Madhya Pradesh High Court
Aziz Khan vs The State Of M.P on 20 October, 2010
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Mr. Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.23 OF 1995
Aziz Khan.
Vs.
State of Madhya Pradesh.
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Shri A.K.Choubey, Advocate for the appellant.
Smt. Sushila Paliwal, Govt. Advocate for the respondent/
State.
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JUDGMENT
(Delivered on the 20th day of October, 2010) This criminal appeal is filed by the appellant being aggrieved by the judgment, finding and sentence dated 10/12/1994 passed by the Additional Sessions Judge, Harda in ST No.300/1993, whereby the appellant was convicted for commission of offence under Section 376 of IPC and sentenced to rigorous imprisonment for seven years with fine of Rs.1000/-, in default of payment of fine amount, an additional RI for five months.
2. Prosecution case, in short, is that on 18/4/1993 in the evening, the prosecutrix (PW-1) was suffering from a stomach disorder and she was defecating frequently. In the midnight of 18-19/4/1993 at about 2:00 AM in the night when she went to answer the call of nature, then the appellant-accused Aziz Khan suddenly came. He closed her 2 Criminal Appeal No.23/1995 mouth and hurled the sword. He threatened her that if she shouts, then he will kill her. Ultimately he had torn the salwar and underwear of the prosecutrix and committed rape on her. The prosecutrix could identify the appellant- accused in the light. After the incident she went to her house and narrated the incident to her parents. On 19/4/1993 at about 9:10 AM in the morning she lodged an FIR Ex.P-1 at Police Station Harda with the help of her father. She was directed to have medical examination. Dr. Malti Patel (PW-7) had examined her and gave the MLC report Ex.P-7, by which she found a torn hymen with recent effect. She found some layer of blue colour on the surface of hymen and hymen was tender. Dr. Malti Patel (PW-7) took the clothes stained by some spots of blood etc. She prepared two slides of vaginal swab and after sealing the above articles, she handed over the same to the concerned Constable for chemical examination. The accused-appellant was arrested. He was also referred for medical examination. Dr. R. Singhai (PW-9) found in his report Ex.P-8 that the appellant-accused was competent to do intercourse. In the FSL report, it was found that semen and sperm were found on the salwar and underwear of the prosecutrix as well as on the slides of her vaginal swab. Similarly, semen and sperm were also found on the slides and pant of the appellant-accused. After due investigation, a challan for commission of offence punishable under Section 3 Criminal Appeal No.23/1995 376 of IPC was filed before the committal Court, Harda.
3. The appellant-accused abjured his guilt and took the defence that the prosecutrix and her parents could not find the actual culprit, and therefore a false FIR was lodged against the appellant-accused by the prosecutrix, because she was prejudiced against him. In support, Ashok (DW-1) and Rehmatullah Khan (DW-2) were examined from the side of the defence.
4. After considering the evidence adduced by the parties, the learned Additional Sessions Judge, Harda found the appellant to be guilty for commission of offence under Section 376 of IPC, and therefore, aforesaid sentence was inflicted upon him.
5. I have heard the learned counsel for the parties at length.
6. Learned counsel for the appellant-accused has made his submission in two folds. Firstly, that looking to the entire story given by the prosecutrix, she seems to be a consenting party and she was not in a position to tell the name of her lover, therefore, she did not inform the name of that man. Secondly, that there was no availability of any source of light at the spot, and therefore she could not identify the actual culprit, hence the appellant-accused was falsely implicated in the matter, because according to the opinion of the prosecutrix and her father, the appellant- 4 Criminal Appeal No.23/1995 accused was a bad character person and could be an easy suspect.
7. On the contrary, learned counsel for the State has supported the impugned judgment mainly on the ground that the appellant-accused took the advantage of sickness of the prosecutrix, and therefore he committed rape with her. Since the appellant-accused had a sword in his hand, therefore the prosecutrix could not resist and hence no external injury caused to the prosecutrix in the incident. In such circumstances, the learned Court below has not committed any illegality in convicting and sentencing the present appellant-accused.
8. In the present case, except the prosecutrix there is no eye-witness in the case. The other witnesses are supporting the prosecutrix on the basis of the story told by the prosecutrix herself. There are some lacunas in the story of the prosecutrix. For example, she has stated that she was suffering from stomach disorder, but she was not suffering from loose motion, though she was required to visit frequently for motion, but motions were not loose. She had admitted that she went for 5-6 times upto 11:00 PM in the night and then she went at about 1:30 AM in the night. Such type of health problem does not seems to be natural. If a person is suffering by frequent motions, then it has to be a problem of loose motion. She has admitted that at the time of incident, she had visited to answer the call of 5 Criminal Appeal No.23/1995 nature, and therefore it was necessary for her that since she was under pressure of loose motion in the alleged incident, she must have released the fecal matter and her salwar and underwear must be spotted by by the fecal matter, but she did not state anything about the fecal matter on her clothes. Since no fecal matter was found on her clothes, therefore, it is possible that the story of frequent motions was not real. It was simply a cooked story to give an explanation for her visit to an open field in the late night, therefore this possibility may not be ruled out that she had some affair with some one and she went to meet him in the night and after the alleged incident she tried to create the story of frequent motions without loose motion to explain her visit in the late night.
9. Learned counsel for the appellant-accused submits that a girl of teenage cannot be allowed to go alone in the night to an open field and it is surprising that she did not take any family member with her. Also she has stated that the appellant-accused had torn her salwar and underwear and she went to the Police Station in the same clothes and those clothes were taken by the lady doctor. But, Dr. Malti Patel (PW-7) neither found those clothes to be torn nor in the report of Forensic Science Laboratory such condition of the clothes in question was mentioned, therefore, the story of tearing clothes seems to be a falsehood. The prosecutrix had lodged the FIR Ex.P-1 in the 6 Criminal Appeal No.23/1995 morning at about 9:10 AM, whereas the concerned Police Station is only 2 kms away from her house. It seems natural that in the morning her father and brother must have dressed themselves and then visited the Police Station. However, it is clear that the prosecutrix narrated the entire story to her parents in the night, and therefore the prosecutrix and her parents took 8 hours time for discussion and consultation. The prosecutrix has admitted that one of her elder sister viz. Nandani, who was a student of LLB and was working with some U.K. Yadav Advocate at that time and that law student accompanied the prosecutrix to the Police Station. Under these circumstances, it is possible that the FIR may be a cooked document, which was lodged after proper consultation and legal advice, therefore its corroboration should be taken with some care and caution.
10. Dr. Malti Patel (PW-7) has mentioned in her report that though there was no external injury found on the body of the prosecutrix, but she found that hymen of the prosecutrix was torn recently. It was bleeding on touching by a finger. There was a layer of blue colour found on the surface of the hymen and hymen was tender. Therefore, it was clear that the act of the intercourse took place with the prosecutrix in the past few hours. Since no external injury was found on the body of the prosecutrix, it can be inferred that either she was a consenting party or she did not resist 7 Criminal Appeal No.23/1995 under the threat of being injured by sword. However, it is proved that an intercourse did take place with the prosecutrix at the time of incident.
11. The incident took place at about 1:30 in the night. The prosecutrix has admitted that on the date of incident there was no moonlight, therefore to rely on her identification regarding the appellant-accused is to be examined on the basis of circumstances. She has stated before the trial Court that there was a light of two bulbs in her field, but there should be some wiring for affixing the bulbs etc. and bulbs could be there either near by well or near the shed or near the house. Bulbs cannot be fixed in an open field without any need. Sub Inspector G.S.Rajpoot (PW-8) has prepared the spot map Ex.P-2, in which he has shown that place of incident was east side of the house of Ramdas, father of the prosecutrix. But he has not mentioned the distance of house of Ramdas from the place of incident. It is clear from the evidence of the prosecutrix that she has not said anything regarding the bulbs of her house. She stated that bulbs were fitted in her field, but no such point is shown in the spot map Ex.P-2, therefore, the story of availability of bulbs and light from the bulbs cannot be accepted. The prosecutrix has stated in the FIR that she saw the accused in the light, but this statement is far from truth. She did not explain regarding the source of light in the FIR. She tried to improve her statement before the trial 8 Criminal Appeal No.23/1995 Court, but it seems to be false on the basis of the spot map Ex.P-2. The alleged spot must be quite away from her parents' house and now it is doubtful that there was any source of light, therefore a grave doubt is created that on what basis she could identify the appellant-accused.
12. It was categorically asked to the prosecutrix in her cross examination as to whether she was in contact with the appellant-accused in the past, then she replied that the appellant-accused was known to her only by his name. She never met the appellant-accused prior to the incident. In such circumstances, there was no possibility of identification of the appellant-accused with the help of his voice or otherwise.
13. Defence witnesses Ashok (DW-1) and Rehmatullah Khan (DW-2) have stated before the Court that in the midnight of the incident, they heard some shouting and they saw that some family members etc. of the prosecutrix, searching someone and one girl was found weeping. They have further stated that one Rehmat, Gulab and Ganesh, brother of the prosecutrix were searching that boy. In the cross examination of these witnesses, nothing could be brought by which it can be stated that they were related to the appellant-accused or they had any enmity with father or brother of the prosecutrix.
14. Learned counsel for the appellant-accused has submitted that how the appellant could know that at about 9 Criminal Appeal No.23/1995 1:30 AM in the night the prosecutrix would come in an open field. There was no possibility of any stranger in the field of her father in the midnight with an intention to commit rape with the prosecutrix. It was also alleged that the appellant- accused brought a sword to threat the prosecutrix, and looking to such allegations it seems that the parents of the prosecutrix could not catch the actual culprit, hence they shifted the entire liability on the appellant-accused. Therefore, the appellant-accused seems to be falsely implicated in the case.
15. If the entire lacunas are integrated, then firstly it is doubtful that the prosecutrix could identify the appellant- accused, no source of light was found in the field in question, FIR was was lodged after 8 hours of the incident and there was sufficient time with the prosecutrix and her parents to consult and to cook the story, no external injury was found on the body of the prosecutrix, whereas symptoms of recent intercourse were found, the appellant- accused was known to be a bad character person of the locality in the eyes of father and brother of the prosecutrix and whose name could be mentioned in the FIR. Also the prosecutrix prepared an explanation for going out of her house in the midnight and that explanation seems to be false. Looking to her explanation, it was necessary that some fecal matter must have been discharged in the incident, but she did not complain of such fecal matter. Her 10 Criminal Appeal No.23/1995 elder sister Nandani, who was a junior to some advocate accompanied her to the Police station, whereas her brother did not go to the Police Station.
16. Learned counsel for the appellant has placed his reliance on the judgment given by the Hon'ble Apex Court in the case of "Sadashiv Ramrao Hardbe Vs. State of Maharashtra and another" [(2006) 10 SCC 92], in which the Hon'ble Apex Court has made the following observations:-
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
17. On considering the arguments advanced by learned counsel for the appellant, it is unnatural that when the time of the visit of the prosecutrix to the field was not known to anyone, then being a stranger how the appellant- accused could approach at the spot with an intention to commit rape with the prosecutrix.
18. In the light of the above dictum laid by the Hon'ble Apex Court, it should be seen that whether the sole 11 Criminal Appeal No.23/1995 testimony of the prosecutrix can be relied n the present case.
19. From the above facts and circumstances of the case, it seems that it is doubtful case, it is possible that since the parents of the prosecutrix could not catch the actual culprit, then a false FIR was lodged against the appellant-accused to save the honour of the prosecutrix. Under these circumstances, the sole testimony of the prosecutrix cannot be believed beyond reasonable doubt. If any doubt is created in the matter, then certainly the benefit of doubt is to be given to the appellant-accused. Therefore, the appellant-accused is entitled to get the benefit of doubt in the present case. He cannot be convicted for commission of offence under Section 376 of IPC or for any other inferior offence of the same nature, therefore, the conviction and sentence directed by the Additional Sessions Judge, Harda cannot be sustained in the eyes of the law.
20. On the basis of aforesaid discussion, I find that the Court below has erred in convicting and sentencing the present appellant, hence the finding of guilt recorded by the Court below is hereby set aside.
21. Consequently, this appeal succeeds and is hereby allowed. Conviction and sentence recorded by the Court below under Section 376 of IPC are hereby set aside. He is acquitted from the charge of Section 376 of IPC. He would 12 Criminal Appeal No.23/1995 be entitled to get the fine amount back from the trial Court, if he has deposited.
22. At present the appellant is in custody, therefore he be released forthwith by issuing a release warrant without any delay.
(N.K.Gupta) Judge 20/10/2010 Ansari.