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Madhya Pradesh High Court · body

2014 DIGILAW 744 (MP)

Phool Chand v. State of M. P.

2014-06-30

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT Palo, J. -- 1. Appellant Phool Chand stood trial under section 376 of IPC and has been held guilty vide judgment dated 26.9.2002 in S.T. No. 153/2001 pronounced by the learned First ASJ, Guna, the appellant has been sentenced to life imprisonment. This appeal has been filed under section 374 CrPC assailing the conviction and sentence. 2. The undisputed facts of the case are that the prosecutrix is the minor daughter of the accused/appellant. Medical report prepared by Dr. A.S. Ojha which disclose, that there is no disease or deformity which can make the appellant incapable to perform sexual-intercourse, has been admitted by the appellant under section 294 of CrPC. 3. The prosecution story in brief is that Guddi Bai (PW 2),is the mother of the minor prosecutrix aged about 15 years has been examined as PW 1. Five days earlier to 24th February, 2001 the complainant Guddibai had gone to wash her face and hands. When she returned she saw that her husband (accused) is committing sexual-intercourse with her minor daughter. On seeing this she fainted. After she regained consciousness she asked her husband what he was doing. The appellant Phool Chand replied that he can do whatever he wants to do with his daughter. He used to lock the prosecutrix in side the house and the prosecutrix was also subjected to assault by the accused. She has also alleged in her report that the prosecutrix also stated to her that prior to this incident, her father committed sexual-intercourse with her. The accused used to keep the complainant and the prosecutrix inside the house and they were not allowed to go out. On 24.2.2001 with great difficulty, the complainant came out with her daughter and lodged the report at Police Station Raghogarh, District Guna. She further allege that the accused subjected them to harassment. They feel insecure and possibility of the accused again committing sexual-intercourse in future is very likely. 4. Having received the written complaint, the Police Station, Raghogarh District Guna lodged a report and after due investigation submitted charge sheet under section 376 (1) of IPC. The learned ASJ, Guna explained the charge under section 376 (1) of IPC to the accused appellant. The appellant abjured guilt. In his examination the appellant has stated that the prosecutrix is aged about 19 years, she is not minor. The learned ASJ, Guna explained the charge under section 376 (1) of IPC to the accused appellant. The appellant abjured guilt. In his examination the appellant has stated that the prosecutrix is aged about 19 years, she is not minor. He further stated that the prosecutrix is tutored by her mother “Guddibai”. Guddibai is not a woman chaste. She has been having illicit relationship with other persons. She is in the habit of not staying in in the house during night which, the husband accused did not like. On his opposing the same, the complainant became annoyed. The prosecutrix is also aware of her unchaste behavior. Because the accused appellant restricted the complainant to lead such a life, she lodged this false report against the accused appellant. The appellant / accused has further stated that he has been falsely implicated and the complainant has taken such steps, so as to put the appellant in jail and the complainant would lead an unrestricted independent life. 5. After affording opportunities, the learned trial Court passed the impugned judgment on 26.9.2002; held the accused guilty under section 376 (1) of IPC and sentenced him to life imprisonment. 6. We have considered the submissions made before us by both, counsels for the appellant as well as the respondent/State. 7. On perusal of the record it is found that the prosecutrix is aged about 15 years. The prosecutrix was radiologically examined by Dr. Sitaram Singh Raghuvanshi (PW 7) and after examining her X-ray plate Ex. P/9 he opined in his report Ex-P/8, that the age of the prosecutrix is above 16 years, but below 19 years. That being so, a doubt has been created on the prosecution case so as to the age of the prosecutrix. 8. The prosecutrix has stated that at the time of the incident, her mother had gone out and when she came back, she found her father (appellant) doing sexual-intercourse with her. Seeing this, her mother fainted. She has also narrated that her father (appellant) had committed such intercourse earlier too. In her cross-examination she was questioned as to how many times such incidents occurred earlier ? She has stated that her father in a span of last 5 – 6 months committed such intercourse two times, but she did not inform about these incidents to her mother. In her cross-examination she was questioned as to how many times such incidents occurred earlier ? She has stated that her father in a span of last 5 – 6 months committed such intercourse two times, but she did not inform about these incidents to her mother. It would be pertinent to mention here that the prosecutrix has agreed to the suggestions of the defense counsel that she was taken to the Government Advocate’s Office in the morning hours on the day her statement was recorded and she along with her mother were read out their police statements and were instructed to state the same in the Court room. That gives rise to the presumption that there is an element of tutoring. This presumption finds supports from the statement of the prosecutrix made in paras 8 and 9 of her crossexamination. The prosecutrix (PW 1) has unambiguously stated that there has been fight between her mother Guddibai and her father (appellant). Her father (appellant) restricts her mother to meet Puran Lal and Shivlal. This happened during last 2 to 3 years. She has further stated that her mother used to visit these persons during the night and used to come at around 2 AM, which her father protested. 9. Besides, she has also stated that she has reported to the police on the instruction of her mother. Had not her mother instructed to do so she could not have gone to lodge the report. She did not report herself but her mother lodged the report. 10. All these go to show that the prosecutrix has been under the influence of her mother and the possibility of tutoring cannot be ruled out. 11. The Hon’ble apex Court in the case of Caetano Piedade Fernandes and another v. Union Territory of Goa, Daman and Diu, Panaji Goa (AIR 1997 Supreme Court 135) has observed in a child case as under : “We have carefully gone through his (child) evidence, but we are constrained to observe that even after making the utmost allowance in his favour in view of the fact that he is a child witness, we find it difficult to accept his testimony” 12. In a case of rape, the medico- legal examination has great importance, Dr (Smt). Nidhi Jain (PW 6), who examined the prosecutrix on the same day the report was lodged, has prepared the Medico Legal Report (Ex.P/7). In a case of rape, the medico- legal examination has great importance, Dr (Smt). Nidhi Jain (PW 6), who examined the prosecutrix on the same day the report was lodged, has prepared the Medico Legal Report (Ex.P/7). She found no injury in the body of the prosecutrix. Her hymen is absent, it was ruptured. She has also found that the prosecutrix is habitual to sexual intercourse. The lady doctor who examined the prosecutrix is unable to state how old the hymen rupture is. She has reasoned out that the prosecutrix’s hymen was old torn. Therefore, she has opined that the prosecutrix is habitual to sexual intercourse. This also gives an impression about the conduct of the prosecutrix. Her statement regarding the so called sexual intercourse by the appellant may have been tutored. 13. In this regard reliance can be placed in the case of Narendra Kumar v. State (NCT of Delhi) (2012) 7 SCC 171 , in which the Hon’ble Supreme Court has laid down as under : “Minor or insignificant inconsistencies, discrepancies or contradictions in her statement inconsequential – But if her statement suffers from serious infirmities, inconsistencies and deliberate improvements on material points, as in the present case, no reliance can be placed thereon. Hence, held, appellant entitled to benefit of doubt, and hence acquitted” 14. The evidence of the prosecutrix in a case of rape has predominant consideration, but story of the prosecution seems to be improbable and belies logic. In this regard, citation in the case of Tameezuddin Alias Tammu v. State (NCT of Delhi) (2009) 15 SCC 566 can be profitable followed : “Evidence of prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter – On facts held, some supporting evidence was essential for prosecution’s case in vew of fallacies in prosecution version” 15. Guddibai (PW 2), who is said to be sole eye witness in this case, is not in good terms with her husband the appellant accused. Her statement needs to be scrutinized with precision. Guddibai (PW 2) has also agreed to the suggestions made by the learned defense counsel that she has been known to Puran and Shivlal since last 5-6 years, who are residents of village Ramnagar. Her statement needs to be scrutinized with precision. Guddibai (PW 2) has also agreed to the suggestions made by the learned defense counsel that she has been known to Puran and Shivlal since last 5-6 years, who are residents of village Ramnagar. This creates probable and reasonable doubt in the prosecution case. The statement of Guddibai (PW 2) is, therefore, does not inspire confidence, especially when the prosecutrix has stated about her relation with Puran and Shivlal. 16. The Hon’ble Supreme Court in the case of Radhu v. State of Madhya Pradesh (2007) 12 SCC 57 has cautioned that, “The Courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability”. 17. The contention of the learned Public Prosecutor that the accused-appellant being the father of the prosecutrix has sexually assaulted his daughter and there is no reason for the prosecutrix to unnecessary implicate her father. Therefore, the fact of rape on the prosecutrix has been established beyond reasonable doubt. 18. We are, however, unable to accept this contention because until and unless there is reliable and acceptable evidence to reach to conclusion that it is the accused/appellant who committed rape. 19. In this regard, the story of the prosecution is not supported by the medical evidence and the evidence of Guddibai (PW 2) suffer from discrepancies as she has grudge against the appellant, her statement cannot be fully relied upon. That being so, the sole statement of prosecutrix as there is every possibility of tutoring, in our opinion, would not be accepted without any doubt. 20. Having said so, we, accordingly, set aside the conviction and sentence passed by the learned trial Court and acquite the appellant of the charge levelled against him for the offence under section 376 (1) of IPC. Consequently, appeal is allowed.