Madhya Pradesh High Court
Diwakar Rao Makode vs State Of Madhya Pradesh on 12 August, 2005
Equivalent citations: 2005(4)MPHT62
JUDGMENT S.L. Jain, J.
1. This judgment shall govern the disposal of this appeal as well as Criminal Appeal No. 1198/2001 (Ramnarayan Bishnoi v. State of M.P.) and Criminal Appeal No. 1233/2001 (Brij Bhushan Sharma v. State of M.P.).
2. As all these appeals arise out of the judgment passed by IIIrd Additional Sessions Judge (Fast Track Court), Betul in Special Case No. 13/91, whereby all the appellants were acquitted of an offence punishable under Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act, 1989 (henceforth, 'the Act') but all of them have been convicted for an offence punishable under Section 376(2)(g) of the Indian Penal Code (for short, 'the IPC) and appellant Brij Bhushan Sharma has been sentenced to imprisonment for life with fine of Rs. 25,000/- and in default whereof with further imprisonment for 2 1/2 years, appellants Ramnarayan Bishnoi and Diwakar Rao Makode have been sentenced to R.I. for 7 years each with fine of Rs. 10,000/- each in default whereof R.I. for one year each, they are being disposed of by this common judgment.
3. The prosecution case as portrayed during trial is that prosecutrix Sukkobai (P.W. 1) is the wife of Sadhu (P.W. 3) and resident of Village Mardwani. She belongs to Scheduled Tribe. Appellant Ramnarayan Bishnoi is also a resident to Village Mardwani and his house is situated close to the house of prosecutrix. Three or four days prior to the date of incident, a police party from Betul visited Village Mardwani in connection with a dacoity. Accused/appellants Brij Bhushan Sharma, Sub Inspector and Diwakar Rao Makode, Head Constable were also the members of this police party.
4. On 30-10-90, at about 8 PM, all the three appellants reached the house of the prosecutrix. Appellant B.B. Sharma asked Sadhu P.W. 3, the husband of the prosecutrix and also appellant Diwakar Makode to go to the nearby Hillock to listen the news from radio as the radio set was not functioning well inside the house, and to inform him about the news. As the prosecutrix was suffering from fever, B.B. Sharma on a pretext of seeing her body temperature caught hold of the hand of the prosecutrix and assured her to give medicine. Appellant B.B. Sharma asked the prosecutrix to put her bed in the inner room. Accordingly, when the prosecutrix put her bed in the inner room, appellant B.B. Sharma committed rape on her. Appellant Ramnarayan who was present with the B.B. Sharma threatened the prosecutrix that if she made any complaint regarding the incident of rape, her husband will be sent to jail on the charge of theft.
5. After some time appellant Diwakar Makode and the husband of the prosecutrix returned. Thereafter, appellants left the house of the prosecutrix stating that they are going to Betul. Because of the apprehension that if she would make any complaint to her husband, he will take it otherwise and because of the fear that her husband will be sent to jail by B.B. Sharma on the charge of theft, the appellant kept mum for a day.
6. On the next day when the husband of the prosecutrix went to his field, the prosecutrix narrated the said act of the appellants to her brother Maha Singh (P.W. 2). The other inhabitants of the village also learnt about it. On 12-11-1990, the prosecutrix submitted an affidavit Ex. P-2 at Police Station,. Betul. After an inquiry on the basis of affidavit offenses under Sections 376(2)(g) of the IPC and 3(I) (XII) of the Act were registered against the appellants.
7. Prosecutrix was examined by Dr. Smt. Sudha Jain, Assistant Surgeon on 12-11-90 who found an old radiate tear present on her hymen. Vagina was admitting two fingers easily. Dr. Smt. Sudha Jain collected vaginal smear, prepared slides of the same and handed over to the police constable concerned. Dr. Smt. Sudha Jain opined that no definite opinion can be given regarding rape on the prosecutrix, as she was accustomed to sexual intercourse. However, she referred the matter to gynecologist for expert opinion.
8. On 16-11-90, a Saree was recovered from the prosecutrix which was sent for chemical examination. As per report of chemical analyst, Ex. P-9, blood, semen and spermatozoa were found on the said Saree and also on the slides prepared by Dr. Sudha Jain. The semen present on the Saree was not found sufficient for examination by serologist. The statements of prosecutrix and her brother Maha Singh were recorded under Section 164 of the Code of Criminal Procedure (henceforth, 'the Code').
9. On completion of investigation, a charge sheet was filed against the appellants for the alleged offences. After committal of the case, charges for the offences punishable under Section 376(2)(g) of the IPC and under Section 3 (i), (iii) & (xii) of the Act were framed against the appellants by Special Judge, (under the Act), Betul.
10. Appellants abjured their guilt. Appellant B.B. Sharma pleaded that he had gone to Mardwani in connection with investigation of a crime of dacoity. When he learnt that the dacoits took rest in a hut situated in the field of Diwan Gond and they fled away when they learnt about the presence of police, in order to search the dacoits, he interrogated Diwan Gond and certain other persons. With a view to frustrate the arrest of dacoits by police, false complaints have been made. Firstly, on Mantribai who is a close relative of Diwan Gond made an ill founded complaint. Thereafter, the prosecutrix made a false complaint. Appellant B.B. Sharma also pleaded that the dacoits were harboured by the husband of the prosecutrix and he was also interrogated by him. He further pleaded that on the date of incident, he was on the verge of promotion, some of his colleagues wanted to put hurdles in his promotion and wanted to deprive him of his promotion to pave the way for their own promotion.
11. After concluding the trial, the learned Special Judge did not find the appellants guilty of the offences punishable under Section 3(1) (iii) and (xii) of the Act, accordingly, acquitted them of these offences but found them guilty of the offence punishable under Section 376(2)(g) of the IPC and convicted and sentenced them as indicated above.
12. We have heard Shri S.C. Datt, learned Senior Counsel with Shri Siddharth Datt, Counsel for appellants Ramnarayan Bishnoi and Brij Bhushan Sharma in Criminal Appeal Nos. 1198/01 and 1233/01 and Shri S.K. Gangrade, learned Counsel for appellant Diwakar Rao Makode in Criminal Appeal No. 1151/01, respectively, an also heard Shri R.S. Patel, learned Additional Advocate General for the State in all the aforesaid three appeals.
13. Shri S.C. Datt, learned Senior Counsel led us through the record and contended that the learned Trial Judge erred in holding the appellants guilty of the aforesaid offences. Shri Gangrade, learned Counsel, also submitted that the conviction and sentence of the appellants are bad, improper and illegal. According to the learned Counsel appearing for the appellants there is no legal evidence whatsoever against the appellants and they have been wrongly convicted.
14. Per contra, Shri R.S. Patel, learned Additional Advocate General for the State supported the judgment of the Trial Court.
15. In order to establish its case, prosecution has examined prosecutrix as P.W. 1, Maha Singh, P.W. 2, the brother of the prosecutrix, Sadhu, (P.W. 3), the husband of the prosecutrix and kotwar Ramkisan, (P.W. 4). The prosecution also examined R.N. Dwivedi, (P.W. 7) who was the incharge of Police Station, Betul at the relevant time and Dashrath Decate (P.W. 9), the Investigating Officer. Some other persons were also examined.
16. Prosecutrix has stated that she was subjected to rape by some persons. But she is not in a position to say as to who committed the rape on her. She specifically stated that she did not know the accused persons. She was declared hostile and was cross examined under Section 154 of the Evidence Act by the Assistant Public Prosecutor. When she was confronted with her case diary statement Ex. P-l, she has stated that she did not make the statement marked A to A in Ex. P-1:
But she admitted that she made the statements marked as B to B :
C to C:
D to D E to E F to F :
17. In Para 9 of her statement she admitted that her statement was recorded by the Magistrate in which she did state that as she was suffering from fever, B.B. Sharma on the pretext of giving her medicine committed rape on her. Makode and Ramnarayan Thakur were also with B.B. Sharma. Ramnarayan Thakur brought B.B. Sharma to her house. Diwakar Makode went to the hillock. Her husband was also not at home. Her mother-in-law slept in the backside of the house after consuming liquor. But in Para 10 of her statement, she has stated that it did not happen that her husband was sent by B.B. Sharma to hillock and after listening the news from radio set, her husband returned alongwith Makode. She also admitted that a copy of her affidavit Ex. P-2 was given to the police.
18. When the prosecutrix was cross examined by the Counsel for the appellant, Diwakar Makode in Para 13 of her statement she specifically admitted that appellants B.B. Sharma and Makode were not known to her prior to the incident. She had no occasion to see them. When she was sleeping in her house, some unknown person entered her house, committed rape on her and took to his heels whom she could not recognize. This incident was narrated by her to Maha Singh after about 6 days. Maha Singh narrated the incident to the Sarpanch and other villagers.
19. In Para 15 of her statement, the prosecutrix further stated that Kotwar, Sarpanch and Mukadam asked her to lodge the report, therefore, she lodged the report. In Para 15 of her cross examination, the witness stated that the name of B.B. Sharma was informed by her to the villagers. In Para 11 of her cross-examination, she has stated that Makode did not come to her house, he went to the hillock alongwith her husband to listen radio news and thereafter did not come to her house. In Para 16 of her statement, the witness has stated that she was asked by Anil Kaka and Ikbal Bharti to tell the names of the appellants. She further admitted that she came to the Court to give evidence alongwith Anil Kaka. Earlier also she came to the Court alongwith Anil Kaka. She was taken to an Advocate by Anil Kaka where her statement was read over. In Para 18 of her statement she stated that Anil Kaka and Ikbal Bharti did not come to her, one Ramjilal Uike took her to lodge the report.
20. Prosecutrix, in Para 20 of her statement has admitted that 4 persons took their meals in their hut. A railway ticket was seized from her hut. Her husband was arrested by police in this connection. In these very para she also admits that she inquired regarding the names of the persons who came to her house, thereupon, she learnt the names of the accused persons otherwise the names of the appellants were not known to her.
21. In the end of her examination, following question was put by the learned Trial Judge to the prosecutrix :-
In reply to this question, the prosecutrix said thus :-
This means that the prosecutrix could not identify the person who committed rape on her as he was the outsider.
22. P. W. 2, Maha Singh about whom it is said that after 6 days of the incident, he was informed by the prosecutrix regarding rape on her has stated that he had no knowledge about the incident. Sukko Bai did not tell him anything. He was confronted with his case diary statement Ex. P-3 but he has denied that at any stage such statement was made by him.
23. P.W. 3, Sadhu has stated that appellant B.B. Sharma and Ramnarayan Thakur asked him to go to hear the telephone call. Appellant Diwakar went with him to hear the telephone call. At that time his wife was in his house. He returned at about 7 PM, thereafter, Ramnarayan went to his house and he remained in his own house. He specifically stated that his wife did not tell him anything about the incident.
24. Ramkisan, P.W. 4, has also stated that he has no knowledge about the incident.
25. Jugroo, P.W. 5, has stated that Mantri and Sukkobai informed him that B.B. Sharma and Diwakar Makode committed rape on them but this fact does not find place in his statement recorded under Section 161, of the Code Ex. D-2. He was confronted with his statement Ex. D-2 but he could not give any explanation for this omission.
26. Jogi, P.W. 6, has also narrated that he did not hear that the rape was committed by Sub Inspector B.B. Sharma on Mantri or on Sukkobai.
27. Learned Counsel for the appellant vehemently submitted that more than once, Sukkobai has admitted that she does not know the accused persons. Though she has admitted in the leading questions put by the public prosecutor that statements marked B to B, C to C, D to D, E to E and F to F were made by her to the police but she has not stated that these statements were true. The prosecutrix has nowhere in her statement recorded during trial, stated that the rape was committed on her by the accused persons. Unless she speaks the same in the Court, it can not be said that there is any substantive evidence against the appellants. He vehemently submitted that statement recorded under Section 161 of the Code can not be used as substantive piece of evidence nor the same can be used as corroborative piece of evidence. Such statement can only be used for the purpose of contradicting the evidence of the prosecution witness.
28. We find substance in the argument. There is no presumption of law that the statement of witness recorded by investigating officer under Section 161 of the Code is truthful. The purpose of contracting the witness who has deposed to certain facts in Court with his earlier statement to police under Section 161 of the Code is primarily to shake his credit on the ground that he has made contradictory statements on two different occasions. Section 162 of the Code provides that no statement made by any person to the police officer during the course of investigation shall be used for any purpose of any inquiry or trial in respect of any offence under investigation except for the purpose of contradicting the evidence as provided in Section 145 of the Evidence Act.
29. So far as the legal position is concerned, it can not be denied that statement recorded under Section 161 of the Code can not be used as substantive evidence. It is true that the prosecutrix has stated that the portions marked as B to B, C to C, D to D and E to E were stated by her to the police but she has nowhere said that what she stated earlier to the police is a fact. Even if the witness has stated that earlier she made the statement, the same does not become substantive evidence unless the witness speaks on oath before the Court the same fact. Therefore, the portions marked as A to A, B to B, C to C, D to D and E to E in Ex. P-l can not be used as substantive evidence.
30. In Para 15 of her statement, the witness has stated that she informed the name of B.B. Sharma to the villagers as the person who committed rape on her. This statement of the prosecutrix can certainly be used as substantive evidence but this statement also can not be relied upon to record a finding of guilt against appellant B.B. Sharma.
31. The prosecutrix repeatedly changed her statement. At one place she says that she does not know the appellants and in the end of the cross-examination also in reply to the question put by the Trial Court she has stated that she could not identify the appellants as they were outsiders. Where the witness has repeatedly changed her version, her statement can not be relied upon.
32. Maha Singh, the brother of the prosecutrix about whom it is stated that the prosecutrix narrated him the incident after 6 days of the same has also not supported the prosecution case. The husband of the prosecutrix also has not supported the prosecution case. The evidence of Jugroo P.W. 5 is nothing but hearsay and the same can not be said to be a legal evidence. As per the report of Forensic Science Laboratory, the semen, blood and spermatozoa were found on the Saree recovered from the prosecutrix but it was not sufficient for the examination by serologist, therefore, the Saree was not sent to the serologist. It can not be said that the semen and the spermatozoa found on the Saree was of any of the appellants.
33. The prosecutrix was a married woman, there is no evidence that after the date of the incident or soon before that she had no intercourse with her husband. Mere presence of semen and spermatozoa on the Saree of the prosecutrix does not involve any of the appellants in the alleged incident.
34. From the above state of evidence on record, the statement of prosecutrix can not be believed. The Trial Court committed error in relying upon the evidence of prosecutrix. As the evidence of the prosecutrix has been found to be unreliable, the appellants can not be convicted. There is no evidence against appellants Diwakar and Ramnarayan, therefore, they are entitled to acquittal. The evidence against appellant B.B. Sharma is also doubtful, therefore, he is also entitled to the benefit of doubt and entitled to acquittal.
35. On the basis of the aforesaid discussion, we are of the considered view that these appeals deserve to be and are allowed. The judgment of the Court below and conviction of the appellants and the sentence imposed on them are hereby set aside. Bail bonds of the appellants are hereby discharged. If any amount of fine has been deposited by the appellants, the same be refunded to them. A copy of the judgment be placed in the records of Criminal Appeal Nos. 1198/2001 and 1233/2001.