Madhya Pradesh High Court
Dittu Singh @ Dilip vs The State Of M.P. on 23 March, 2015
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
CRIMINAL APPEAL NO.890 OF 2001
Dittu Singh @ Dilip Bhilala
Versus.
State of Madhya Pradesh
For appellant : Shri G.R. Deshmukh, Advocate.
For Respondent/ : Shri Akshay Namdeo, Government Advocate.
State
JUDGMENT
(24.03.2015)
1. The appellant has filed this appeal against the judgment dated 10.04.2001, passed in Sessions Trial No.182/97. The trial Court found the appellant guilty for commission of offence under Sections 366 and 376 Part-I of I.P.C. and awarded a sentence of RI 7 years and fine amount of Rs.500/- and 1000/- respectively.
2. The prosecution story, in brief is that, on 05.02.1996, the prosecutrix had gone to forest of Nandgaon to pluck the leaves. At that time, the appellant came to the prosecutrix. He had beaten the prosecutrix and thereafter, taken her into the forest. The appellant was with the prosecutrix for whole night and next day morning, the prosecutrix came to the house of her father. She told the story to him and thereafter, the report of the incident was lodged at the Police Station. The police conducted the investigation. The medical examination of the prosecutrix was conducted and after investigation, police filed the charge-sheet. The appellant/accused abjured the guilt. After trial, the trial Court found the appellant guilty for the offences and awarded the sentence as mentioned above.
3. Learned counsel appearing on behalf of the appellant has contended that as per medical report, there was no rape committed with the prosecutrix. The findings of the trial Court are contrary to the evidence. He further submitted that the trial Court has committed an error of law in convicting the appellants.
24. Learned Government Advocate has contended that there is enough evidence to convict the appellant for commission of offence and the findings recorded by the trial Court are in accordance with law.
5. Bhavsingh (PW-1, who is brother of the prosecutrix deposed that the prosecutrix had gone to the forest for taking fodder to buffalos and accused had beaten her. Same fact was told by Meera Bai (PW-5). He had searched the prosecutrix whole night, however, she could not find whereabouts of the prosecutrix. The prosecutrix came to the house at around 4 O'clock in the morning and she told the family members that the appellant had taken her forcefully and he wanted to marry with the prosecutrix. The prosecutrix further told the family members that the appellant had committed rape with her. Same facts have been deposed by Sonabai (PW-2), who is mother of the prosecutrix. (PW-3) Tersingh, who is father of the prosecutrix deposed that her daughter had gone to forest for collecting pala (leaves) for the purpose of fodder to the buffalos and at that time, the appellant had beaten the prosecutrix and he had forcefully taken her to some other place and committed rape with her.
6. (PW-4) prosecutrix deposed that she had been collecting leaves in the forest at around 2 O' clock. The appellant came at the place and caught hold her hand. He had beaten her from wooden stick and the beating was quite severe. Thereafter, the appellant had taken me to nearby hut in the field and committed rape with me at that time, Meera Bai was also with me. The appellant/accused had committed rape with me for 3-4 times. When the appellant was sleeping in the night, I came to my house and told the incident to my mother and father. The report (Ex.P-1) was lodged at the Police Station. I was examined medically. She admitted in para 7 of her cross-examination that she had gone to Lalbadi where she prepared the meal and other persons had eaten the meal including myself and the accused/appellant and when the appellant was sleeping, I ran away from the place and reached to my house. She further deposed that the accused was 'jeth' of her sister.
7. (PW-5) Meera Bai, was declared hostile. She deposed that she did not know the prosecutrix. (PW-6) Arun, deposed that before him one packet was prepared and he singed the seizure memo (Ex.P.4). Banshilal (PW-7) declared hostile.
38. (PW-8) Dr. B.K. Maheshwari deposed that he had conducted the X-ray of the prosecutrix and found her age more than 18 years. (PW-9) Moujilal, simply deposed that Gildar told him that the appellant had taken her sister.
9. (PW-10) Mohd. Salim ASI deposed that he had recorded the FIR (Ex.P.1) and the prosecutrix signed on the FIR. Thereafter, the prosecutrix was sent to medical examination and her X-ray was also done. He had sealed the clothes and prepared the packet of seizure and after completing the investigation, the charge-sheet was filed before the Court.
10. (PW-12) Dr. Fehamida Qureshi, deposed that she was working as Lady Assistant Surgeon at Shahjapur, Community Health Center. On 6.2.1996, she had conducted the medical examination of the prosecutrix. There were no sign of injuries on the body of the prosecutrix. After internal examination, there was no sign of any injury on her private parts. However, there were some stretches on external genitalia. Slide of the secretion found in labia majora was prepared. Hymen of Vagina of the prosecutrix was intact. There was no sign of rupture of hymen. There was small whole in the hymen which was natural and there was some secretion. No definite opinion can be given by her that any rape was committed with the prosecutrix. She further deposed that there were no inquiries on the body of the prosecutrix.
11. It is well settled principle of law that the conviction can be based for commission of offence on the sole evidence of prosecutrix. However, the evidence of the prosecutrix has to be scrutinized carefully as held by the Hon'ble Supreme Court in the matter of Hem Raj vs. State of Haryana (2014) 2 SCC 3905 and has held as under:-
"6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible, if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. (See State of Maharashtra v. Chandraprakash Kewalchand Jain.) Such weight is given to the prosecutrix's evidence because her evidence is on a par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the 4 duty of the court to scrutinise it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it."
12. The Supreme Court in the matter of Lalliram and another vs. State of M.P. 2008 (3) JLJ 233 has held as under in regard to the fact when the statement of the prosecutrix is not corroborated by medical evidence:-
9. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra and others. v.
State of Orissa (1977 (3) SCC 41) where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar & Ors. v. State of Haryana (2004 (4) SCC 379).
10. As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar's case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal then the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial.
13. Another interesting statement of the prosecutrix was that accused Lalliram had dragged her by catching her bunch of hair for a considerable distance. The trial Court noticed that if that was so there would have been injuries and interestingly she had not stated about this part in the FIR. As noted above, she had spoken about scratches on her back due to dragging and other parts of the body and that blood had also oozed out. But the medical evidence is clearly to the contrary. In her statement she had deposed that her husband Daya Ram was also dragged by Pooran and Lalliram and he had also suffered several injuries. This part is also belied by the medical evidence. In cross- examination PW-1 admitted that accused persons harassed her and tried to kill her. She had admitted that she was assaulted by her husband. Those are relatable to the injuries which were fresh at the time of examination by the doctor on 5.10.1985.
513. The Supreme Court in the matter of Aman Kumar and another vs State of Haryana, 2004 SCC (Cri) 1266 has held in regard to ingredients of commission of offence of rape as under:-
"Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The depth of penetration is immaterial in an offence punishable under Section 376 of I.P.C. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. Thus, to constitute the offence of rape, it is necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law."
14. The Supreme Court further held in the case of Arjun Singh vs. State of H.P. AIR 2009 SC 1568, in regard to commission of rape and offences punishable under Section 511 of I.P.C.
"10. In the instant case though the rape does not appear to have been committed but the attempt to commit the rape is clearly established. That being so the conviction for offence punishable under Section 376 IPC is not made out but the offence punishable under Section 511 IPC is clearly made out. So far as the offence under Sections 365 and 366 IPC are concerned the trial Court and the High Court have analysed the evidence in great detail. We find no infirmity in the conclusion to warrant interference."
15. I would like to examine the evidence of the prosecutrix in the light of judgments and principles of law laid down by Supreme Court in the cases quoted above in the judgment.
16. (PW-5) Meera Bai did not support the evidence of the prosecutrix. She has been declared hostile. (PW-4) deposed that Meera Bai was with her at the time 6 of incident. She further deposed that the accused had beaten her badly by wooden stock and he had committed rape with her for 3-4 times. (PW-12) Dr. Fehamida Qureshi who examined the prosecutrix did not find any external injury on the body of the prosecutrix. She further deposed that there were no injuries on private parts of the prosecutrix. Her hymen was intact. There was no rupture of hymen. It means that there was no penetration. If the accused had committed rape for 3-4 times with the prosecutrix, then certainly there was rupture of hymen as held by Modi's Medical Jurisprudence and Toxicology in which it has been held as under:-
"In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears (more so in the posterior half), the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes.
In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers."
Hence, the evidence of the prosecutrix does not inspire confidence of the Court. It is contrary to the medical evidence.
17. The prosecutrix herself deposed that she had cooked meal when she was with the appellant and all the persons had taken the meal. There were other persons also. When the statement of the prosecutrix does not inspire confidence of the Court and it is contrary to the medical evidence and the Doctor specifically opined that she could not give definite opinion about the commission of rape, in my opinion, it would be unsafe to convict the appellant for commission of offence punishable under Section 376 Part-I of I.P.C.
718. Similarly, the appellant could not be convicted for commission of offence under Section 366 of I.P.C., because as per the evidence of the prosecutrix, the appellant had used force and beaten her and thereafter, he had taken her to some places, is not reliable. However, the prosecutrix had specifically deposed that the appellant had caught hold her hand and tried to outrage her modesty. Hence, the appellant can be convicted for commission of offence under Section 354 of I.P.C.
19. In regard to award of punishment, the appellant has already undergone a jail sentence for more than one year, in my opinion, it would be just and proper if the appellant be awarded a sentence of already undergone for commission of offence under Section 354 of I.P.C.
20. Consequently, the appeal filed by the appellant is partly allowed. His conviction under Sections 376 Part-I and 366 of I.P.C., and the sentence awarded by the trial Court for commission of offence, is hereby set aside. The appellant is acquitted from the aforesaid charges. The appellant is convicted for commission of offence under Section 354 of I.P.C., and awarded the sentence for which he had already undergone. The appellant is in jail, he be released forthwith, if he is not required in any other case.
21. Accordingly, appeal is partly allowed.
(S.K. Gangele) Judge Pb