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Madhya Pradesh High Court · body

2011 DIGILAW 1050 (MP)

Roop Singh v. State of M. P.

2011-09-06

T.K.KAUSHAL

body2011
JUDGMENT T.K. Kaushal, J. 1. This appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as 'the Code') against judgment dated 11.12.1996, passed by Special Judge, Sagar in Special Case No. 107/96, convicting the appellant under Sections 376 and 323 of I.P.C. and sentenced him to 3 years R.I. and with fine of Rs. 500/- and 500/-respectively. 2. Facts, in short, are that on 31.5.1996 at about 10.00 am while prosecutrix, aged 25 years (PW-3) went to forest along with her niece Meena, aged 12 years (PW-4) for taking leafs was accosted and dragged by appellant and was subjected to rape. Meena (PW-4) rushed back to her house and told the incident to Lakhan Singh, husband of prosecutrix (PW-5). Later on, prosecutrix (PW-3) came back to the house and narrated the incident. At about 9.30 p.m. on the same day, prosecutrix (PW-3) along with her husband Lakhan (PW-5) proceeded to Police Station Banda, District-Sagar. According to prosecution, prosecutrix (PW-3) was assaulted by appellant and acquitted co-accused Lotan Singh, brother of appellant in relation. A report Ex.P/2 was lodged at Police Station Banda by prosecutrix (PW-3). A case at Crime No. 175/96 was registered under Sections 376, 323, 34 of the I.P.C. against appellant and another. Prosecutrix was sent for her medical examination to P.H.C. Banda. She was examined by lady Doctor Diwakar (PW-6). Lady Doctor prepared vagina swab slide and collected the clothes of the prosecutrix and handed over to the Police. M.L.C. report Ex.P/7 was prepared. Appellant was arrested on 3.6.1996. 3. After completing investigation, citing 20 witnesses, Police Banda submitted charge sheet in Special Court. Trial Court framed charge under Sections 376 of I.P.C./3(2)(5) of SC/ST (Prevention of Atrocities) Act, 1989 and 323 of I.P.C./3(1)(10) of SC/ST (Prevention of Atrocities) Act, 1989. Appellant abjured guilt. 4. To substantiate the case of prosecution, statements of Dr. Subhash Jain (PW-1), P.N. Yadav S.I. (PW-2), Prosecutrix (PW-3), Meena (PW-4), Lakhan Singh (PW-5), Dr.(Smt.) S.S. Diwakar (PW-6), Munnalal Sen (PW-7), Santosh Singh (PW-8) and Mubarak Ali, Constable, S.I. (PW-9) were recorded. 5. Defence of the appellant in the trial court was that of false implication on account of dispute arose in respect of damage caused by the prosecutrix to hand pump of the brother of the appellant. To substantiate aforesaid defence, statement of Khet Singh (DW-1) was recorded. 6. 5. Defence of the appellant in the trial court was that of false implication on account of dispute arose in respect of damage caused by the prosecutrix to hand pump of the brother of the appellant. To substantiate aforesaid defence, statement of Khet Singh (DW-1) was recorded. 6. Appreciating aforesaid evidence, trial Court acquitted the accused persons of the charge under Section 3(i)(x) and 3(ii)(v) of SC/ST (Prevention of Atrocities) Act, 1989 and further acquitted co-accused Lotan Singh of all the charges however convicted the appellant under Sections 376 and 323 of I.P.C. and sentenced as above. 7. This appeal has been preferred challenging the findings of the trial Court on the grounds that appreciation of evidence is not proper. Evidence of prosecution is suffering from material contradictions and omissions. Story forwarded by prosecutrix is absolutely unnatural and unreliable. Being a lady of easy virtue and being of party consenting to inter course, her statement cannot be relied upon. Trial Court committed serious error, by placing reliance on such statement of prosecutrix. For want of corroboration by medical evidence, entire story of prosecution becomes doubtful. On the other hand learned Panel Lawyer supported the findings of trial Court if conviction and sentence both. 8. Prosecutrix (PW-3) stated that she was forcibly caught by the appellant and was dragged. She tried her level best to got up and to run away but she could not do so. Prosecutrix (PW-3) stated in her chief examination that co-accused Lotan Singh did nothing with her and she lodged report against him in the stage of subconsciousness. 9. In para 6 of her statement, she admitted that she was earlier married to Bodhan Singh but he was suffering with mental disorder and was still living with her and now she got married with Lakhan Singh (PW-5). 10. In para 7 of her statement, she stated that she was dragged by the appellant up to about 70-80 fts. Her bangles were also broken. She sustained injury on her writ from the broken bangles. She stated that she was threatened by showing Axe but appellant committed inter course with her for about a period of half an hour and the axe was kept away by the appellant at that time. 11. In para 7 of her statement prosecutrix stated that Meena (PW-4) rushed back to her house and narrated the incident to her husband. She stated that she was threatened by showing Axe but appellant committed inter course with her for about a period of half an hour and the axe was kept away by the appellant at that time. 11. In para 7 of her statement prosecutrix stated that Meena (PW-4) rushed back to her house and narrated the incident to her husband. While she reached back to her house Lakhan Singh (PW-5) asked her whether there was any such incident done by the appellant with her then she conceded the fact. 12. Learned counsel for the appellant placing reliance on 1990 (1) (Vol. 1) M.P.W.N 111 Kanchedi Vs. State of M.P., submitted that in case of such a grown up lady, having antecedents not clean, regarding her matrimonial life, it is rather impossible for a supple person to apply force on her for committing rape. Statement of prosecutrix hence should not be believed in this case. 13. Meena (PW-4) also stated that sari of prosecutrix was removed by the appellant and both of them were laid down in a culvert. She ran away from the spot and narrated the incident to Lakhan (PW-5). 14. Dr.(Smt.) S.S. Diwakar (PW-6) stated that there had been no definite opinion about the rape or recent intercourse committed on the prosecutrix. In so far as injuries of the prosecutrix are concerned, Dr. Subhash Jain (PW-1) stated there had been four injuries on the person of prosecutrix as follows:- (i) Complaining pain in left thigh but no visible injury was seen. (ii) Contusion 51/2 cm x 21/2 cm on right thigh on dorsal side. (ii) Multiple contusions 2 cm to 10-12 cm on the back. (iv) Abrasion of 3 cm long on the chest. 15. Dr. Subhash Jain (PW-1) stated that he prepared M.L.C. report Ex. P/1 and aforesaid injuries could have been caused by lathi blows also. 16. Taking account of all the evidence, ocular and medical together, it reveals that prosecutrix sustained no injury on her person in order to oppose the act of rape, however she sustained injuries as a result of beating by appellant and acquitted co-accused that too at subsequent stage of the events. 17. F.I.R. Ex.P/2 was lodged by the prosecutrix after about 12 hours of the incident. 17. F.I.R. Ex.P/2 was lodged by the prosecutrix after about 12 hours of the incident. Prosecutrix was subjected to forcible rape or not cannot be ascertained merely on the basis of statement of the prosecutrix in present case because (i) Prosecutrix had sufficient opportunities to show her opposition on the appellant but she failed to show, (ii) Want of corroboration by medical evidence in respect of commission of rape and dragging marks etc. on her body, (iii) Prosecutrix had a questioned matrimonial background, (iv) She disowned her previous statement regarding co-accused and trial Court extended benefit of loubt to him and acquitted him of all the charges, (v) Prosecutrix took undue interest in roping in the appellant for offences under SC/ST (Prevention of Atrocities) Act. She was rightly disbelieved by the trial Court and acquit(sic)d the appellant of the relevant charges. Evidence of prosecutrix in this case, is not worthy of credence and cannot be made basis of conviction for offence under Section 376 of I.P.C. 18. In view of the aforesaid, conviction of the appellant under Section 376 of I.P.C. deserves to be and is hereby set aside. However, conviction and sentence under Section 323 of I.P.C. deserves to be maintained and requires no interference. 19. As discussed above, appeal is allowed in part. Conviction and Sentence of appellant under Section 376 of IPC is set aside. Conviction and sentence of the appellant under Section 323 of IPC is maintained.