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Madhya Pradesh High Court · body

2008 DIGILAW 199 (MP)

CHATRA v. STATE OF MP.

2008-02-05

S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) The appellants above named have preferred this appeal against the judgment dated 25.08.94 rendered by the learned Additional Sessions Judge, Garoth District Mandsaur in S.T. No. 76/91 thereby convicting all the appellants under section 366 of the Indian Penal Code and appellant No. 1 Chatra also under section 376 of the Indian Penal Code and sentencing them each to undergo R.I. for three years with fine of Rs. 100/-, in default of payment of fine to suffer S.I. for one month under section 366. of the Indian Penal Code and further the appellant No. 1 Chatra to undergo R.I. for seven years and to pay a fine of Rs. 100/-, in default of payment of fine to suffer additional S.I. for one month under section 376 of the Indian Penal Code. Both the substantive jail sentences of the appellant No. .1 are directed to run concurrently. ( 2. ) The prosecution case in nut-shell as unfolded before the trial Court is that on 10.04.90 in the noon prosecutrix PW-8 while residing in the house of her father, had gone to the forest for collecting dung-cake. At that time, she was caught by the appellants and on refusal by her to go with them, she was beaten and was abducted. She was taken in a forest rivulet and her silver ornaments were taken out forcibly. She was confined in the house of appellant Chatra. In the night the prosecutrix was being ravished by appellant Chatra, she cut his nose by a razor blade. On the next day, brother of prosecutrix named Ranglal PW-2 along with Tarachand (PW-3) reached at the hutment of appellant Chatra to whom, the prosecutrix disclosed about the incident. The prosecutrix PW-8 and appellant No. 1 Chatra were taken to the village by Ranglal and his companions. On 12.04.90, at about 4.15 PM, First Information Report Ex. P/15 was lodged by the prosecutrix, recorded by Station House Officer Shri Gopal Suryavanshi of police station Gandhi, District-Mandsour. The police registered the offences punishable under Sections 366, 392 and 376 read with Section 34 of the IPC against the appellants. The prosecutrix was medically examined by PW- 9 Dr. Mrs A.P. Buddbisagar. Her medical report is Ex.P/14. Doctor also prepared the slides of vaginal swab of the prosecutrix and also sealed her Petticoat, blouse and half Saree, which were worn by the prosecutrix. The prosecutrix was medically examined by PW- 9 Dr. Mrs A.P. Buddbisagar. Her medical report is Ex.P/14. Doctor also prepared the slides of vaginal swab of the prosecutrix and also sealed her Petticoat, blouse and half Saree, which were worn by the prosecutrix. All the articles were sent to the police station. Prosecutrix was also referred for ossification test for determination of her age. Investigating Officer/ Station House Officer prepared the spot maps, Ex. P/2 and P/3 at the instance of the prosecutrix, in presence of PW-4 Gheensalal. The stained and controlled earth as also the piece of stone were also seized through seizure Ex P/4 from the spot. Ex. P/5, the third spot map was also prepared by the Investigating Officer vide Ex. P/5 in presence of PW-5 Heera. The appellant No. 1 Chatara was arrested on 19.4.1990 at 6.40 PM, his arrest memo is Ex.P/6. Appellant Rughnath was arrested on 14.4.1990 at 8:00 PM, his arrest memo is Ex. P/7. The appellant No.1 Chatara was sent for medical examination on 19.4.1990 and was medically examined by PW-7 Dr. M.S. Bhandari. His medical report is Ex. P/10, The medical reports of appellant Rughnath, Ananda and Rama @ Ramlal are Ex. P/11, P/12 and P/13 who were examined by PW-7 Dr. M.S. Bhandari on 15.5.1990. On completion of investigation, the appellants were charge sheeted for commission of the aforesaid offences. ( 3. ) The appellants refuted the charges. The defence of appellant Chatra was that Ranglal, brother of the prosecutrix had cut his nose for which a prosecution was pending against Ranglal and appellant Chatra was serving under the father of the prosecutrix for grazing his cattle. The defence of appellant Rughnath was that he was also working under the father of the prosecutrix named Moti and . took an advance from him. And on not returning the said amount, he was beaten and as a counter blast, a false case has been concocted by the complainant party. The appellants did not examine any witness in their defence, but filed the certified copy of the medical report of appellant No. 1 Chatra in defence whereas the prosecution has examined in total nine witnesses and exhibited 15 documents to ;prove its case. Learned trial Court, finding the appellants guilty, convicted and sentenced them as referred herein-above. ( 4. The appellants did not examine any witness in their defence, but filed the certified copy of the medical report of appellant No. 1 Chatra in defence whereas the prosecution has examined in total nine witnesses and exhibited 15 documents to ;prove its case. Learned trial Court, finding the appellants guilty, convicted and sentenced them as referred herein-above. ( 4. ) Having heard learned counsel for the parties and after perusing the entire record, this Court is of the view that the prosecution has miserably failed to prove its case beyond reasonable doubt and the appellants deserve to be acquitted. ( 5. ) PW-1 Jadavbai, mother of the prosecutrix has deposed that the prosecutrix was married with Mewaji resident of village Banakheda, but her GAUNA ceremony had not taken place and she was residing with her. Prosecutrix used to go to Ae forest for collecting dung-cakes. On the date of incident also she had gone for that purpose at 11.00 AM, but did not return back till 5.00 PM whereas ordinarily she was returning back at about 4,00 PM. Therefore, her husband (Moti) went in search of her and returned back in the night at 8.00 PM. On the same day, she sent her brother in search of the prosecutrix towards village Rawatbhata who also returned back without any clue. On next day, her husband and son Ranglal (PW-2) went in search of the prosecutrix and returned back on third day of her missing with appellant Chatra, witness Tarachand and Chhotu. The nose of the appellant No. 1 Chatra was cut and the prosecutrix disclosed about the incident as well as looting of her Hasli and Kadi. In cross-examination, she has deposed that prior to this incident, the prosecutrix had never gone to village Rawatbhata from the house. According to this witness when prosecutrix, appellant No. 1 Chatra, witness Ranglal and her husband returned in the village, the villagers assembled arid because of quarrel between the appellant Chatra and her son Ranglal, the villagers had left the place. In cross-examination, she has given contradictory statement about sending of the prosecutrix to her in-law house. She deposed that after marriage, she was sent to her matrimonial house and she remained there for one month and on her return she lived with them and her second marriage (Natra form of marriage ) was performed according to her caste custom. In cross-examination, she has given contradictory statement about sending of the prosecutrix to her in-law house. She deposed that after marriage, she was sent to her matrimonial house and she remained there for one month and on her return she lived with them and her second marriage (Natra form of marriage ) was performed according to her caste custom. After return to village, the appellant No. 1 Chatra, her son PW-2 Ranglal, witness Chhotu, Tarachand and prosecutrix within five minutes, they proceeded for Police Station and during these five minutes, a quarrel between Chatra and Ranglal took place which was pacified. She has also stated that though police had reached to village, but she was not interrogated and the police reached in the village in the noon at 12.00 OClock on the date of lodging of the report. She has denied the defence suggestion that Rughnath was serving under her husband and had taken an advance which was not repaid by him on demand and because of which Ranglal, Chhotu and Tarachand had beaten the appellant No. 1 Chatra and got lodged a false report by the prosecutrix in order to save themselves. ( 6. ) PW-2 Ranglal, brother of the prosecutrix has deposed that when they had gone in search of the prosecutrix, his companions Chhotu and Tarachand (PW-3) had seen lamp light coming from the house situated at the out-skirt of village and they reached there. They over heard the talks going on between a man and woman. Tarachand called the persons who were inside the house and also asked to open the door, but from inside the house prosecutrix told in a loud voice that she was inside the house and the appellant Chatra was not allowing her to open the door. On this, he threatened that they would assault him in case the door was not opened. Thereafter with great difficulty the door was opened and they found the appellant Chatra and prosecutrix inside the house. In a torch light they saw that blood was trinkling from the nose of appellant Chatra and the prosecutrix disclosed them about the incident. They returned back to village along with appellant Chatra and his father, maternal uncle, prosecutrix and took Chatra, the appellant to Gandhi Sagar Police Station for lodging the report. In a torch light they saw that blood was trinkling from the nose of appellant Chatra and the prosecutrix disclosed them about the incident. They returned back to village along with appellant Chatra and his father, maternal uncle, prosecutrix and took Chatra, the appellant to Gandhi Sagar Police Station for lodging the report. In cross- examination, the say of mis witness is that after opening the door, first he entered the room and the prosecutrix came out of the house. Chatra was standing there inside the house and prosecutrix disclosed about the incident to him. He was confronted with his case-diary statement Ex. D/l with regard to omission of the fact of disclosing of the incident to him by the prosecutrix, but he failed to give any plausible reason. This witness also denied the defence suggestion that they had beaten the appellant No. 1 Chatra and also cut his nose and to save themselves got a false report lodged against them by the prosecutrix. This witness admitted his prosecution along with other accused persons for cutting the nose of appellant No. 1 Chatra. He also denied about assaulting Chatra by lathi, but admitted giving 2/3 slaps and kick blows to Chatra. ( 7. ) PW-3 Tarachand has stated that PW-2 Rangalal approached him for going in search of his sister who was missing and he himself, Ranglal (PW-2) and Chhotu went towards village Dhawad in her search. They over heard some kind of sound of talks coming from the hut ment situated outside the village. He called Ranglal and thereafter opened the door by pushing it. Prosecutrix and appellant Chatra came out of the hut. He saw in the torch-light injury on the nose of Chatra and the prosecutrix disclosed them about the incident. The prosecutrix also told them about taking away of her silver ornaments as well as commission of rape on her by appellant Chatra and Rugnath. In cross-examination he admitted that when he reached near the hut, he over heard the talks going between Chatra aiid the prosecutrix and Ranglal pushed the door with force and because of which the door was opened and they saw that the prosecutrix and Chatra were sitting on a cot. First of all, Ranglal entered inside the hut and beaten Chatra. Prosecutrix was beaten by Chhotu (cited as a witness, but not examined). First of all, Ranglal entered inside the hut and beaten Chatra. Prosecutrix was beaten by Chhotu (cited as a witness, but not examined). PW-2 Ranglal, brother of the prosecutrix also beaten her. Thereafter, both were brought on bicycle to village Bakchach. When the prosecutrix was being beaten, he objected to it. He further admitted that prior to this incident, two to three times the prosecutrix had run away from her house and was traced after two to four days and he did not disclose to police that the prosecutrix told him about commission of rape on her by Chatrra and Rama. This fact he deposed for the first time in Court and he had no talks with the prosecutrix. After returning to village, he went to the forest with his goats and had no talks with any villager. He also admitted that on the basis of the report lodged by the appellant Chatra, he, Ranglal and Chhotu were facing prosecution. The statement of this witness Tarachand (PW-3) is at variance with the statement of Ranglal (PW-2) as mentioned hereinabove regarding opening of the door and admission of this witness who has not been declared hostile by the prosecution that they found the appellant Chatra and the prosecutrix sitting on a cot, thereafter, both were beaten by Ranglal (PW- 2) and Chhotu and the prosecutrix also had run away from her house twice or thrice. This shows the fact that the story in this regard is concocted and PW-2 Ranglal, brother of the prosecutrix did not disclose correct facts. ( 8. ) The prosecutrix was medically examined by PW-9 Dr Buddhisagar on 13.04.90 and she did not find any stain of semen on her clothes. All secondary sex characters of the prosecutrix were fully developed and there was a bruise on scapula region/back portion of the prosecutrix and her hymen was absent and . that she was habitual to sexual intercourse. , She was referred for ossification test, but the prosecution did not examine the Radiologist. ( 9. ) PW-8, the prosecutrix, has deposed that she was forcibly taken by the appellants from the jungle and was confined in a house situated outside the village Dhawad. that she was habitual to sexual intercourse. , She was referred for ossification test, but the prosecution did not examine the Radiologist. ( 9. ) PW-8, the prosecutrix, has deposed that she was forcibly taken by the appellants from the jungle and was confined in a house situated outside the village Dhawad. Her ornaments were tgaken away by the appellants Rughnath, Ananda and Rama / They went away from the house and in the, night between 2.00 and 2.30 A appellant Chatra committed bad act (forcible sexual intercourse) on her against her consent and will. The further say of this witness is that she was ravished twice in the night and when Chatra did not stop, she cut his nose by a blade which she was having in her blouse. In the night between 4.00 and 5.00 AM, Chhotu, Ranglal (PW-2) and Tarachand (PW- 3) reached over there in her search. After cutting of nose, appellant No. 1 Chatrra went out of the room and hidden himself some where. He also bolted the door from outside. She was crying and only thereafter Ranglal and Tarachand by opening the door from outside, entered the room. She disclosed about the commission of rape on her by Chatra, cutting of his nose by her and looting of her ornaments by the appellants. She admitted that Ranglal is her real brother and Tarachand and Chhotu are cousins. All these brothers caught Chatra and took them to village Bakchach. (In the deposition of this witness and other witnesses at so many place, it appears that there is typing mistake and the name of Ranglal is typed as Rughnath). Thereafter, her brother Ranglal went in search of appellants Rughnath, Ananda and Rama. When up till noon i. e. at about 2.00 OClock he did not return back, they proceeded between 4.00 and 5.00 PM with her father to lodge the report and she lodged the re;port Ex. P/15 at Gandhi Sagar Police Station. She denied the defence suggestion that Chatra was serving under her father and he was falsely implicated because of dispute on leaving of service by him. On assessment of the statement of the prosecutrix, it is crystal clear that she has given altogether a different story about reaching of Chhotu, witnesses Ranglal and Tarachand inside the hut. ( 10. She denied the defence suggestion that Chatra was serving under her father and he was falsely implicated because of dispute on leaving of service by him. On assessment of the statement of the prosecutrix, it is crystal clear that she has given altogether a different story about reaching of Chhotu, witnesses Ranglal and Tarachand inside the hut. ( 10. ) In view of contradictory statements of these witnesses on this vital issue, it would be very difficult to accept their version, in the light of statements that the prosecutrix was found sitting on the cot with appellant Chatra and both were beaten by them and thereafter brought to the village on a bicycle. There is an alarming feature available in the instant case. All the witnesses have stated in one voice that the appellant No. 1 Chatra was caught on the spot (inside or near the hut) and was brought to the village, thereafter he was taken to the Police Station. This fact is also mentioned in the First Information Report Ex.P/15, but the arrest memo of appellant No. 1 Chatra (Ex.P/6, a document admitted by the defence) as per provision under section 294 of the Code of Criminal Procedure) is disclosing the fact that the appellant Chatra was arrested on 19.04.90 in the evening at 6.04 PM. If the First Information Report was lodged, as stated by the prosecutrix vide Ex. P/15 on 12.04.90 and Chatra was also taken to the Police Station in whose presence the First Information Report was lodged, why he (Chatra) was not arrested then and there when he was available and the First Information Report was disclosing a cognizable and non-bailable offence against him. This circumstance was to be explained by the prosecution through Investigating Officer/Station House Officer Gopal Suryavanshi who was not examined by the ;prosecution though several opportunities were given to produce him for his examination being an Investigating Officer. Because of non-examination of this witness, the appellant was also deprived of his right of cross-examination on this important aspect as well as on so many, other material particulars. In the considered view of this Court, learned trial Court should have drawn adverse inference against the prosecution for non-examination of Investigating Officer and witness Chhotu as per provision under section 114 (g) of the Indian Evidence Act, which reads as under:- "114. In the considered view of this Court, learned trial Court should have drawn adverse inference against the prosecution for non-examination of Investigating Officer and witness Chhotu as per provision under section 114 (g) of the Indian Evidence Act, which reads as under:- "114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (g) That evidence which could be and is not produced, would , if produced, be unfavourable to the person who withholds it." ( 11. ) On examination of both the witnesses by the prosecution, so many unfavourable evidence to the prosecution would have come on record and both these witnesses were deliberately withheld. This Court, therefore, is constrained to draw adverse inference against the prosecution for non-examination of witness Chhotu as well as Investigating Officer. ( 12. ) The appellant Chatra was sent for medical examination by the Station House Officer/Investigating Officer on 19.04.90. His medical report is Ex. P/10 proved by PW-7 Dr M.S. Bhandari and in this medical re;port as also in the statement of PW-7 Dr Bhandari, no injury was found on the person of Chatra. If Chatra was taken to the Police Station and available to the Investigating Officer, in injured condition, why he was not sent immediately on 12.04.90 for medical examination in the instant case. The defence has filed certified copy of the medical report of appellant No. 1 Chatra who was medically examined on 12.04.90 and according to this re;port, the doctor found in all seven external injuries on his person, out of which, injury No. 1 was on nose i.e. cutting of part of nose which was not available and this injury was caused by a sharp object. The remaining six injuries were the contusions on different/different parts of body and on the same day i.e. 12.04.90 he was referred for X-ray examination and treatment to the District Hospital. ( 13. ) The First Information Report was lodged on 12.04.90 at 4.15 PM and thereafter, it appears that Chatra was sent for medical examination immediately and was medically examined by the doctor on 12.04.90 at 4.55 PM. He was taken to the hospital by Constable Ramvilas Singh who was also not examined by the prosecution. ( 13. ) The First Information Report was lodged on 12.04.90 at 4.15 PM and thereafter, it appears that Chatra was sent for medical examination immediately and was medically examined by the doctor on 12.04.90 at 4.55 PM. He was taken to the hospital by Constable Ramvilas Singh who was also not examined by the prosecution. The prosecution has also not filed this medical report of Chatra along with the charge-sheet, filed against him and other appellants. This medical report shows that Chatra himself must have reached independently to the Police Station and lodged the report. Thereafter, the report was lodged by the prosecutrix and a case was concocted against the appellants, otherwise there was no reason for not arresting appellant No. 1 Chatra immediately when he was available and was also sent for medical examination. The prosecution has also not explained the fact that after his medical examination on 12.04.90 where he remained up till 19.04.90. On the overleaf of medical injury report of Chatra, there is requisition for medical examination written by the Station House Officer. In this requisition, he has described seven injuries found on the person of Chatra and Investigating/ Station House Officer had also made a query that if stains of semen are found on his underwear, the same should be sealed by the doctor. A bare perusal of the medical report of appellant Chatra and medical requisition form shows that this query is added by the scribe of this document i. e. Investigating Officer/Station House officer later on in the gap left between clause 7 and the request for medical examination, in smaller words. But, there is no query made by the Investigating Officer about giving opinion with regard to his potency for performing sexual act for which he was sent for medical examination on 19.04.90. ( 14. ) It is pertinent to mention here that from the side of the defence, documents were filed on 18.08.94 as is clear from the Court order-sheet, but in the entire judgment, the learned trial Court did not care to discuss the fact of filing of the certified coy of the medical report of appellant No, 1 Chatra by the defence, which ought to have been done. In view of all these deficiencies and serious infirmities in the prosecution case, it can legitimately be inferred, as suggested by the defence, that first the appellant Chatra was assaulted on account of dispute over repayment of the amount and when he lodged the report at the Police Station, a false case has been concocted by the complainant party against him or prosecutrix was a consenting party who was found peacefully in the company of the appellant in his hut and both were beaten by the brother and relatives of the prosecutrix thereafter, she was forced to lodge the report. Learned trial Court has not believed the prosecution story regarding robbing of silver ornaments from the person of the prosecutrix. ( 15. ) For the foregoing legal and factual discussion, this appeal succeeds and is hereby allowed. The conviction and sentences of the appellants are set aside. The appellants are on bail. Their bail and surety bonds are discharged. ( 16. ) Let a copy of this judgment be sent to the trial Court along with its record in due course. Appeal allowed.