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Madhya Pradesh High Court · body

2018 DIGILAW 758 (MP)

Narendra Singh v. State Of M. P.

2018-09-05

J.P.GUPTA

body2018
JUDGMENT : This criminal appeal has been filed assailing the impugned judgment dated 6-2-1998 passed by Fourth Additional Sessions Judge, Rewa in Session Trial No. 161/96 whereby the appellant and another accused have been convicted under sections 342 and 376(2)(g) of the Indian Penal Code and sentenced them to undergo RI for 6 months and RI for 10 years along with fine of Rs.500/with default stipulation as mentioned in the impugned judgment. 2. It is necessary to mention here that during the pendency of this appeal, appellant No. 2/accused Sukhlal has died on 30-4-2015 and by the order of this Court dated 26-11-2015 the appeal filed by appellant No. 2 Sukhlal turned abated and his name has also been deleted from the cause title of memo of appeal. 3. The prosecution case, in short, is that on 1-5-1996 the prosecutrix along with her brother-in-law (Jeth) lodged a report in the police station Govindgarh, District Rewa to the effect that she is the resident of village Bamhangawa. On 21-4-1996 at about 10-11 O’clock in the night appellant/accused Narendra Singh resident of village Kastari, came at her house. At that time, her husband was at the field. Appellant/accused Narendra Singh offered her that he would leave her to her parental house but she refused then he forcefully said that she would have to go then she went with him. Appellant/accused Narendra took her to the house having shop where coaccused Sukhlal was already sitting there. Appellant/accused Narendra Singh took her to the shop and confined her in the shop and locked from inside. Firstly appellant/accused Narendra forcibly committed rape with her. She resisted but he threatened her to be killed. Thereafter, coaccused Sukhlal outraged her modesty. When she made cry, he put cloth into her mouth. There was also third person who also outraged her modesty. She did not know to him. She was kept in the room for whole night and thereafter whole day and night by appellants Narendra Singh and Sukhlal. On third day she was taken out of the room and she was sent to her parental house by boarding her on the bus. Thereafter, she came back to her inlaws house at village Bamhangawa from her parental house and informed her husband about the incident. On third day she was taken out of the room and she was sent to her parental house by boarding her on the bus. Thereafter, she came back to her inlaws house at village Bamhangawa from her parental house and informed her husband about the incident. Thereafter, report was registered as Crime No. 47/96 at Police Station Govindgarh, district Rewa under sections 343 and 376 of the Indian Penal Code against the appellants/accused. Thereafter, the criminal law set in motion. During the investigation, statements of the witnesses were recorded and the accused persons were arrested. After investigation was over, the chargesheet under sections 342 and 376(2)(g) of the Indian Penal Code was filed against the present applicant and Sukhlal before the JMFC, Rewa, and the case was committed to the Court of Session for trial. 4. During trial, learned trial Court framed charges for commission of offence under sections 342 and 376(2)(g) of the Indian Penal Code against the appellants/accused persons and accused persons abjured 3 their guilt and pleaded innocence. The appellants/accused persons said that Dalpratap Singh, grandfather of accused Narendra Singh, was Panch on the Gram Panchayat Babhangawan and Kemla Prasad Patel was Sarpanch of the same Gram Panchayat. Accused Sukhlal was engaged as labour to Dalpratap Singh. Dalpratap Singh made several complaints against the Sarpanch kemla Prasad Patel, due to which, Kemla Prasad Patel was having enmity with Dalpratap Singh. Kemla Prasad Patel asked accused Sukhlal for leaving service of Dalpratap Singh and on refusal, Sarpanch Kemla Prasad Patel called brother-in-law of the prosecutrix and got a false report lodged against the accused persons. They also claimed to be tried. Learned trial Court after considering the evidence adduced by the parties and on the basis of the material available on record convicted and sentenced the appellants/accused persons as mentioned above. 5. This appeal has been filed on the ground that the statement of the prosecutrix is not reliable and there is no substantial corroboration of her testimony with the independent evidence. The version of the prosecutrix is itself contradictory and inconsistent and also contradictory to the medical evidence. Hence, the appeal be allowed the appellant/accused be acquitted of the aforesaid offences. 6. Learned Government Advocate has argued in support of the aforesaid judgment of the trial Court and prayed that the appeal be dismissed. 7. The version of the prosecutrix is itself contradictory and inconsistent and also contradictory to the medical evidence. Hence, the appeal be allowed the appellant/accused be acquitted of the aforesaid offences. 6. Learned Government Advocate has argued in support of the aforesaid judgment of the trial Court and prayed that the appeal be dismissed. 7. Having considered the contention of learned counsel for the parties and on perusal of the record, it appears that the findings of learned trial Court is mainly based on the statement of the prosecutrix (PW1) as so far as other witness husband of the prosecutrix, Rajendra (PW2) and brother-in-law, Ramraj Patel (PW3) are concerned; they were informed about the incident by the prosecutrix after 45 days of the incident. Their statements relating to confinement and rape with the prosecutrix being hearsay evidence are not admissible neither under section 6 nor under section 157 of the Evidence Act. Medical expert Dr. F. Siddique (PW6) has stated that the prosecutrix was habitual of sexual intercourse. No definite opinion can be given about commission of rape with her as mentioned in his report Ex.P7. Other witnesses are related to the process of investigation but there is no incriminating material in their statement which can be considered as an evidence to prove the ingredients of the charges. Thus on the record, except the prosecutrix (PW1), there is no other significant evidence which requires analysis with regard to truthfulness of the prosecution case. 8. There is no doubt that evidence of the prosecutrix (PW1) itself, if acceptable, is sufficient to establish the charges against the accused person but her evidence should be credible and beyond shadow of reasonable doubt. The prosecutrix is victim like an injured witness. Moreover ordinarily an Indian women will not make false allegation with regard to commission of rape with her as it causes social stigma and also deeply hurt her soul. Even though, the possibility of false implication cannot be ruled out. The person may be motivated on the factors hidden so deeply. The accused persons cannot indicate or uncover true motive of lies. Even though, the possibility of false implication cannot be ruled out. The person may be motivated on the factors hidden so deeply. The accused persons cannot indicate or uncover true motive of lies. Hence, it is duty of the Court to scan the statement of the prosecutrix and find out the ring of truth in place of mechanical acceptance of the statement of the prosecutrix on the assumption that she could not level false allegation against the applicant when there is no reason on record of it. 9. The prosecutrix (PW1) has stated that on the fateful night she was coming from the agricultural field of one Mama Thakur in the way appellant Narendra and other coaccused Sukhlal (dead) and one unknown person met her and told her that they would leave her to his parental house. She refused the offer then the appellant and his companions started teasing her then she went to her house where she was lying. Her husband and father-in-law were not in house as they went to agricultural field. Then the appellant and two other companions came to her house and asked her if she shout they would kill her thereafter took her to one shop belonging to appellant Narendra and then the applicant and his companions committed rape with her one-by-one. At that moment she was resisting with fists and kicks to the miscreants. They were threatening her to kill her and they confined her for 2 days in the shop and they committed repeated rape with her 34 times. On the 3rd day, they took her near Dihiya Nullah, where they again committed rape with her and threatened that if she shout they would kill her on the post of knife or farsa. After rescue of them she went to house of one Motilal then accused persons chased her and took her to Dihiya Nullah and boarded her on the bus and sent her to parental house situated in village Jauharmaniya where she told her mother about the incident. Thereafter, brother-in-law Ramraj Patel (PW3) came from Delhi and her husband Rajendra (PW2) also came, then she narrated incident to them, thereafter she lodged report Ex.P1 at Police Station Govindgarh District Rewa and police sent her for medical examination. At the time of incident she was pregnant and she was having 6 month pregnancy. Thereafter, brother-in-law Ramraj Patel (PW3) came from Delhi and her husband Rajendra (PW2) also came, then she narrated incident to them, thereafter she lodged report Ex.P1 at Police Station Govindgarh District Rewa and police sent her for medical examination. At the time of incident she was pregnant and she was having 6 month pregnancy. Rajendra (PW2) husband of the prosecutrix has stated that on the fateful night the prosecutrix was found missing and on the next day he went to find out her in the inlaws house situated in Village Jauharmaniya but her wife was not there and he came back. Then he made report Ex.P2 with regard to missing of his wife. Then again on 4th day he went to his inlaws village and his wife was there, where she disclosed about the incident then he called his brother from Delhi where he was working and then lodged the report Ex.P1. 10. Ramraj Patel, brother-in-law (PW3) has stated that his brother called him from Delhi on telephone then he came to his village where his brother Rajendra (PW2) and his mother told him that prosecutrix was missing then he went to parental house of the prosecutrix where he found her and where she told about the incident then the prosecutrix came back to his village and next day with the prosecutrix went to the Superintendent of Police Rewa and then lodged report at police station Govindgarh and prosecutrix was sent for medical examination. He stated that the applicant and his relative Constable Lalbahadur Thakur posted in police station threatened that if they spoke anything against them, they would have to face dire consequences. 11. As per prosecution story, the incident was taken place between 21-4-1996 to 23-4-1996 and FIR Ex.P1 has been lodged on 1-5-1996 near about after 7 days. Statements of Rajendra (PW2) and Ramraj Patel (PW3) disclose that after 23 days of the incident, they found prosecutrix and she told about the incident to them but thereafter they did not lodge FIR immediately and there is no reasonable explanation of this delay. The prosecutrix has narrated the facts of the incident first of all to his mother but the prosecution had not adduced her evidence. Even during the investigation her statement has not been recorded. The prosecutrix has narrated the facts of the incident first of all to his mother but the prosecution had not adduced her evidence. Even during the investigation her statement has not been recorded. Prosecutrix (PW1) has stated that on 3rd day rescuing herself from the applicant and his companion she went to the house of one Motilal and gave her introduction to him during the night but Motilal has also not been examined who could corroborate the aforesaid fact with a view to strengthen the testimony of the prosecutrix (PW1). 12. Apart from aforesaid infirmities in the prosecution case, the statement of prosecutrix is full of material contradiction and inconsistency. The prosecutrix (PW1) has stated that on the fateful night she was coming from the agricultural field and in the way accused persons met her and offered to leave her in parental house. On refusal they teased her and then she went to her house but this fact has not been mentioned in the FIR Ex.P1. Further she has stated that the applicant and his companion entered into her house and threatened that if she shout they would kill her then they took her after covering with cloth to the shop of the applicant but in the FIR Ex.P1 it is stated that only the applicant came to her house and insisted that he will leave her to her parental house and then she refused but on the repeatedly insisting she accompanied him and the applicant took her to his house having shop where other coaccused Sukhlal was present and one third unknown person was also there. The prosecutrix (PW1) has stated that the applicant and other coaccused person committed 34 times sexual intercourse with her and thereafter took her near Dihiya Nullah where they committed sexual intercourse with her. They threatened her to kill her with knife or farsa and when she was coming to her house she went to house of one Motilal and gave her introduction. Then again applicants’ chased her and forcibly took her and boarded on the bus for going to her parental house but these facts are missing in the FIR Ex.P1. Only it is mentioned that on the 3rd day they took her and boarded on the bus. Then again applicants’ chased her and forcibly took her and boarded on the bus for going to her parental house but these facts are missing in the FIR Ex.P1. Only it is mentioned that on the 3rd day they took her and boarded on the bus. The prosecutrix (PW1) has stated that after reaching parental house she disclosed the incident to her mother but this fact is also missing in the FIR Ex.P1 and the prosecutrix also stated that her husband and brother-in-law came to her parental house then she disclosed the incident to them but in the FIR Ex.P1, it is mentioned that when she came back to her husband’s house then she told about the incident to her husband. In this regard Rajendra (PW2) husband of the prosecutrix has stated that when 2nd time he went to inlaws house, the prosecutrix told him about the incident, then he called his brother from Delhi. 13. Apart from the aforesaid contradictions and inconsistencies and exaggerations, the circumstance in which the incident was taken place also weaks the credibility of the testimony of the prosecutrix. The prosecutrix (PW1) has stated that she was having 6 months pregnancy at the time of the incident. Dr. F. Siddique (PW6) has also confirmed this fact. In such physical condition she was forcibly raped without her will and consent 34 times repeatedly but she has not received any injury and no other harm was caused to her. Neither she made any cry at the time of going with the applicant and other coaccused person from her house nor she made any cry during the period she was confined in the shop. She has admitted the fact that the shop in which she was confined was open two sides. She was able to watch outsiders and the place was not isolated. Near about the place there was a passage and market and she was in a position to call out for help but she did not make any effort for rescue. Gulabwati (DW1) has also stated that she resides before the place of incident and on the relevant period she was at her home and she was also moving from the way near the house. Gulabwati (DW1) has also stated that she resides before the place of incident and on the relevant period she was at her home and she was also moving from the way near the house. Near the house there is a square where number of people were sitting and 23 shops were also there and the door situated north side was broken and the window was not completely closed having only iron grills. Even though the prosecutrix did not make effort for rescue. However she has stated that one of the accused kept watch on her from outside but it has not stated in FIR Ex.P1 and police statement Ex.D1. 14. Rajendra, husband of the prosecutrix (PW2) has stated that at the time of lodging missing report Ex.P2 he informed the police that her wife was somehow mentally disturbed. However during the trial he denied the fact that he mentioned this fact in the written report Ex.P2 but if whole statement of the prosecutrix will be seen it appears that she is not a person of static mind. 15. Jhoki (DW2), who is uncle of the prosecutrix has stated that about the incident the prosecutrix told him that her brother-in-law got the report lodged against some person as her husband beats her. The learned trial Court has given much weightage the circumstance that the applicant’s relative Head Constable Lalbahdur Singh was posted in the police station concerned and he and applicants many times threatened the prosecution witnesses with a view to restrain to disclose the incident before the Court as Rajendra (PW2) and Ramraj Patel (PW3) have stated in their statements but learned trial Court has ignored that they have never made any complaint to any authority with regard to aforesaid alleged threat as there is nothing on record in this regard. In such circumstance, during statement before the trial narrating such thing against the applicant is not too much significant and merely in the light of the aforesaid circumstance, the material contradiction, inconsistency and unnatural conduct and other weakness of the case cannot be ignored and possibility of false implication of applicant cannot be ruled out on account of enmity between the Sarpanch and the applicant being Panch of the Gram Pachayat on the instigation of the Sarpanch, which is not unusual in villages. 16. 16. Apex Court in the case of Tameezuddin @ Tammu vs. State (NCT of Delhi), (2009) 15 SCC 566 , has held that testimony of the 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 governs the appreciation of evidence in a criminal matter and looking to the facts of the case some supporting evidence was essential for prosecution’s case in view of fallacies in prosecution version. 17. In the case of Rajoo and others vs. State of M.P, reported in AIR 2009 SC 858 , Apex Court has held that the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. 18. In view of the aforesaid discussions, the testimony of the prosecutrix (PW1) is not wholly reliable and creditable; and the conviction of the applicant cannot be based merely on the statement of the prosecutrix. The possibility of false implication of the applicant with oblique motive cannot be ruled out. Hence, the finding of the learned trial Court is unsustainable, thus it is held that the prosecution has failed to prove its case beyond the reasonable doubt that the applicant committed aforesaid offences. Therefore, the appellant’s conviction and sentence under sections 342, 376(2)(g) of Indian Penal Code are set aside and he is acquitted of the aforesaid charges. Accordingly, this appeal is allowed. The appellant is on bail, his bail bonds be discharged and fine amount, if paid, be returned. A copy of this judgment be sent to the concerned trial Court for information and necessary action. Appeal allowed.