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Madhya Pradesh High Court · body

2009 DIGILAW 299 (MP)

CHHOTE RAJA v. STATE OF MADHYA PRADESH

2009-03-04

SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Additional sessions Judge, Khurai, District Sagar in S. T. No. 243/93 decided on 30. 11. 94. ( 2. ) APPELLANT has been convicted under Section 376 (1) of IPC and sentenced to rigorous imprisonment for five years with fine of Rs. 1000/-, in default simple imprisonment for three months, by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 9. 08. 93 about 2 oclock in the noon at village Bagela, when the prosecutrix was working in Soya bean field, appellant Chhote Raja came there, caught hold of her hands, dragged her towards the bush and forcibly committed sexual intercourse with her. Prosecutrix objected and shouted for help, but no one was there to come to her rescue. After committing sexual intercourse, appellant fled away. Prosecutrix came back to her house and narrated the whole incident to her mother-in-law and thereafter to her husband when he was back home from the village. The FIR of the incident was lodged by the prosecutrix next day at Police Station, Baadri, on the basis of which an offence was registered against the appellant and was investigated. Prosecutrix was sent for medical examination. On being arrested, appellant was also sent for medical examination. The vaginal slide and petticoat of the prosecutrix as well as semen slide and underwear of the appellant collected during medical examination were also seized by the Police and sent for forensic examination. After due investigation, appellant was prosecuted under Section 376 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication due to enmity. According to appellant, Halkai, the husband of the prosecutrix had assaulted him by axe and the matter was reported to the Police; thereupon a false report of rape against the appellant was lodged through his wife. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty under Section 376 (1) of IPC for committing rape with the prosecutrix, convicted and sentenced him as aforesaid, by the impugned judgment, which has been challenged in this appeal. ( 6. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty under Section 376 (1) of IPC for committing rape with the prosecutrix, convicted and sentenced him as aforesaid, by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel for the appellant submitted that the trial court gravely erred in convicting the appellant on the basis of unreliable testimony of the prosecutrix without any medical corroboration despite delayed FIR and it failed to consider that a false case was foisted against the appellant as a counter blast to the report lodged by him against the husband of the prosecutrix for assaulting him by an axe. Reliance was also placed on the various decisions of the Apex court reported in AIR 1998 Supreme Court page 2694 (Kuldeep K. Mahato Vs. State of Bihar), AIR 2003 supreme Court page 2136 (Sudhansu Sekhar Sahoo Vs. State of Orissa), AIR 2004 Supreme Court page 85 (State of Karnataka Vs. Mapilla P. P. Soopi), AIR 2007 Supreme court page 155 (Ramdas and Ors. Vs. State of maharashtra), 2007 (6) SCC page 465 (Narayan @ Naran vs. State of Rajasthan), 2007 (12) SCC page 57 (Radhu vs. State of Madhya Pradesh), 2007 (12) SCC page 390 (Bibhishan Vs. State of Maharashtra), 2000 Cr. L. J. page 1896 (Rajkumar and another Vs. State of M. P. ). ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant. ( 8. ) PERUSED the evidence on record. Prosecutrix (P. W-1) deposed in her evidence that on the day of occurrence about 2 oclock in the noon, when she was working in her Soya bean field, appellant chhotelal came from the backside, caught hold of her hands, dragged her towards the bushes, fell her on the ground and committed sexual intercourse with her and then fled away. After sometime, prosecutrix came back to her house, narrated the incident to her mother-in-law and thereafter to her husband when he came back from village Malthon. Next day she went to the Police Station Baadri to lodge the FIR (Ex. P-1 ). After sometime, prosecutrix came back to her house, narrated the incident to her mother-in-law and thereafter to her husband when he came back from village Malthon. Next day she went to the Police Station Baadri to lodge the FIR (Ex. P-1 ). P. W-2 halkai, the husband of the prosecutrix also deposed that the incident of rape committed by the appellant was communicated and narrated to him by his wife after he came back home in the noon. ( 9. ) THE main submission of the learned counsel for the appellant has been that the prosecutrix (P. W-1) and her husband Halkai (P. W-2) have given a cooked-up version and no incident of rape, as alleged, ever occurred and a false report was lodged by the prosecutrix (P. W-1) at the instance of her husband, Halkai in order to shield him from the incident of assault on the appellant. ( 10. ) UPON close scrutiny of the entire evidence of the prosecutrix (P. W-1), the same is not found to be of sterling quality. In cross-examination, prosecutrix (P. W-1) deposed that she sustained abrasions and scratch marks of nail and teeth over her cheek and body at several places during the incident of rape, which were also shown to the doctor, but the same is not corroborated from the medical evidence. Dr. Rajlaxmi Bamoriya (P. W-5), who examined the prosecutrix on 11. 8. 93, did not find any external injury or marks of struggle over her body. No injury, blood or semen stains were detected on her private parts by the doctor. ( 11. ) PROSECUTRIX (P. W-1) also deposed that appellant had an axe with him and also intimidated and assaulted her with an axe, but no such allegations are found in the FIR (Ex. P-1) lodged by her, and in her police statement (Ex. D-1)with which she was confronted. Similarly, the statement made by prosecutrix (P. W-1) in her deposition that appellant tried to rape her twice and then committed rape with her in the bushes, is also not in tune and consonance with the allegations made in the FIR (Ex. P-1) and her police statement (Ex. D-1) with which she was confronted. In fact, in view of the material omissions and contradictions in her testimony, the evidence of the prosecutrix (P. W-1) does not inspire confidence. ( 12. ) THE FIR of the incident (Ex. P-1) and her police statement (Ex. D-1) with which she was confronted. In fact, in view of the material omissions and contradictions in her testimony, the evidence of the prosecutrix (P. W-1) does not inspire confidence. ( 12. ) THE FIR of the incident (Ex. P-1) was also admittedly lodged next day. Prosecutrix also admitted in her cross-examination that there was an incident of marpeet between the appellant and her husband, against which appellant had lodged the report at Police Station, Ujnait; though she tried to say that marpeet was with reference to the earlier incident of rape with her, but her husband Halkai (P. W-2) categorically admitted that at the time of marpeet with the appellant he had not at all talked of the incident of rape to the appellant. He also admitted that he had assaulted the appellant with axe from its blunt side in the morning. P. W-2 Halkai also admitted that appellant had gone to lodge the report at Ujnait against him. ( 13. ) IT is also borne out from the testimony of constable Raghunath (D. W-1) examined by the appellant in defence that he had given a written report (Ex. D-2) against the husband of the prosecutrix on 10. 8. 93. It is also reflected from the evidence of the two defence witnesses, namely, Sardar Singh (D. W-2) and Tulsiram (D. W-3) that there was some incident of marpeet between the appellant and Halkai, the husband of the prosecutrix, wherein appellant was assaulted. Thus, there appears to be some substance in the submission made on behalf of the appellant that as a reaction to the report lodged by the appellant against the husband of the prosecutrix, the FIR (Ex. P-1) contemplating false story of rape was lodged against the appellant; at least such a possibility is not ruled out from the delay in lodging the report next day. ( 14. ) P. W-3 Sumatrani @ Bhagbai, who is the mother-in-law of the prosecutrix, has also not supported the fact that the prosecutrix told anything to her against the appellant or narrated the incident of rape. ( 14. ) P. W-3 Sumatrani @ Bhagbai, who is the mother-in-law of the prosecutrix, has also not supported the fact that the prosecutrix told anything to her against the appellant or narrated the incident of rape. Although P. W-3 Sumatrani has been declared hostile to prosecution, yet the fact, that she being a close relative of the prosecutrix did not support her version, cast a reasonable doubt on the truthfulness of the version of rape made by the prosecutrix (P. W-1) against the appellant, which also remained uncorroborated by negative medical evidence. Dr. N. K. Chamediya (P. W-6), who examined the appellant on 11. 8. 93, also did not find any scratch marks or marks of teeth bite over his body as alleged by the prosecutrix (P. W-1 ). ( 15. ) THE prosecutrix (P. W-1) is an adult married lady and the FIR of the incident was also admittedly lodged next day; therefore, the presence of semen stains and human sperms over her vaginal slides, petticoat and on the slides and underwear of the appellant vide FSL report (Ex. P-9) has no significance in absence of grouping. ( 16. ) MORE so, as already said, the evidence of the prosecutrix (P. W-1) herself is not of sterling quality and suffers from omissions, exaggerations, lacks corroboration from medical evidence and it does not inspire confidence and appears to be shrouded with doubt. ( 17. ) NO doubt, in a rape case the sole testimony of the prosecutrix can be the basis of the conviction if it inspires confidence. But, if the evidence of the prosecutrix seems to be doubtful and lacks credence, it cannot be acted upon. It would be profitable to refer to the following observation made by the Apex Court in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another reported in (2006) 10 SCC page 92 :- "it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. " ( 18. ) IN view of foregoing discussion it could not be safely concluded on the basis of testimony of the prosecutrix (P. W-1) that the appellant committed rape on her. Appellant is thus entitled to benefit of doubt. ( 19. ) APPEAL is, therefore, allowed. The conviction of the appellant and the sentence awarded to him under Section 376 (1) of IPC are set aside. ( 20. ) APPELLANT is on bail. His bail bonds shall stand discharged.