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2014 DIGILAW 987 (MP)

State of Madhya Pradesh v. Rameshwar

2014-08-08

AJIT SINGH, N.K.GUPTA

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JUDGMENT : N. K. Gupta, J. The State has preferred the present appeal against the judgment dated 10.4.2003 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Hoshangabad in Special Case No.123/2001, whereby the respondents have been acquitted of the charges of offence punishable under Section 376(2)(g) of IPC and Section 3(2) (v) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as ' Special Act' ). 2. The prosecution story, in short, is that on 9.3.2001 at about 5:00 p.m. the prosecutrix (PW4) was going to answer the call of nature towards an open field from her house at Village Nandra (Police Station Timarni, District Harda). The respondents saw her all alone, and therefore they held the prosecutrix and forced her down on the ground near the field of Ramdas Rathi. Respondents Rameshwar and Radheyshyam they committed rape on her one after another one. Thereafter when she cried, they left her. The prosecutrix went back to her house and informed about the incident to her family members including her mother Krishna (PW1), father Raghunath and brother Mahesh (PW8). Since it was not possible for the prosecutrix to visit the police station in the night, on the next day i.e. on 10.3.2001 she lodged the FIR Ex.P-3 at Police Station Timarni. After registration of the case, the prosecutrix was sent for her medico legal examination. Dr. Pushpa Deshmukh (PW-2) examined the prosecutrix and gave her report Ex.P-1. Nothing abnormal was found in the report, however Dr. Pushpa Deshmukh prepared two slides of vaginal swab of the prosecutrix and also collected a petticoat from the prosecutrix and after due sealing handed over these articles to the concerned Constable for their forensic science analysis. After due investigation, a charge-sheet was filed before the JMFC Harda, who committed the case to the Special Court, Hoshangabad. 3. The respondents abjured their guilt. They took a plea that the prosecutrix permitted her cattle in their field, who spoiled the crops standing in the field and due to which a quarrel took place. However, to save liability of the prosecutrix, a false FIR was lodged by the prosecutrix. In defence Alkesh (DW-1) was examined. 4. The learned Special Judge after considering the evidence adduced by the parties, acquitted the respondents from all the charges appended against them. 5. We have heard the learned counsel for the parties at length. 6. However, to save liability of the prosecutrix, a false FIR was lodged by the prosecutrix. In defence Alkesh (DW-1) was examined. 4. The learned Special Judge after considering the evidence adduced by the parties, acquitted the respondents from all the charges appended against them. 5. We have heard the learned counsel for the parties at length. 6. In the present case, the prosecutrix (PW-4) was the sole eye-witness in the case. Krishna (PW1), mother of the prosecutrix has claimed that on hearing the outcry of the prosecutrix, she rushed towards the spot and found that the respondents were running from the spot, therefore she saw them from their back. However, the claim of witness Krishna (PW-1) appears to be a falsehood, because according to the FIR Ex.P-3, the prosecutrix told the incident to her mother in her house. If witness Krishna would have come to the spot, then such fact would have mentioned in the FIR as well as in the case diary statement of witness Krishna. 7. In the present case, the defence taken by the respondents is that the prosecutrix permitted her cattle to enter in the field of the respondents, and therefore a quarrel was initiated and to counter such allegations upon the prosecutrix she had lodged an FIR after due deliberations with her parents etc. Alkesh (DW-1) has stated that the cattle kept by the prosecutrix entered in the field of Rameshwar and when the respondents shouted upon the prosecutrix, she ran away from the spot. The respondents gave the cattle to the parents of the prosecutrix and exchange of words took place between them. 8. In this context, if the statement of witness Mahesh (PW8) is examined, then he has admitted that he gave 2-4 slaps to the respondent Radheyshyam and he was the person, who went with his sister to lodge the FIR on the same very day. It was not the story of the prosecution that Mahesh, brother of the prosecutrix was an eye-witness or after hearing about the incident he went to meet respondent Radheyshyam to make allegation about his deeds, and therefore he could give slaps to Radheyshyam only when Radheyshyam and Rameshwar went to the parents of the prosecutrix along with the cattle of the prosecutrix. Mahesh has admitted that he and his father took a land on lease and to take the cattle to that field, the cattle had to pass near the field of the respondents. He also admitted that the respondents had grown crops in their field. He was given some suggestion by the learned defence counsel that the respondents visited the house of witness Mahesh for blaming the overt-act of the prosecutrix. He was also suggested that Radhey-shyam was physically held and kept hanging in the well for sometime and then retrived. However, witness Mahesh did not accept such suggestion. After considering the statement of witness Mahesh, the possibility cannot be ruled out that to counter the allegations made against the prosecutrix, a false FIR was lodged by the prosecutrix, and therefore the evidence of the prosecution should be examined minutely. 9. The first drawback in the case is that the FIR Ex.P-3 was lodged with a delay of atleast 20 hours. The incident took place at about 5:00 p.m. and the prosecutrix immediately went to her house and intimated her mother soon after the incident and thereafter with the help of her brother Mahesh (PW-8) went to the police station on the next day and lodged the FIR Ex.P-3. In the FIR Ex.P-3, it is not mentioned as to why the FIR was not lodged on the same very day. It was slightly explained that there was no means of transportation available to the prosecutrix, and therefore she could not go to the police station in the same evening. In that context, the statement of witness Krishna (PW-1) is strange. She has stated that since her husband i.e. father of the prosecutrix went to place a motor in the house of his mother-in-law and he came back late in the night, therefore report could not be lodged on the same day, whereas such pretext was not mentioned in the FIR Ex.P-3. In this context, if the statement of Mahesh (PW-8) is examined, then he states that he and the prosecutrix went to the police station on the same day, but their FIR could not be written by the police, and therefore they again went to the police station on the next day and lodged an FIR Ex.P-3. When witness Mahesh took the prosecutrix for lodging an FIR, then there was no role of her father in lodging the FIR. When witness Mahesh took the prosecutrix for lodging an FIR, then there was no role of her father in lodging the FIR. Hence the delay in lodging the FIR was not concerned with the act of the prosecutrix— s father that he went to place a motor in the house of his mother-in-law. The reason of delay shown by witness Krishna cannot be accepted. 10. Mahesh (PW8) has stated that he and the prosecutrix went to the police station on the same day, but they had returned by the police. Such fact has not been told either by the prosecutrix or mentioned in the FIR Ex.P-3, and therefore the explanation given by Mahesh about the delay in lodging the FIR appears to be not acceptable. The prosecutrix has submitted that since the means of transportation were not available, therefore she could not go to the police station in the same evening for lodging the FIR. When her brother Mahesh claims that he went with the prosecutrix to the police station on the same day, then it cannot be said that there was no means of transportation available to the prosecutrix to go the police station for lodging an FIR on the same very day. If it is presumed that the prosecutrix had no means to visit the police station on the same day, then according to the FIR Ex.P3 her house was 17 kms away from the police station Timarni, and therefore by a bullock cart she could go to the police station within two hours on the next day morning. But it is strange that the FIR was lodged at about 5:00 p.m. on the next day. Hence, the FIR Ex.P-3 is delayed by atleast 20 hours and no acceptable explanation has been given by the prosecutrix and the witnesses for such delay in lodging the FIR. Under such circumstances, the delay in lodging the FIR creates a grave doubt in the prosecution story. The possibility cannot be ruled out that to create various medical circumstances for corroboration of the case, the FIR had been lodged after one night. 11. The prosecutrix and her brother Mahesh have stated that soon after the incident they went to meet the Kotwar of the Village and told about the incident, whereas Kotwar Jageshwar (PW-3) has refused to corroborate the prosecution case. 11. The prosecutrix and her brother Mahesh have stated that soon after the incident they went to meet the Kotwar of the Village and told about the incident, whereas Kotwar Jageshwar (PW-3) has refused to corroborate the prosecution case. On the contrary, he has stated that the prosecutrix did not inform about such event to him. He has admitted in the cross-examination that Mahesh told him that he wanted to lodge the FIR only about the quarrel. Under such circumstances, the testimony of the prosecutrix and her brother Mahesh comes in the cloud of doubt. 12. The prosecutrix (PW-4) and her mother Krishna (PW-1) have admitted that the marriage of the prosecutrix took place 7-8 years back. She remained with her husband for few months, and thereafter she left the house of her husband and she was residing with her parents. However, she was well conversant about the act of intercourse. In her examination, the special prosecutor as well as the trial Court had repeatedly asked as to what type of act was done with her by the respondents, but she did not reply to such questions. She simply said that the accused sat on her chest and did Burakam. For constitution of offence under Section 376 of IPC, it is necessary for the prosecutrix to prove that the respondents had committed intercourse without her consent. If she does not say about any intercourse, then the respondents could not be convicted for any part of offence under Section 376 of IPC. If such offence was committed with her, then there should be no hitch to the prosecutrix to tell about that act at the time of her statement before the trial Court. 13. Also she had stated that the respondents had thrown her on the ground due to which she sustained some injuries on her back. They also pressed her nose and mouth. Dr. Pushpa Deshmukh (PW-2) who examined the prosecutrix found no external injury on her person. There was no internal injury even. 13. Also she had stated that the respondents had thrown her on the ground due to which she sustained some injuries on her back. They also pressed her nose and mouth. Dr. Pushpa Deshmukh (PW-2) who examined the prosecutrix found no external injury on her person. There was no internal injury even. It is true that if the medical report is not corroborative, then still the testimony of the prosecutrix should be examined on its own merits and if the testimony of the prosecutrix is examined without corroboration of the medical report, then it would be apparent that there was a possibility that a quarrel between the prosecutrix and the respondents took place on the ground that the prosecutrix permitted her cattle to enter in the field of the respondents and consequently a quarrel took place in which Mahesh (PW8), brother of the prosecutrix assaulted the respondent Radheyshyam, and hence to counter the allegations made upon the prosecutrix, a false FIR might have been lodged. Secondly, the FIR was lodged with a delay of atleast 20 hours and no reasonable explanation was given for such delay. Thirdly, also the Village Kotwar Jageshwar (PW-3) did not corroborate the version of the prosecutrix. Fourthly, it was an unnatural act of the prosecutrix that she did not allege before the trial Court that the respondents committed intercourse with her without her consent. 14. Under these circumstances, the prosecution could not prove its case beyond reasonable doubt. The testimony of the prosecutrix cannot be believed beyond doubt. It is not proved beyond doubt that any of the respondents had committed rape on the prosecutrix, and therefore there was no possibility before the trial Court to convict the respondents for the offence under Section 376 of IPC or grave forms of such offence like Section 376(2)(g) of IPC. Since the prosecution could not prove the offence under Section 376 of IPC against the respondents, then the respondents could not be convicted for an offence under Section 3(2(v) of the Special Act. 15. On the basis of the aforesaid discussion, it would be clear that there is no reason so that the appeal filed by the State may be accepted. Consequently, the present criminal appeal is hereby dismissed by confirming the findings and conclusion drawn by the learned Special Judge, Hoshangabad. 16. 15. On the basis of the aforesaid discussion, it would be clear that there is no reason so that the appeal filed by the State may be accepted. Consequently, the present criminal appeal is hereby dismissed by confirming the findings and conclusion drawn by the learned Special Judge, Hoshangabad. 16. At present the respondents are on bail, their presence is no more required before this Court, and therefore it is directed that their bail bonds shall stand discharged. 17. A copy of this judgment be sent to the learned trial Court along with its record for information. Appeal dismissed.