Madhya Pradesh High Court
Raisingh vs The State Of M.P. on 6 September, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
1
Cr.A. No.1184/1998
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 6TH DAY OF SEPTEMBER, 2022
CRIMINAL APPEAL No.1184 OF 1998
Between:-
RAISINGH S/O LALU
AGED ABOUT 32 YEARS, OCCUPATION : AGRICULTURE
R/O GRAM KHEDI, P.S. RAVTI
DISTRICT RATLAM (M.P.)
.....APPELLANT
(BY SHRI ANAND BHATT, ADVOCATE THROUGH LEGAL AID
SERVICES)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION RAVTI
DISTRICT RATLAM (M.P.)
.....RESPONDENT
(BY SHRI RAJESH JOSHI, GOVERNMENT ADVOCATE FOR
STATE)
Reserved on : 30.08.2022
Delivered on : 06.09.2022
This appeal coming on for judgement this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:
JUDGEMENT
The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."] against 2 Cr.A. No.1184/1998 the judgement dated 31.08.1998 passed by the Court of 3 rd Sessions Judge, District Ratlam (M.P.) in S.T. No.14/1998, whereby the appellant, has been convicted under Sections 452, 323, 506-B and 376 of IPC) and sentenced him under Sections 452, 506-B and 376 of IPC as follows :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
1 452 of IPC RI for 1 year Rs.500/- RI for 3
months
2 506-B of IPC RI for 1 year Rs.200/- RI for 3
months
3 376 of IPC RI for 7 years Rs.500/- RI for 3
months
2. Prosecution story, in brief, is as follows:-
(i) Appellant aged about 32 years, and prosecutrix aged about 52
years, are close relatives, as the appellant is the son of prosecutrix's brother-in-law. On 11.12.1997, at about 10.00 PM, when the prosecutrix alongwith her minor sons Varsingh and Hukla were going to sleep, the appellant armed with an axe entered her house, pushed her elder son Varsingh, about 9 years, out of the room, assaulted the prosecutrix on her back with fist, bit her cheeks and forcefully committed rape upon her. Prosecutrix after calling her brother Nanuram and witness Ramsingh through her sons, narrated the incident to them. Thereafter, on next day i.e. 12.12.1997 at about 04.40 PM, she went to the police station Ravti, District Ratlam, and made the complaint against the appellant, on the basis of which ASI Daryav Singh lodged an FIR bearing Crime No.119/1997 (Exhibit- P/8) against the appellant for the offences punishable under Sections 452, 323 and 376 of IPC. He vide letter (Exhibit-P/10) sent the 3 Cr.A. No.1184/1998 prosecutrix to Civil Hospital, Ratlam for medical examination, where Dr. Sarojiniben Patel medically examined her and prepared MLC report (Exhibit-P/1). She preserved and prepared her vaginal smear slides and sealed the same alongwith the clothes, worn by the prosecutrix at the time of the incident.
(ii) During investigation, ASI Daryav Singh went to the place of occurrence and prepared the spot map (Exhibit-P/11). SI R.S. Tiwari seized the articles received from the hospital, as per the seizure memo (Exhibit-P/3), arrested the appellant as per the arrest memo dated 13.12.1997 (Exhibit-P/5) and seized the blood-stained weapon axe (Article-A) from the possession of the appellant, as per seizure memo (Exhibit-P/4), sent him to Civil Hospital, Ratlam for medical examination, where Dr. B.L. Mangliya medically examined him and prepared MLC report (Exhibit-P/2). ASI Daryav Singh vide letter (Exhibit-P/6), sent all the seized articles to the Forensic Science Laboratory for chemical examination and after completion of the investigation, filed the charge-sheet before the Court of Judicial Magistrate First Class Sailana, who committed the same to the Court of 3rd Additional Sessions Judge, District Ratlam.
3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 452, 323, 376 and 506-B of IPC against the appellant, who abjured his guilt and prayed for trial. In his statement recorded under Section 313 of Cr.P.C., the appellant pleaded his false implication in the matter. In support of his defense, he has examined Dalla (DW-1) and Lakshman (DW-2) as defense witnesses.
4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, acquitted the appellant from the charge under Section 323 of IPC, while convicted and sentenced him for the offences punishable under Sections 452, 376 and 506-B of IPC as aforementioned.
4 Cr.A. No.1184/1998Being aggrieved with the said judgement of conviction and order of sentence, the appellant has preferred this appeal for setting aside the impugned judgement and discharging him from the charges framed against him.
5. Learned counsel for the appellant submits that the learned Trial Court has committed a legal error while appreciating the evidence available on record. Admittedly, the appellant is the son of the prosecutrix's brother-in- law (Devar). There was a land dispute between them due to which a false and fabricated report was lodged against the appellant. Prosecurix's statements are contradictory to the medical evidence. Prosecutrix deposed that the appellant committed forceful intercourse with her, while Dr. Sarojiniben Patel stated in her MLC report that the injury found on the private part of the prosecutrix was caused due to insertion of a hard object. It is apparent from the FSL report (Exhibit-P/12) that spermatozoa were not found in the vaginal smear slides of the prosecutrix, which in itself creates doubt about the whole prosecution case. The impugned judgement of conviction and order of sentence is unsustainable and liable to be set aside, hence, the appellant may be acquitted from the charges framed against him.
6. Per contra, learned Public Prosecutor for the respondent-State while supporting the impugned judgement of conviction and order of sentence submits that the judgement was passed by the Trial Court after proper appreciation of evidence available on record. The same is well reasoned establishing the guilt of the appellant beyond a reasonable doubt. Therefore, confirming the impugned judgement of conviction and order of sentence, the appeal filed by the appellant may be dismissed.
7. I have heard learned counsel for the parties at length and perused the record.
8. Prosecution has examined in all 7 witnesses including the prosecutrix (PW-3), her son Varsingh (PW-4), who was said to be present on the spot at 5 Cr.A. No.1184/1998 the time of the incident. Other material witnesses are, Dr. Sarojiniben Patel (PW-1), who medically examined the prosecutrix, ASI Daryav Singh (PW-
7), who lodged the FIR (Exhibit-P/8) and SI R.S. Tiwari (PW-6), who investigated the case.
9. From the statements of the prosecutrix (PW-3) and her brother Nanuram (PW-5), it is an admitted fact that the appellant is the son of the prosecutrix's brother-in-law i.e. her husband's nephew. Prosecutrix (PW-3) deposed that on the date of the incident, at about 10.00 PM when she was alone at her house with her two minor sons, the appellant entered her house armed with an axe, caught hold of her hand, threw her on the ground, assaulted her and forcefully committed rape upon her. Prosecutrix's son Varsingh (PW-4) deposed that on the date of the incident at about 10.00 PM when he alongwith her brother and mother was present at his house (Tapri), the appellant came there armed with an axe and sat on her mother and bit her mother's cheeks. Both the above witnesses specifically deposed that when the appellant entered their house, it was dark and they identified the appellant in the light of flames of the lighter lit by the appellant.
10. Prosecutrix (PW-3) deposed that after the incident she called her brother Nanuram (PW-5) through her sons and on the next day, went to the police station Ravti and lodged FIR (Exhibit-P/8) against the appellant. ASI Daryav Singh (PW-7) supported her aforesaid statement and deposed that he after lodging the FIR, vide letter (Exhibit-P/10) sent the prosecutrix to the Civil Hospital, Ravti for medical examination. Dr. Sarojiniben Patel (PW-1) deposed that on 12.12.1997 at about 10.15 PM, she medically examined the prosecutrix and found the following injuries on her body:-
External- Teeth bite marks were present on the left cheek with swelling and red tenderness. No other injury mark over any part of the body.
Internal- Laceration on the post-vaginal wall, having 6 Cr.A. No.1184/1998 slight bleeding inside the vagina, Inside the vegina there was laceration. Bleeding was present, on touch bleeding started from the lacerated area.
11. Dr. Sarojiniben Patel (PW-1) deposed that she preserved and prepared the prosecutrix's two vaginal smear slides and sealed the same alongwith blood stained petticoat, worn by the prosecutrix at the time of incident and handed over the same to the police official who brought her to the hospital. She further deposed that she prepared the MLC report (Exhibit-P/1) and opined that the injuries found in the vagina of the prosecutrix was caused by insertion of any hard material.
12. IO R.S. Tiwari (PW-6) deposed that he seized the prosecutrix's vaginal smear slides and clothes received from the hospital as per seizure memo (Exhibit-P/3) and sent the same vide letter (Exhibit-P/6) to the Forensic Science Laboratory, Indore. ASI Daryav Singh (PW-7) deposed that the FSL report with regard to the prosecutrix's vaginal smear slides and clothes is Exhibit-P/12.
13. From the perusal of the said FSL report (Exhibit-P/12), it is apparent that spermatozoa (male sperm) were not found present on the prosecutrix's vaginal smear slides preserved and prepared by Dr. Sarojiniben Patel during her medical examination, conducted on the very next day of the incident. As Dr. Sarojiniben Patel (PW-1) specifically stated in her statement as well as in her MLC Report (Exhibit-P/1) that the injuries found in the vagina of the prosecutrix was caused by insertion of any hard material and FSL report (Exhibit-P/12) reveals that the spermatozoa (male sperm) were not found present on prosecutrix's vaginal smear slides, therefore considering her relation with the appellant and also about 20 years age gap between them, statements of the prosecutrix with regard to commission of rape appears to be suspicious and hence requires corroboration.
14. But so for as commission of other alleged offences punishable under 7 Cr.A. No.1184/1998 Sections 452, 323 and 506-B of IPC are concerned, there is no inconsistency in the statements of prosecutrix (PW-3) and her son Varsingh (PW-4) that on the date of the incident, at about 10.00 PM when they were at their house, the appellant entered there armed with an axe and assaulted the prosecutrix. Their aforesaid statements find support from the FIR (Exhibit-P/8), lodged by the prosecutrix. Hence, from the evidence produced on record, this fact is found proved that on the date of incident, at about 10.00 PM, appellant entered into the house of the prosecutrix having made preparation for assaulting her. Therefore, learned Trial Court has not committed any error in holding the appellant guilty for the offence punishable under Section 452 of IPC.
15. Statements of the prosecutrix (PW-3) and her son Varsingh (PW-4) about the offence of assault made by the appellant on the prosecutrix also find support from the FIR (Exhibit-P/8) as well as from the medical evidence but as the appeal against the acquittal of the appellant from the charges under Section 323 of IPC has not been filed, therefore, this issue can not be considered at this stage. Prosecutrix although in her FIR (Exhibit-P/8) stated that appellant after entering into her house threatened to kill her with axe but she in her statement recorded during trial has nowhere stated about the threatening given by the appellant. Her son Varsingh (PW-
4) also nowhere stated that appellant threatened them hence, offence punishable under Section 506-B of IPC cannot be said to be proved
16. So for as the commission of offence of rape is concerned, prosecutrix evidence do not find support from the medical evidence as she neither in her FIR (Exhibit-P/8) nor in her statement recorded during trial stated anywhere that the appellant inserted any hard object into her vagina. Her son Varsingh (PW-4) also nowhere stated about any such act committed by the appellant with the prosecutrix therefore, without any corroborative evidence, only on the basis of prosecutrix's suspicious evidence, commission of offence of 8 Cr.A. No.1184/1998 rape with her cannot be said to be proved beyond reasonable doubt.
17. The defence witnesses namely, Dalla (DW-1) and Lakshman (DW-2) have deposed that prosecutrix's husband and appellant were brothers and after the death of prosecutrix's husband, whole 2.5 bigha land received as compensation against flood was in the name of prosecutrix and appellant demanded half of its share, due to which there was a property dispute between the prosecutrix and the appellant. In these circumstances, false implication of the appellant in the offence of rape cannot be ruled out.
18. In view of the aforesaid discussion, as the prosecution could not prove its case beyond reasonable doubt for the offence punishable under Sections 506-B and 376 of IPC and therefore, appellant is liable to be acquitted from the aforesaid offences and is hereby acquitted. Findings with regard to the offence punishable under Section 452 of IPC is liable to be affirmed as learned Trial Court has not committed any error in finding the appellant guilty for the said offence. Hence, appeal stands partly allowed and the judgement of conviction and order of sentence is modified to the following extent :-
The judgement and order of conviction dated 31.08.1998 passed by the Court of 3rd Sessions Judge, District Ratlam (M.P.) in S.T. No.14/1998, is modified to the extent that appellant stands acquitted from the offences punishable under Section 506-B and 376 of IPC. Learned Trial Court is directed to ascertain the period of jail incarceration suffered by the appellant from the concerned jail. For the offence punishable under Section 452 of IPC, his conviction and order of sentence is hereby affirmed.
For the sake of clarity, a table is being reproduced below :-
S. Conviction Sentence Remark 9 Cr.A. No.1184/1998 No. Imprisonment Fine Additional amount imprisonm ent in default of payment of fine 1 452 of IPC RI for 1 year Rs.500/- RI for 3 Affirmed months 2 506-B of IPC RI for 1 year Rs.200/- RI for 3 Acquitted months 3 376 of IPC RI for 7 years Rs.500/- RI for 3 Acquitted months
19. The Registry is directed to send back the Trial Court record forthwith alongwith copy of this judgement. Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.
Certified copy as per rules.
(Satyendra Kumar Singh)
Judge
gp
GEETA Digitally signed by GEETA PRAMOD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb32501850a4984b5b PRAMOD 63f6d7a38, pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874D434, serialNumber=41554F8E701AEEB833278B4FDD900CBED72CCF299EA61E33B BE6175289BA0390, cn=GEETA PRAMOD Date: 2022.09.07 15:48:01 +05'30'