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Madhya Pradesh High Court · body

2014 DIGILAW 1102 (MP)

State of M. P. v. Pappu

2014-09-03

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT S.K. Palo, J. 1. Being aggrieved by the judgment dated 20.01.2001 pronounced by learned Session Judge, Datia in Sessions Trial No. 152/1998 by which the learned Sessions Judge vide impugned judgment acquitted the respondents for the offences under Section 376(2)(g) of IPC, the State of Madhya Pradesh has filed this appeal under Section 378 of Cr.P.C. 2. The prosecution story before the trial court, in brief, was that the prosecutrix along with her husband Kaushal Kishore lodged a report at Police Station Pandokhar, Datia on 04.03.1998 that the prosecutrix had gone, to bring grass for feeding the cattle, nearby the field of Chandan Singh where there was crop of gram nut, accused Gulab Singh armed with "Kulhadi" and accused Pappu armed with "Lathi" caught her. They pulled her into the field and turn by turn committed sexual intercourse with her, her slippers were torn, a Bichhua (short of ornaments used on the feets) was missed. 3. Police Station Pandokhar registered the crime, investigated the incident and filed the charge-sheet. After committal, learned Sessions Judge framed and explained offence under Section 376(2)(g) of IPC to the accused persons. The accused/respondents abjured the guilt. In their examination under Section 313 of Cr.P.C. they claimed that they are innocent. They have been falsely implicated due to enmity. 4. The learned Trial Court pronounced the impugned judgment on 20.01.2001 and acquitted the accused persons. 5. It is claimed by the appellant/prosecution that the evidence of the prosecutrix has been corroborated by the statement of her husband. After his returning to the village, the prosecutrix lodged the report. Therefore, the delay was properly explained. In the case of rape, it is not essential that other witnesses be examined. The evidence of the prosecutrix cannot be overlooked, therefore, the impugned judgment is bad in law. The statement of the prosecutrix is also supported by the medical evidence, hence, the impugned judgment is liable to be set aside. 6. We have considered the submissions made by the appellant and perused the record. 7. To bring home an offence under Section 376 of IPC the prosecution must prove that the accused persons had sexual intercourse with the prosecutrix without her consent. The Hon'ble Apex Court has propounded in State of Punjab Vs. 6. We have considered the submissions made by the appellant and perused the record. 7. To bring home an offence under Section 376 of IPC the prosecution must prove that the accused persons had sexual intercourse with the prosecutrix without her consent. The Hon'ble Apex Court has propounded in State of Punjab Vs. Gurmit Singh and others, 1996 (2) SCC 384 that:- "Unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused when her testimony inspires an confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury." 8. Therefore, it is very clear that there is no rule of law that testimony of rape victim cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle or probability just like the testimony of any other witness. However, if the Court may find it difficult to accept the version of the prosecutrix of its face value, it may search for evidence, direct or circumstantial, which lend assurance to her testimony. 9. The prosecutrix is a grown up married woman, therefore, her statement regarding the so called rape needs corroboration specially when there has been enmity between the parties. 10. No doubt, in case of forcible sexual intercourse corroboration is not a rule of law but in the present case when it is admitted that there is enmity between the parties and these are many contradictions and omissions in the statement of the prosecutrix (PW-1), therefore, it needs to be examined very thoroughly. 11. The report was lodged one day after the incident. The delay of lodging the report has been explained by the prosecutrix saying that the incident took place at about 5-6 in the evening and her husband was not present in the village on that day. He returned from village Bhander on the next day at about 12:00 noon. She explained the incident to her husband and then they lodged the report. 12. She did not inform about the incident to any one on the same day. Whereas her father-in-law, mother-in-law, brother-in-law and sister-in-law are also residing nearby her house. He returned from village Bhander on the next day at about 12:00 noon. She explained the incident to her husband and then they lodged the report. 12. She did not inform about the incident to any one on the same day. Whereas her father-in-law, mother-in-law, brother-in-law and sister-in-law are also residing nearby her house. Sarpanch Matadeen (PW-9), her brother-in-law Baladeen (PW-3) were also not informed about the incident. Baladeen (PW-3) is residing very near to the prosecutrix' house. Sarpanch Matadeen (PW-9) has also narrated that he was not informed about the incident by the prosecutrix or her husband Kaushal Kishore (PW-2). Whereas according to the prosecutrix and Kaushal Kishore, they inform the Sarpanch then went to the Police Station. Whereas Matadeen (PW-9) has stated that when he was called to the Police Station, these the prosecutrix informed him about the so called rape. All this creates a strong doubt in the prosecution case. 13. The incident said to have taken place in the evening hours on 03.03.1998. There are fields of other persons nearby the place of incident. The prosecutrix was walking to collect fodder for the cattle. If this incident has happened nearby that road, she could have raised alarm. She has also stated that the accused persons came with Axe and Lathi but she does not say that she was threatened of her life. At the other hand, she narrates that when one accused person committed rape with her, the other caught her hands. However, she does not say that she shouted for help, whereas it is not the case of prosecution that the accused persons shut her mouth. The 'axe' and 'lathi' has not been produced. 14. We also feel it necessary that the statement of the prosecutrix should also find corroboration from the medical evidence. She was medically examined on the third day, i.e., 05.03.1998. The lady doctor Smt. Anita (PW-6) has submitted the report Ex. P-5. In the report, there is no sign of struggle except small multiple superficial brownish abrasion size about 0.5 cm and below the side on the left side of the back. She has also stated that no definite opinion could not be given regarding sexual intercourse. Besides, no injury was found in the private part or body of the prosecutrix. P-5. In the report, there is no sign of struggle except small multiple superficial brownish abrasion size about 0.5 cm and below the side on the left side of the back. She has also stated that no definite opinion could not be given regarding sexual intercourse. Besides, no injury was found in the private part or body of the prosecutrix. As regarding, white marks present in the petticoat of the prosecutrix, learned Trial Court has explained that the prosecutrix is a married woman and the medical examination was conducted on the third day of the incident, whereas as per the prosecution story on the second day itself her husband had come from the other village. The so called white marks examined by the Forensic Scientific Officer that in Article A-3 petticoat and in the slide Article-B has found human semen, but this could be of the accused persons has not been approved. Surprisingly in the case, accused Pappu @ Atar Singh said to be the prime accused, has not been medically examined. The slide of accused Gulab Singh is of the same group that was found in the petticoat has not been proved. No serologist report has been produced. 15. The learned Lower Court has also found that the prosecutrix herself accepted that she had earlier lodged a report against Gulab Singh for outraging her modesty. Another criminal case is pending against co-accused Pappu on the report of her brother-in-law Baladeen (PW-3). This admissions also show that there has been enmity between the prosecution witnesses and the accused persons. 16. It would be appropriate to mention here that as per the prosecutrix, the accused persons first tried to pressurize her to enter into a compromise regarding earlier the case. When she refused to enter into compromise, the accused persons committed rape on her. But this fact is missing in the FIR, as well as, her police statement, which creates grave suspicion. 17. The absence of injury on any part of the body of the prosecutrix probables the absence of any coitus. The prosecutrix is the only witness as to the commission of rape. She has deposed to the effect that she struggled her best against the accused persons. Her evidence to the above effect was not corroborated by anything else on the record. The prosecutrix is the only witness as to the commission of rape. She has deposed to the effect that she struggled her best against the accused persons. Her evidence to the above effect was not corroborated by anything else on the record. If she really had struggled that way for a long time, it was expected that she would have sustained numerous injuries on her back, buttock and other parts of her body. But no such injury was found on her body, as was evidenced from her medical examination. It sounds improbable that a woman of 23 years' was forcibly raped by the accused persons, at rough and rugged place near the road in the field for a long time, she was struggling hard to escape from the clutches of the accused persons, yet she did not sustain any injury indicating any such struggle. The lady doctor who examined the prosecutrix only found small abrasion on her back. 18. In this regard, reference can be made to Gaya Rout Vs. State of Orissa reported in 1975 Cut LT 1301; Balwan Singh Vs. State reported in 1994 CrLJ 2810 (P&H) and Shyamraj Vs. State 1995 CrLJ 3363 (Cal). 19. Keeping in mind that there was no other supporting evidence, we find that the learned Trial Court has not committed any error in acquitting the accused persons. Therefore, we are inclined to maintain the judgment dated 20.0.2001. Consequently, this criminal appeal is dismissed.