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Madhya Pradesh High Court · body

2009 DIGILAW 1162 (MP)

Phool Singh v. State Of M. P.

2009-10-05

K.S.CHAUHAN

body2009
JUDGMENT : This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved by the impugned judgment finding and sentence dated 20-8-1997 passed by Special Judge, Raisen (M.P.) in Special Case No. 251/96, whereby the appellant has been convicted under section 377 of Indian Penal Code and sentenced to S.I. for 3 years with fine of Rs.500/-, in default of payment of fine S.I. for 3 months. 2. The prosecution case in short is that on 3-1-1993 at 8:30 p.m. Radhe son of Sukhram Kori aged 10 years lodged F.I.R. at P. S. Bareli to the effect that on 30-12-1992 at 8:00 p.m. when he was returning to his house after watching T.V. in his neighbour's house the appellant asked him to bring bundle of Bidi from the grocery shop and gave him Rs. 5/-. He went there and brought the same. Appellant caught hold of him and carried to the vacant place behind the hut and laid him down on the ground, removed the clothes and committed unnatural offence with him. On the basis of this information Crime No. 5/93 under section 377 of Indian Penal Code was registered. He was sent for medical examination where he was examined by Dr. H. P. Singh (PW-1). Spot map was prepared. The statements of the witnesses were recorded. The appellant was arrested and sent for medical examination where he was examined by Dr. J. P. Chaudhary. After completing the investigation, the charge-sheet was filed in the Court of Special Judge, Raisen. 3. Appellant was charged under section 377 of Indian Penal Code and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He denied the guilt and claimed to be tried mainly contending that he is innocent and has been falsely implicated. Prosecution examined as many as 6 witnesses and defence also examined 2 witnesses. After appreciating the evidence trial Court found him guilty under section 377 of Indian Penal Code and sentenced as stated hereinabove in para No. 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellant on the grounds mentioned in the memo of appeal. 4. Shri Mukesh Agrawal, learned counsel for the appellant submitted that the Court below has not appreciated the evidence in proper perspective. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellant on the grounds mentioned in the memo of appeal. 4. Shri Mukesh Agrawal, learned counsel for the appellant submitted that the Court below has not appreciated the evidence in proper perspective. There is delay of 4 days in lodging the F.I.R. No satisfactory explanation has been adduced on behalf of the prosecution. The evidence is not certain with regard to the place of occurrence. The ocular evidence does not find support from the medical evidence. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 5. On the contrary, Shri Jaideep Singh, learned G.A. appearing on behalf of the respondent/State supported the impugned judgment, finding and sentence mainly contending that the prosecution has proved the case beyond reasonable doubt against the appellant and he has rightly been convicted and sentenced hence does not call for any interference. 6. The main point for consideration in this appeal is that whether the trial Court has committed an illegality in convicting and sentencing the appellant under section 377 of Indian Penal Code. 7. The incident is of 30-12-1992 at 8:00 p.m. The report is lodged on 3-1-1993 at 8:30 p.m. The distance of police station from the place of incident is only 2 kilometers. Thus the report is delayed. 8. According to Radhelal (PW-3) he did not tell about the incident to his father up to 2-3 days whereas his father Sukhram (PW-2) has deposed that his son told about the incident on the same day. He has been contradicted from his earlier statement in this regard. Thus it is evident that Sukhram (PW-2) is not giving correct statement as to when he was told by his son about the incident. Thus there is variance in the statement of Radhelal and his father Sukhram in this regard. The prosecution has given the explanation that the report was delayed because of the threatening given by the appellant and also for the reasons that Beni Singh prevented the complainant to lodge the report. Thus there is variance in the statement of Radhelal and his father Sukhram in this regard. The prosecution has given the explanation that the report was delayed because of the threatening given by the appellant and also for the reasons that Beni Singh prevented the complainant to lodge the report. But the explanation is not satisfactory for the reason that if the incident was told by Radhelal to his father Sukhram on the same day then the report ought to have been lodged on the same day because the distance in between the place of occurrence and police station is only 2 kilometers. Thus there is enormous delay in lodging the report which has not been properly explained. 9. The prosecution evidence is also not certain with regard to the place of occurrence. On perusal of map Ex.P-3 the place of occurrence is indicated as place "C" which is behind the bushes whereas Radhelal (PW-2) has stated that the place of occurrence is behind the Kirana Shop which is in the opposite direction of the place of occurrence shown in map. 10. Radhelal (PW-3) has admitted that at that time Kirana shop was opened and other customers were standing there. If he might have cried at that time they might have gone there to rescue him. Thus his statement that nobody turned up in spite of his cries is not believable. 11. No doubt he has given the evidence that the appellant committed unnatural offence with him but this fact does not find support from the medical evidence. Dr. H. P. Singh (PW-6) who examined complainant on 3-1-1993 found no injuries. He could not give any definite opinion regarding the sodomy within 8 days back. Thus medical evidence does not support the ocular evidence adduced by Radhelal. No underwear (Janghiya) of the complainant has been seized to prove the blood stains on it. 12. Keeping in view the aforesaid facts, the evidence of Radhelal (PW-3) is not fully reliable. The defence of the appellant is that he lent Rs. 500/- to Sukhram father of the complainant and when he demanded he quarrelled with him and this is the reason that false report has been lodged against him. He has produced Sualal (DW-1) and Sardar Singh (DW-2) who have given the evidence in support of the defence. 13. The defence of the appellant is that he lent Rs. 500/- to Sukhram father of the complainant and when he demanded he quarrelled with him and this is the reason that false report has been lodged against him. He has produced Sualal (DW-1) and Sardar Singh (DW-2) who have given the evidence in support of the defence. 13. In a charge of offence under section 377, Indian Penal Code, it is as a rule unsafe to convict on the uncorroborated testimony of the person on whom the offence is said to have been committed unless for any special reasons that testimony is entitled to special weight [See Ganpat vs. Emperor, AIR 1918 Lahore 322]. 14. According to MODI, (Modi's Medical Jurisprudence and Toxicology), if the passive agent is not accustomed to sodomy, abrasions on the skin near the anus with pain in walking and in defecation, as well as during examination are likely to appear. These injuries are extensive and well-defined in cases where there is great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence lesions will be most marked in children, while they may be almost absent in adults, when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days. According to GALSTER'S Medical Jurisprudence and Toxicology, the following lessons may be noticed in a passive agent, i.e., recent lacerations, bruising, or inflammation of the anal mucous membrane." 15. For the foregoing reasons, the statement of Radhelal (PW-3) is not convincing and wholly reliable. No conviction can be based on such evidence without corroboration of his evidence. The prosecution has not proved the guilt beyond reasonable doubt against the appellant. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 16. Consequently, the appeal succeeds and is allowed. The impugned judgment passed by the Court below is hereby set aside. The appellant is acquitted from the charge under section 377 of Indian Penal Code. Fine amount, if deposited be refunded to him as per law. He is on bail. His bail bonds are discharged.