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2011 DIGILAW 104 (CHH)

Triloki Singh alias Nankunna v. State of M. P.

2011-03-15

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 24.7.1993 passed by Additional Sessions Judge Bilaspur in Sessions Trial No. 167/1990 convicting the accused/Appellant for the offences punishable under Sections 376, 342 and 506(I) I.P.C. and sentencing him to undergo rigorous imprisonment for seven years with fine of Rs. 5000/- under Section 3/6, rigorous imprisonment for six months under Section 342 and rigorous imprisonment for one year under Section 506(I) Indian Penal Code, plus default stipulations. 2. Facts of the case in brief are that on 24.12.1988 FIR (Ex. P-1) was lodged by the prosecutor aged about 14 years alleging that on that day at about 4 p.m. when she had gone to the flour mill, the accused/Appellant came there and touched her cheek and shoulder and then he went back. It is further alleged that after some time the accused/Appellant again came there and took her to his house by her arms but as his wife was present inside the house he took her to the terrace and committed rape on her thrice by putting her under threat. Based on this FIR, offences under Sections 342, 506B and 376 Indian Penal Code were registered against him. After investigation, challan was filed by the police on 21.8.1989. 3. So as to hold the accused/Appellant guilty, prosecution has examined as many as 07 witnesses in support of its case. Statement of the accused/ Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveled against him and pleaded his innocence and false implication in the case. This apart, one Atmaram Asrani (DW-1) has also been examined by the defense in support of its case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/Appellant as mentioned above. 5. Counsel for the accused/Appellant submits that a very improbable story has been put forth by the prosecution that the prosecutor was subjected to rape by the accused/Appellant thrice in the open terrace adjacent to the main road but it was not seen by anyone. He also submits that the prosecutor did not even raise any alarm or make any effort to come out of his clutches. He also submits that the prosecutor did not even raise any alarm or make any effort to come out of his clutches. He submits that as per the FIR the prosecutor is said to have been subjected to rape thrice whereas in the court statement she has stated that the accused/ Appellant could not succeed in committing the rape because when he tried to insert his private part into that of her, she used to stand up. He submits that the medical evidence of the prosecutor also does not support the case of the prosecution as no internal or external injury was found on her person and that her hymen was found to be intact. He submits that as per the statement of her mother, the age of the prosecutor at the relevant time was about 18 years whereas as per the radiological examination vide Ex. P-7, her age at that time was in between 14 and 16 years which may carry the margin of two years on either side. 6. On the other hand, counsel for the Respondent/State supports the judgment impugned and submits that in view of the statement of the prosecutor though the offence under Section 376 Indian Penal Code is not made out against the accused/ Appellant, offence under Section 376/511 is clearly made out and so also the offences under Sections 342 and 506 (II) Indian Penal Code. 7. Prosecutor (PW-1) has stated in her evidence that the incident had taken place on 12.8.1988 at about 4 p.m. According to her, when she had gone to the flour mill, the accused/Appellant reached there, touched her cheek and shoulder and then after having some talks with the proprietor of the said flour mill he went back. She then went to the house of some lady and informed her about this act of the accused/Appellant. After some time, according to this witness, the accused/Appellant again came there and told her that he knew that she would come to the house of said lady. He then took her to his house by dragging and after bolting the door from inside he asked her to remover her clothes. Thereafter, he himself removed her clothes and took her to the terrace of his house, made her lie down and inserted his penis into her private part. According to her, when she tried to raise an alarm, he gagged her mouth. Thereafter, he himself removed her clothes and took her to the terrace of his house, made her lie down and inserted his penis into her private part. According to her, when she tried to raise an alarm, he gagged her mouth. She has then stated that after subjecting her to sexual intercourse inside the house for 1-2 minutes, the accused/Appellant took her to the terrace and there also he repeated the said act for 1 -2 minutes. On being asked whether the penis of the accused/Appellant had entered into her private part, she answered in negative saying that when he was trying to insert his penis into her private part she used to stand up. She has further clarified that not even a slightest penetration had taken place. According to her, after commission of the offence, the accused/Appellant had come to drop her up to the flour mill. Thereafter, she came to her house and narrated the incident to her mother though the accused/Appellant had asked her not to do so and then her mother disclosed the same to her father. According to this witness, the Appellant had given her Rs. 2/- which she had given to the police. Thereafter, she went to the hospital but was not medically examined. In cross examination, she has stated that the flour mill is situated on the Ratanpur-Korba main road adjacent to which numbers of huts were there. According to her, 4-5 rooms are also there adjacent to the said flour mill in which the tenants were residing and one of them was scrapper. She has stated that after the accused/Appellant had touched her cheek and shoulder, she had gone to the house of one Bheri through the inner way leading thereto but she did not try to get away from there as she was mentally upset. On being asked as to why she did not leave the place after the accused/ Appellant had touched her cheek and shoulder, she has stated that she did not do that because her cycle was parked in the flour mill. She has stated that she did not raise a cry because the Appellant had gagged her mouth and shown her a knife. On being asked as to why she did not raise an alarm in the flour mill, she has stated that she was shivering. She has stated that she did not raise a cry because the Appellant had gagged her mouth and shown her a knife. On being asked as to why she did not raise an alarm in the flour mill, she has stated that she was shivering. She has thereafter stated that she had informed the police that the accused/Appellant had made her sit in his courtyard but then she retracts from this and states that there was no courtyard in his house. On being asked whether anyone else was present in the house of the accused/Appellant, she has answered in negative. She has expressed her ignorance about the presence of the wife of the accused/Appellant in his house. When questioned that in the police statement she had stated that as the wife of the accused/Appellant was there in the house, he had taken her to the terrace, she has stated that the said thing was informed to her by the accused/Appellant. She has then stated that she spent 5-10 minutes in the room and 5-10 minutes on the terrace but then she states that the accused/Appellant had kept her in his house for 1-2 hours. According to her, the terrace of the Appellant was open from all sides; no parapet wall was there and the activities going thereon could be watched by the passers-by of the road. Then she assigns the reason for her not raising the alarm to be the threat at the point of knife given by the accused/Appellant. She has admitted that just opposite the Sarkanda police station her father was having a groundnut shop and that the report was lodged after taking permission from her father. Sumitra Bai (PW-2) - the mother of the prosecutor has stated in her evidence that age of the prosecutor at the relevant time was 18 years and that on the date of incident the prosecutor had gone to the flour mill and when she did not return, she proceeded thereto in search of her, she met her on the way weeping and on being asked as to why she was weeping, she told her about the incident. Dr. V.K. Khetrapal (PW-3) is the witness who had medically examined the accused/Appellant and given his report Ex. P-3 has stated that there was no injury on his penis and he was capable of performing sexual intercourse. Dr. Dr. V.K. Khetrapal (PW-3) is the witness who had medically examined the accused/Appellant and given his report Ex. P-3 has stated that there was no injury on his penis and he was capable of performing sexual intercourse. Dr. (Mrs.) Anjali Gupta (PW-4) is the witness who had medically examined the prosecutor and given her report Ex. P-5 has stated that no external or internal injury was noticed by her on the person of the prosecutor, her hymen was intact and no definite opinion could be given on her about the sexual intercourse. She has stated that age of the prosecutor at the relevant time was between 14 and 17 years and for determination of her exact age the prosecutor was referred for radiological examination. A.P. Tiwari (PW-5) is the witness who had recorded the FIR Ex. P-1 and done part of the investigation. Subhash Singh (PW-6) is the witness who had arrested the accused/Appellant and sent him for medical examination. Dr. C.S. Sharma (PW-7) is the witness who had taken x-ray of the prosecutor and given his repot Ex. P-7. According to this witness, age of the prosecutor at the relevant time was between 14 and 16 years which may carry the margin of 2 years on either side. Atmaram Asrani (DW-1) has stated that he was the proprietor of the flour mill and on the date of incident the prosecutor had come thereto but after some time she had got back but he was not aware as to where she had gone. He has stated that Ex. D-I to D-3 are the photographs of the flour mill, the house of the accused/Appellant and the road. 8. Having thus dealt with the evidence of the witnesses and other material available on record in detail it appears to this Court that while making allegations against the accused/Appellant the prosecutor has been very inconsistent. In the FIR she has stated that she was subjected to rape thrice - once in the room and twice in the terrace whereas as per her Court statement no rape was committed on her and was just made naked. In the FIR she has stated that she was subjected to rape thrice - once in the room and twice in the terrace whereas as per her Court statement no rape was committed on her and was just made naked. In paragraph 20 of he evidence when a question was put to her whether the Appellant had inserted his penis into her private part, she nodded in affirmation but in paragraphs 27 to 29 she has stated that he could not insert his penis into her private part nor even the slightest penetration took place. Further the evidence of the prosecutor makes it clear that no effort was made by her to come out of his clutches all along. Moreover, she has given two different versions in respect of the commission of crime in question - first being that she was raped in side the house and the second being that she was raped by him on the terrace. It is worth mentioning that though no spot map has been proved by the prosecution, if photographs Ex. D-1 to D-3 are seen, it becomes apparent that the house of the Appellant was on the main road and there was no parapet in the terrace. The prosecutor has even admitted that a triple storied building was adjacent to the house of the accused/Appellant and activities going on there could be easily seen from the road. Medical evidence of the prosecutor shows that no external or internal injury was found and if she was raped thrice on open terrace, there is every possibility of her sustaining some injury. This way, the prosecutor does not appear to be a trust worthy witness and therefore it would not be safe for this Court to convict the accused/Appellant as has been done by the Court below. Even as regards the age of the prosecutor, as per the evidence of Sumitra Bai (PW-2) - the mother of the prosecutor, she was aged about 18 years at the relevant time and according to the radiologist she was in between 14 and 16 years of age which may carry the margin of two years on either side. Thus it cannot be said that on the date of incident the prosecutor was minor. In this-view of the matter and considering the inconsistency in the FIR and the evidence of the prosecutor, the accused/Appellant is entitled for benefit of doubt. Thus it cannot be said that on the date of incident the prosecutor was minor. In this-view of the matter and considering the inconsistency in the FIR and the evidence of the prosecutor, the accused/Appellant is entitled for benefit of doubt. 9. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/Appellant is acquitted of the charge leveled against him. He is on bail. His bail bonds stand discharged.