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Madhya Pradesh High Court · body

2012 DIGILAW 618 (MP)

Makhmal Khan v. State of M. P.

2012-06-27

N.K.GUPTA

body2012
JUDGMENT : Thiscriminal appeal is preferred by the appellants being aggrieved by the judgmentdated 11/10/2002 passed by the Second Sessions Judge, Sehore in ST No.136/2002, whereby the appellants were convicted for commission ofoffence punishable under Section 376(2)(g) of IPC and sentenced for ten years'rigorous imprisonment with fine of Rs.2000/-. In default of payment of fineamount, an additional RI for six months was directed. 2.The present criminal appeal was decided by the Single Judge of this Court on13.8.2003 by reduction of sentence of the appellants, but vide judgment dated5.10.2005 the Hon'ble Apex Court quashed the judgmentof the Single Judge of this Court and case was remanded back for fresh hearingand decision on merits of the case. 3.Prosecution case, in short, is that prosecutrix (PW-2) aged 30-35 years was sleeping in her field situated near village Imalia Police Station Ahmedpur District Sehore in the night of 4th and 5th March, 2002 . At about 2:00 AM in the morning all the accused came tothe spot and they forcefully undressed her and committed rape upon the prosecutrix , hence committed gang rape with her. Thereafterthe appellants ran away from the spot. On shouting of the prosecutrix , Bablu brother of her husband came to the spot, who saw the appellants running from the spot. Thereafter the prosecutrix went to the police station Ahmedpur District Sehore whereshe lodged an FIR Ex.P-9. Itwas mentioned in the FIR that because of the incident the prosecutrix sustained injuries on her both elbows and thighs. She was sent for her medicalexamination and treatment to Government Hospital , Sehore .Dr. Smt . Manju Saxena (PW-1) examined her and gave a report Ex.P-8. Nointernal injury or any bleeding or discharge was found on her private parts.Two linear abrasions were found on each of the thigh. Dr. Saxena prepared the slide of the vaginal swab and also took salwar of the prosecutrix and handed over the same things toconcerned constable after sealing them. Such articles were seized by HeadConstable Ram Niwas (PW-3) by seizure memo Ex.P-10and they were duly sent for analyzing to Forensic Science Laboratory. All theappellants were arrested and they were also directed for their medicalexamination. Such articles were seized by HeadConstable Ram Niwas (PW-3) by seizure memo Ex.P-10and they were duly sent for analyzing to Forensic Science Laboratory. All theappellants were arrested and they were also directed for their medicalexamination. After due investigation, a charge sheet was filed before theJudicial Magistrate First Class, Sehore , who committed the case to the Sessions Court and ultimately itwas transferred to the Second Additional Sessions Judge, Sehore .Report from Forensic Science Laboratory was not filed till disposal of thecase. 4.The appellants-accused abjured their guilt. They did not take any specific pleabut have stated that daughter of the prosecutrix performed Nikah with nephew of the appellants, andtherefore the prosecutrix was unhappy with thatincident, hence the appellants were falsely implicated in the matter. However,no defence evidence was adduced by the appellants. 5.The learned Sessions Judge after due consideration of the prosecution evidenceconvicted and sentenced the appellants as mentioned above. 6.I have heard the learned counsel for the parties at length. 7.It is submitted by learned counsel for the appellants that due to enmity thepresent appellants are falsely implicated in the matter. The evidence of the prosecutrix was nowhere corroborated by her brother-in-law Bablu (PW-7). It is alleged that three persons committed agang rape upon the prosecutrix but no internal injurywas found on her person and no discharge or bleeding was found from her privatepart. The report of the FSL relating to vaginal swab was not filed till the endof the trial, and therefore medical report is nowhere corroborative to the prosecutrix . Linear abrasions which were found on thighs ofthe prosecutrix could not be caused in a gang rape.Dr. Saxena (PW-1) has admitted that those abrasionswere the nail marks and could be caused by scratching the skins by pointedobject. The prosecutrix has also stated that shesustained some injuries on her elbows, but no injury was found on her elbows.The FIR was lodged in a delayed manner, and therefore looking to the entireevidence of the case, the prosecutrix could not bebelieved. It is also submitted that the case is much old and the appellants arethe first offenders, therefore reduction in jail sentence may be directed. 8.On the other hand, learned counsel for the State has submitted that since it isa case of gang rape, the jail sentence awarded to the appellants cannot bereduced. The case is sound on merits. It is also submitted that the case is much old and the appellants arethe first offenders, therefore reduction in jail sentence may be directed. 8.On the other hand, learned counsel for the State has submitted that since it isa case of gang rape, the jail sentence awarded to the appellants cannot bereduced. The case is sound on merits. The appellants have committed gang rapeupon the poor woman, who was lonely sleeping in her field at the time ofincident. She went to the police station by her own with a lot of difficulties,and therefore such type of delay could be caused in lodging the FIR. Under suchcircumstances, it is submitted that conviction and sentence inflicted by thetrial Court appears to be correct. 9.In the present case findings of the Court below are totally dependent upon theevidence of the prosecutrix and her conduct. LearnedAdditional Sessions Judge relied upon the evidence of the prosecutrix on the basis of some case laws. However, it is to be made clear that aprecedent given by the upper Court may apply in the case, if facts of the caseare similar. First of all, it is to be assessed on appreciation of evidencethat whether the witnesses are believable or not. In the present case, there areseveral discrepancies visible in the evidence of the prosecutrix and her conduct. Firstly, there was no possible reason to commit gang rape bythe appellants upon the prosecutrix , secondly therewas one sided enmity between the parties, and therefore false implication ofthe appellants in the matter cannot be ruled out, thirdly Bablu (PW-7), brother-in- law of the prosecutrix did notsupport the evidence of the prosecutrix , fourthly themedical evidence is not in support of the prosecutrix ,fifthly conduct of the prosecutrix in lodging the FIRmakes her statement doubtful and lastly if discrepancies are summarized intotality, the prosecutrix appears to be unbelievable? 10.A rape can be committed by a mature person for the reason of lust, but for sucha reason there must be some background. It is not stated by the prosecutrix that the appellants had a bad eye upon her inpast or they tried to do such an act with her in the past. The prosecutrix was a mature woman aged 35 years at the time ofincident. Whose daughter was married with the nephew of the appellants, andtherefore it is apparent that it is not a case of lust. The prosecutrix was a mature woman aged 35 years at the time ofincident. Whose daughter was married with the nephew of the appellants, andtherefore it is apparent that it is not a case of lust. Secondly, a rape can becommitted upon the mature woman only to embrace her, to defeat her or to insulther. In the present case, there was no enmity shown by the prosecutrix against the appellants so that they could commit such a crime to insult her. Itis not a case where the prosecutrix or her husbandwas in possession of some property of the appellants, and therefore topressurize her such an act was committed with her. The prosecutrix did not allege any enmity between herself or her husband with the appellants. She was suggestedthat her daughter Hasina left her house with one Jafar Khan and now living as a wife of Jafar Khan, whereas Jafar Khan is son of one Qasim Khan, real brother of appellant Makhmal Khan, whereas remaining appellants are uncles of said Jafar Khan. The prosecutrix admitted the fact that herdaughter Hasina left her house with Jafar Khan and she is residing as a wife of Jafar Khan at present. Remaining portion of suggestions wasnot accepted by the prosecutrix . However, it isapparent that the appellants are beneficiaries in the relationship. Theirnephew took his wife of his own choice and therefore there was no need to takeany revenge by the appellants against the family of the prosecutrix .But on the other hand, the prosecutrix might havefelt insulted because of that incident and hence she could implicate theappellants falsely in such a heinous matter. Under such circumstances, it isapparent that there was no object or motive with the appellants to commit agang rape with the prosecutrix whereas she wasrelative to the appellants. 11.The conduct of the prosecutrix appears to beunnatural as depicted by herself . She had alleged thatgang rape done by three persons in turn by turn, but for such an act at leasttime of 30 minutes must have been spent. According to the prosecutrix ,her brother-in-law Bablu (PW-7) came to the spotafter hearing hue and cry of the prosecutrix , it means that Bablu came after30 minutes of the incident. She had alleged thatgang rape done by three persons in turn by turn, but for such an act at leasttime of 30 minutes must have been spent. According to the prosecutrix ,her brother-in-law Bablu (PW-7) came to the spotafter hearing hue and cry of the prosecutrix , it means that Bablu came after30 minutes of the incident. It would be natural for a woman held by anycriminal to make hue and cry from the very beginning and if Bablu was present near by the spot, then he could hear the hue and cry of hissister-in-law. If he was very near to the spot, then it is unnatural that hetook 30 minutes in reaching to the spot when the appellants were running fromthe spot. The conduct of the prosecutrix and Bablu (PW-7) shown by the prosecutrix appears to be unnatural. Secondly, Bablu (PW-7)turned hostile. He did not support the version of the prosecutrix .It is possible that since both the parties are relatives therefore Bablu could have saved the appellants in his evidence. Butthe prosecutrix herself admitted in para 15 of her statement that when she came back afterlodging the FIR, her brother-in-law Bablu asked heras to where she had gone and she informed him that she went to the policestation to lodge an FIR about the incident took place with her. If Bablu came to the spot soon after the incident, then storyrelating to the incident could have been narrated to Bablu at that time by the prosecutrix , and therefore it wasnot required for Bablu to ask as to where the prosecutrix had gone in the entire day. Secondly, if Bablu came to the spot, then there was no problem to the prosecutrix in taking Bablu withher to lodge the FIR at the concerned Police Station. It appears from the FIREx.P-9 and the evidence of the prosecutrix that shewent to the Police Station all alone. Under such circumstances, it is apparentthat Bablu (PW-7) did not turn hostile, but he istelling a truth that he never reached to the spot at the time of incident or hedid not see the incident. Under such circumstances, the story of the prosecutrix about the presence of her brother-in-law Bablu soon after the incident is unbelievable. 12.The prosecutrix was a major woman, who had a majorgirl and son in the family. Under such circumstances, the story of the prosecutrix about the presence of her brother-in-law Bablu soon after the incident is unbelievable. 12.The prosecutrix was a major woman, who had a majorgirl and son in the family. When such incident took place with her, then hernatural conduct could be to come back to her house and to take help of her sonin lodging the FIR. It is unnatural that from the spot she went directly to thepolice station without informing anyone in the family. Also it is accepted byher that there was no electric connection in her field, and therefore there wasno light of electric bulb etc. at the spot. The incident took place at the midnight , then how she could identify theappellants at the time of incident in the dark night. The learned AdditionalSessions Judge by his own found that it was 7th dayafter the full moon, and therefore there must be sufficient moon light by whichthe appellants could be identified. Such type of approach is not correct. Anopportunity was to be given to the appellants that it was 7th day after fullmoon, and therefore there was sufficient moon light. For such observations,copy of National Almanac must have been shown to the appellants during theirexamination under Section 313 of Cr.P.C . otherwisesuch fact could not be used by the trial Court in the judgment. It was night inwhich no arrangement of light was there on the field of the prosecutrix ,and therefore it was for the prosecutrix to explainin the FIR as well as in her statement as to how she could identify theappellants. If she would have identified the appellants in the moon light, thenit was for her to state that she could see the appellants in the moon lightotherwise she could have said that she could identify the appellants as pertheir voice and talks. The prosecutrix had lodged thenamed FIR against the appellants but did not mention about their identificationin the night where no arrangement of light was there on her field. It is adiscrepancy which makes the prosecutrix unbelievable. 13.It appears that the prosecutrix went from the spot tothe police station on foot but it is not possible to visit the police stationin such a manner. Now a days , various local taxi,tempos are available. It is adiscrepancy which makes the prosecutrix unbelievable. 13.It appears that the prosecutrix went from the spot tothe police station on foot but it is not possible to visit the police stationin such a manner. Now a days , various local taxi,tempos are available. The police station Ahmedpur isinformed to be 25 kms away from the spot and if aperson clears 3 kms per hour, then the prosecutrix must have taken eight hours in reaching Ahmedpur police station. She has said that she started fromthe field in the morning, but the FIR was lodged at 12:30 PM . Under such circumstances, her version that shewent to the police station on foot cannot be accepted and if she went with thehelp of any vehicle, then she could have reached the police station within twohours, and therefore the FIR lodged at 12:30 PM appears to be delayed by 2 ½hours. Secondly, since Bablu (PW-7) was not present,his name could not be inducted in the FIR without his consent, and thereforepossibility could not be ruled out that the prosecutrix contacted her brother-in-law Bablu prior to lodgingthe FIR. Undersuch circumstances, conduct of the prosecutrix appears to be unnatural. When she went to lodge an FIR, she did not take herbrother-in-law or her son with her in lodging the FIR. It is also an unnaturalact, which makes the prosecutrix unbelievable. 14.Most important fact was shown by Sub Inspector Rakesh Shrivastava (PW-4) while proving the spot mapEx.P-11, that the crop was not sown in the fields either of the prosecutrix or his brother-in-law Bablu .Under such circumstances, the prosecutrix had no reasonto have a night stay at the field away from all family members, who stayed attheir house in the residential area of the village. 15.It is true that if prosecutrix is a mature woman,then it is not necessary that she may sustain some internal injury. However,there should be some discharge from her private part. If three persons threwher on earth and committed rape, then she must have sustained injuries on herbuttock, back of the thighs, elbows etc. She had complained about the injurieson her elbows, but Dr. Saxena did not find any suchinjury on her elbow. Abrasions found on the thighs of the prosecutrix were not on the back of the thighs. It could not be said that those abrasionswere caused due to small stones lying on earth during the offence. She had complained about the injurieson her elbows, but Dr. Saxena did not find any suchinjury on her elbow. Abrasions found on the thighs of the prosecutrix were not on the back of the thighs. It could not be said that those abrasionswere caused due to small stones lying on earth during the offence. Somescratches were found in the internal side of the thigh, but the same could notbe caused by such alleged gang rape. There is no possibility in that crime bywhich such type of scratches could be caused on the interior portion of thethigh unless specially scratched. Doctor has opined that those abrasions couldbe nail marks and they could be self inflicted. Thus injuries found to the prosecutrix could not be caused in committing alleged gangrape unless any of the accused scratched her thighs by his nails. But the prosecutrix did not allege against any of the accused thathe created some nail marks on her thighs. Under such circumstances, theinjuries visible to the prosecutrix were not dulyconnected with the present crime, and therefore it cannot be said that themedical report given by Dr. Saxena was positive orcorroborative to the prosecutrix . Dr. Saxena could not give a definite opinion about theintercourse or the rape, and therefore she prepared a slide of the vaginal swabof the prosecutrix and sent it to the ForensicScience Laboratory. It is unfortunate that till the conclusion of the case,such FSL report relating to slide of vaginal swab could not be filed in thecase. Under such circumstances, medical evidence is not at all corroborative tothe prosecutrix . Presence of the scratch marks whichwere not connected with the crime indicates that such nail marks were createdon the person of the prosecutrix to falsely implicatethe appellants in the case to show their violence. 16.On the basis of the aforesaid discussion, it appears that there was one sidedenmity between the parties by which the appellants could be falsely implicatedin the matter. There was no reason with the appellants so that they could havecommitted a gang rape with an aged woman like the prosecutrix .There was no light in the field and no reason has been shown by the prosecutrix as to how she identified the appellants. By herown version, it is apparent that Bablu ,brother-in-law of the prosecutrix did not come to thespot but his presence is unnecessarily shown in the FIR. By herown version, it is apparent that Bablu ,brother-in-law of the prosecutrix did not come to thespot but his presence is unnecessarily shown in the FIR. The prosecutrix could take her brother-in-law or her son to thepolice station with her, but no reason has been shown as to why she did nottake them with her. The FIR is delayed and possibility cannot be ruled out thatthe story could be cooked in that time. The medical evidence is not at all corroborative, on the contrary it appears that some injurieswere created to show the violence by the appellants. Also there was no reasonwith the prosecutrix to stay lonely at the field forthe night. Under such circumstances, the prosecutrix cannot be believed for such a heinous crime. 17.Learned counsel for the appellants has placed his reliance upon the judgment ofthe Hon'ble Apex Court in the case of “ Dilip and another Vs. State of MP”, ( AIR 2001 SC 3049 ) inwhich the prosecutrix was disbelieved in similarcircumstances. In the light of the aforesaid judgment of the Hon'ble Apex Court, if facts of the present case areconsidered, then the prosecutrix cannot be believedand she does not appear to be trustworthy to believe, therefore the appellantscannot be convicted for commission of gang rape or any inferior offence of thesame nature. 18.On the basis of aforesaid discussion, the appeal filed by the appellants isallowed. The conviction and sentence directed by the trial Court against theappellants are hereby set aside. They are acquitted from the charges appendedagainst them. The appellants shall be entitled to get the fine amount back, ifthey have deposited the same before the trial Court. 19.The appellant No.1 Makhmal Khan and appellant No.2 Lalmiya @ Lalkhan are in custody, and therefore their release warrant beissued forthwith. Appellant No.3 Wahid Khan is declared absconding, but lookingto the fate of the appeal, when appellants No.1 and 2 could not be convicted,appellant No.3 will also get the benefit of the result of this appeal, andtherefore he is also acquitted and his perpetual warrant be called back unserved . 20.A copy of the judgment be sent to the trial Court forinformation and compliance.