash v. State of U.P. reported in (2006) 3 SCC (Cri) 401 in which the testimony of the prosecutrix and its reliability have been discussed. It was held that in normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. It was held that in normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. If a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. 15. Regarding the testimony of the prosecutrix whether corroboration is necessary, it was held by the apex Court in the case of State of M.P. v. Dayal Sahli reported in 2006 (2) JLJ 135 = (2005) 8 SCC 122 that once the statement of the prosecutrix inspires confidence and the same is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix. 16. In this case, if we rely on the testimony of the prosecutrix, it is clear that according to the prosecutrix about one hour took by both the accused in committing the act but during the whole of this period, she did not cry or even try to rescue herself when in the adjoining room her five children were sleeping in the house. The evidence about how the door was opened in the night has also not been clearly explained by the prosecution. Prosecutrix is a grown up lady and there is no mark of violence found on her body when she was subjected to sexual assault by two persons in succession. The conduct of the husband is also very unnatural. He was not interested to lodge the report and why one appellant was called in the morning is also very unnatural. The fact has come that the husband of the prosecutrix had taken Rs. 9,000/- from the appellant Vijay Singh but it was unpaid at the time of incident. 17. Looking to the facts and circumstances of the case, the testimony of the prosecutrix does not inspire confidence, therefore, it was necessary for the prosecution to produce the corroborative evidence but no corroborative evidence has been produced by the prosecution in this case. 9,000/- from the appellant Vijay Singh but it was unpaid at the time of incident. 17. Looking to the facts and circumstances of the case, the testimony of the prosecutrix does not inspire confidence, therefore, it was necessary for the prosecution to produce the corroborative evidence but no corroborative evidence has been produced by the prosecution in this case. Therefore, the above facts and circumstances of the case indicate that the prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. Therefore, the impugned judgment passed by the trial Court is hereby set aside and the appeal is allowed. Bail bonds of the appellants shall stand discharged. If the amount of fine has been realized, it shall be refunded to them.