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Madhya Pradesh High Court · body

2012 DIGILAW 293 (MP)

Puran Singh v. State of M. P.

2012-03-14

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.919/1996 (Shiv Datt Pathak v. State of M.P.), since both the appeals have arisen out of same judgment of learned trial Court convicting the accused persons for the offence punishable under section 376(2)(g) of IPC. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 24.2.1996 passed by learned Special Judge, Panna in Special Case No.6/1994 convicting the appellant under section 376(2)(g) IPC and thereby sentencing him to suffer jail sentence of 10 years RI and fine Rs.2,000/-; in default of payment of fine further imprisonment of 3 months, the appellant has knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 3. In brief, the case of the prosecution is that accused Puran Singh is Devar in distinct relation of the prosecutrix. The prosecutrix is daughter of Rattu. According to prosecution on 23.12.1993 in the evening accused persons brought a chicken at the house of prosecutrix and asked her to cook it. But, she put her inability for want of necessary ingredients to cook the chicken in her home.Thereafter, the accused persons went to the market and brought those ingredients and they themselves cooked the chicken at the house of prosecutrix and after eating it they went away from the house and again came back after consuming liquor. It is said that they forcibly committed rape over prosecutrix, as a result of which, she screamed and on hearing the scream, father of prosecutrix arrived to whom she narrated the incident. The FIR was lodged by prosecutrix after 5 days on 28.12.1993. 4. On lodging of the FIR, the criminal law was triggered and set in motion. A case was registered under section 376(2)(g) and also under section 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short “Act”) against the accused persons. After the investigation was over, a charge-sheet was submitted before the learned Special Judge, who framed charges under section 376(2)(g) of IPC and under section 3(1)(x) of the Act, which both the accused persons denied and requested for trial. 5. In order to bring home the charges, the prosecution examined as many as 11 witnesses and placed Ex.P-1 to P-17, the documents on record. 6. 5. In order to bring home the charges, the prosecution examined as many as 11 witnesses and placed Ex.P-1 to P-17, the documents on record. 6. The defence of accused persons is that after the death of husband of prosecutrix, she developed illicit relations with one village Chowkidar namely Brindavan, as a result of which she was expelled from the community by the Panchayat. On the date of incident the accused persons saw prosecutrix in compromising position with said Brindavan and in order to save herself from defamation, a false report has been lodged by the prosecutrix after five days of the incident. In support of their defence they have examined three witnesses of the same village namely Ramgulam (DW1), Shankarsingh (DW2) and Darshansingh (DW3). 7. The learned trial Court did not find the charge under section 3(1)(x) of the Act to be proved and eventually acquitted accused persons from the said charge. However, charge under section 376(2)(g) IPC was found to be proved and eventually, the accused persons have been convicted to undergo the sentence which I have mentioned herein-above. 8. In this manner, this appeal as well as connected criminal appeal has been filed by the accused persons assailing their judgment of conviction and order of sentence. 9. The contention of Shri Amanullah Usmani, learned counsel for appellant is that if the testimony of the prosecutrix is taken into account in true perspective it would reveal that her testimony does not inspire confidence. Learned counsel by inviting my attention to the evidence of prosecutrix has submitted that according to her evidence, on account of committing vile act of rape, the blood started oozing from her vagina and not only this, the said blood also stained her petticoat, but, no injury has been found by the lady doctor on the private part of the prosecutrix. It has also been put-forth by learned counsel that according to the prosecutrix she sustained umpteen injuries on her body but lady doctor did not notice even single injury. 10. Learned counsel for appellants by inviting my attention to testimony of father of prosecutrix Rattu (PW4) has argued that this witness who is father of prosecutrix arrived immediately after the incident but the prosecutrix did not narrate the incident to him and hence it raises a heavy doubt on the veracity of the case of prosecution. 10. Learned counsel for appellants by inviting my attention to testimony of father of prosecutrix Rattu (PW4) has argued that this witness who is father of prosecutrix arrived immediately after the incident but the prosecutrix did not narrate the incident to him and hence it raises a heavy doubt on the veracity of the case of prosecution. Learned counsel further submits that the prosecutrix has stated that she narrated the incident to her father but her father has stated that the prosecutrix did not state anything to him in regard to commission of offence.Thus, it raises a heavy doubt in regard to authenticity of the case of prosecution. 11. Learned counsel further submits that the prosecutrix herself has admitted that on the basis of allegations that she is having illicit relations with village Chowkidar Brindavan she was expelled from the community by the Panchayat. Although suggestion put to her that she is having illicit relations with Brindavan has been denied by her.According to learned counsel looking to the facts and circumstances and the admission made by prosecutrix that she has been expelled from the society, coupled with the fact that defence witnesses have categorically stated that after the death of husband of prosecutrix she had established illicit relations with Brindavan, the defence appears to be quite probable. 12. Learned counsel further submits that deliberately the FIR has been lodged after five days of the incident and no satisfactory explanation has been given and therefore learned trial Court has erred in convicting the accused persons. 13. On the other hand Shri Vivek Lakhera, learned Public Prosecutor argued in support of the impugned judgment. 14. I have heard learned counsel for the parties and having heard them I am of the view that this appeal as well as connected criminal appeal deserves to be allowed. 15. The alleged incident is said to have been taken place on 23.12.1993 and the prosecutrix was sent for medical examination after five days when she lodged in FIR on 28.12.1993. I shall scan the testimony of lady doctor Meena Namdev (PW2) lateron but before it, it would be condign to x-ray the testimony of prosecutrix herself.The accused persons are near relatives of prosecutrix. According to her, when both the accused persons committed rape over her, blood started oozing from her vagina. I shall scan the testimony of lady doctor Meena Namdev (PW2) lateron but before it, it would be condign to x-ray the testimony of prosecutrix herself.The accused persons are near relatives of prosecutrix. According to her, when both the accused persons committed rape over her, blood started oozing from her vagina. At this juncture, it would be relevant to mention here that the prosecutrix is having age of 42 years. According to her, at that time her father and Chowkidar Brindavan have arrived on spot and seeing them accused persons fled from the place of occurrence.Further she has stated that she lodged FIR (Ex.P-4) after five days of incident on 28.12.1993. 16. In cross-examination she has admitted that when the accused persons by overpowering her, were committing rape, her bangles were broken and pieces of glass pricked her wrist and she received abrasions. In cross-examination she admitted that when accused persons dealt shoe blows on her thigh, she received injuries.Further she has admitted that when a towel was thrusted in her mouth, injuries were received by her and all these injuries were shown by her to the lady doctor. However, the lady doctor Meena Namdeo (PW2) did not find even a single injury on the person of the prosecutrix. In examination-in-chief she says that the factum of receiving injuries by her was stated to the police, but, when this fact was confronted to her in cross-examination, she has stated that although she narrated about the injuries received by her to the police but if that fact is not mentioned in the FIR she cannot say anything. Similarly, she has stated that broken bangles lying on spot was also told by her to police personnel but this fact did not find place in her case diary statement or in the FIR. In para 14 of cross-examination she has stated that she received injuries on waist as she was thrown on ground by accused persons, but no injury was found by lady doctor on the waist of prosecutrix. According to her, on account of commission of rape over her, the blood came out and it stained her petticoat and saree but there is no positive report of chemical examiner in this regard. 17. In cross-examination para 21 the prosecutrix has admitted that 10 years prior to date of incident her husband expired and he committed suicide by hanging. According to her, on account of commission of rape over her, the blood came out and it stained her petticoat and saree but there is no positive report of chemical examiner in this regard. 17. In cross-examination para 21 the prosecutrix has admitted that 10 years prior to date of incident her husband expired and he committed suicide by hanging. Although illicit relationship with Chowkidar Brindavan has been denied by her and also denied the suggestion that on account of illicit relations with said Brindavan her husband committed suicide, but, in the same para she has admitted that on account of her illicit relation with said Brindavan 3-4 years ago she has been expelled from the community and for this reason only the accused Puran Singh did not invite her in the marriage of his daughter although accused persons are her near relatives.The suggestion put to her that villagers were objecting the illicit relationship of her with Brindavan has been denied by her.Further she has denied the suggestion put to her that when Brindavan was laying on a Cot in her house and she was massaging his legs, at that juncture, accused persons saw them and for this reason they have been falsely implicated.At this juncture, it would be condign to mention here that presence of Brindavan with whom it is said that prosecutrix is having illicit relation has been proved by the prosecutrix herself although she states that soon after incident Chowkidar Brindavan arrived at the place. 18. On scanning the testimony of prosecutrix, it is gathered that she is concealing the reality. The matter should be visualized from this angle that although she has denied the suggestion put to her that she is having illicit relations with Brindavan and on account of said relations her husband committed suicide and further she was massaging his legs and was seen by the accused persons in that position, but, she has categorically admitted that on account of illicit relationship with said Brindavan she has been expelled from the community and for this reason she was not invited by the accused Puran in the marriage of his daughter. Hence, the probable defence which has been taken by the accused persons has been proved. Hence, the probable defence which has been taken by the accused persons has been proved. In support of their probable defence, the accused persons examined three witnesses namely Ramgulam (DW1), Shankarsingh (DW2) and Darshansingh (DW3) and all these witnesses are resident of same village and in singular voice all of them are saying that the prosecutrix is having illicit relations with Brindavan and she was seen in compromising position with said Brindavan, as a result of which Panchayat was assembled and she was expelled from the community. Needless to say that the prosecutrix herself has admitted the fact of expelling from her community. According to me, the credential value of the defence witness is akin to that of prosecution and there is no law as such that merely a witness has been examined by the defence, he is not worth reliable. In this context I may profitably place reliance on the decision of Supreme Court State of Haryana v. Ram Singh [ AIR 2002 SC 620 ], and Munshi Prasad v. State of Bihar [ AIR 2001 SC 3031 ]. 19. Thus, according to me, the defence appears to be quite probable. It is well settled in law that the standard of proof of the defence should not be compared with that of prosecution where prosecution is obliged to prove its case beyond all reasonable doubts. The Court is required to see whether defence is probable and if it is found probable, due weightage should be given to it. 20. Although, the prosecutrix has stated that she received umpteen injuries but not even a single injury was found by Dr. Meena Namdeo (PW2). It is well settled in law that in sexual offence conviction can be accorded solely on the basis of testimony of prosecutrix and no corroboration is needed, but, said testimony should inspire confidence. I have already held hereinabove by scanning the testimony of prosecution that her testimony does not inspire confidence. 21. Since the testimony of prosecutrix does not inspire confidence I am required to see other statements of witnesses in order to arrive at a conclusion that whether any conviction can be accorded to the accused persons. I have already held hereinabove by scanning the testimony of prosecution that her testimony does not inspire confidence. 21. Since the testimony of prosecutrix does not inspire confidence I am required to see other statements of witnesses in order to arrive at a conclusion that whether any conviction can be accorded to the accused persons. Although, the prosecutrix has stated in her examination-in-chief that when accused persons were committing rape over her, her father arrived there and several other villagers also assembled to whom she narrated entire incident, but, the father of prosecutrix Rattu (PW4) has stated that his daughter did not narrate anything to him in regard to alleged incident. Although, this witness was declared hostile by the prosecution but he did not state that prosecutrix told anything about the incident to him. According to father of prosecutrix Rattu (PW4) he saw accused persons running away on the village path and it is admitted by him that several villagers use the said path for access. 22. Apart from what I have held hereinabove although alleged incident is dated 23.12.1993 but FIR was lodged after five days i.e. 28.12.1993 and no reasonable explanation has been given by the prosecutrix. She has stated in her testimony that on next day when she was going to lodge FIR, accused persons restrained her on way but why she did not lodge the report for another four days, there is no explanation. Although this alone cannot a ground to hold that the accused persons are innocent, but, taking into account overall aspect of the matter as well as facts and circumstances of the case, the evidence of the prosecutrix becomes highly suspicious and cannot be relied upon. 23. I have already held hereinabove that the testimony of prosecutrix is not reliable and does not inspire confidence; it is full of inconsistencies and it is also borne out from the record that in order to save herself from defamation since she was seen with Brindavan coupled with the fact that she was already expelled from her community on the ground that after the death of her husband, she is maintaining illicit relationship with Brindavan and further that FIR was lodged deliberately after five days, it cannot be said that accused persons have committed the offence of gang rape as envisaged under section 276(2)(g) IPC. In this regard I may profitably place reliance on the latest decision of the Supreme Court Krishan Kumar Malik v.State of Haryana [(2001)7 SCC 130], decision of apex Court Lalliram v. State of Madhya Pradesh [ 2008(3) JLJ 233 = (2008)10 SCC 69 ]. 24. Resultantly, this appeal and connected Criminal Appeal No.919/1996 succeed and are hereby allowed. The impugned judgment of conviction and order of sentence are hereby set aside and the appellant of both the appeals are acquitted from the charge of section 376(2)(g) IPC. They are on bail, their bail bonds are discharged. The amount of fine, if deposited, be refunded to them.