Madhya Pradesh High Court
Sanju Alias Sanjay And Anr. vs State Of Madhya Pradesh on 4 November, 2004
Equivalent citations: 2005(1)MPHT152
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This appeal has been preferred against the judgment of conviction and order of sentence dated 20-12-2000 passed by IInd Additional Sessions Judge, Betul in S.T. No. 189/99 convicting the appellants under Sections 376(2)(g) and 450, IPC and sentencing him to suffer R.I. for 10 years and fine Rs. 200/-each, in default R.I. for one month under Section 376(2)(g), IPC and R.I. for 3 years and fine Rs. 200, in default, R.I. for 1 month each.
2. In brief the case of prosecution is that in between the night of 12 and 13-12-1999 prosecutrix was in her house alongwith her two children. In the night she noticed that somebody is knocking the door, as a result of which she peeped from window and saw present appellants and one Uttam Ghote. It is said that at the instance of Uttam Ghote, she opened the door and thereafter accused persons entered inside the house. Appellant Sanju was carrying a knife. Thereafter Banti and Surendra Aathole also arrived there. Banti gave threat to prosecutrix that if she would raise alarm, all of them will say that she is having illicit relations with Uttam Ghote and was doing objectionable act with him. Thereafter appellants Sanju and other person Banti undressed the prosecutrix and thereafter first of all appellant Sanju thereafter other person Banti Thakur then Surendra and in the last Sunil committed rape over her. In late night at 12.30 when husband of prosecutrix Sugreev arrived, she narrated the incident to him and thereafter she also told the incident to Basant Yadav and Suresh Yadav. In morning the prosecutrix lodged the FIR and thereafter a case was registered.
3. The investigating agency after investigating the case filed charge-sheet against three persons, namely, Sanju, Sunil and Surendra. All the accused persons were charged under Sections 376(2)(g) and 450, IPC. Needless to emphasise, all the accused persons abjured their guilt and prayed for trial.
4. In order to prove charges, the prosecution examined as many as 8 witnesses and placed Exs. P-t to P-13 the documents on record.
5. The Trial Court after examining the evidence found that accused persons committed the offences for which they have been charged and eventually convicted them and passed sentence which I have mentioned hereinabove. Hence this appeal.
6. During the pendency of appeal, appellant Surendra died as such the appeal was abated against him and his name was deleted from the array of memo of appeal. Appellants, namely, Sanju and Sunil are now pressing this appeal.
7. It has been contended by learned Counsel for the appellants that if the case of prosecution is considered in its entirety, no offence is made out against present appellants. It has also been putforth by him that the statement of proscutrix is not worth reliable and the Trial Court erred in relying her testimony. According to the learned Counsel this appeal be allowed and the appellants be acquitted.
8. On the other hand Shri Gitesh Singh Thakur, learned Counsel for respondent argued in support of impugned judgment.
9. After having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
10. It is well settled in law that if the case is of a rape, the statement of prosecutrix alone is to be considered and no corroboration is necessary. But, the evidence of prosecutrix should be clear, cogent and trustworthy and if the evidence of prosecutrix is worth reliable then solely on the basis of her testimony the judgment of conviction can be passed. Before I marshall and appreciate the evidence of prosecutrix, it would be apposite to mention that in FIR (Ex. P-4), it has been stated by prosecutrix that alongwith accused persons Uttam Ghote was also present and in his presence all accused persons committed rape over her but Uttam Ghote did not commit anything with her. According to the FIR, appellant Sanju and one other person Banti undressed and threw her on ground and thereafter first of all appellant Sanju committed rape over her and thereafter another person Banti Thakur committed rape and then Surendra and lastly Sunil came and committed rape over her. These persons were insisting Uttam Ghote to commit rape but he did not do anything. When the prosecutrix appeared as P.W. 4 in Court, contrary to her statement made in FIR, she stated that accused Sunil undressed her and when she raised alarm appellant Sanju raised the volume of sound of television set. Thereafter Sunil, Sanju, Surendra and Banti Thakur committed rape over her. According to her she was caught hold by two accused persons and one by one every accused person committed rape over her. In FIR she has stated that Sanju and Banti undressed her while in Court statement, she has said that accused Sunil undressed her. According to the prosecutrix, after committing rape over her by 4 persons, they went away from the back door and again appellant Sanju entered inside the house and thereafter again he committed rape over her. According to the prosecutrix when her husband came in the night she narrated the story to him. In the morning she narrated the incident to Basant Yadav and Suresh Yadav and thereafter she went to lodge the report.
11. In cross-examination, she stated that at the time of incident Uttam Ghote was not present in the house but in FIR she has stated that not only the incident took place in presence of Uttam Ghote but accused persons also insisted him to commit rape but he did not commit any such act. A suggestion was put to her that she was seen by accused persons in compromising position with Uttam Ghote and accused persons told her that on account of vile act committed by her they will not allow her to remain in the locality, but this suggestion was denied by her. According to me the evidence of prosecutrix stating that Uttam was not present in her house where rape was committed over her by four persons is a serious infirmity in her evidence because in the FIR which was lodged by her, not only she stated the presence of Utlam Ghote, but also stated that accused persons were insisting him (Uttam Ghote) to commit rape but he did not accept the proposal and did not do anything. According to her narration in the FIR, Uttam Ghote did not commit rape over her. However, in her testimony he specifically denied the presence of Uttam Ghote.
12. According to her when accused persons before committing rape one by one over her, she was dragged but according to medical report she did not receive any injury. According to her she was ravished by accused persons who are four in number, as a result of which she complained pain in her vagina and there was swelling. The pain in vagina continued for 3-4 days. At this juncture, I would like to narrate the evidence of lady Dr. Pushpa Rani Singh (P.W. 8) who has said that there was no injury either on the body of prosecutrix or on her private part. According to lady doctor, there was no sign of rape. In cross-examination she specifically stated that she examined the entire body of prosecutrix and she could not find any injury either external or in the private part of the prosecutrix. She further stated that if a lady is subjected to rape by four persons at one time, there will be swelling in her private part and tenderness would also come. She admitted that there was no swelling in the private part of prosecutrix nor there was any tenderness. It be seen that on the same day, the prosecutrix was examined by lady doctor. Thus, the statement of prosecutrix saying that there was pain in her vagina and it was swelling can not be accepted and it appears that she is concealing the reality. On going through the medical report of prosecutrix, it is found that she did not make any complaint regarding the pain in her vagina.
13. In Para 11 of her testimony the prosecutrix has stated that she told police that Sanju and Surendra caught hold her hands and Sunil undressed her but why this fact is not present in her police statement (Ex. D-1) and FIR (Ex. P-4), she can not say. Thereafter she has said that in report she did not say Sanju and Banti undressed her but how this fact appeared in her report (Ex. P-4), she is unable to say.
14. Similarly in Para 12 she has stated that she was not thrown on ground by accused persons and how this fact came in her police statement she can not say. She has further stated that after making consultation with Suresh Yadav, report was lodged. She has further stated that when accused persons entered inside her house, television set was on and accused persons raised the volume of sound, this fact was stated by her in her report as well as in her police statement but why these facts are not mentioned, she can not say. Similarly according to her she narrated this fact that Sanju and Banti caught hold her and third person committed rape over her was stated in FIR but she can not say why this fact has not been mentioned by police.
15. The prosecutrix executed an affidavit (Ex. D-2) before the Notary exonerating present appellants and she admitted the executed of affidavit and he signature on it. In the case of Hari Charan v. State, 1997 (2) JLJ 106, it has been held by this Court that if the prosecutrix has executed an affidavit, it raises a serious doubt in the story of prosecution.
16. Though, according to the FIR which was lodged by prosecutrix, presence of Uttam Ghote has been shown by her and it has been stated that in presence of Uttam Ghote, all accused persons committed rape over her, however, Uttam Ghote (P.W. 3) has not supported the case of prosecution and was declared hostile. The husband of prosecutrix Sugreev has said that her wife only named one Banti Thakur and told that 4-5 persons were with him but she did not identify them, however, the statement of prosecutrix is otherwise. This witness has named each and every accused person.
17. In the case of Dilip and Anr. v. State of M.P., AIR 2001 SC 3049, the prosecutrix of that case narrated the incident to her aunt about the sexual assault but the statement of her aunt docs not tally with the version of prosecutrix, in those circumstances the Apex Court held that the truthfulness of version of the prosecutrix any sexual assault as alleged was committed on her, can not be accepted. In view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and in these circumstances, the Supreme Court did not rely the testimony of prosecutrix. If the ratio decidendi of the case of Dilip (supra) is tested on the anvil of present factual scenario, it would reveal that here, according to prosecutrix, she narrated the entire episode to her husband and narrated the names of accused persons, but, her husband Sugreev (P.W. 3) has said that except Banti Thakur, prosecutrix told him that she was unable to identify other persons.
18. I have discussed hereinabove that prosecutrix has said that on account of rape committed over her by lour persons her vagina became swollen and she was complaining pain in it for several days, but, when she was examined by lady doctor on the same day she did not find any injury on her private part nor prosecutrix made any complaint regarding pain in her vagina. In cross-examination lady doctor specifically stated that if a lady is subjected to rape by 4-5 persons, swelling would come in the vagina and tenderness would also come. On examining her private part by lady doctor, she could not find any tenderness or any swelling. The doctor further stated that if there would have been swelling or tenderness she would have definitely mentioned this fact in her report. According to lady doctor if there would have been any sign of rape, she would have definitely narrated it in her report. The firm opinion of lady doctor is that the prosecutrix was not subjected to gang rape. In the case of Devinder Singh and Ors. v. State of Himachal Pradesh, AIR 2003 SC 3365, the Supreme Court while dealing with the similar situation in Paras 5 and 6 held as under:-
"5. The case of the prosecution rests mainly on the testimony of the prosecutrix. P.W. 1 though some other witnesses had also been examined. The prosecutrix was got medically examined at Moorang Hospital by Dr. Lalita Negi (P.W. 2). Before adverting to the deposition of P.W. 1, we may notice the evidence of Dr. Lalita Negi, who had examined the prosecutrix on February 26, 1994. A perusal of her report shows that there was no injury on any part of the body. There was no matting of public hair with discharge. There were no injuries or tenderness on genital areas. Hymen was ruptured and the old scars were present. No fresh scars or tenderness were found. There was no tenderness in vaginal organ or the cervical area. In her opinion there was no evidence of recent sexual intercourse and there was no sign of struggle. The prosecutrix was used to sexual intercourse. There was no evidence of sexual assault of the prosecutrix within a week of her examination. Dr. Negi was examined as P.W. 1 and she fully supported the report submitted by her. Surprisingly this witness was declared hostile and cross examined by the prosecution. In her cross-examination she stated that she did not mention about struggle in her certificate but she had mentioned that there was no injury on the person of the prosecutrix. She, however, explained that in the case of sexual assault on a lady, if she is put under fear, there may or may not be injuries and if the concerned lady is habituated to sexual intercourse there may not be any injury. She, however, asserted that there was no evidence of recent sexual intercourse with the prosecutrix.
6. It would thus appear from the medical evidence on record that no evidence could be found by the medical officer to prove that she had been subjected to sexual assault by five persons. Having regard to the facts and circumstances of the case, particularly in view of the fact that the prosecutrix was habituated to sexual intercourse and was examined six days after the occurrence, the fact that no injury was found on her body only goes to show that she did not put up any resistance. That may be on account of the fact that she was over powered by five person as described by her, they kept her legs and hands pressed. The medical evidence on record, however, does not affirmative support the case of the prosecution and the prosecution can, therefore, derive no support from the medical evidence on record."
19. The case of Devinder Singh (supra) squarely covers the point in hand because in the present case also lady doctor says there was no sign of rape nor there is injury on the private part of prosecutrix.
20. In view of the above, it is difficult to uphold the conviction accorded by the Trial Court. Accordingly the conviction of appellants is hereby set aside. The appeal is allowed. The appellants are in jail, they be set at liberty forthwith if not required in any other case.