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Madhya Pradesh High Court · body

2018 DIGILAW 870 (MP)

State of M. P. v. Hartum

2018-10-10

SANJAY YADAV, VIVEK AGRAWAL

body2018
JUDGMENT Agarwal, J.--1. State through Police Station Cantt. Guna, has filed this criminal appeal under section 378 of Code of Criminal Procedure, 1973, being aggrieved by judgment dated 21.1.2008, whereby respondents have been acquitted in Sessions Case No. 19/2003 by the Court of Additional Sessions Judge and Special Judge, Guna, acquitting the respondents of charges under sections 376 (1), 352, 506 (II) and 306 of IPC. 2. It is submitted that the first latch of the chain of the incident took place on 24.10.2002. When as per the FIR Ex.P-25 lodged on 2.11.2002 on the basis of the Dehati Nalisi Ex.P-1 dated 26.10.2002, respondent No. 1 Hartum Singh at about 12.00 to 01 a.m., forcibly committed rape on the deceased and, thereafter, other accused persons including Hartum Singh had threatened the deceased and her family members to not to report the matter and, therefore, abated suicide of the deceased, who committed suicide on 26.10.2002 due to drowning in a well. It is mentioned by the complainant and father of the deceased that he had gone to Nanakhedi for some work, where at about 1 am, his son Brijesh approached him that his sister's clothes were lying at the well and she had fallen in the well. When he had reached his village and saw that his daughter has died due to drowning and, thereafter, report was lodged on 26.10.2002. It is submitted that there is strong evidence given by Lal Singh (PW1), father of the deceased and Mohanbai (PW2), mother of the deceased which has been overlooked by the learned Additional Sessions Judge and Special Judge, Guna. It is pointed out that even Parmal (PW3), brother of the deceased has admitted that he had chased the accused No. 1 Hartum but due to injury caused to him by them, he could not catch hold of the accused No. 1 and, therefore, charges under section 354 of IPC are made out which resulted in the deceased committing suicide. Therefore, all the ingredients of section 107 IPC are made out so to convict the respondent No. 1 under section 306 of IPC. Similarly, charge under section 352 of IPC is made out against other accused persons and they be punished under section 352 of IPC. 3. Shri T.C. Bansal, learned counsel for the respondents, on the other hand, submits that the whole prosecution story is based on afterthought. Similarly, charge under section 352 of IPC is made out against other accused persons and they be punished under section 352 of IPC. 3. Shri T.C. Bansal, learned counsel for the respondents, on the other hand, submits that the whole prosecution story is based on afterthought. It is submitted that as per the prosecution witnesses alleged incident of rape had taken place on 24.10.2002 but in the Dehati Nalisi Ex.P-1, there is no mention of any such incident. Therefore, F.I.R. Ex.P-25 which has been lodged after investigation and on the basis of Dehati Nalisi is an exaggeration with a view to falsely frame the respondents. It is also pointed out that Lal Singh (PW1), father of the deceased, has admitted in his cross-examination in paragraph 10 that there was a dispute between his father Durjan Singh and the accused party over a piece of land since last 5-7 years. It is also pointed out that Lal Singh (PW1) has admitted in paragraph 11 that his house is constructed in a bakhar and when bakhar is locked which is chained in during night, then bakhar is closed and the toilet, where deceased had gone at night to answer call of nature is within the bakhar. It is also admitted that sÁe of the bathroom is 2-3 ft. long and of the same width having wall of height of 6 ft. but is open from top. Maximum length of the toilet is 4 ft. and he admitted that in that toilet, no person can lie down completely. 4. Learned counsel for the respondents has taken this Court through statements of Mohanbai (PW2), mother of the deceased who claims herself to be an eyewitness along with her son Brijesh. Brijesh is not examined in the present case. As per Mohanbai (PW2), when she heard cries of her daughter and had gone towards the bathroom, she saw Hartum lying over his daughter committing rape. She had beaten Hartum with her slipper and had caught hold of him from his hairs and shouted for help. When her son Parmal had reached the place of the incident, then Hartum pushed her and ran away. She send her son Brijesh to call her husband who had reached there in the night itself. 5. She had beaten Hartum with her slipper and had caught hold of him from his hairs and shouted for help. When her son Parmal had reached the place of the incident, then Hartum pushed her and ran away. She send her son Brijesh to call her husband who had reached there in the night itself. 5. In cross-examination, she admitted that she had reached the scene of occurrence alone where it was dark and because of paucity of space, knees, legs and elbows of the deceased were bruised and bleeding. His clothes were soiled in blood. It is pointed out that there are several contradictions in her statements given to Police vide Ex.D-1 and the statements given before Court because in her statement Ex.D-1, she has admitted that deceased had informed her about commission of rape, whereas as per Dr. H.D. Sharma (PW9), who had performed postmortem on the body of the deceased along with Dr. Smt. Lekha Tiwari and Dr. Late Shivram Singh Raghuwanshi, her hymen was intact. Vaginal swab was kept for chemical examination. Her uterus was normal. Tibia bone of left leg and visra were also preserved and handed over to the Police authorities. He opined that cause of death was asphyxia and death had taken place between 12 to 24 hours of performance of postmortem on 27.10.2002 between 10.30 to 12 noon. He opined that since hymen was intact, there was no penetration and there was no signs of injury on any external or internal part of the body or on the private parts. He declined to give any opinion whether death was homicidal or suicidal on the basis of postmortem report. 6. In view of such facts and also reading the evidence of Parmal (PW3), who admitted that in his case diary statement Ex.P-5 it is mentioned that his sister had informed him that when she had gone to toilet to answer call of nature, then Hartum had forcibly committed rape on her was in fact informed to him by his mother Mohanbai. This is a material contradiction from his statements under section 161 of CrPC He had admitted in paragraph 20 of his cross-examination that after lodging of report, none of the accused persons committed any "marpeet" with him or any of his family members. This is a material contradiction from his statements under section 161 of CrPC He had admitted in paragraph 20 of his cross-examination that after lodging of report, none of the accused persons committed any "marpeet" with him or any of his family members. He also admitted in paragraph 22 that since the incident which had taken place in night till the deceased committed suicide, there was no talk between him and the deceased in regard to the act of the accused No. 1 Hartum. 7. In view of such facts, it is submitted that the judgment of acquittal recorded by learned Special Judge is just and correct, inasmuch as though in paragraph 20, learned Special Judge has mentioned that though there are signs of accused No. 1 entering the house of Mohanbai (PW2), as he was seen running but that is not sufficient to prove the fact of sexual move or offence having committed by the accused No. 1. Similarly, Parmal (PW3) has admitted that his sister had not raised any alarm. There is no reliable evidence to convict the accused either for abetment of suicide or for offence of rape. Even ingredients of section 352 of IPC are not made out. 8. After hearing the arguments of learned counsel for the parties and perusing the record, this Court is of the opinion that evidence of Mohanbai (PW2) that there were bruises of legs, back and elbows of the deceased is contradicted by Dr. H.D. Sharma (PW9). Dr. H.D. Sharma has also contradicted the allegation of rape. There is no explanation for not narrating the incident of 24.10.2002 in the Dehati Nalisi Ex.P-1. There are contradictions in the statements of so called eye witnesses, inasmuch as Lal Singh (PW1) admitted that sÁe of the bathroom is not sufficient to accommodate a person in lying down condition. Also there is an admission of old family rivalry, possibility of deceased falling in a well due to slip cannot be ruled out. Doctor has not given any opinion as to whether death was homicidal or suicidal. Ingredients of section 107 of IPC are not made out vis-a-vis accused. In view of the evidence given by Parmal (PW3), no case is made out against other accused persons, inasmuch as there was no use of force or threat once report was lodged belies the contention that there was threat by the accused party. Ingredients of section 107 of IPC are not made out vis-a-vis accused. In view of the evidence given by Parmal (PW3), no case is made out against other accused persons, inasmuch as there was no use of force or threat once report was lodged belies the contention that there was threat by the accused party. Learned Special Judge dealt with this aspect, that it may be possible that deceased had some infatuation for accused No. 1 and since she was caught by her mother, therefore, she would have taken such an extreme step. Even otherwise, it is settled principle of law that merely on surmises and conjectures, charge under section 306 of IPC is not made out. Even there is no report of FSL on the vaginal swab of the deceased which was forwarded by the officer-incharge, Regional Forensic Science Laboratory, Gwalior, vide Ex.P22. 9. In view of such facts and also the law laid down by this Court in case of Madiya alias Mahadev v. State as reported in 2006 (2) JLJ 296 =2006 Cri.L.J. 1963 (MP) in which it has been held that if the accused is alleged to have tried to outrage the modesty of deceased who had committed suicide two days after the happening of the incident because she felt very much ashamed. Period of two days that elapsed between the two incidents shows that act of the accused did not instigate her to commit suicide. It was held that accused could not be held guilty of offence under section 306 of IPC. In the present case, even the charge of outraging the modesty is not made out and proved, therefore, there is no justification in invoking an unsubstantiated charge to be the cause of abatement for committing suicide. Thus, chain is not complete. Essential ingredients of offence are not made out, therefore, the order of acquittal passed by the learned Special Judge does not call for any interference. Appeal fails and is dismissed.