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Madhya Pradesh High Court · body

2020 DIGILAW 235 (MP)

Vishnu v. State of M. P.

2020-02-13

VIRENDER SINGH

body2020
JUDGMENT 1. The appeal is preferred against judgment and order dated 27.6.2000 rendered in Sessions Trial No. 37/1998 by 11th Additional Sessions Judge, Indore, whereby the appellant has been convicted under section 376(2) of the IPC and has been awarded 7 years RI with fine of Rs.200 and in default, further to undergo two months RI. 2. Co-accused Ramesh was also tried with the appellant. He was charged under section 376(2)/34 of the IPC. He was also convicted under section 354 of the IPC and has been awarded sentence for the period already undergone. He has not preferred any appeal. 3. Succinctly stated relevant facts giving rise to the present appeal are that on 21.12.1997 in the evening at about 07:00, the prosecutrix was cooking food in her shanty. Her mother had gone to pick rags. Her father, brother and sister had gone to watch some TV show in the neighbouring house. At that time, both the appellant and the co-accused entered into her shanty. Vishnu pulled her by her hands and asked her to permit him to make physical relation. He pushed her on the floor, removed her clothes, his own clothes and raped her. He also pressed her mouth, therefore, she could not screamed. After the incident, Ramesh also asked to allow her to make physical relation but as she resisted, he kissed her and they both ran away. She started weeping. After sometime, her father came and she revealed her ordeal. After two hours, her mother also came, they both revealed the incident before her mother. Father of the prosecutrix went to complain to the father of the accused Vishnu, but he started beating him and also threatened him for dire consequences. The prosecutrix lodged report on the same day at 21:10 in the evening. The police registered crime No. 76/1997 under section 376/34 of the IPC by deducing FIR Ex.P-10 and investigated the same. 4. During the investigation, the police sent the prosecutrix for medical examination vide requisite vide Ex.P-6. Dr. Namrata Krishnan PW3 examined her and found her age between 16 to 18 years but could not gave a definite opinion regarding commission of rape. The police also seized the clothes of the prosecutrix vide Ex.P-4-5, arrested the accused vide arrest memo Ex.P-7-8, got them examined medically. They were found fit for sexual intercourse. Semen slides were prepared. Dr. Namrata Krishnan PW3 examined her and found her age between 16 to 18 years but could not gave a definite opinion regarding commission of rape. The police also seized the clothes of the prosecutrix vide Ex.P-4-5, arrested the accused vide arrest memo Ex.P-7-8, got them examined medically. They were found fit for sexual intercourse. Semen slides were prepared. The clothes and slides were seized and were sent to the FSL. The police further recorded statements of the witnesses under section 161 of the Cr.P.c and after completing the investigation filed charge sheet. 5. Appellant was charged under section 376(2) of the IPC and co-accused Ramesh was charged under section 376(2) read with 34 of the IPC. They both charged, tried and convicted as stated above in para No. 1. 6. The appellant has preferred this appeal on the ground that the judgment and order of the learned trial Court is contrary to the law and facts on record. The trial Court has erred in not considering the fact that all the independent witnesses have not supported the case of the prosecution. Even the parents of the prosecutrix have not fully supported the prosecution. There is no medical evidence to confirm the alleged rape. Chemical analysis of the articles seized during the investigation also does not support the case of the prosecution. The statement of all three main witnesses i.e. prosecutrix PW1 Durgabai, father Ajay PW12 and mother Shakku Bai PW9 are contradictory on all material points. The prosecutrix was a married woman but even then she could not explain the rape committed with her. Her father has stated that the prosecutrix revealed the incident before her but the prosecutrix has not stated such facts. The prosecutrix has denied that she ever lodged FIR. She has denied that the police have ever recorded her statement. The learned trial Court has also ignored the fact that enmity between the prosecutrix and the appellant has been admitted by her in Court in her crossexamination as well as by her father during her examination before the trial Court. The incident put-forth by the prosecution is improbable. As per the prosecution made in the FIR, both the accused persons came, one of them raped her and another only kissed her, therefore, the trial Court has misappreciated the evidence and the appellant is entitled for acquittal. 7. Learned public prosecutor has opposed the prayer. 8. The incident put-forth by the prosecution is improbable. As per the prosecution made in the FIR, both the accused persons came, one of them raped her and another only kissed her, therefore, the trial Court has misappreciated the evidence and the appellant is entitled for acquittal. 7. Learned public prosecutor has opposed the prayer. 8. I have considered rival contention of the parties and have gone through the record. 9. There is no dispute that at the time of the incident, age of the prosecutrix was between 16 to 18 years. 10. This fact is also not disputed that even after medically examining the prosecutrix, Dr. Namrata PW3 could not state a definite opinion that rape was committed with the prosecutrix. No scientific evidence is also available to prove the case of rape. Neighbour or independent witnesses have also not supported the case of the prosecution. The prosecution case is solely depends on the statement of the prosecutrix and her parents. This fact is also admitted by the prosecutrix and her parents that their relation with the appellant and co-accused person was not cordial but inimical, therefore, close scrutiny of the statement of all three interesting witnesses is mandatory requirement of the law in this case. 11. First of all, I would like to consider the statement of the prosecutrix PW11. It is pertinent to note here that at the time of incident, the prosecutrix was a married woman but even after making allegations that she was raped by the appellant she could not explain the same, therefore, with the permission of the Court she was declared hostile and leading questions were put before her to explain the rape. She only said Yes, to all the facts put-forth by the learned public prosecutor on the basis of her police statement or FIR lodged by her (Ex.P-10-11). The prosecutrix has stated that she revealed the incident before her mother but her mother has stated that when she came back from work her husband revealed the incident before her. Father of the prosecutrix has stated that immediately after the incident, he came back home after watching TV in the neighboring house, the prosecutrix revealed the incident before him but the prosecutrix has not stated such facts. 12. Father of the prosecutrix has stated that immediately after the incident, he came back home after watching TV in the neighboring house, the prosecutrix revealed the incident before him but the prosecutrix has not stated such facts. 12. In para No. 7 of her cross-examination, the prosecutrix has admitted that there are several shanties adjacent to their shanty in the locality and it is thickly populated area, but even after her screams none turned up to their house. Neighboring witnesses produced by the prosecution Sushilabai PW1, Gendabai PW2 and Antarbai PW10 have not supported the case of the prosecution. It has been admitted by the prosecutrix in para No. 8 of her cross-examination that at the time of the incident, her father consumed had liquor and had made ruckus. He was hurling abuses publicly, therefore, crowd gathered and asked him not to do the same but he did not stop as he was under the effect of intoxication, therefore, the crowed thrashed and beat him. Her mother got annoyed by the act of the crowd and decided to lodge report. Two police personnel had also come there, therefore, her mother lodged report on the spot and put her thumb impression also. The police personnel assured them that they will locked up the persons who assaulted her husband. She has further stated that after 4-5 days of the incident, the police had come to them. They took her thumb impression on a paper, inquired with her parents and left the police. The police asked them not to come at police station stating that they have completed the proceedings. Thereafter, they had never gone to the police station. She has further admitted that she never visited the police station as the police had told her parents that she is not required to visit the police station. In para No. 9, she has clearly depicted that she neither visited the police nor filed any report or had given any statement to the police. In para No. 10, she has admitted that the report was never read over or explained to her. It is again admitted by her in para No. 10 that her father had consumed liquor, therefore, some scuffle took place with neighbours and they had lodged report for that incident only. 13. In para No. 10, she has admitted that the report was never read over or explained to her. It is again admitted by her in para No. 10 that her father had consumed liquor, therefore, some scuffle took place with neighbours and they had lodged report for that incident only. 13. Contrary to the statement of the prosecutrix, her father of the prosecutrix has denied the fact of enmity or the fact of incident of scuffle with his neighbours. This makes this witness unreliable. 14. Contention of the learned counsel for the appellant has some force that the prosecution has come with a improbable incident, which does not appear believable or does not appeal to the conscious that two accused persons entered in her house, one of them committed rape and another one only kissed her and they both ran away. 15. Therefore, in view of the previous enmity with the family of the prosecutrix, the incident dispute of her father with neighbour and scuffle pursuant thereto, non-support of any independent witnesses or neighbour, non-avaibility of scientific support of the allegation made by the prosecutrix, I do not find it safe to convict the appellant for the offence alleged against him. The case of the prosecution is full of suspicious and circumstances appear improbable or unbelievable, therefore, the appellant is entitled for benefit of doubt. The trial Court has committed error in convicting the appellant for the reasons discussed above. In the considered opinion of this Court, the judgment and order of the trial Court is not sustainable in the eyes of law, therefore, the appeal is allowed. 16. The judgment and order dated 27.6.2000 passed in Sessions Trial No. 37/1998 by 11th Additional Sessions Judge, Indore, convicting the appellant under section 376(2) of the IPC is hereby set aside. 17. The appellant is acquitted from the charge under section 376(2) of the IPC. 18. The order of trial Court regarding disposal of case property is hereby confirmed. 19. Fine amount, if deposited, be returned to the appellant. .................