Madhya Pradesh High Court
Raju @ Umakant vs The State Of Madhya Pradesh on 19 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia, Vishal Mishra
1
NEUTRAL CITATION NO. 2024:MPHC-JBP:47718
Cr.A. No.2324 of 2006
IN THE HIGH COURT OF MADHYA PRADESH
A T J ABA LPU R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
CRIMINAL APPEAL No. 2324 of 2006
RAJU @ UMAKANT AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
________________________________________________________
Appearance :
Shri Mukesh Pandey - Advocate and Shri Avneesh Tiwari - Amicus
Curie through Video Conferencing for the appellants.
Shri A.S. Baghel - Public Prosecutor for the respondent/State.
_________________________________________________________
JUDGMENT
Reserved on : 04.09.2024
Pronounced on : 19.09.2024
Per: Vishal Mishra J.
Assailing the judgment of conviction dated 17.11.2006 passed by Special Judge, (SC/ST Prevention of Atrocities) Act, Katni in Special Sessions Case.No.140 of 2004 whereby accused/appellants have been convicted as under :-
S.No. Conviction Sentence For appellant No.1/Raju @ Umakant
1. Under Section 366 of the IPC R.I. for 05 years and fine of Rs.2,000/- in default of Fine R.I. for 06 months.
Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 2 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006
2. Under Section 3(2-5) SC/ST R.I. for life and fine of Rs.2,000/- in (Prevention of Atrocities) Act default of fine R.I. for 01 year. and under Section 376 (2-G) of IPC
3. Under Section 342 of the IPC R.I. for 06 months and fine of Rs.200/- in default of fine R.I. for 02 months.
For appellant No.2/Jalandhar Kol
1. Under Section 366 of the IPC R.I. for 05 years and fine of Rs.2,000/- in default of Fine R.I. for 06 months.
2. Under Section 376(2-G) of the R.I. for 10 years and fine of IPC Rs.2,000/- in default of fine R.I. for 01 year.
3. Under Section 342 of the IPC R.I. for 06 months and fine of Rs.200/- in default of fine R.I. for 02 months.
All the custodial sentences shall run concurrently.
2. It is the case of the prosecution that between 23.06.2004 to 27.06.2004, the said offence is said to have been committed. On 23.06.2024, the complainant/victim was called by the daughter of one Chottelal Choudhary. Both of them went to see the marriage precession of Fagun Choudhary and thereafter, the victim has not returned back. The missing report No.11/2004 was lodged by the father of the victim at Police Station Kymore. On the basis of which, Crime No.113 of 2004 was got registered. It is mentioned in the FIR that the victim while returning back after seeing the marriage precession, the accused Raju @ Umakant Urmaliya and Jalandhar Kol caught hold of the victim, closed her mouth and took her to a room near the field and Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 3 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 locked her. Thereafter both of them committed rape with her. The next day, she was taken to Dair Salaiya and other places. Both of them committed rape with her several times. She was recovered from Lal Bai's house on 28.06.2004 at 11:30 AM and brought to the police station where she lodged the FIR (Exhibit P/20) registered at Crime No.113 of 2004 for the offences punishable under Sections 363, 366, 376, 506, 342/34 of the IPC. The matter was taken up for investigation. Her recovery memo was prepared as Exhibit P/1. Her consent for medical examination was obtained as Exhibit P/2. Exhibit P/17A, the spot map was prepared. Exhibit P/17 is an application given for medical examination of the victim. The victim was medically examined. The reports are Exhibits P/13 and P/14. Victim clothes were seized by memo Exhibit P/15. Slides were got prepared. Her caste certificate was recovered as Exhibit P/20A. Vide Exhibit P/24, the accused Umakant Urmaliya was arrested. The articles were sent for forensic examination, the report Exhibit P/29 was prepared and received. Both the accused absconded and their Farari Panchnama (Exhibit P/26) were prepared. The accused No.1 Raju @ Umakant Urmaliya was arrested on 23.07.2004 (Exhibit P/24) and accused No.2 Jalandhar Kol was arrested on 22.05.2005 vide Exhibit P/30. The statements under Section 161 of the Cr.P.C. of the victim and the Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 4 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 family members were got recorded. On the basis of above investigation, the offence under Sections 366, 366/34, 376(2)(G) and 342 of the IPC was got registered. After completion of the investigation, the charge sheet was filed on 28.06.2004. The accused persons abjured their guilt and denied the commission of offence, stating that the victim being a consenting party, as she was having a love affair with Jalandhar Kol. Therefore, they were put to trial.
3. The prosecution has got examined as many as 13 prosecution witnesses; namely Rani (PW-1), Saholi (PW-2), Thikali Prasad (PW-
3), Ramprasad (PW-4), Chhote Singh (PW-5), Dadu Burman (PW-6), Udal Singh (PW-7), Dr. Yashwant Verma (PW-8), Bharat Jhariya (PW-9), Dr. Snehlata Jain (PW-10), J.L.Mishra (PW-11), Neeraj Shrivastava (PW-12) and S.K.Pandey-DSP (PW-13). In defence, statements of Saroj Bai (DW-1), Lal Bai (DW-2) were recorded. Accused/appellants statements under Section 313 of the Cr.P.C. were got recorded. The learned Trial Court after going through the entire record has arrived at the conclusion that the prosecution has successfully proved the case against the accused persons and accordingly vide judgment of conviction dated 17.11.2006 passed in Sessions Trial No.140 of 2005 has convicted the accused/appellants for the aforesaid offences.
Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 5 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006
4. This appeal has been argued basically on the ground that the prosecutrix being a major was having love affairs with Jalandhar Kol who was a truck driver at Raju's place. She accompanied the accused persons on her own on a motorcycle without raising any hue and cry. She was taken to various places. Initially, she was taken to Raju's house. She stayed there. No hue or cry was raised by her. She was not locked or tied up but was free to do her day to day activities and thereafter she was taken to Dair Salaiya where she has resided with Lal Bai. She stayed at Dair Salaiya for two days and thereafter, she was recovered by the police authorities.
5. It is argued that if the statement of the victim is seen then it is clear that she accompanied Jalandhar to a second house; both of them consumed liquor and subsequently physical relations were made. At that time, Raju came to the house at Salaiya. He had also made physical relations with her. He has drawn attention of this court to the FIR which is recorded as Exhibit P/20 wherein she has stated that Jalandhar after giving threatening to her has forcefully taken her and thereafter committed the offence. The allegation against the co-accused Raju is that he helped Jalandhar in commission of offence. He had provided his house to Jalandhar to keep the victim. On the basis of such complaint, the FIR was got registered. There is no allegation Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 6 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 against the co-accused Raju of committing rape except the fact that he has facilitated in commission of offence. There is no dispute with respect to age of the victim that she being a major as well as the fact that she belongs to Scheduled Castes (Chamaar) community. It is further contented that subsequently the statements have been exaggerated and the implication of other accused Raju was pointed out. It is submitted that the other witness i.e. friend of the victim with whom she accompanied to watch the marriage procession has been examined as DW-1 (Saroj Bai) wherein she has categorically stated that the victim went with Jalandhar on her own. She has further denied the presence of the other co-accused Raju at the place of incident. He has further drawn attention of this court to the statement of Lal Bai (DW-2) in whose house victim and Jalandhar were stayed. She has categorically submitted that the victim who was not under confinement. She used to do her day to day activities; she used to cook food and also used to sit with other neighbours. Even in the medical examination, no injuries were found on her body and no definite opinion with regard to rape was given. She is a married lady (twice married), initially 10 years back from the date of commission of offence. On the basis of the aforesaid statement, it is argued that she on Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 7 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 her own volition has accompanied with Jalandhar and made physical relations. Therefore, no offence is made out.
6. Counsel appearing for the State has vehemently opposed the contentions and supported the judgment passed by the learned trial court contenting therein that the statement of the victim is of utmost importance wherein she has submitted that both the accused persons have committed rape with her. It is contended that she being a major is not disputed but the fact remains that the allegation is specific regarding commission of rape by both the accused persons. He has drawn attention of this court to the medical examination report of the victim i.e. Exhibit P/18 given by Dr.Snehlata Jain (PW-10). Though there is no definite opinion regarding commission of offence mentioned but she has categorically stated to the doctor regarding commission of rape by both the accused persons. Drawing attention of this court to the statement of the victim recorded during trial wherein she has supported the case of prosecution. He has supported the impugned judgment and has prayed for dismissal of the appeal.
7. Heard the learned counsels for the parties and perused the record.
8. As per the prosecution story, the allegation which has been levelled against the accused/appellants is that they had forcefully taken Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 8 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 away the victim, locked her in a room and thereafter committed sexual intercourse with her on several occasions. The aforesaid allegations are required to be seen in the light of the documents collected by the prosecution as well as the evidence led before the learned Trial Court.
As far as age and caste of the victim is concerned :
9. Victim has claimed herself to be belonging to Scheduled Castes community (Chamaar), for which during investigation, the prosecution has collected document i.e. caste certificate Exhibit P/20 dated 05.07.2004 issued from the office of Sub Divisional Officer, Revenue Vijayraghavgarh, Barahi District Katni which was proved by Neeraj Shrivastava (PW-12) who has stated that an application was filed for issuance of caste certificate and in pursuance to the same, the certificate has been issued. The caste of the victim is mentioned in the notification at Serial No.14. To the aforesaid effect, there is no dispute in the case. Even in the cross-examination of Neeraj Shrivastava (PW-
12), no cross questioning is being done to counter the aforesaid document. Saholi (PW-2) being the father of the victim has also stated that he belongs to Chamaar community. Thus, there is no dispute with respect to the caste of the victim.
10. As far as age of the victim is concerned, the prosecution has collected a document Kitab Kotwari Fauti Padayesh Moja (Exhibit Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 9 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 P/5-A), wherein the name of the victim is mentioned and her date of birth is shown as 13.10.1984. The same is duly proved by S.K.Pandey (PW-13), DSP, AJAK, P.S. Katni who is the Investigating Officer in the matter and admitted his signatures on the document. The victim was referred for radiological examination for confirming her age and the report of the radiology has been provided and Exhibited as P/16A, which is proved by Dr. Snehlata Jain (PW-10), wherein as per the radiological opinion, the age of the victim is shown to be 20 (+)(-) 2 years. The aforesaid document is proved by the statement of Dr. Snehlata Jain (PW-10) wherein she has categorically stated regarding radiological examination of victim being done to prove her age. These two facts are not controverted in the defence and there is no other document placed on record to show the contrary. Under these circumstances, the findings recorded by the learned Trial Court as far as the age and caste of the victim is concerned are correct. She was major on the date of commission of offence and belongs to Scheduled Castes community i.e. Chamaar.
Appreciation of evidence for allegation of rape.
11. Now the allegation of rape is required to be considered, for which, appreciation of evidence is required to be done. It is a settled principle of law that the statement of victim is of utmost importance Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 10 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 and should be given preference over and above the medical evidence also. The Hon'ble Supreme Court in the case of State of Punjab Vs. Gurmit Singh and Others reported in 1996 (2) SCC 384 has observed as under :-
"......The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 11 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable......"
12. Further, the Hon'ble Supreme Court in the case of Santhosh Moolya & another Vs. State of Karnataka in Criminal Appeal No.479 of 2009, has held as under :-
"8. Any statement of rape is an extremely humiliating experience for a women and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. [Vide Rajinder @ Raju Vs. State of H.P., JT 2009 (9) SC 9]."
13. In the case of Sohan Singh and Another Vs. State of Bihar reported in (2010) 1 SCC 68, the Hon'ble Supreme Court has held as follows :-
"14...... When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR......"
Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 12 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006
14. As per the prosecution story, a missing complaint was lodged by the father of the victim Saholi (PW-2) to the effect that on 23.06.2004 at about 10 PM, Chhotelal Choudhary's daughter came to his house and took away the victim to see the marriage procession and thereafter she did not return back. When the father came back on the next day from the marriage, he found that her daughter did not return back. He enquired from the daughter of Chhotelal regarding the victim but when no clue was found, a missing complaint was lodged by him. He went to various places in search of his daughter. He went to Diar Salaiya and found his daughter at Raju's house. The police authorities were informed and the victim was recovered on 28.06.2004 at 11:30 AM from the house of Raju Urmaliya, which is exhibited as P/1. Thereafter, on her statement, the FIR has been registered as Exhibit P/20 by J.L. Mishra (PW-11), wherein she has narrated that accused Jalandhar forcefully took her away and by giving threatening has committed rape with her. The presence of another accused Raju Urmaliya was also shown and it was alleged that he was involved in taking away the victim and providing his room and helped him in commission of offence. After recording of the FIR and after taking consent of the victim for medical examination, she was subjected to medical examination which was conducted by Dr. Snehlata Jain (PW- Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 13 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006
10), who after medical examination has submitted a report which is marked as Exhibit P/17, wherein no definite opinion regarding rape was given. It was observed that she is able to perform sexual intercourse. On her medical examination the following opinion was given :
"On examination - average built (i) Breast developed, (ii) Bite (scratch mark) over lower lip (2 mm x 1 mm) by hard and sharp object - duration 6 - 7 days (mild swelling), (iii) Axillary hair in mild line +nt
(iv) Pelvic hair shaved (pubic) (v) No other bodily injury +nt (vi) on PV exam (a) hymen ruptured old white scar at 3 or 6 O' clock position. No other injury at this site. No definite duration can be told.
(b) 2F passed easily. (c) vaginal secretions 2 slide are made."
15. Thereafter, the matter was taken up into investigation and during investigation statements of the neighbours were recorded, wherein they have categorically stated regarding the accused persons bringing the victim and locking her in the room which belongs to Raju Urmaliya. To this extent, there is no dispute in the prosecution story. Thereafter an application was given to the SHO on 30.06.2004 to the effect that the complete details could not be furnished in the FIR as the victim was under fear and was afraid of reporting the matter due to threats being given by both the accused persons. The contents of the letter dated 30.06.2004 levied specific allegations against Raju and Jalandhar regarding commission of rape. The report is Ex.P/3. Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 14 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006
16. Another complaint was made to the SHO, AJAK, Katni, District Katni dated 22.07.2004 with respect to threatening being given by the present accused i.e. Exhibit P/6. The statement of Ram Prasad was recorded under Section 161 of the Cr.P.C. on 03.07.2004 pointing out the fact that both the accused persons i.e. Raju Urmaliya and one of his friend have brought a girl and locked her in Raju's room. Thereafter, the father Saholi Choudhary along with some of the villagers came in search of his daughter. When they reached Raju's house, Raju and his friends ran away, thereafter the police came to Raju's room and the victim was recovered from the room of Raju which is exhibited as Exhibit P/8. The statement of Chhotelal was also recorded under Section 161 of the Cr.P.C. which is similar to that of Ram Prasad which is exhibited as Exhibit P/9. The statement of one Dadu Burman was recorded on 30.06.2004 wherein he has narrated the same story. The statements of these witnesses were recorded before the learned Trial Court Ramprasad as (PW-4), Chhote Singh as (PW-5), Dadu Burman as (PW-6), Udal Singh (PW-7) and they have not supported the prosecution story and they were declared hostile. But Ram Prasad (PW-4) in his examination-in-chief has clearly stated that Raju and one of his friend locked a girl in Raju's room and one Saholi came in search of his daughter. Thus, to the aforesaid extent, the statements of Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 15 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 hostile witnesses can be accepted. Thereafter, with the help of the police authorities, the victim was recovered from the room of Raju. He has admitted his signatures on the Panchnama prepared as Exhibit P/1 by the police authorities with respect to recovery of the victim from Raju's house. Thus, to the aforesaid extent, it is clear that the victim was brought by Raju and Jalandhar and was kept at Raju's room and she was kept there for 3 - 4 days and was recovered on 28.06.2004 from the room of Raju with help of the police authorities.
17. As far as allegation of committing forceful sexual intercourse is concerned, the statement of victim (PW-1) is clear to the aforesaid extent. She has categorically stated regarding commission of offence by both the accused on her. In her statement, she has categorically stated that while she was returning back, after seeing the marriage procession one of the accused Raju caught hold of her and the other has closed her mouth owing to which she could not shout. She was forced to sit on two wheeler and was taken to Raju's house which is situated in the field. She was locked in the room and both of them have committed sexual intercourse with her. She has further stated in Para 9 that she was taken to Dair Salaiya and was again subjected to sexual intercourse. At Dair Salaiya both Jalandhar as well as the victim consumed liquor and thereafter sexual intercourse was done. Raju also Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 16 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 came there and he has also made physical relations with her. She stayed at Dair Salaiya for two days. She was having food and water at that place. She was also free to take bath and wash clothes at Lal Bai's place. She again reiterated that both the accused persons have committed rape with her at Lal Bai's place situated in Dair Salaiya which also belongs to Raju. In para 14 of her statement, she has clarified that while they were taking her away, her mouth was closed by one of the accused, therefore, she could not shout. She could not run away because they were holding her very tightly. Her friend ran away as soon as she was caught by the accused persons. There is no contradiction to the aforesaid aspect in the entire statement. In para 41 of the cross examination, she has stated that there was a very little light in the room, therefore, they are not able to see each other. There was no bed in the room. One mat was there which was laid down by Jalandhar. She was forced to lie on the mat and, thereafter both of them have committed rape with her. A similar statement was given by her father Saholi (PW-2). It is stated by him that initially, a missing report was made and thereafter he made several attempts to search his daughter. When they reached at Dair Salaiya in search of his daughter near the room of Raju, then both accused Raju and Jalandhar ran away from there. The victim was recovered. She met her father and narrated Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 17 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 the entire incident. Her brother was sent to the police station. Police party came to the spot and her recovery was made from the house of Raju. There is no dispute that she has been recovered from the house of Raju. Thus, it is clear from the statement of the victim as well as from the statement of her father that the recovery of the victim from Raju's place as well as from the ocular evidence that she was subjected to rape by both the accused persons. Her abduction by the accused persons is also proved by the evidence.
18. Although the prosecution has not examined the friend of the victim Saroj Bai as a prosecution witness but she has been examined as DW-1 by the defence. She has stated that while the victim and she went to see the marriage procession, the victim has taken two pairs of clothes, some silver ornaments and Rs.1200/- cash. While they were returning back, the victim went alongwith Jalandhar. She has categorically stated that the other co-accused Raju was not on the spot and thereafter she has stated that she is unaware of the incident. Even Lal Bai from whose house the victim has been recovered has been examined as DW-2 and she has stated that she has given her house on rent to the victim at the rate of Rs.200/- per month for which advance of Rs.200/- was given to her. She stayed there for three days and on the fourth day her father and police authorities came there and took her Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 18 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 away. She was not confined. She was living freely and was provided food there. She was taking bath and was free to wash her clothes. As far as incident is concerned, she has not supported the prosecution story as far as commission of rape is concerned. The medical opinion is also not definite regarding commission of rape. Under such circumstances, the articles which were seized and sent for forensic examination are required to be seen.
19. Both the accused persons after their arrest were medically examined and report Exhibit P/14 was given with respect to accused Raju pointing out the fact that he is capable of performing sexual intercourse. As far as Jalandhar is concerned, the report Exhibit P/32 was given and the opinion given by Dr.P.D.Soni was that he is capable of performing sexual intercourse. The medical report of the victim has already been discussed hereinabove; and in the opinion of doctor she is able to perform sexual intercourse. She is a married lady (married twice) which is not disputed. The articles which were seized were sent for forensic examination vide Exhibit P/28. Report after the forensic examination was given on 12.10.2004. Article "A" and "D" shows presence of human's sperm and Article "B" and "C" no sperms were present. It is pertinent to mention that in the statement of the victim (PW-1) she has categorically stated that the clothes which she were Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 19 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 wearing she has already washed those clothes and thereafter the clothes were seized by the police authorities. Thus, from the medical evidence as well as the FSL report, it cannot be definitely said that an offence of rape has been committed. As far as the statement of the victim duly supported by the statement of her father is concerned, there are specific allegations levied against both the accused persons of committing offence.
20. It is the settled legal proposition of law by the Hon'ble Supreme Court that the ocular evidence has to be considered and given more weightage than the medical evidence. The Hon'ble Supreme Court in the case of Central Bureau of Investigation and Another Vs. Mohd. Parvez Abdul Kayuum and Others reported in (2019) 12 SCC 1 has held as under:-
"65. Even otherwise as submitted on behalf of the prosecution that in case of any discrepancy between the ocular or medical evidence, the ocular evidence shall prevail, as observed in Yogesh Singh v. Mahabeer Singh & Ors., (2017) 18 SCC 43).
"43. The learned counsel appearing for the respondents has then tried to create a dent in the prosecution story by pointing out inconsistencies between the ocular evidence and the medical evidence. However, we are not persuaded with this submission since both the courts below have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the courts below Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 20 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, Mani Ram v. State of Rajasthan, (1993) Supp. 3 SCC 18, State of U.P. v. Krishna Gopal, (1988) 4 SCC 302, State of Haryana v. Bhagirath, (1999) 5 SCC 96, Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322, Thaman Kumar v. State (UT of Chandigarh), (2003) 6 SCC 380, Krishnan v. State, (2003) 7 SCC 56, Khambam Raja Reddy v.
Public Prosecutor, (2006) 11 SCC 239, State of U.P. v. Dinesh, (2009) 11 SCC 566, State of U.P. v. Hari Chand, (2009) 13 SCC 542, Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 and Bhajan Singh v.
State of Haryana]"
66. The ocular evidence to prevail has also been observed in Sunil Kundu & Anr. v. State of Jharkhand, (2013) 4 SCC 422 thus: (SCC P.432, para 24) "24. In Kapildeo Mandal v. State of Bihar, (2008) 16 SCC 99, all the eyewitnesses had categorically stated that the deceased was injured by the use of firearm, whereas the medical evidence specifically indicated that no firearm injury was found on the deceased. This Court held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get priority as medical evidence is basically opinionative. But, when the evidence of the eyewitnesses is totally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eyewitnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy. This judgment is clearly attracted to the present case." (emphasis supplied)
67. Similarly, in Bastiram v. State of Rajasthan, it was observed (SCC pp. 407 & 408 paras 33 & 36) "33. The question before us, therefore, is whether the "medical evidence" should be believed or whether the testimony of the eyewitnesses should be preferred? There is no doubt that ocular evidence should be Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 21 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 accepted unless it is completely negated by the medical evidence. This principle has more recently been accepted in Gangabhavani v. Rayapati Venkat Reddy.
36. Similarly, a fact stated by a doctor in a post-mortem report could be rejected by a court relying on eyewitness testimony, though this would be quite infrequent. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the post-mortem report and the oral testimony of the doctor who conducted that examination was that no internal or external injuries were found on the body of the deceased. This Court rejected the "medical evidence"
and upheld the view of the trial court (and the High Court) that the testimony of the eyewitnesses supported by other evidence would prevail over the post-mortem report and testimony of the doctor.It was held: (SCC p. 286, para 41) "41. ... [T]he trial court has rightly ignored the deliberate lapses of the investigating officer as well as the post-mortem report prepared by Dr. C.N. Tewari.
The consistent statement of the eyewitnesses which were fully supported and corroborated by other witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occurrence, immediate lodging of FIR and the deceased succumbing to his injuries within a very short time, establish the case of the prosecution beyond reasonable doubt. These lapses on the part of PW 3 [doctor] and PW 6 [investigating officer] are a deliberate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the guilty did not go scot-free. The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the court."
21. Further, the Hon'ble Supreme Court in the case of Bhajan Singh Alias Harbhajan Singh and Others Vs. State of Haryana reported in (2011) 7 SCC 421 has held as under :-
Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 22
NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 "37. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court reiterated the aforementioned position of law:
"13.....In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
38. Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-`-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved"
22. Thus, it is clear that in the present case the ocular evidence is overriding the medical evidence. There are minor contradictions and omissions in the statements of victim (PW-1) and Saholi (PW-2) but that are not sufficient to draw an assumption that prosecution story is incorrect. Under these circumstances, two things are very clear that she was forcefully taken by both the accused persons while she was returning back after seeing the marriage procession as well as the second fact that she was subjected to sexual intercourse. Thus, considering the facts and circumstances of the present case and considering the judgments passed by the Hon'ble Supreme Court in aforesaid cases, it is apparently clear that the offence of committing rape has been established by the prosecution in the present case.
Argument regarding consent
23. Another argument which has been raised that she was having good relations with Jalandhar and she on her own volition went along Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 23 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 with Jalandhar is concerned, there is nothing on record to show that Jalandhar was having any intimacy with the victim. Even in his statement recorded under Section 313 of the Cr.P.C., he has not narrated anything which could show that he was having any love affair with the victim. Under these circumstances, it cannot be presumed that Jalandhar was having a love affair with the victim. On the contrary, the statement of victim is clear, wherein she has stated that accused caught hold of her, closed her mouth and took her to a room near fields, therefore, she could not ask for help and thereafter both the accused committed rape with her. Therefore, the argument is of no help to the accused.
24. The other argument which has been raised before this Court regarding the fact that she was not under any confinement; she was not tied up; she was free for cooking her food; she was washing her clothes; she has consumed liquor with Jalandhar and thereafter made physical relations and, therefore, it is a case of consent with the other co-accused Jalandhar is concerned, but the fact remains that the victim has made specific allegations of committing rape by both the accused persons. Initially, the rape was committed by Jalandhar and subsequently by Raju. She was taken to another place, where she consumed liquor with Jalandhar and made physical relations and Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 24 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 thereafter Raju also came there and made physical relations with her.
Therefore, it is a clear cut case for the offence punishable under Section 376(2)(G) of I.P.C. and it cannot be said to be a case of consent.
25. The Hon'ble Supreme Court in the case of Mohd. Iqbal and Another Vs. State of Jharkhand reported in (2013) 14 SCC 481 has held that in cases of gang rape, there cannot be any consent and the concept of consent is ruled out. The relevant paragraphs are as under :-
"16. The trial court has thoroughly appreciated the facts of the case and come to the conclusion that in view of the provisions of Section 114-A of Indian Evidence Act, 1872 there is a presumption as to absence of consent in case of gang rape and it will be presumed that the prosecutrix did not give consent, as this presumption is based on the reasoning that nobody can be a consenting party to several persons simultaneously. Thus, consent is not possible in the case of gang rape.
17. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses."
Therefore, the aforesaid argument is of no help to the appellants.
26. The main witness that is the friend of the victim was not even produced before the Court by the prosecution or Lal Bai from whose house the victim was recovered was not produced by the prosecution. They both were examined by the defence. However, to some extent they have supported the prosecution story as going victim with Jalandhar and she being recovered from the house of Raju where Lal Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 25 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 Bai was also residing as Raju's wife. The statement of Lal Bai further supports the prosecution story to the extent that the girl has stayed there for two days.
Deficiency in investigation
27. The other argument that the investigation not being properly carried out by the police authorities is concerned, the same is not put to challenge by the accused during trial at any point of time and even otherwise in terms of the settled legal proposition that the benefits of minor contradictions and omissions in the statements of witnesses as well as in the minor deficiencies in the investigation is of no advantage to the accused as has been held in the case of Putchalapalli Naresh Reddy Vs. State of Andhra Pradesh and Others reported in (2014) 12 SCC 457 has held as under :-
"27. In Sunil Kumar & Ors. V. State of M.P., this Court held as under:
"20...... that immediately after PW 1, injured witness was taken to the hospital his statement was recorded as a dying declaration which, consequent upon his survival, is to be treated only as a statement recorded under Section 164, Cr. P.C. and can be used for corroboration or contradiction. This statement recorded by the Magistrate at the earliest available opportunity clearly discloses the substratum of the prosecution case including the names of the appellants as assailants and there is not an iota of materials on record to show that this was the upshot of his tutoring. On the contrary, this statement was made at a point of time when PW 1 was in a critical condition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits...that there was only some minor inconsequential contradictions which did not at all impair his evidence. Then again, Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 26 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 as already noticed, the evidences of the doctors fully supports his version of the incident."
28. Further in the case of Shyamal Ghosh Vs. State of West Bengal reported in (2012) 7 SCC 646 has held as under :-
"69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
70. In terms of the explanation to Section 162 Cr.P.C. which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this explanation reveals that if a significant omission is made in a statement of a witness under Section 161 Cr.P.C., the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra [(2010) 13 SCC 657] and Subhash Vs. State of Haryana [(2011) 2 SCC 715].
71. The basic element which is unambiguously clear from the explanation to Section 162 CrPC is use of the expression 'may'. To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contra, then the legislature would have used the expression 'shall' in place of the word 'may'. The word 'may' introduces an element of discretion which has to be exercised by the court of competent jurisdiction in accordance with law. Furthermore, whether such omission, variation or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 27 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006 witness untrustworthy and affects the case of the prosecution materially."
Under these circumstances, this argument is also of no help to the accused persons.
29. The learned Trial Court has rightly considered all the aspects of the matter and rightly arrived at a conclusion that both the accused persons have committed an offence of rape. No grounds are made out to allow this appeal.
30. This appeal sans merit, therefore, the same is dismissed.
Custody period of the appellant No.1/Raju @ Umakant Sr.No. Details of Sentence undergone Year Month Days
1. During trial period - from 23.07.2004 to 00 04 21 13.12.2004
2. After conviction from 17.11.2006 to 00 06 03 19.05.2007 Total period of imprisonment 00 10 24 Custody period of the appellant No.2/J alandhar Kol Sr.No. Details of Sentence undergone Year Month Days
1. During trial period - from 23.05.2005 to 01 03 28 03.02.2006 (08 months and 11 days) and from 29.02.2020 to 16.10.2020 (07 months and 17 days)
2. After conviction from 17.11.2006 to 04 06 21 29.07.2007 (08 months and 13 days) and from 16.10.2020 to 24.08.2024 (03 years 10 months and 08 days)
3. Remission period (01 month and 29 days) 01 06 25 and (01 year 04 months and 26 days) Total period of imprisonment 07 05 14 Signature Not Verified Signed by: SHALINI LANDGE Signing time: 9/20/2024 2:03:01 PM 28 NEUTRAL CITATION NO. 2024:MPHC-JBP:47718 Cr.A. No.2324 of 2006
31. The appellant No.1/Raju is on bail. As this appeal has been dismissed, his bail bonds are cancelled and police authorities are directed to take him into custody forthwith to serve the remaining part of the jail sentence. As far as appellant No.2/Jalandhar Kol is concerned, he is in jail since 16.10.2020. He is directed to serve the remaining part of the jail sentence.
(G. S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
SSL
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 9/20/2024
2:03:01 PM