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Madhya Pradesh High Court · body

2009 DIGILAW 1345 (MP)

Mazboot Singh v. State of M. P.

2009-12-03

PIYUSH MATHUR

body2009
JUDGMENT 1. This is an appeal against the judgment of conviction passed by Additional Sessions Judge Chachauda, District Guna in Session Trial No.32312003 vide judgment dated 5.1.2006 whereby the appellant Mazboot Singh has been convicted under section 376 of the Indian Penal Code and ordered to undergo sentence of rigorous imprisonment for a period of seven years with a fine of Rs. Five hundred. 2. The prosecution has demonstrated before the trial Court that on date 15.9.2003 at village Tulsikheda, the prosecutrix Halki Bai had gone to her fields along with her daughter Savita Bai and when at about 11:00 in the morning hours, she was removing the grass from her fields, (where crop of Maize was grown) the accused Mazboot Singh caught hold of her from behind and threw her on the earth, with an intention to forcibly commit intercourse and when her daughter Savita (aged 9 years) made hue and cry, then the accused ran away from the spot. The prosecution further demonstrated that the prosecutrix Halki Bai narrated the entire story to her husband Kailash in the evening hours but since it was raining during the entire day, the FIR could only be lodged on the next day i.e. on date 16.9.2003 at 11:00 hours. The Station House Officer Kumbhraj recorded the FIR, at the instance of the prosecutrix Halki Bai and registered an offence under section 376 of IPC against the accused/appellant Mazboot Singh and sent the lady for her medical examination where PW6 Dr. SJ. Baig examined her. 3. Shri N.D. Singhal, counsel for the appellant, submits that there is an un-explained and inordinate delay in lodging of the FIR, in as much as, the incident has occurred at 11:00 hours on date 15.9.2003, whereas the FIR was lodged at 11:00 hours on the next day i.e. on date 16.9.2003 and there exist contradiction in the reason of delay in lodging the FIR in as much as the FIR, offers an explanation of delay on the strength of falling of rain, whereas the prosecutrix, her husband and other witnesses denied this story at the time of the recording of their statements before the Court and had developed a story of bribe being demanded by the police officers, for the purposes of lodging the FIR. Shri Singhal submits that the explanation offered for the delay in lodging the FIR after 24 hours is not only fatal to prosecution and un-believable at first blush because the natural rain do not continue for 24 hours, which could deter a person not to approach the police station, which was situated at a short distance of two kms. only and no witness has corroborated each other in the statements about the demand of bribe. He has made a reference to the statements of PW 1 Kailash, PW2 Halki Bai to demonstrate that even the husband and wife do not support each other about the story of lodging of delayed FIR. 4. Shri Singhal has cited a judgment of the Supreme Court reported as AIR 1979 Supreme Court 135 Ganesh Bavan Patel v. State of Maharashtra to demonstrate that the delay in recording the FIR and the statements of witnesses, even while taking into consideration the surrounding circumstances, would lead to an irresistible conclusion that the delay and its explanation offered about lodging of FIR has to be examined with great caution and circumspection and the complete benefit of delay should be given in favour of the accused. 5. Shri Singhal further submits, on the strength of the medical evidence, to demonstrate that when the lady was examined by Dr. S.J. Baig neither the injury marks were found upon her body nor signs of forcible intercourse were seen by the lady doctor. He further submits that when the prosecutrix has described herself to be completely stained with mud, it was expected from the medical expert to have made reference about the status of the clothes and the existence of the mud upon the prosecutrix, because that would have further corroborated or contradicted the story of the prosecution. He further submits that even though the necessary slide of the semen and vaginal fluid were obtained by the doctor, no specific proof of existence of semen on the clothes of the prosecutrix was proved in evidence. 6. Shri Singhal has referred to the spot map (Ex.P-5) to demonstrate that the fields of the complainant and the accused were adjoining each other and crop of Maize was grown in the fields, therefore it was difficult for any women not to sustain any injury in view of the nature of the crop and the location, suggested in the spot map. He referred to the statements of prosecutrix to demonstrate that even if the place of the commission of the offence is taken to be on the boundary (Medh) of the field it would have exposed the lady and the accused to the vicinity of the adjoining agriculturist and since none of the adjoining agriculturist were examined by 10, the entire story put forth by the prosecution gets suspicious, as the neighboring agriculturist were the best available witnesses, in view of the fact that the incident occurred in the broad day light. 7. Shri Singhal has read over extensively the statements of Savitabai (PW3) aged 9 years to demonstrate that though the trial Court has found her to be a child of sound understanding, however her evidence is consisting of sufficient contradictions, on the basis of which, it cannot be completely relied upon, however, he has conveniently picked up those statements of Savitabai (PW3) to demonstrate that it is only the child witness Savitabai who made an alarm, upon looking the accused at the scene of offence, however she nowhere states about the event of shouting of her mother and while highlighting this conduct of the child witness Shri Singhal demonstrates that in the peculiar facts and circumstances of this case, it becomes completely unreliable to sustain a conviction on the basis of contradictory statements of the prosecutrix and her own daughter about the commission of the offence. 8. The counsel for the appellant has articulated his argument on the strength of the timings reflecting in the FIR and the statements of Halkibai (PW2) and Savitabai (PW3) where not only the prosecutrix had described the timings of the offence around at 11:00 in the morning hours, (which she further clarifies and confirms in her testimony before the Court) whereas PW3-Savitabai states that the incident took place when the Sun was about to set. Shri Singhal submits a reverse argument here that when the trial Court has found the child witness to be trustworthy, therefore her entire testimony has to be treated to be trustworthy even for the purposes of comparing the two sets of evidence, in relation to the timings, offered by the prosecution witnesses, to understand as to whether any incident took place or not or further to demonstrate the exact timings of the incident. He heavily stressed upon, the contradiction crept in the statements of the two witnesses PW2 and PW3 which highlights the unnatural conduct of the two witnesses about the timings of the incident. 9. Shri Singhal has read over the statements of PW1 Kailash, PW2 Halkibai and PW3 Savitabai to explain the conduct of the prosecutrix while bringing the entire chain of events to develop the story of consent of the prosecutrix, where in paragraph (1), PW2 Halkibai nowhere states about the fact of her shouting throughout the incident, which shows that she made no hue and cry about the incident. Shri Singhal further submits that PW3 Savitabai has no where averred that her mother has shouted at all, whereas she has stated that while watching the accused person lying on her mother she shouted herself and thereafter the accused ran away from the spot. Therefore, the learned counsel for the appellant contends that the conduct of the prosecutrix becomes very relevant for understanding the nature of the offence as also for presuming her consent in the commission of the offence. He also made a reference to the age and personality of the prosecutrix and the accused (who are 30 years and 46 years of age respectively) to demonstrate the physical disparity, due to the age and the resistance, which the prosecutrix could have offered in the given circumstances and his submission gets fortified from a perusal of the medical report that had the physical force been applied by the accused person, for securing intercourse with the lady, the possibility of occurrence of injury marks on the person of the prosecutrix could have not been ruled out and since the medical report is quite clear about the non-existence of the injuries upon the prosecutrix, the story put forth by the prosecution about offering resistance gets belied. 10. Shri R.P. Johri, learned Panel Lawyer appearing on behalf of the State has argued that apart from the statements of the prosecutrix and her husband the statements of the child witness PW3 Savitabai is very relevant because she has actually seen the incident and her status of being eyewitness cannot be ignored merely on account of certain minor lapses or contradictions in her testimony. He very strongly argued that all the elements requiring for the constitution of the offence of the rape are fulfilled and a perusal of the testimony of prosecutrix alone would establish that the accused/appellant has forcibly made intercourse with the prosecutrix and as such the Sessions Court has not committed any illegality in convicting the appellant under section 376 of the Indian Penal Code. 11. Shri N.D. Singhal appearing for the accused has read over the statements of PW3 Savitabai and PWI Halkibai to demonstrate that the witnesses have narrated incident that the accused was found to be lying on the person of the pro3ecutrix, rather he was described to have fallen upon her (loom gaya) but none of the prosecution witnesses have ever said about the actual act of forcible intercourse or even about minor penetration, therefore it could not be said that the offence as described and punishable under section 376 of IPC was made out at all. 12. The argument advanced about the delay in lodgment of the FIR prima facie appears to be convincing that even when the incident occurred at 11:00 morning hours, the prosecutrix choose to remain silent up till evening, when her husband Kailash PW1 came back to home, from the fields and even thereafter the FIR could be lodged on the next day, by offering an unrealistic averment about continuous falling of rain water, but a careful reading of the contents of the FIR reveals that the delay in the lodgement of the FIR was accurately revealed at the time of the recording of the FIR and as such it could not be treated to be so fatal that the entire story about the commission of the offence could become untrustworthy of unreliable. The Supreme Court has examined several such illustrations, in the case of Ramdas v. State of Maharashtra [ (2007)2 SCC 170 ], which could be treated to be plausible causes of delay in the lodgement of the FIR wherein the Court has ruled that the Courts should I consider totality of the evidence, for weighing as to whether the delay in lodging the first information report adversely affects the case of the prosecution and since there exist adequate explanation about the delay in the present case, I do not find that there was such a delay in the lodgement of the FIR which could be treated to be fatal or could enure to the advantage of the accused, in the peculiar facts and circumstances of the present case. 13. A close analysis and scrutiny of the statement of PW2 Halki Bai demonstrate that the prosecutrix has made a very categorical narration of the entire scene, right from the stage of recording of the FIR till the recording of her statement before the Court and has made no material contradictions as regards the holding of her person from behind by the accused person and forcibly falling her on the earth and making an attempt to commit the offence of rape, and she has also specifically averred about the actual penetration in her statement but the manner in which she has narrated the incident about the actual penetration, appears to be quite unnatural, because she has described the presence of her daughter Savitabai in such a close proximity of the place of incident that it becomes impossible to ascertain as to whether there was an act of forcible intercourse by the accused person at all, as the prosecutrix herself clarifies that the moment accused fell upon her, her daughter made an alarm by shouting. This goes to show that the daughter did not shout when the accused caught the lady or forcibly threw her on the floor of the field but she shouted at that point when she saw him lying upon her mother. 14. This goes to show that the daughter did not shout when the accused caught the lady or forcibly threw her on the floor of the field but she shouted at that point when she saw him lying upon her mother. 14. Had there been no eye-witness of the incident and had there been no comparable eye-witness account on record, it would have been an 'Open and Shut' case for the prosecution to have secured a conviction of the accused, only and exclusively on the strength of the testimony of the prosecutrix herself (who has made a categorical statement about actual penetration), but when there exist a reliable and trustworthy testimony of none other than the daughter of the prosecutrix (who has proved herself to be a girl of sound understanding, in the entire narration of events), it becomes difficult for the Court to brush aside the testimony of the child witness, who gives a graphic description of each and every minute detail of the incident, which further leaves the Court with no choice except to accept the testimony of an innocent witness, who seems to bear or carry no malice or bias in her heart or mind. The Supreme Court has observed in its recent judgment in Himmat Sukhadeo Wahurwagh v. State of Maharashtra [ (2009)6 SCC 712 ], that when the witness of tender age is able to discern between right and wrong and understand the implication of what he/she says then section 118 of the Evidence Act would not preclude a child from being a witness and the only test required to be applied would be to examine as to whether the witness understand the sanctity of oath and the import of the questions that were put to him/her. Therefore while analyzing the testimony of the child witness in comparison to the testimony of an adult woman/prosecutrix, I find that the child witness had understood the true meaning of oath and necessity of speaking truth and has given rationale answers to all the questions put to her and has not exhibited any intellectual incapacity to understand the nature and/or import of the questions put to her and no iota of doubt exist about tutoring by the prosecution and even when the Supreme Court has insisted for the corroboration of the testimony of the child witness (as a child being susceptible to tutoring), the fact remains that a cautious scrutiny of the entire evidence, done with clarity and circumspection reveals that the evidence suggesting for the attempt to outrage the modesty of the prosecutrix certainly gets corroborated with the testimony of the child witness, therefore this Court accepts the truthfulness of the graphic description given by the child witness about the entire incident and record a finding that the prosecution has failed to establish beyond reasonable doubt that the accused has committed an offence of rape, in terms of section 376 of the Indian Penal Code however the prosecution has proved that the appellant has committed an offence punishable under section 354 of the Indian Penal Code and consequently while granting him the 'Benefit of Doubt', this Court acquits the convict appellant Mazboot Singh from the charge of section 376 but convict him under section 354 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for two years with fine of Rs.500/-. 15. 15. The Supreme Court has recently examined in the case of a gang rape, the scope of the application of the provisions of sections 113A, 113B and 114A of the Evidence Act, for ascertaining the correctness of the statements of the prosecutrix and has ruled in the case Raju v. State of M.P., reported as (2008)15 SCC 133, that the allegations about rape must be examined as that of an injured witness, whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth and at best her statement can be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely, but when the allegations about the commission of rape are not proved then the benefit of doubt should be extended to the accused person, since truth and falsehood are so inextricably intertwined, that it becomes impossible to discern where one ends and the other begins. Therefore the caution given by the Supreme Court in its previous judgment of State of M.P. v. Dayal Sahu [ (2005)8 SCC 122 ], also gets attracted, where the Supreme Court (while finding acquittal of accused, on the ground of non-examination of the doctor to be bad) has observed that the doubt should be a reasonable doubt and the Court should not reverse the findings of guilt on the basis of irrelevant circumstances or mere technicalities. However, there exist relevant circumstances and cogent evidence suggesting for the non-commission of offence of rape, therefore, in view of contradictory evidence of actual penetration/intercourse, this Court arrives at a conclusion that this would be an appropriate case where the accused should be granted the benefit of doubt. 16. When the testimony of PW3 Savitabai is independently examined, it reflects that she shouted exactly at that point of time when the accused forcibly caught hold of the prosecutrix and threw her on the floor of field therefore PW3 Savitabai has not said anything about the act of penetration at all and when specific questions about her presence on spot were put to her during the cross-examination she confirmed that she shouted immediately when the accused threw her mother on the floor of the field. This specific evidence of PW3 Savita Bai demonstrates that she has narrated the correct story about simply making an attempt by the accused person for molesting the prosecutrix and not an act of actual intercourse. The medical report is conspicuously silent about the occurrence of injuries either on the person or on the private parts of the prosecutrix, and as such an irresistible conclusion of there being no forcible intercourse could be easily drawn. Therefore, while granting benefit of doubt to accused, I do not find that an offence of committing rape is made out, which could be punishable under section 376 of the IPC, however a perusal of the entire testimony of the prosecution witnesses definitely demonstrate that a calculated attempt to outrage modesty of the prosecutrix was made on behalf of the accused person, with the use of criminal force as defined in section 354 of IPC. For ready reference section 354 IPC is quoted herein below: "354. Assault or criminal force to woman with intent to outrage her modesty-- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 17. The element requiring for proving a charge of section 354 is to establish causation of assault or use of criminal force against a woman with intend to outrage her modesty and since in the present matter the prosecutrix and her daughter Savitabai (PW3) have proved in their statements that the accused/appellant Mazboot Singh has used criminal force against the prosecutrix, by catching hold of her from behind and throwing her on the floor of the field, with an intention to outrage her modesty, an offence under section 354 of the Indian Penal Code is certainly made out and proved. 18. 18. The Code of Criminal Procedure has envisioned this exigency and had made specific provision in section 222, when it is not clear or doubtful as to what offence is committed or made out (without imposition of the substantive charge), then the Court possess the power to convict a person in relation to a minor charge, established from the evidence brought on record, and since section 354 happens to be a minor charge or an alternative charge of the sustentative offence punishable under section 376 of IPC the accused Mazboot Singh is convicted for committing an offence under section 354 of IPC. The judgment of the Supreme Court and this Court throw sufficient light on the subject that when the Court finds that accused has not committed an offence in the nature of section 376 IPC, he could be conveniently convicted for a lesser offence under section 354 IPC therefore, I hereby convict the appellant under section 354 of IPC and acquit him from the charge of section 376 IPC by granting him benefit of doubt. Consequently the judgment of conviction passed against accused Mazboot Singh under section 376 IPC is set aside instead he is convicted under section 354 IPC for a sentence of rigorous imprisonment of two years, with fine of Rs.500/.... 19. The record demonstrates that the accused/appellant was in custody in between dates 1.10.2003 to 14.10.2003. It has also been brought to my notice that after the delivery of the judgment of the Sessions Court on date 5.1.2006, the application for suspension of sentence were made on behalf of the accused/appellant in the present appeal but the same were rejected by two orders dated 22.2.2006 and dated 3.7.2006 which shows that right from the date of delivery of the judgment by the Sessions Court, the accused/appellant remained in judicial custody (Jail) and has served the entire sentence of two years, now awarded under section 354 IPC, therefore he would be entitled to be released immediately, if he is not detained in connection with some other offence. . Therefore, criminal appeal is partly allowed, in terms of the aforesaid judgment.