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2015 DIGILAW 592 (MP)

Hari Singh v. State of M. P.

2015-05-15

N.K.GUPTA

body2015
JUDGMENT: N.K. Gupta, J. 1. The appellant has preferred the present appeal against the judgment dated 9.3.1998 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act in Special Case No. 63/97, whereby each of the appellant has been convicted of offence under Sections 376(2) and 506-II of the IPC and sentenced to ten years R.I. with fine of Rs. 2,000/- and one year R.I. with fine of Rs. 500/-. In lieu of payment of fine, the default sentence was also imposed. 2. Facts of the case in short are that in the midnight of 11th & 12th January, 1997, the prosecutrix (PW-1) was sleeping in her hut situated in the field of her husband at village Tumra (Police Station Chargawan, District Jabalpur). At about 12:00 O'clock in the night, the appellants entered in the hut of the prosecutrix. Initially, the appellant Kok Singh removed her clothes and committed rape upon her. Thereafter, the appellants Chunna @ Jhalkan Singh and Hari Singh @ Sarda Pradesh had also committed rape upon the prosecutrix one by one. They have threatened the prosecutrix and therefore, she could not shout at the time of incident. On the next day in the morning, she stated about the incident to her sister-in-law Laxmi Bai (PW-2). Her husband Tulai @ Tularam was out of station, who came back in the evening of Sunday and thereafter, the FIR Ex.P/1 was lodged on 3.11.1997. The prosecutrix was sent for her medico legal examination to the Elgin Hospital, Jabalpur. She was examined by Dr. M. Chakraverty (PW-6), who gave the report Ex.P/15. Dr. Chakraverty also procured two slides of vaginal swab of the prosecutrix and provided them to the concerned constable after their sealing. After due investigation, the charge sheet was filed before the Special Court. 3. The appellant abjured his guilt. He took a plea that the prosecutrix and her husband were working at the field of the appellant Kok Singh, who gave an advance of Rs. 2,000/- to them. After working for six months, they suddenly left the job, whereas a sum of Rs. 900/- and some wheat was to be recovered from the husband of the prosecutrix. When the appellant Kok Singh demanded to repay the advance given by him and wheat given to the prosecutrix and her husband, a false case has been lodged against the appellant. After working for six months, they suddenly left the job, whereas a sum of Rs. 900/- and some wheat was to be recovered from the husband of the prosecutrix. When the appellant Kok Singh demanded to repay the advance given by him and wheat given to the prosecutrix and her husband, a false case has been lodged against the appellant. In defence, Chandan Singh (DW-1), Genda Bai (DW-2), Horilal (DW-3), Pohop Singh (DW-4) and Basori (DW-5) were examined. 4. The Special Judge after considering the evidence adduced by the parties, acquitted the appellants from the charge of offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act but convicted them for the offence under Sections 376(2) and 506 part-II of the IPC and sentenced as mentioned above. 5. I have heard the learned counsel for the parties. 6. In the present case, the prosecutrix (PW-1) has stated before the trial Court that she and her husband had earlier worked in the fields of the appellant Kok Singh prior to the incident. When she was sleeping in her hut, the appellants went inside the hut. Her grandmother was also sleeping alongwith the prosecutrix. The appellant Kok Singh lifted the prosecutrix from cot and made her lie down on the floor and thereafter, he committed rape upon her. Thereafter, the appellants Chunna @ Jhalkan Singh and Hari Singh @ Sarda Pradesh had committed rape upon her one by one. Due to threat given by the appellants, she could not cry at the time of incident. On the next day morning, when her sister-in-law Laxmi Bai came to that hut, the prosecutrix informed her about the incident. On the Sunday evening, her husband came back and the prosecutrix narrated the story to him and thereafter, on the next day, the prosecutrix and her husband went to the police station, Chargawan and lodged the FIR Ex.P/1. FIR Ex.P/1 was duly proved by Sub-inspector Anant Bharve (PW-5). Dr. M. Chakraverty (PW-6) had examined the prosecutrix and gave her report Ex.P/15. No external or internal injury was found on person of the prosecutrix. However, she had prepared two slides of vaginal swab of the prosecutrix and handed over to the concerned constable after their sealing. The medical report Ex.P/13 given by Dr. M. Chakraverty is not positive. Dr. M. Chakraverty (PW-6) had examined the prosecutrix and gave her report Ex.P/15. No external or internal injury was found on person of the prosecutrix. However, she had prepared two slides of vaginal swab of the prosecutrix and handed over to the concerned constable after their sealing. The medical report Ex.P/13 given by Dr. M. Chakraverty is not positive. It would be apparent that the prosecutrix was a married woman and if she did not resist then, no indication of violence could be found in the medico legal examination of the prosecutrix and therefore, if the medical report is negative then, it makes no adverse inference against the prosecutrix. The slides of vaginal swab were sent to the Forensic Science Laboratory by the letter Ex.P/7. However, till the disposal of the case, no report of Forensic Science Laboratory was filed before the trial Court and therefore, the prosecution could not prove that any semen particle was found in the vaginal swab of the prosecutrix. It is also to be mentioned that the vaginal swab was taken after two days and therefore, the possibility cannot be ruled out that after two days, nothing could be found in the vaginal swab of a married woman. 7. It is a settled view of the Hon'ble Apex Court that no medical corroboration etc. is required to believe the testimony of the prosecutrix. Her sole testimony can be accepted without any corroboration, if her testimony is acceptable. Under these circumstances, looking to the factual position of the present case, the evidence of the prosecutrix and witness Laxmi Bai (PW-2) alongwith the FIR Ex.P/1 remains against the appellants. Laxmi Bai (PW-2) is sister-in-law of the prosecutrix. She has accepted that the prosecutrix informed her about the incident on the next morning but she did not say that as to why the steps were not taken by her husband after getting the information. Horilal (DW-3) husband of the witness Laxmi Bai was examined as defence witness, who has stated that the prosecutrix had informed him about the incident and he denied that he gave any statement to the police. In his case diary statement, he told that the appellant Kok Singh was in habit to have relations with the prosecutrix, however he was given up by the prosecution. In his case diary statement, he told that the appellant Kok Singh was in habit to have relations with the prosecutrix, however he was given up by the prosecution. However, the prosecutrix herself did not say that she informed her brother-in-law Horilal directly about the incident and therefore, looking to the testimony of Horilal, it appears that his evidence is hearsay evidence, which is not acceptable. It was Horilal and his wife Laxmi Bai to take steps soon after the incident, after knowing about the incident. 8. The prosecutrix had lodged FIR with the delay of at least one day with the pretext that her husband was out of station. According to her, her husband was out of station for past three days and when he came back in the evening on Sunday, she had informed him about the incident and on the next morning, they went to lodge the FIR Ex.P/1. In this context, Basori (DW-5) was examined who was operating a shop of grocery in the village. He went before the Court alongwith his credit account book and stated that on 11.1.1997, the prosecutrix and her husband took some jaggery, matchbox etc. on credit and therefore, on 11.1.1997, Tulai husband of the prosecutrix was very much available in the village. Since the witness Basori (DW-5) has stated that he has a credit account book relating to credit transaction of his customers and he was sure on the basis of that account book that husband of the prosecutrix was present in the village on 11.1.1997. The evidence of Basori washes the version of the prosecutrix that her husband went out for three days. Hence, the testimony of the prosecutrix was to be confirmed by Tulai @ Tularam that he went out side of village three days prior to the incident. It was for him to state that where he had gone and what was the purpose of his visit. If Tulai was present in the village on the date of incident then, there was no possibility with the prosecutrix to stay all alone in the hut and alleged rape could not be committed upon her. Also, if her husband was available on 11.1.1997 and he did not go anywhere then, the reason for delay in lodging the FIR appears to be doubtful. Also, if her husband was available on 11.1.1997 and he did not go anywhere then, the reason for delay in lodging the FIR appears to be doubtful. The prosecution has given up Tularam @ Tulai and therefore, he could not be examined before the Special Court. Hence, an adverse inference is to be drawn against him that the testimony of Basori (DW-5) is acceptable and Tulai @ Tularam was not absent from his house. Therefore, a doubt is created that in his presence, no rape could be caused by anyone with the prosecutrix and FIR was lodged with the delay of one day for which no suitable explanation is given by the prosecutrix. 9. The possibility cannot be ruled out that being a sister-in-law Laxmi Bai (PW-2) of the prosecutrix and her husband Horilal (DW-3) would have stated in favour of the prosecutrix. If the statement of the prosecutrix is examined then, she has refused that a sum of Rs. 2,000/- was given by the appellant Kok Singh to her husband as advance. However, she has accepted that she was working in the fields of the appellant Kok Singh earlier to the incident. She has also accepted that she resided in the hut given by the appellant Kok Singh in his field for six months and in those six months, neither Kok Singh nor any other appellant had tried to commit rape with the prosecutrix or teased her. The prosecutrix has not specified the time when she left the hut of Kok Singh and when she had started residing in the hut situated at her husband's field. She has accepted that near her field, nobody has constructed any hut and no agriculturist was residing in the hut of the field. Laxmi Bai has stated that she has a hut in the field of her husband but for security purpose, nobody was sleeping in that hut and she was residing in the house situated at urban area of village Tumra. After considering the evidence given by Laxmi Bai, there was no reason with the prosecutrix to have resided in the lonely hut, specially in absence of her husband. She could shift herself to the house of Laxmi Bai when, her husband was out of station. 10. The prosecutrix could not state about any reason as to why she shifted from the hut given the appellant Kok Singh. She could shift herself to the house of Laxmi Bai when, her husband was out of station. 10. The prosecutrix could not state about any reason as to why she shifted from the hut given the appellant Kok Singh. In para 12, she has accepted that her husband had gone to Jalon three days prior to the incident and her children went with her mother and grandmother was present in the hut but her grandmother could not hear anything and also she was blind. It is strange that the prosecutrix had two children and she was residing with her husband and suddenly her husband goes out of village, who was found present in the village by Basori on the day of incident and as to why he went out of that hut on that night when incident was caused, it is not a coincidence that children of the prosecutrix were taken by her mother. Also Tulai, husband of the prosecutrix did not dare to appear as a witness to state that he was out of village on the day of incident. It is also strange that when the prosecutrix was residing in hut of the appellant Kok Singh and the prosecutrix and her husband were not chucked off by the appellant Kok Singh then, suddenly they left the hut of Kok Singh and started residing in the field of her husband. The prosecutrix has also accepted that after leaving the job of the appellant Kok Singh, she was not doing any work. Learned counsel for the appellant gave some suggestion of enmity to the prosecutrix and she did not accept any allegation. 11. The prosecutrix was asked that when the hut was situated at lonely place then, what was the source of light available in the hut then, she has stated that one lamp was burning and she could see the appellants in the light of lamp. But, such fact was not mentioned in the FIR and it was not informed by her in examination-in-chief. After considering the entire conduct of the prosecutrix, it appears that no reason has been shown by the prosecutrix to leave the job given by the appellant Kok Singh. The appellant Kok Singh and other appellant did not try to commit cohabitation or eve teasing with the prosecutrix in those six months, when she resided in the hut provided by the appellant Kok Singh. The appellant Kok Singh and other appellant did not try to commit cohabitation or eve teasing with the prosecutrix in those six months, when she resided in the hut provided by the appellant Kok Singh. The FIR has been lodged with the delay of at least one day, whereas husband of the prosecutrix was found at the same village on the date of incident, whereas the prosecutrix had stated that her husband went to Jalon three days prior to the incident. It is also apparent that without completion of the entire period of contract, the prosecutrix and her husband left the job of the appellant Kok Singh therefore, the possibility cannot be ruled out that a false case has been lodged by the prosecutrix because the appellant Kok Singh was demanding the advance given by him from the husband of the prosecutrix. Under these circumstances, the testimony of the prosecutrix appears to be doubtful. 12. Under theses circumstances, it would be proper to examine as to why the prosecutrix did not sustain any injury, whereas there was an allegation that three persons had committed rape upon her by one by one. The prosecutrix has stated that she was sleeping on a cot and thereafter, the appellant Kok Singh lifted her and dropped her on the earth. The hut was not a regular house and therefore, surface of the floor must be uneven. When three persons had committed rape one by one then, certainly some abrasions etc. would have been caused on the back and buttocks of the prosecutrix due to odd surface. But Dr. M. Chakraverty (PW-6) did not find any injury to the prosecutrix on her back and buttocks. It is not stated by the prosecutrix that the appellants had any weapon with them to threat the prosecutrix. She did not state that any threat was given to her soon before the alleged rape. Thus, no possible resistance is shown by the prosecutrix, when the appellants were committing the offence of rape. However, no symptom of resistance was found by Dr. M. Chakraverty on the person of the prosecutrix at the time of her medico legal examination. 13. Learned counsel for the appellants has placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of "Dinesh Jaiswal Vs. However, no symptom of resistance was found by Dr. M. Chakraverty on the person of the prosecutrix at the time of her medico legal examination. 13. Learned counsel for the appellants has placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of "Dinesh Jaiswal Vs. State of Madhya Pradesh" [ (2010) 3 SCC 232 ], in which it is held that though the prosecutrix is liable to be believed save in exceptional circumstances, but to hold that a prosecutrix must be believed irrespective of improbabilities in her story, is unacceptable. Similarly, learned counsel for the appellants has also placed a reliance upon the judgment passed by the Hon'ble Apex Court in the case of "Rajinder @ Raju Vs. State of Himachal Pradesh" [ (2009) 16 SCC 69 ], in which the Hon'ble Apex Court has disbelieved the sole testimony of the prosecutrix. 14. In the light of aforesaid judgments of the Hon'ble Apex Court, if the factual position of the present case is examined then, it would be apparent that though, the prosecutrix was staying in the hut of the appellant Kok Singh, no one tried to commit rape in those six months. The prosecutrix and her husband left the job of the appellant Kok Singh without showing any reason and therefore, the possibility cannot be ruled out that the advance given by the appellant Kok Singh to the husband of the prosecutrix was to be refunded. Husband of the prosecutrix was available in the village on that day and his false absence was shown by the prosecutrix. If her husband was present in the village then, at the time of incident, he must be present in the hut then, the appellants could not commit any gang rape upon her. Her conduct after the alleged rape is unnatural. It was not possible that she did not sustain any injury where three persons have committed gang rape. FIR was lodged with the delay of at least one day and explanation given for that delay is found to be false. After considering improbability of statement of the prosecutrix, possibility cannot be ruled out that, to implicate the appellant Kok Singh and his relatives, a story of gang rape was cooked and to make it acceptable, a false fact was shown that her husband and children were not with the prosecutrix, when alleged incident took place. After considering improbability of statement of the prosecutrix, possibility cannot be ruled out that, to implicate the appellant Kok Singh and his relatives, a story of gang rape was cooked and to make it acceptable, a false fact was shown that her husband and children were not with the prosecutrix, when alleged incident took place. Under these circumstances, the sole testimony of the prosecutrix is not at all believable. Hence, in the light of the aforesaid judgments passed by the Hon'ble Apex Court, the conviction of the appellants for the offences under Sections 376(2) and 506 Part-II of the IPC cannot be sustained. 15. On the basis of aforesaid discussion, the present appeal filed by the appellants is hereby allowed. Their conviction as well as sentence passed for the offences punishable under Sections 376(2) and 506Part-II of the IPC are hereby set aside. The appellants are acquitted from all the charges appended against them. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court. 16. At present, the appellants are on bail. Their presence is no more required before the Court and therefore, it is directed that their bail bonds shall stand discharged. 17. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.