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Madhya Pradesh High Court · body

2018 DIGILAW 822 (MP)

Mithu Lal v. State of M. P.

2018-09-26

J.P.GUPTA

body2018
JUDGMENT : J.P. GUPTA, J. 1. This judgment shall govern the disposal of aforesaid appeals which have been preferred against the common judgment dated 28-5-1998 passed by the 5th Additional Session Judge, Rewa in S.T. No. 182/1997, State of M.P vs. Babu Lal and Others, whereby the appellants have been convicted for commission of gang rape under sections 376(2)(g) of the Indian Penal Code and sentenced each of them to undergo R.I for 10 years and fine of Rs. 1,000/- each, with stipulation as mentioned in the impugned judgment. 2. The prosecution case, in brief, is that in the intervening night of 13th and 14th of April, 1995 at about 12:00 p.m. the prosecutrix (PW-5) was alone in the home with her children and she was residing alone after death of her husband. At night when she came out of room to get attended her child call of nature, the appellants and one Bhura (now dead) who were hidden there suddenly caught hold the prosecutrix and took her back side of the house and threw her on the earth. The appellant/accused Man Bharan caught hold of her both hands and appellant/accused Mitthu pressed her mouth with cloth. Firstly accused Bhura (now dead) forcibly committed sexual intercourse with her and thereafter, applicant Babulal committed sexual intercourse with her. During the incident, the prosecutrix (PW-5) tried to resist and cry but the accused persons kept her mouth pressing. Owing to turmoil, Gopal Konhar and the persons living in the vicinity reached on the spot then accused persons ran away leaving the prosecutrix. FIR Ex.P/5 was lodged by the prosecutrix at Police station City Kotwali, Rewa. On 14-4-1995 at about 9:35 A.M. against the accused persons which was recorded at Crime No. 143/95 under section 376/34 of the Indian Penal Code. Thereafter, the matter was taken into investigation. On 16-4-1995 spot map of the incident Ex.P/5 was prepared. Medical examination of the prosecutrix (PW-5) was done. Dr. Smt. Dipika Choudhary (PW-4) examined the prosecutrix and took vaginal swab and sealed petticoat. The appellants/accused were arrested and medically examine and seized articles were sent to FSL. After completion of all due formalities, a charge-sheet for the offence under section 376/34 of the Indian Penal Code was filed against the accused persons before the Court of Chief Judicial Magistrate, Rewa from where the case was committed to the Court of Session for trial. 3. After completion of all due formalities, a charge-sheet for the offence under section 376/34 of the Indian Penal Code was filed against the accused persons before the Court of Chief Judicial Magistrate, Rewa from where the case was committed to the Court of Session for trial. 3. During trial, learned trial Court framed charge for commission of offence under section 376(2)(g) of the Indian Penal Code against the appellants/accused but they abjured their guilt and pleaded complete innocence and also claimed to be tried. They also stated that the prosecutrix was a lady of bad character and the persons having criminal tendency were frequently coming to meet the prosecutrix and were creating nuisance in the locality and the appellants/accused objected the same, therefore, they were falsely implicated. In defense, the appellants/accused examined Sukhnandan (DW-1). 4. Learned trial Court after completion of trial and on the basis of the material and evidence came on record convicted the appellants/accused under section 376(2)(g) of the Indian Penal Code and sentenced as mentioned above. 5. In this appeal the finding of learned Trial Court has been assailed 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 testimony of the prosecutrix is itself contradictory and inconsistent and also contradictory to the medical evidence. Learned trial Court has erred in relying on the solitary testimony of the prosecutrix (PW-1). The statements of the other prosecution witnesses are full of contradictions, omissions and improvements. The medical opinion is also not in favour of the prosecutrix and FSL report has also not been produced. Hence, no implicit reliance can be placed on such kind of testimony. The witnesses who reached the spot and allegedly saw the appellants running away from the spot have not been produced by the prosecution and Gopal and Bagwan have not been examined. In these circumstances it cannot be said that the prosecution has proved the charge beyond reasonable doubt against the appellants/accused. Hence, the appeal be allowed the appellants/accused be acquitted of the aforesaid offence. 6. On the other hand, learned Govt. Advocate has opposed the aforesaid contentions and supported the impugned judgment and prayed that the appeal be dismissed. 7. In these circumstances it cannot be said that the prosecution has proved the charge beyond reasonable doubt against the appellants/accused. Hence, the appeal be allowed the appellants/accused be acquitted of the aforesaid offence. 6. On the other hand, learned Govt. Advocate has opposed the aforesaid contentions and supported the impugned judgment and prayed that the appeal be dismissed. 7. Having considered the contention advanced by learned counsel for the parties and on perusal of the record, it is found that with a view to prove the charge, only the statement of the prosecutrix (PW-5) is considerable as the other evidence do not support the prosecution case. One Jiniya allegedly reached on the spot hearing heard cry of the prosecutrix has turned hostile and did not support the prosecutrix version and Gopal and Bagwan allegedly reached on the spot and have not been produced in evidence before the trial Court and there is no explanation of it. Dr. Dipika Choudhary (PW-4) who examined the prosecutrix stated that no definite opinion can be given about the rape with the prosecutrix as she was habitual of the sexual intercourse and there was no mark of any resistance on her person. She prepared report Ex.P/4 and took her petticoat for chemical examination, however, there was no visible stain on the petticoat and also prepared the slide of vaginal swab of her and handed over to the police. There is no evidence with regard to sending of the aforesaid articles to the FSL for chemical examination and there is no report of the finding. Undoubtedly, the offence of rape can be proved merely by the sole evidence of the prosecutrix if the statement is inspired confidence and lead to trustworthy but in this case, the statement of prosecutrix (PW-5) is full of contradictions, omissions and exaggerations and not supported by relevant circumstances. Therefore, it cannot be said to be trustworthy to bring home the guilt of the appellants/accused. 8. The prosecutrix (PW-5) has stated that at the time of incident she was standing out of her house with one Aslam because at that time there was a hot whether. After the death of her husband she fell in love with Aslam and had physical relation with him and he used to visit her house. 8. The prosecutrix (PW-5) has stated that at the time of incident she was standing out of her house with one Aslam because at that time there was a hot whether. After the death of her husband she fell in love with Aslam and had physical relation with him and he used to visit her house. At the time of incident appellants Babu and Bhura (now dead) came to them and at that time appellant Babu was carrying sword and he told Aslam that he should leave the place otherwise he would kill him. The prosecutrix is not his wife and appellant Babu assaulted with sword on her neck and other appellants Mitthu and Man Bharan also came there and caught hold her. Thereafter, appellant Babu pressed her mouth and committed sexual intercourse and appellants Mitthu and Man Bharan caught hold her hands and thereafter, accused Bhura committed sexual intercourse with her. Accused Manbharan also tried to commit sexual intercourse with her. She made hue and cry. One Jiniya came on the spot and tried to stop the accused persons from committing rape with her. Thereafter, the accused persons fled away. Then, she lodged report Ex.P/5 and she was medically examined and her petticoat was seized. 9. In the FIR Ex.P/5 and statement Ex. D/1 prosecutrix did not disclose that before starting the incident her paramour Aslam was there and the accused persons firstly threatened him and asked to leave the spot and appellant Babulal carrying sword and caused injury on neck. Dr. Smt. Dipika Choudhary (PW-4) who examined the prosecutrix (PW-5) did not find any injury on the person of prosecutrix. Prosecutrix (PW-5) has also admitted that she did not see the accused Mitthu and Man Bharan before the incident and she knew their name while they were talking to each other at the time of the incident but no test parade was conducted during the investigation as during the investigation in the FIR Ex.P/5 and her statement Ex.D/1 she did not disclose that she was not familiar to accused Man Bharan and Mitthu. Aslam has not been examined and FSL report has not been produced. 10. Aslam has not been examined and FSL report has not been produced. 10. The defence witness Sukhnandan (DW-1) has stated that at the time of incident the prosecutrix was residing in his house as tenant and no incident of rape was taken place with the prosecutrix in the house where she was residing and she never told about the incident. Number of mischievous persons used to come in her house and make nuisance in the vicinity and the neighbourers took objection to frequent visit of Aslam in her house. The prosecutrix frequently made quarrel with the inhabitants of the locality and on account of improper behaviour and conduct of the prosecutrix, he got the house vacated from the prosecutrix. The statement of this defence witness has remained unchallenged during the cross-examination and support the defence version of the appellants/accused persons. 11. In view of the circumstances, the statement of the prosecutrix does not inspire confidence to be deemed her as a truthful witness and sufficient to hold the appellants/ accused guilty for committing heinous offence of gang rape. The reasonable possibility of falsely implication of the appellants on account of their objections pertaining to the activity of the prosecutrix cannot be made out. 12. In view of the aforesaid discussions, the findings of learned trial Court are not sustainable and the appeals deserve to be allowed. Consequently, the appeals are hereby allowed. The conviction and the sentence directed by the trial Court against the appellants for the offence under section 376(2)(g) of the Indian Penal Code are hereby set aside. They are acquitted of the aforesaid offence. The appellants are on bail. Their bail bonds stand discharged. The fine amount if paid, be returned. A copy of this order along with record be sent to the trial Court for information and compliance. Appeals allowed.