Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 931 (MP)

Vinod Kumar Yadav. v. State of M. P.

2012-09-26

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon the 26th day of September, 2012) Thiscriminal appeal is preferred by the appellant being aggrieved by the judgmentdated 11/4/1997 passed by the Sessions Judge, Sagar in ST No.368/1996, whereby the appellant was convicted for commission ofoffence punishable under Section 376 of IPC and sentenced for three years'rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, onemonth's rigorous imprisonment was also directed. 2.The prosecution’s story, in short, is that on 21.9.1996 at about 7:00 PM in the evening the prosecutrix (PW-1) was all alone in her house situated at Village Bhatua (Police Station Cantt . District Sagar ). Her husband Ramesh (PW-2) and her mother-in-law went to attend a Dastone ceremony at the house of Vinod (DW-1) at Village Kapuriya . Cr.A.No.809/1997 The prosecutrix went to answer the call of nature near a Nala . Whenshe was coming back the appellant appeared before her, having a knife. He gavea threat that if she shouts, he would kill her and thereafter he dragged the prosecutrix by closing her mouth. Then he threw the prosecutrix on the earth and ultimately he committed rapeupon the prosecutrix . Since the mouth of the prosecutrix was closed by a hand of the appellant, shecould not shout. She could not resist due to fear and ultimately he put on hisclothes and thereafter he gave a threat again to the prosecutrix not to inform anyone about the incident. The prosecutrix went to the Village Kapuriya and called her husband Ramesh , who was in the house of Vinod (DW-1). She informed about the incident to her husband and thereafter she wentto the Police Station and lodged an FIR Ex.P-1. She was directed for her medicolegal examination. Dr. S. Mishra (PW-3) examined the prosecutrix and gave a report Ex.P-4. No external orinternal injury was found on the person of the prosecutrix .However, two slides of her vaginal swab were prepared and handed over to theconcerned Constable after sealing them, for their forensic examination. Theappellant was also arrested. He was sent for his medico legal examination.After due investigation, a charge sheet was filed before the JMFC Sagar , who committed the case to the Sessions Judge, Sagar . 3.The appellant-accused abjured his guilt. Theappellant was also arrested. He was sent for his medico legal examination.After due investigation, a charge sheet was filed before the JMFC Sagar , who committed the case to the Sessions Judge, Sagar . 3.The appellant-accused abjured his guilt. He took a specific plea that there wasa platform for worship of Karakdev near the Nala and the prosecutrix was inhabit to take her children for defecation to the place adjacent to the place ofworship. When she was prohibited to do so, a quarrel took place between the prosecutrix and the appellant andultimately a false case was registered against the appellant. In defence Ramrati (DW-2) wasexamined to establish the quarrel between the parties, whereas Vinod (DW-1) was examined to show that no any program ofthe Dastone etc. was arranged in his house andneither the prosecutrix nor her husband visited hishouse in such a program or otherwise. 4.The learned Sessions Judge after considering the evidence adduced by theparties convicted the appellant for commission of offence punishable underSection 376 of IPC and sentenced him as mentioned above. 5.I have heard the learned counsel for the parties. 6.The learned counsel for the appellant has submitted that there was a disputetook place between the parties, because the place of worship was dishonoured by the prosecutrix bytaking her children for defecation to that place, and therefore the appellantwas falsely implicated in the matter. He has further submitted that the entireincident is shaky. No medical evidence is available to corroborate the evidencegiven by the prosecutrix . The Investigation Officerdid not send the slides of vaginal swab etc. for forensic examination, becausehe knew that the case was a false case. The FIR was lodged ante-timed, andtherefore it also creates a doubt in the prosecution story. The appellant beacquitted from the charges of offence punishable under Section 376 of IPC andhis appeal may be allowed. 7.On the other hand, the learned counsel for the State has supported the impugnedjudgment. He has submitted that the conviction and sentence directed by thetrial Court appears to be correct and there is no basis by which any interferencemay be warranted in the conclusion drawn by the trial Court. 8.After considering the submissions made by the learned counsel for the partiesand looking at the facts and circumstances of the case, it is to be consideredas to whether the appeal filed by the appellant may be accepted? 8.After considering the submissions made by the learned counsel for the partiesand looking at the facts and circumstances of the case, it is to be consideredas to whether the appeal filed by the appellant may be accepted? And whetherthe sentence directed against the appellant can be further reduced? 9.The prosecutrix (PW-1) has stated that when she wascoming back from the Nala where she went to answerthe call of nature, the appellant held her and dragged her towards the Nala and threatened her with the help of a knife andultimately he committed rape upon the prosecutrix .Thereafter she went to the house of Vinod (DW-1) atVillage Kapuriya and told the entire story to herhusband Ramesh (PW-2). Ramesh took her to the Police Station and the prosecutrix lodged an FIR Ex.P-1 at the Police Station Cantt . District Sagar . Dr. S. Mishra (PW-3) has proved her medical report Ex.P-4. Noexternal or internal injury was found on the person of the prosecutrix .However, if there is no corroboration from the side of the medical evidence,then still the testimony of the prosecutrix can bebelieved, if there is no any contradictory situation visible otherwise. 10.In the present case, there are some inherent drawbacks visible in theprosecution evidence. Firstly, the prosecutrix andher husband have stated that at the time of incident, the husband was attendingthe function at the house of Vinod (DW-1) at Village Kapuriya , and therefore the prosecutrix went to the house of Vinod and told the entireincident to her husband. On the other hand, Vinod (DW-1) has stated before the Court that there was no function in his house andneither the prosecutrix nor her husband visited hishouse on that day. It is possible that Vinod took theside of the appellant due to any reason, and therefore the testimony of the prosecutrix and her husband may be considered on othergrounds also. The prosecutrix has stated that shecalled her husband outside of the house of witness Vinod and told the entire story and thereafter her husband took her to the PoliceStation by the bicycle. She has also stated that she did not inform about theincident to anyone else in the house of witness Vinod .On the other hand, Ramesh (PW-2) contradicts thestatement given by the prosecutrix . She has also stated that she did not inform about theincident to anyone else in the house of witness Vinod .On the other hand, Ramesh (PW-2) contradicts thestatement given by the prosecutrix . He has statedthat the entire story was told to so many women, who were present in thefunction and also to the Pandit , who was observingthe rituals in the function. But no such woman was examined in support of theprosecution case. Secondly, witness Ramesh has statedthat first he went to his house to bring the bicycle and then took the prosecutrix to the Police Station. These two contradictionsare material contradictions in the statements of the prosecutrix and her husband Ramesh . If the prosecutrix visited to the house of Vinod and if she did not tellanything to other, then how her husband tells the contradictory story that theincident was told to the various persons, but no such person was examined beforethe Court. Similarly, if the witness Ramesh had abicycle at that time, then he could go directly to the Police Station, butwitness Ramesh has stated that he went to his houseto get the bicycle and thereafter he went to the house of the appellant toblame him before his father. He has accepted in para 5 of his statement that before going to the Police Station, he visited thehouse of the father of the appellant and blamed him, but father of theappellant ran towards him to assault him, and therefore he fled away from hishouse. This version of the witness Ramesh is nowherecorroborated by the prosecutrix . Under suchcircumstances, it appears that the inherent drawback is present in theprosecution story. If the incident took place as stated by these witnesses,then why the material contradictions are visible in each and every event statedby the witnesses. 11.Under such circumstances, it appears that the testimony of Vinod (DW-1) is believable that there was no function held in his house and thewitness Ramesh had never visited to that house.Therefore, it was not possible for the prosecutrix tovisit the house of Vinod . If the testimony of defence witness Vinod (DW-1) isaccepted, then the entire story told by the prosecutrix comes in the cloud of doubt. 12.The prosecutrix has stated that the appellant closedher mouth by one hand and he had a knife in his another hand, but still she says that she was dragged and thrown on the earth. If the testimony of defence witness Vinod (DW-1) isaccepted, then the entire story told by the prosecutrix comes in the cloud of doubt. 12.The prosecutrix has stated that the appellant closedher mouth by one hand and he had a knife in his another hand, but still she says that she was dragged and thrown on the earth. She hasstated that she resisted, and therefore when she was lying on the earth, theappellant pushed her legs to take her in such a position. If it was so done,then she should have received some injuries on her back and buttocks. Shedenies that in such dragging, she did not receive any injury. Her versionappears to be unnatural. She knew that she did not sustain any injury, andtherefore she denied each and every suggestion for which she could not showthat the injuries caused to her. The place of incident Nala was not far away from the house of the appellant and other residents of thatlocality and if the prosecutrix could have made a hueand cry, then certainly the person residing near by such place could visit thespot and she could be saved. Her version that the appellant kept her mouthclosed by one hand and he had a knife in another hand appears to be unnatural.If both the hands of the appellant were engaged, then he could not do anyintercourse with the prosecutrix unless she was aconsenting party, but the explanation given by the prosecutrix appears to be hypothetical. She has stated that when the appellant wasinserting his penis in her vagina, he dropped the knife. However, initiallywhen the appellant holding the prosecutrix , she couldstart shouting, but it appears that she did not make any hue and cry. Theincident took place on bare earth, and therefore if she was not a consentingparty, then she could have sustained some injuries on her back and buttock. Ifsuch infirmities are considered with the contradictions came in the statementsof the prosecutrix and her husband simultaneously,then it would be clear that the incident alleged by the prosecutrix appears to be doubtful. 13. Ratiram (DW-2) has stated that since the prosecutrix was prohibited to get the defecation of herchildren near the platform kept for Karakdev , aquarrel took place between the parties and therefore the witnesses wereinformed that the prosecutrix had lodged an FIR foroffence of rape. 13. Ratiram (DW-2) has stated that since the prosecutrix was prohibited to get the defecation of herchildren near the platform kept for Karakdev , aquarrel took place between the parties and therefore the witnesses wereinformed that the prosecutrix had lodged an FIR foroffence of rape. However, the testimony of witness Ratiram appears to be false, because it was nowhere suggested by the prosecutrix that Ratiram waspresent at the time of incident when a quarrel took place between the prosecutrix and the appellant. It was stated that theplatform of Karakdev was meant for worship done by Gwala community, whereas Ratiram is a Yadav by community. However, Ratiram could not prove that the incident took place between the appellant and the prosecutrix about the dirt caused near the platform of Karakdev . 14.However, the testimony of the prosecutrix and herhusband appears to be not believable. Under such circumstances, if thetestimony of the prosecutrix is not corroborated bythe medical evidence, still it is not corroborated by other evidence. On thecontrary, Vinod (DW-1) has rebutted the testimony ofthe prosecutrix and her husband. Therefore, itappears that the entire story is cooked by the prosecutrix and her husband to implicate the appellant. The learned counsel for theappellant has also invited attention of this Court that the prosecutrix was 28 years old married woman having four children, whereas the appellant wasa young youth of 19 years, and therefore there was no need to the appellant todo such an act with the prosecutrix . However,difference of age is not so material for such type of incident. If someonelikes any old woman to do such an activity, then he could do such an assault,and therefore such argument is not material in the case. 15.On the basis of the aforesaid discussion and the material contradictions arosein the statements of the prosecutrix and her husbandwhere the prosecutrix did not make any hue and cry atthe time of incident and there is no any witness examined to corroborate theversion of the witness Ramesh as he stated about theincident in the house of Vinod (DW-1), the testimonyof the prosecutrix looses its trust, and therefore itis not proved beyond doubt that the appellant committed rape upon the prosecutrix . If any doubt is created, then benefit of doubtis to be given to the accused. If any doubt is created, then benefit of doubtis to be given to the accused. The learned Sessions has erred in convicting theappellant for commission of offence punishable under Section 376 of IPC.Looking to the prosecution evidence, the appellant could not be convictedeither for the offence under Section 376 of IPC or for any inferior offence ofthe same nature. Hence the appeal of the appellant appears to be acceptable.Consequently, it is allowed. The conviction as well as the sentence directed bythe trial Court for the offence under Section 376 of IPC is hereby set aside.The appellant is acquitted from the charge of offence under Section 376 of IPC.He would be entitled to get the fine amount back, if he has deposited the samebefore the trial Court. 16.At present the appellant is in custody, and therefore the Registry is directedto issue a release warrant as early as possible so that the appellant may bereleased. 17.A copy of this judgment be sent to the trial Courtwith its record for information and compliance.