Madhya Pradesh High Court
Kuldeep @ Lakhan vs The State Of Madhya Pradesh on 7 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:16854
1 CRA-4710-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 7 th OF APRIL, 2025
CRIMINAL APPEAL No. 4710 of 2018
KULDEEP @ LAKHAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prasanna Namdeo - Advocate for the appellant.
Shri Ved Prakash Tiwari - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal With consent of both the parties, this Criminal Appeal is heard finally.
2. This Criminal appeal is filed being aggrieved of judgment dated 29.05.2018 passed by learned Special Judge (SC/ST PoA Act) Betul in SCATR No. 200039 of 2016 convicting the appellant Kuldeep @ Lakhan S/o Anakh Singh Raghuvanshi under the provisions of Section 376(2)(i) of IPC on two counts with life imprisonment for the remaining natural life of the appellant with fine of Rs.50,000/- on each count. He is also convicted under Section 366 of IPC on four counts with seven years rigorous imprisonment with fine of Rs.5000/- on each counts. He has been also convicted under Section 506 Part-II with two years rigorous imprisonment, Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 2 CRA-4710-2018 with default stipulations of RI for one year each.
3. It is submitted that appellant is innocent. He has been falsely implicated, because the case was sensational and police was desperate to frame somebody in the matters, so to take credit of early investigation. It is further submitted that, there are several loop-holes in the evidence of the prosecutrix and other prosecution witness. Appellant has been falsely implicated in this case.
4. On the other hand, learned Public Prosecutor support the impugned judgment of conviction, submits that there is corroboration of the white spots on the body of the appellant with the statements given by the victims in their statements given to the Police Personnel.
5. After, hearing learned counsel for the parties and going through the records.
6. PW-1 in para-12 of her cross-examination has admitted that, Police had given her name of Kuldeep. She has also admitted that police had brought Kuldeep to Betul Hospital for identification. She had informed the police that he is not the person who had violated her privacy. Thereafter, she has admitted that, Police had taken her in a Jeep to Bordehi. She has further stated that, Police Madam had brought several photographs of the accused and she had identified one of the photographs. Thereafter, she has stated that except for Betul Hospital, appellant was not shown to her at any other place. She had also admitted that, Police had obtained her signatures on several papers which she had signed at her house. Thereafter, she has admitted in para-14 that on return from Hospital, Police had sought identification of the Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 3 CRA-4710-2018 appellant at the Police Station as well as at her house. Thereafter, she has stated that, when she had gone to the Police Station, accused was standing inside a Katghara (dock). Thereafter, she has stated that, the place where the incident took place, that was a Nala full of stones and appellant had made her lie on her back. She has admitted that, when she visited the Court to record her statements, then Hemant had also gone alongwith her.
7. PW-2, has admitted in para-9 of her cross-examination, that Hemant Bhaiya had informed her, as to what kind of statement is to be given. She further states that Hemant had informed her, as to whose name is to be taken and she further admits that name of Kuldeep was given to her by Hemant Bhaiya.
8. In para-10, PW-2, admitted that, Police had taken her and another victim for identification in a Jeep. While taking her for identification, police had earlier shown them Kuldeep and thereafter, identification was carried out. She has further admitted that, Police Madam had obtained signatures on several papers at Police Station. She has further stated that, on her description, Police had prepared a sketch of the accused and after preparation of the sketch she had verified that sketch was made as per the features narrated by her, thereafter, she said that sketch of accused was not made. This is a vital piece of evidence as far as appellant is concerned.
9. In para-11, PW-2 has categorically stated that the sketch which was prepared does not match with the face of the appellant. PW-2, further stated that, photo identification had taken place at the house of Hemant Bhaiya and thereafter, there is an improvisation, that she had informed the Police Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 4 CRA-4710-2018 Personnel that the person who had taken them to the Nala contained white spots on his back and neck. They had seen a burn mark on his hand which was about 2-3 inches long.
10. PW-3, another victim has admitted in para-8 of her cross-examination that they had not raised any alarm when accused was taking them on his motor-cycle. In para-9, this witness has admitted that, she did not visit the Police Station, Police Personnel had visited her, at her home for taking her statements. Hemant Bhaiya had tutored her as to what statements are to be given. She admitted that Police had taken her alongwith two other victims in a Jeep for identification. Thereafter, this witness has admitted that, outside Police Station, in a field, police personnel had shown the appellant to the witness and had asked her to visualize her properly and thereafter, she had taken to another place for identification. This witness further admits that, prior to photo identification, photo of accused was shown by the Police Madam. Thereafter, she has admitted in last lines of para-9 of her cross- examination, that neither the appellant was seen by them prior, nor later on. At the instance of the Police personnel, they had carried out identification of Kuldeep.
11. In para-10, PW-3, has admitted that the boy who had taken them on motorcycle was a young man. She has also stated that she had asked other victims to sit on the motor-cycle as the accused was known to her. She further admits that for two days she did not narrate this story to anybody. In para-11, this witness has admitted that the sketch which was prepared at her instance was identical to the details given by her. She further admitted that, Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 5 CRA-4710-2018 SHO Madam used to tutor them as to what is to be said. She has further admitted that, Madam only had tutored her to take name of Kuldeep and therefore, she had taken name of Kuldeep. She has further stated that, one of the victims was injured with a wooden piece. She has further admitted that, she was instructed by Hemant Bhaiya about the appellant, and therefore, she had taken his name. Police Madam had taken her signatures on various papers at Police Station,
12. PW-4 has admitted that, Hyman of the victim was recently torn and the FSL report there were human sperms found on slide of one of the victims, laggy of one of the victims, slide of another victim and on the slide of the appellant/accused. However, it is also true that no DNA report was obtained in regard to this positive FSL report (Ex.P-47).
13. Another intriguing aspect is that, as per the prosecution story, one of the victims was raped and another was fingered but there are sperm marks on slide of both the victims.
14. Though, Shri Ved prakash Tiwari, Learned Public Prosecutor places lot of emphasis on the evidence of D.S. Baghel (PW-21) to point out that, the injuries which were found on the body of the appellant were same as narrated by the victims and therefore, identification of the victim is even otherwise completed. However, this argument is full of flaws in as much as, date of arrest of the appellant is 03.05.2016, as is evident from Ex.P-38. He was arrested on 03.05.2016 at 13:15 hrs. Immediately, after that, statements of the victims, were recorded under Section 164 Cr.P.C. on 05.05.2016 as contained in Ex.P-15 & P-16 and none of the victims gave details of those Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 6 CRA-4710-2018 injuries or white spots on the body of the appellant. Whereas, appellant was arrested on 03.05.2016, but thereafter, when statements of the victims were recorded under Section 161 Cr.P.C. on 07.05.2016 by the concerned SDO (P), though they have not been marked as exhibit but are available on file. For the first time, his story of white spot and burn injury has been narrated. Thus, if the victims had seen the white spot and burn injury on the back and hand of the appellant, then nothing precluded them from stating the same either at the time of lodging of the FIR or at the time of recording of their statements before the Magistrate under Section 164 Cr.P.C. Therefore, these statements under Section 161 Cr.P.C. being later in time, do not generate any confidence so to take them to be reliable statements especially in view of the evidence of PW-1, PW-2 & PW-3 that they were tutored by the Police Personnel and Hemant Bhaiya.
15. Another facet is that, victims have identified age of the accused to be of about 25 years, whereas in the present case, appellant's age has come out to be 37 years. Another fact is that, the person who had taken the victims was reported to be bald in the middle of the head, whereas, the pictures which have been brought on record as Ex.P-3,0 do not show any baldness on the middle of the head. Another doubtful character is that PW-13, Archana Singh, Inspector has admitted in para-22 that in the sketch concerned person does not bear mustache. Besides this, this witness has admitted in para-14 that, at the time of lodging of the report author of the FIR did not narrate any incident with another victim. In the FIR, she had not identified the motorcycle. She mentioned the age of the accused to be between 20-25 Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 7 CRA-4710-2018 years, whereas, in para 14, this witness has admitted that, age of the arrested accused is about 40 years. Thus, it is evident that identification of Kuldeep is full of lacunas and cannot be said to be a reliable piece of evidence. It is admitted by the Investigation Officer as well as Archna Singh that there was lot of pressure on account of the incident taking place in the village and they were under pressure to conclude the investigation expeditiously.
16. When all these pieces of evidence are taken into consideration, then firstly, the identification of appellant Kuldeep Singh is faulty, secondly all the three witnesses have admitted themselves to be tutored witnesses and had given evidence as per the narration of Hemant Bhaiya. Thirdly, they all admitted that the sketch which was prepared as per the description given by them, did not match with the actual physical appearance of present appellant Kuldeep Singh. This fact is also admitted by Archana Singh (PW-13), Inspector of Police.
17. PW-5, Hemant S/o Bholu has been examined and in para-7, he has admitted that, though he had visited the Police Station alongwith victims but he had not informed the Police about fingering by the appellant in the private parts of one of the victims, then clarified that report was not lodged by him but somebody else. In para-9 of his cross-examination, he has admitted that Kuldeep was known to him, as he was residing in a different village which is at a distance of 03 K.M.
18. P.W.-6, mother of one the victims in para-5 of her cross-examination has admitted that when her daughter had given details of the incident to her, then she had not taken name of Kuldeep Raghuvanshi. His name was given Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33 NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 8 CRA-4710-2018 to her by Police Personnel at a later period of time. She has clearly stated that, Police Personnel had informed her that Kuldeep had committed rape. She has also admitted that after two months of the incident, she came to know of the fact that she will get money on account of the incident taking place with their daughter.
19. PW-7 Santosh, father of one of the victims has also admitted in para-7 of his cross-examination that after 20 days of the incident, he had learned about name of Kuldeep. Though, this witness has denied a suggestion that Kuldeep had asked him to support their case so that they can take money from Government.
20. Thus, it is evident that PW-3 was already knowing the accused. She had not taken the name of Kuldeep in her statements but as admitted by PW- 6, Police had given them name of Kuldeep. Kuldeep is known to Hemant and there is a suggestion that there was old enmity with Kuldeep. PW-7 has stated that name of Kuldeep came to his knowledge after 20 days of the incidence. Thus, there is doubt as to the identity of Kuldeep.
21. Another aspect is that, there is age gap of about 10 to 15 years. Victims have given the age of the accused to be between 20-25 years, Archana Singh (PW-13) had admitted that age of the appellant was 35 to 40 years at the time of the incident. Thereafter, it is though true that there was evidence of violation of privacy of one of the victims as has been narrated by the concerned Doctor who had carried out MLC but it is also true that, merely violation of privacy does not indicate that the person responsible for violation of privacy of the victim is the present appellant.
Signature Not Verified Signed by: AMITABH RANJAN Signing time: 09-04-2025 14:58:33NEUTRAL CITATION NO. 2025:MPHC-JBP:16854 9 CRA-4710-2018
22. Thus, when totality of facts and circumstances are taken into consideration, it is a case of botched up investigation, reflecting anxiety of the prosecution to fix a person as an accused rather than doing impartial investigation to find out the truth.
23. Under such facts and circumstances, when tested, chain of circumstances is not complete, eyewitness account is not trustworthy, there is an admission of witnesses being tutored, identification being faulty and there being no match between the sketch of the accused drawn as per the narration of the victims and the features of the present appellant, therefore, impugned order cannot be sustained in the eyes of law. It is hereby quashed. Appellant be released forthwith, if not required in any other case.
20. Accordingly, appeal is allowed and disposed of. His bail bonds be discharged. Record of the trial Court be sent back. Case property be disposed off as per the orders of the trial Court.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
AR
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 09-04-2025
14:58:33