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Madhya Pradesh High Court · body

2009 DIGILAW 975 (MP)

Bhuwani Ram v. State of M. P.

2009-08-13

N.K.MODY

body2009
JUDGMENT : Thisjudgment also govern the disposal of Criminal Appeal Nos. 965/2008, 976/2008and 977/2008 as in all the 3 appeals judgment under challenge is dated12-8-2008 passed in all ASJ, Neemuch in S.T. No.3/2008 whereby the appellant in all the appeals were convicted for the offencepunishable under Section 376 (2) (g) of IPC for a period of 10 yearsimprisonment with fine of Rs . 1,000/- and underSection 342 of IPC for a period of one year imprisonment and under Section506-11 of IPC for a period of one year imprisonment. Inshort case of the prosecution was that on 21-10-2007 prosecutrix/Chandrakalabai who was aged 15 years went to see Dashehara Fair where she lost her family members. Further case of the prosecution wasthat thereafter prosecutrix met with the appellants Jeetmal and Rameshwar and upontheir advise she travelled with them on a motor-bike. It was alleged that appellant Jeetmal and Rameshwar took the prosecutrix in a house known as Magazine (a place for storage of Arms and Ammunitions) situatedin the remote forest where appellant Rameshwar and Jeetmal raped her one after another and kept her locked inthe said house. It was alleged that on the second day appellants came there andagain raped her and left the place after locking it from the out side. It wasalleged that on the third day appellant Kamlesh and Porulal also came there and raped the prosecutrix and also threatened her for dare consequences. It was alleged that on fourthday again appellant Jeetmal and Rameshwar came there and raped the prosecutrix . It was allegedthat on fifth day appellant in all the appeals came there and forgotten to lockthe window of house, therefore, the prosecutrix afteropening the doors ran away and after coming on the road got the bus and came tothe police station. Upon the complaint filed by the prosecutrix and after investigation the appellants were prosecuted. After framing of chargeand recording of evidence appellants were convicted against which the presentappeal has been filed. 3.Learned Counsel for the appellants submit thatappellants was convicted illegally while appellants have not committed anyoffence. It is submitted that the learned Court below committed error in notproperly appreciating the evidence which resulted incorrect judgment and isliable to be set aside in this appeal. It is submitted that the learned Courtbelow committed error in not considering material omissions and contradictionsappearing in the testimony of the prosecution witnesses. It is submitted that the learned Court below committed error in notproperly appreciating the evidence which resulted incorrect judgment and isliable to be set aside in this appeal. It is submitted that the learned Courtbelow committed error in not considering material omissions and contradictionsappearing in the testimony of the prosecution witnesses. It is submitted that prosecutrix was a major lady and as per X-ray report theage of the prosecutrix was more than 16 years andalso the prosecutrix was a consenting party,therefore, the learned Court below committed error in convicting theappellants. It is submitted that the medical witnesses does not support the case of prosecutrix . Apart from this,it is submitted that there was mark of injury on the external part of the bodyof prosecutrix . It is submitted that learned Courtbelow has found that the proseculrix was 16 years andappellants acquitted under Section 363, IPC. It is submitted that Exhs . D-1 to D-K are the loveletters which were written by the prosecutrix to theappellant/ Bhawani which goes to show that the prosecutrix was a consenting party. It is submitted that prosecutrix herself has stated before the Panchayat that matter has been settled between the partiesin compromise. It is submitted that appeal filed by the appellants be allowedand the judgment passed by learned Court below whereby the appellants wereconvicted be set-aside. 4.Alternatively, learned Counsel for the appellants submits that the appellantsare in jail w.e.f . 26-10-2007 and have completed the jail sentence of morethan 21 months. It is submitted that all the appellants are young persons inthe age group of 25 to 30 years, therefore, appellants be released asundergone. 5. Smt . Anjali Jamkhedkar , learned Counsel for the respondent/Statesubmits that after due appreciation of evidence on record, appellants wereconvicted which requires no interference. It is submitted that the appeal filedby the appellants be dismissed. 6.From perusal of the record, it is evidence that to prove the case, prosecutionhas filed documents Exhs . P-1 to P-34 and hasexamined Dr. Sangeeta Bharti (P.W. 1), Dr. Ashok Jain (P.W. 2), Mangilal (P.W. 3), Prosecutrix (P.W. 4), Dodarmal (P.W. 5), Shankarlal (P.W. 6), Khalil Khan (P.W. 7), Lokendra Pratap Singh (P.W. 8), Ravi Prakash (P.W. 9) and Smt . Surailra (P.W. 10). 7.So far as the age of the prosecutrix is concerned,the prosecution has tried to prove that her age is below 15 years but on thebasis of medical report ( Exh . Surailra (P.W. 10). 7.So far as the age of the prosecutrix is concerned,the prosecution has tried to prove that her age is below 15 years but on thebasis of medical report ( Exh . D-11) and otherdocumentary evidence and also oral statement of the Medical Officer, learnedTrial Court has found that the age of the prosecutrix was above 16 years and below 18 years. 8.In the matter of Rajoo Vs. State of M.P., reported in2008 (15) SCALH 375, the Apex Court has held that ordinarily the evidence of a prosecutrix should not be suspect and should be delivered,more so as her statement has to be evaluated at par with that of an injuredwitness and if the evidence is reliable no corroboration is necessary.Undoubtedly agree with them, but at the same time they cannot be universallyand mechanically applied to the facts of every case of sexual assault whichcomes before the Court - it cannot be lost sight of that in rape cases thegreatest distress and humiliation to the victim but at the same time a falseallegation of rape can cause equal distress, humiliation and damage to theaccused as well. Accused must also be protected against the possibility offalse implication, particularly where a large number of accused are involved.In the matter of Lalliram and another Vs. State ofM.P., reported in (2009) 1 SCC ( Cri .) 17, in a caseof gang rape the Hon'ble Apex Court has held that absence of any injury isan important factor. Where testimony of prosecutrix found to be self- contradictory and also inconsistent with testimony of other P.Ws . as well as with medical evidence, accused cannot beconvicted on the basis of her version. In the matter of Dilip and another Vs. State of M.P., reported in 2002 SCC ( Cri )592, the Hon'ble Apex Court has held that it is well settled that the sole testimony of the proseculrix could be acted upon and made the basis ofconviction without being corroborated in material particulars. However, therule about the admissibility of corroboration should not be ignored by theCourts in sexual offences. 9.The case of the prosecution is that the prosecutrix was taken to Magazine house situated in a dense forest and kept there for aperiod of more than 5 days and offence of 376 was commissioned by appellantsone after another which continued for five days. However, therule about the admissibility of corroboration should not be ignored by theCourts in sexual offences. 9.The case of the prosecution is that the prosecutrix was taken to Magazine house situated in a dense forest and kept there for aperiod of more than 5 days and offence of 376 was commissioned by appellantsone after another which continued for five days. To disprove this case, appellantfiled the letters D-1 to D-8 which are alleged to have been written by prosccutrix . Exh . D-9 is a document of settlement between the parties whichis dated 31-1-2008 . Exh . D-10is the statement of the prosecutrix recorded by theJMFC on 3-11-2003 underSection 164, Cr.PC . Exh .D-10-A is the statement of Nirmalabai . Hxh . D-11 is the X-ray report of the prosecutrix . Exh . D-12 is the statement of Leela Shanker . Exhs . D-13 and D-14 are the photographs of Magazine that is the house in which prosecutrix was kept for a long 5 days. After taking intoconsideration the law laid down by the Hon'ble ApexCourt, this Court is of the view that there are some important piece ofevidence and circumstances which goes against the prosecution which are asunder :- ( i ) Exh . P-1 is the medical reportof Chandrakala Bai in whichthe prosecutrix was examined by Dr. Sangeeta Bharti , Medical Officer(P.W. 1). In her report and also in her evidence she has stated that upon herexamination she found no sign of external injury on the person of the prosecutrix . She has further stated that there were no signof internal injury on her private part. She has further stated that two fingerscould easily enter into her private parts. She has also given opinion that Exh . P-7 is the intimation given by Mangilal to the police wherein it is stated that prosecutrix is missing from 31-10-2007 when she went to the Dashera fair. (ii)In the statement of the prosecutrix , she has statedthat she was taken on motor bike by appellant Jectmal which was being driven by him while appellant No. 2 Rameshwar was sitting behind her as pillion rider. She has further stated that she wastaken to the Maga/ine where appellant Rameshwar and Jeetmal removed herclothes and committed the offence punishable under Section 376 of IPC. She has further stated that she wastaken to the Maga/ine where appellant Rameshwar and Jeetmal removed herclothes and committed the offence punishable under Section 376 of IPC. She hasfurther stated that she was threatened for dire consequences and she was lockedin the room and the appellant left the place. She has further stated that theappellant Bhuwani Ram came on the second day aloneand committed the offence punishable under Section 376 of IPC" andthereafter left the place and locked the room. On the 3rd day, appellants Kamlesh and Foorlal came thereand committed same offence and threatened her for dire consequences. She hasfurther stated that on 4th day appellant/ Jeetmal and Rameshwar came and after removing her all the clothes rapedher. She has further stated that on 5th day when the appellants forget to lockthe premises, the prosecutrix came in the gallery andafter jumping she ran away. She has further stated that after coming on roadshe caught the bus and lodged the complaint. (iii)Story of the prosecutrix is that she had gone toattend the fair along with the family members but in the rush she missed themand she was taken by the Jeetmal and Rameshwar on the pretext and assurance that they will leaveher at her village. She has not stated that she tried to run away when she wason motor bike and was taken to Magazine instead of her village. She has notstated that she tried to resist when she was being taken to other place insteadof her village. Prosecutrix has not stated that shereside at any point of time when she was raped by the appellants who are fivein number. She has also not stated that she resisted when appellants attemptedrape one after another in all the live days. (iv) Photograph of the Magazine is on record. In herstatement, it has come that she was kept in the first floor of the house. Shehas also stated that she jumped through the window of first floor with thedistance of more than 5 ft. She has stated that she sustained injury when shejumped from the window. She has also stated that she sustained injury onexternal part of the her body when she was raped butthis statement does not find corroboration from the medical report. (v)It has also come in the evidence that there was no toilet facility in theMagazine. She has stated that she sustained injury when shejumped from the window. She has also stated that she sustained injury onexternal part of the her body when she was raped butthis statement does not find corroboration from the medical report. (v)It has also come in the evidence that there was no toilet facility in theMagazine. She has not stated anything that how she managed to live in Magazinefor more than five days when there was no toilet facility and the house waslocked from outside. (vi) Letters ( Exhs . D-1 to D-8) are alleged to have been written by the prosecutrix . Although, prosecutrix (P.W. 4) hasdenied that Exhs . D-1 to D-8 is in her ownhandwriting. In spite of this, no effective steps have been taken byprosecution to get handwriting of the prosecutrix verified. (vii) Proseculrix has admitted that Exh .D-9 is the document of mutual settlement which bears her signature. But noexplanation has been given that in what circumstances the prosecutrix signed the document ( Exh . D-9). 10.Alter due appreciation of the evidence which is on record, this Court is of theview that statement of the prosecutrix does notinspire confidence that she was raped by appellants. 11.In view of the aforesaid position of law and also in view of the aforesaiddiscrepancies and contradictions in the statement of the prosecutrix and also other surrounding circumstances, the appeal filed by the appellants isallowed and the impugned judgment dated 12-8-2008 passed by 1st Addl. SessionsJudge, Neemuch in S.T. No. 3/2008, whereby theappellants in all the appeals were convicted under Section 376 (2) (g), IPC isset aside. The appellants in all the appeals stand acquitted. Since theappellants are in jail, therefore, they be releasedforthwith, if not required in any other case.