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2022 DIGILAW 1083 (MP)

Munna@ Rafiq v. State of M. P.

2022-09-02

SATYENDRA KUMAR SINGH

body2022
JUDGEMENT 1. The appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short “Cr.P.C.”] against the judgement dated 31.3.1999 passed by the Court of Special Judge, SC/ST (Prevention of Atrocities) Act, Indore (M.P.) in Special Case No.81/97, for the offences punishable under sections 450 and 376(1) of the Indian Penal Code, 1860 (in short “IPC”) and section 3(1)(11) of SC/ST (Prevention of Atrocities) Act, 1989 (in short “SC/ST Act”) and sentenced him as under: S. No. Conviction Sentence Imprisonment Fine amount Additional imprisonment in default of payment of fine 1. 450 of IPC 5 years RI -- -- 2. 376(1) of IPC 7 years RI -- -- 3. 3(1)(11) of SC/ST Act 6 months RI Rs. 500/- 1 month RI 2. Prosecution story, in brief is as follows :- (i) Prosecutrix, who is a member of the Scheduled Castes/Schedule Tribe community was residing with her family in village Malikhedi for last about six months. On 22.1.1995 in the evening when her husband had gone to irrigate Narayan Khati's field and prosecutrix was alone with her kids, then in the intervening night of 22-23.1.1995, at about 1.00 am., appellant entered into her house by breaking the ceiling of their house and on the point of knife threatened her to kill and committed rape upon her. Prosecutrix pretending to attend nature's call came out of her house and cried for help then, her neighbour Ramkunwarbai came there. Appellant also came there and threatening Ramkunwarbai, fled away from the spot. Prosecutrix went to Santosh Khati's house, called her husband and narrated the incident to him and thereafter went to police station Kshipra, Indore and made complaint against the appellant, on the basis of which, at about 14.15 PM, SI Mahendra S. Bhadoriya lodged the FIR (Exhibit-P/1) and sent the prosecutrix to M. Y. Hospital, Indore for medial examination, where on the same day at about 7.50 PM, Dr. Aparna Singh medically examined her and prepared the MLC report (Exhibit-P/6). She also preserved and prepared her vaginal smear slides, collected her public hairs and sealed the same alongwith her inner-wear (petticoat) and handed over the same to the police constable who brought her to the hospital. (ii) As the matter relates to SC/ST Act therefore, investigation was transferred to police station AJAK, Indore. She also preserved and prepared her vaginal smear slides, collected her public hairs and sealed the same alongwith her inner-wear (petticoat) and handed over the same to the police constable who brought her to the hospital. (ii) As the matter relates to SC/ST Act therefore, investigation was transferred to police station AJAK, Indore. On the same day i.e. 23.1.1995, Investigating Officer A. K. Dubey went to the place of occurrence, prepared spot map (Exhibit-P/7) and recorded the statements of the prosecutrix as well as other prosecution witnesses. On 20.3.1995, he arrested the appellant, as per arrest memo (ExhibitP/9) and recorded his disclosure statement (Exhibit-P/10), on the basis of which on his instance, seized the weapon knife, used in the crime, as per seizure memo (Exhibit-P/11). Vide application (Exhibit-P/5) sent the appellant to M. Y. Hospital, Indore for medical examination where Dr. A. K. Jain medically examined him and found him capable of doing sexual activities, prepared MLC report (Exhibit-P/5). During investigation, he obtained caste certificate (Exhibit-P/12) of the prosecutrix and seized the same, as per seizure memo (Exhibit-P/13) and vide letter (Exhibit-P/14) sent the seized articles to the Forensic Science Laboratory, District Indore for chemical examination. After completion of investigation, filed the charge-sheet before the Court of Special Judge, SC/ST Act, Indore. 3. Learned trial Court considering the material prima-facie available on record, framed the charges under sections 450 and 376(1) of IPC alongwith section 3(1)(11) of SC/ST Act against the appellant, who abjured his guilt and prayed for trial. In his statement recorded under section 313 of Cr.P.C., the appellant pleaded his false implication in the matter. In support of his defense, he did not examine any witness. 4. Learned trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offence punishable under sections 450 and 376(1) of IPC alongwith section 3(1)(11) of SC/ST Act and sentenced him as mentioned in para-1 of this judgement. Being aggrieved with the said judgement of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgement and discharging him from the charges framed against him. 5. Learned counsel for the appellant submits that the learned Trial Court has committed a legal error while appreciating the evidence available on record. Being aggrieved with the said judgement of conviction and order of sentence, appellant has preferred this appeal for setting aside the impugned judgement and discharging him from the charges framed against him. 5. Learned counsel for the appellant submits that the learned Trial Court has committed a legal error while appreciating the evidence available on record. Prosecutrix's statements are contradictory on the point of identity of the appellant as well as acts done by him at the time of incident. Ramkunwarbai, who reached the spot at the time of incident has not supported the prosecution case. The medical evidence also do not support the prosecution story as no external or internal injury was found on the body of the prosecutrix. Prosecutrix's children were admittedly sleeping in the room, where offence was said to be committed. Hence, the whole prosecution story appears unnatural and defence taken by the appellant that prosecutrix was a consenting party cannot be ruled out. Therefore, the impugned judgement of conviction and order of sentence may be set aside and the appellant may be acquitted from the charges framed against him. 6. Per contra, learned Public Prosecutor for the respondent-State while supporting the impugned judgement of conviction and order of sentence submits that the judgement was passed by the Trial Court after proper appreciation of evidence available on record. The same is well reasoned establishing the guilt of the appellant beyond a reasonable doubt. Therefore, confirming the impugned judgement of conviction and order of sentence, the appeal filed by the appellant may be dismissed. 7. I have heard learned counsel for the parties at length and perused the record. 8. Prosecution has examined in all 10 witnesses including prosecutrix (PW-2) and Ramkunwabai (PW-6) who reached the spot during the incident. Other relevant witnesses are SI Mahendra S. Bhadoriya (PW-10), who lodged the FIR (Exhibit-P/1), Dr. Aparna Singh (PW-8), who medically examined the prosecutrix after the incident and Inspector A. K. Dubey, who investigated the case. 9. Prosecutrix (PW-2) in her FIR (Exhibit-P/1) specifically mentioning name of the appellant stated that in the intervening night of 22-23.1.1995, at about 1.00 am., he entered into her house by breaking the ceiling and showing knife told her to make the bed for him on the ground thereafter, he sat on her chest and by pressing her mouth forcefully committed rape upon her. She also stated therein that when she pretending to attend nature's call came out of her house and cried for help, appellant fled away from the spot threatening Ramkunwarbai, who had reached there hearing prosecutrix's screams. 10. It is not disputed that at the time of incident, prosecutrix's children were also present with her. Prosecutrix (PW-2) in para-1 of her examination-inchief deposed that she was alone with her two children while her husband (PW-3) in para-9 of his cross-examination deposed that on the date of incident, his three children aged about 6 years, 3 years and 1-1/2 years were sleeping with the prosecutrix. It is also not disputed that during the whole incident, none of them woke up at the time of incident, which appears to be unnatural. 11. Prosecutrix (PW-2) in her statement deposed that the appellant entered into her house breaking the ceiling of her house. She deposed that she did not know the appellant and Karan's wife i.e. Ramkunwarbai who told her about the appellant that he operates flour mill of Patel. She in para-16 of her cross examination deposed that she had never gone to the appellant's flour mill. Ramkunwarbai (PW-6) had denied to identify the appellant and has turned hostile. She even denied to reach the spot after hearing the screams of the prosecutrix. Prosecutrix (PW-2) statement about the act of the appellant after the incident are also different from her own FIR. She in her statement deposed that after committing rape, appellant tried to escape and when she opened the lock of the door and cried for help, at that time, appellant was standing behind her. 12. From the unchallenged testimony of Dr. Aparna Singh (PW-8) and MLC report (Exhibit-P/6) prepared by her, it is undisputed that after the incident, no external or internal injury was found on the body of the prosecutrix. In these circumstances, without any corroborative evidence, only on the basis of prosecutrix's aforesaid contradictory evidence, it cannot be said that prosecution has proved its case beyond reasonable doubt. FIR and the circumstances as well as medical evidence do not support the prosecution case therefore, defence taken by the appellant that prosecutrix was a consenting party and when her neighbour Ramkunwarbai saw her with the appellant, she lodged this false and fabricated report against him, cannot be ruled out. FIR and the circumstances as well as medical evidence do not support the prosecution case therefore, defence taken by the appellant that prosecutrix was a consenting party and when her neighbour Ramkunwarbai saw her with the appellant, she lodged this false and fabricated report against him, cannot be ruled out. Appellant deserves to get the benefit of doubt and learned trial Court has committed error in holding the appellant guilty only on the basis of sole evidence of prosecutrix. 13. In view of the aforesaid circumstances, the impugned judgement of conviction and order of sentence is not sustainable. Hence, conviction of the appellant cannot be upheld and the appeal filed by the appellant deserves to be allowed. Accordingly, this Court passes the following order :-- (i) Criminal Appeal No.810/1999 filed by the appellant - Munna @ Rafiq stands allowed. (ii) The impugned judgement of conviction and order of sentence dated 31.3.1999 passed by the Court of Special Judge, SC/ST (Prevention of Atrocities) Act, Indore (M.P.) in Special Case No.81/97, for the offences punishable under sections 450 and 376(1) of IPC alongwith section 3(1)(11) of SC/ST Act and sentenced him as stated in para-1 of this judgement is hereby set aside. (iii) Appellant be set at liberty forthwith, if he is not required in any other case. His bail bonds, if any, shall stands discharged. (iv) Fine amount, if any, deposited by the appellant be refunded to him. 14. The Registry is directed to send back the trial Court record forthwith alongwith copy of this judgement. Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.