Madhya Pradesh High Court
Bablesh vs The State Of Madhya Pradesh on 13 August, 2019
Equivalent citations: AIRONLINE 2019 MP 944, 2020 CRI LJ (NOC) 46
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
CRA No. 1163/2014
Appellant ------------------Bablesh
Vs.
Respondent ------------------The State of MP
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None for the appellant. Shri Devesh Sharma, who is in the list of Legal
Aid Service Authority, is appointed as amicus curiae for the appellant.
Shri Anup Nigam, Public Prosecutor for the respondent/ State.
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JUDGMENT
(Delivered on 13 / 08 /2019) Per G. S. Ahluwalia, J:-
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 20-9-2014 passed by Additional Sessions Judge, Ganjbasoda, Distt. Vidisha in Sessions Trial No. 105/2013 by which the appellant has been convicted for the following offences :-
1 Under Section 452 of Three years RI with a fine of IPC Rs.500/- in default seven days simple imprisonment 2 Under Section 376(2) (f) Ten years RI with a fine of of IPC Rs.10,000/- in default five months simple imprisonment 3 Under Section 323 of Three months RI with a fine of IPC Rs.1,000/- in default 15 days simple imprisonment 4 Under Section 3 /4 of Ten years RI with a fine of POCSO Act, 2012 Rs.10,000/- in default five months simple imprisonment All sentences have been directed to run concurrently.
(2) The necessary facts for disposal of the present appeal in short are that on 19-1-2013 at about 4 P.M., the appellant committed rape on the prosecutrix aged about 8 years and also assaulted her. 2 (3) According to the prosecution case, on 20-1-2013, the complainant/prosecutrix lodged a F.I.R. that she is the resident of village Khairod, and is studying in Class III. A day before, her parents had gone to village Berkhedi Sagoni, and she was in the house along with her grand mother. At about 4 P.M, her grandmother was out of the house and she was all alone in the house, at that time, the appellant, who is the resident of village Khairoda, came to the house and took her inside the room and demanded for keys. When she did not tell her, then he started pressing her neck and when she became unconscious, then he ran away. When her parents and grandmother came back, the entire incident was narrated to them and accordingly, the F.I.R. was lodged. On the basis of the F.I.R., the police registered crime no.19/2013 for offence under Sections 452,323,506 of I.P.C. The prosecutrix was sent for medical examination. On 21-1-2013, a written report was lodged by the father of the prosecutrix that in fact, the appellant had raped the prosecutrix but the police has not recorded the correct report. Accordingly, the spot map was prepared, the prosecturix was again sent for medical examination to ascertain whether she was subjected to rape or not. The slide, swab and underwear were seized. They were sent to F.S.L. and report was obtained. The statements of the witnesses were recorded, the appellant was arrested and was got medically examined. During investigation, the offence under Section 376(2)(f) IPC was added. The police after completing the investigation, filed the chargesheet for offence under Sections 452, 323, 506 and 376(2)(f) of IPC.
(4) The Trial Court by order dated 11-11-2013, framed charges under Sections 376(2)(f), 323,506 and 452 of I.P.C.
3(5) The prosecution, in order to prove its case, examined the Prosecutrix (PW1), Kallu @ Kalyan (PW2), Vijay Kumar Vishwakarma (PW3), Seema (PW4), Dr. Mamta Pardesi (PW5), Geeta Bai (PW6), Gandharv Singh (PW7), Tarun Kureel (PW8), Baldev (PW9), Vimal Kumar (PW10), Dr. Hemant Agrawal (PW11), and Dr. P.K. Dubey (PW12). The appellant didnot examine any witness in his support. (6) The Trial Court by the impugned judgment has convicted and sentenced the appellant for the above-mentioned offences. (7) Challenging the impugned judgment and sentence, it is submitted by the Counsel for the appellant, that the prosecutrix had improved her version. In the FIR, no allegation of rape was made against the appellant. Further in the evidence, the prosecutrix has not made any allegation of rape against the appellant, however, the Trial Court has committed a material illegality by holding the appellant guilty on the ground that since in the MLC report, her hymen was found torned and as the prosecutrix had fallen unconscious after her neck was pressed by the appellant, therefore, it can be presumed that it was the appellant only who had committed rape on the prosecutrix. It is submitted that the incident is alleged to have taken place on 19-1-2013 and the prosecutrix was medically examined on 21-1- 2013, therefore, it is unsafe to draw a presumption against the appellant. The appellant has been falsely implicated because of enmity. The appellant is an innocent person.
(8) Per contra, it is submitted by the Counsel for the State that the prosecution has established the guilt of the appellant beyond reasonable doubt and the Trial Court has rightly convicted the appellant for the 4 offences mentioned above.
(9) Heard the learned Counsel for the parties.
(10) Dr. Mamta Pardesi (PW5) had medically examined the prosecutrix on 21-1-2013. She has stated that hymen was partially ruptured and vagina was admitting one finger with difficulty. External genital parts were with oedema and redness. Swelling and tenderness was present in vulvar area. In the opinion of this witness, there may be possibility of sexual assault. The MLC report is Ex. P.9. In cross examination, this witness admitted that she had not given any report with regard to the duration of injury. She further admitted that in case if any sexual assault is made on a girl below the age of 10 years, then there is a possibility of rupture of tissues upto her anus. It was further admitted that the hymen of a girl of the age of 10 years is situated in deep and to rupture the same, lot of pressure is required. She further admitted that if a sexual assault is made by a boy of 20-22 years, then apart from the hymen, the surrounding tissues would also rupture and bleeding would start. She further stated that she had not found any external injury on the private part of the girl. She had not found any blood either on her external parts or on her underwear. She further admitted that the hymen of girl of 10 years can rupture while playing also. She further admitted that while preparing the vaginal slide of the prosecutrix, no blood was found. She further admitted that the prosecutrix could have sustained the injury on 20-1-2013 also.
(11) Dr. Hemant Agrawal (PW11) had medically examined the prosecutrix on 20-1-2013. He had found the following injuries on the body of the prosecutrix :
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1. Multiple abrasion (Scratches) all around neck (interiorly both sides and back) of various size and dark dried skin. Abrasions extending to lower jaw and neck.
2. Sub Conjunctinal haemorrhage both eyes
3. Face appears to be oedematous and reddish
4. oedema over external genitalia (as per senior L.H.V.) complaint of redness No other injury marks over face limbs.
The MLC report is Ex. P. 14.
In cross examination, this witness has admitted that at the time of medical examination, the prosecutrix was talking normally and she had not disclosed about any injury on her private part. He further stated that he cannot say that whether the parents of the prosecutrix had also come or not? He further admitted that he had not seen any blood on the private part of the prosecutrix. He further admitted that it is not mentioned that the permission of her parents was obtained for examination of private part of the prosecutrix,. He had medically examined the appellant also and didnot find any injury on his body. The MLC report of the appellant is Ex. P.15. (12) The Prosecutrix (PW1) has stated that her grand mother had gone to the fields whereas her parents had gone to the house of her maternal grand mother. She was sitting on the platform situated in front of her house. The appellant came there and picked her up and pressed her neck as a result of which she fell unconscious. However, She further stated that nothing more had happened with her. The appellant had offered a toffee which was refused by her. Thereafter, the FIR was lodged and her signatures were obtained on the same. She was sent for medical examination. On query by the Doctor, she had informed her about the act of pressing her neck. She was declared hostile and was cross examined by the Public Prosecutor. She was cross examined in detail, however, the prosecutrix didnot allege 6 that She was raped by the appellant.
(13) It appears that after the prosecution evidence was over, and the case was finally heard, an application under Section 311 of Cr.P.C was filed by the prosecution pleading that in view of the ocular and medical evidence, the prosecutrix and her father may be recalled. The said application was allowed by order dated 13-1-2014. The prosecutrix (PW1) was further cross examined. In further examination, the prosecutrix made the following statement :
16- esjs xys es tks pksV gS mldks vkjksih ccys'k us eldk Fkk ftldh pksV Fkh vkSj ew>s is'kkc dh txg es tks pksV vkbZ Fkh ftlds vkjksih ccys'k us pkys dh FkhA pkys fdl pht ls dh Fkh eq>s ugh irk A lk{kh us b'kkjk djds crk jgh gS fd mlds ckFk:e dh txg ij vkjksih }kjk pkyh dh xbZA The prosecutrix had used the word pkys but the Trial Court didnot make any attempt to get the said word clarified. Thus, it cannot be inferred that the appellant had committed rape on her. The prosecutrix was cross examined by the defence and She stated that after her neck was pressed, She fell unconscious, therefore, She does not know as to what happened next. She further admitted that on the instructions of her father and Uncle, She is making the statement of pain in her private part.
(14) Kallu @ Kalyan (PW2) has stated that he was told by the prosecutrix, that the appellant had pressed her neck. However, he further stated that he was not told by the prosecutrix about the rape. He was declared hostile and in his cross examination, he admitted that he had given a written complaint, Ex P.3 and had disclosed about the commission of rape by the appellant. In cross examination by the defence, this witness again changed his version and stated that he had given a written complaint to the SDO(P), Ex. P.3, but stated that his signatures were obtained by his 7 brother-in-law and he is an illiterate person, and is not aware of the contents of the complaint and stated that the complaint was got typed by his brother-in-law. After this witness was recalled by order dated 13-1-
2014, it was stated by this witness that when he came back, he found that the undergarments of the prosecutrix were stained with blood. In cross examination by the defence, it was stated by this witness that they had changed the cloths of the prosecutrix. He further stated that the Public Prosecutor had told him about his police statement. (15) Vijay Kumar Vishwakarm (PW3) is the scribe of the FIR, Ex. P.1 He has stated that on the information given by the prosecutrix, the FIR, Ex. P.1 for offence under Section 452,323,506 of IPC was registered at crime No. 19/2013. After recording the FIR, the prosecutrix was sent for medical examination. On 22-1-2013, the appellant was arrested by arrest memo Ex. P.5. The appellant was sent for medical examination and the underwear with specimen of seal received from the hospital in a sealed condition were seized by seizure memo Ex. P.7. The appellant was again arrested after offence under Section 376(2) of IPC was added. The information was sent to his father which is Ex. P.8. In cross examination, this witness admitted that the prosecutrix had not informed about the rape. He further stated that at the time of filling the requisition for medical, he was not informed about the injury on the private part of the prosecutrix. He further admitted that the prosecutrix had come to police station by walking and was talking properly. No allegation with regard to threat were made at the time of registration of F.I.R., Ex. P.1. He further admitted that after the possibility of sexual assault was expressed by Dr. Mamta Pardesi (P.W.8), he didnot record the supplementary statement of the prosecutrix. 8 However, during investigation, the statements of the parents of the prosecutrix were recorded. He further admitted that even the parents of the prosecutrix had not stated anything about the sexual assault. (16) Seema (PW4) is the mother of the prosecutrix, She has stated that She had gone to her parent's home. When they came back, they found that the prosecutrix was missing. She was searched. A room of the house was closed from inside, however, the back door was open. Her husband opened the door and they found that the prosecutrix was sitting in an unconscious condition. Her husband took her to Doctor but he was not available. On the next day at about 10-11 A.M., the prosecutrix regained her consciousness then she informed that the appellant had pressed her neck and had laid down on her and thereafter she lost consciousness. She further stated that the appellant had done Bura Kam with her daughter, although she is too young. In cross examination, She stated that she didnot change the cloths of the prosecutrix and prosecutrix went to Police Station and to the Doctor in the same cloths. She further stated that the prosecutrix had remained hospitalized in Basoda Hospital but during her period of hospitalization, she never went to see her. She further admitted that after lodging the FIR, her husband and the prosecutrix had come back and on the next day, they again went to Basoda. She further stated that the police had come to the house on the very same day on which the FIR was lodged, and her statements were recorded.The appellant was arrested on the next day. She further admitted that her husband and her brother had gone to Basoda, along with the prosecutrix. She denied that because the appellant was released on the next day, therefore, her husband and her brother had gone to Basoda with concocted story. The name of her brother is Baldev 9 and he had come on the next day of incident. She further denied that at the time of preparation of spot map, She had not disclosed the incident of rape. She further denied that the prosecutrix had ever told her about the fact that the appellant had demanded the key, however, could not explain as to why, such a statement was mentioned in her case diary statement Ex. D1.
(17) Geeta bai (PW6) is the grand mother of the prosecutrix. She has stated that She was in the field and when She came back, her daguther-in- law was already in the house. She further stated that the prosecutrix regained consciousness on the next day at about 10 A.M. and informed that the appellant has done with her and had pressed her neck and didnot tell anything else(ccys'k us mlds lkFk gjdr dh gS xyk eldk gS vkSj yMdh us dqN ugh crk;k). In cross examination, this witness has admitted that She is stating for the first time, that the prosecutrix had informed her that the appellant had done with her. She further stated that wood, cowdung cake, wheat husk etc are kept in the room, where the prosecutrix was found. She further admitted that she was informed by her daughter-in-law that the prosecutrix was found on the wood. (;g lgh gS fd ?kVuk okys dejs es ydfM;ka vkfn Hkjh gSA eSus ( vfHk;ksD=h dk uke) dks dejs es iMk ugh ns[kk FkkA ml dejs es ydMh daMks ds vykok Hkwlk iMk FkkA ckn es eSus og txg ns[kh Fkh tgka cPPkh iMh FkhA ogka ij NsoMs lkxkSj oxSjg dh ydfM;ka iMh FkhA ;g lgh gS fd tc vanj x, rc cgw us crk;k Fkk fd ydfM;ksa ij yMdh iMh FkhA) She further admitted that after two days of incident, when the report was lodged, she came to know about the incident. She further stated that it is incorrect to say that the room has two doors. She further stated that the door of the room was not closed, and specifically stated that the door of the room was open. 10 (18) Gandharv Singh (PW7) is the grand father of the prosecutrix, In examination in chief, he stated that he was informed by the prosecutrix that the appellant had raped her, however, in cross examination, this witness has stated that he was informed by the prosecutrix that the appellant had pressed her neck and no other incident had taken place and the same thing was disclosed by him to the police. He further admitted that he was not informed by the prosecutrix, but clarified that he is telling the incident, which was narrated to him by his son and Baldeo. (19) Baldeo (PW9) is the brother of Seema (PW4), the mother of the prosecutrix. He has stated that he was informed by his brother-in-law that an incident has taken place with the prosecutrix therefore, he came to the village in morning. He further stated that he had received the phone at about 8 in the morning. He was informed by his sister Seema (PW4) and Kalyan (PW2) that the appellant has committed rape on the prosecutrix, and the prosecutrix (PW1) also informed that the appellant has committed rape on her. Thereafter he went back to his house. Later on, he was informed by Kalyan that he has lodged the F.I.R., therefore, he should also come. He met with Kalyan in the hospital. He further stated that when the appellant was being granted bail, he was in the Court, therefore, he went to the office of S.D.O.(P). He further stated that he had not prepared the written report, but it was prepared by one Jagdish and also accepted that he gave his statement in accordance with the written statement. He also stated that the cloths of the prosecturix were changed before going to the Police Station and further admitted that even the prosecutrix had taken a bath.
(20) In the FSL report, Ex. P.16, blood was found on Vaginal Slide, Swab 11 and underwear of the prosecutrix. Human sperms were also found on Vaginal Slide, Swab and underwear of the prosecutrix. However, in para 38 of judgment, the Court below itself has held that this report, appears to be doubtful and thus, it has not been relied upon.
(21) Now, the only evidence available on record is the ocular evidence. There are serious discrepancies in the evidence of the witnesses. In the FIR, no allegation of rape was made. The father and maternal uncle of the prosecutrix have stated that before going to the police station, the cloths of the prosecutrix were changed, whereas the mother of the prosecutrix has stated that the cloths of the prosecutrix were not changed at all and the prosecutrix went for medical examination in the same clothes. According to Seema (PW4), Geeta (PW6), the prosecutrix remained unconscious for the whole night and gained consciousness on the next day at about 10-11 A.M., whereas Baldeo (PW11), has stated that at about 8 in the morning itself, he was informed by the father of the prosecutrix, that the appellant has committed rape on her. Although the hymen of the prosecutrix was found partially ruptured, but no tear was found in surrounding tissues. Dr. Mamta Pardesi (PW5) has admitted that hymen may rupture while playing also. The prosecutrix in her evidence has not stated that she was raped by the appellant. Further, Seema (PW4) has stated that the front door of the room was bolted from inside, and the father of the prosecutrix went inside the room from the back door, whereas Geetabai (PW6) has stated that there was only one door and it was already open and was not closed. She has further stated that inside of the room is visible from outside, and wood, cowdung cake etc were kept in the room and as per Seema (PW4), the prosecutrix was lying on the wood. Further, Dr. Mamta Pardesi (PW5) 12 has stated that the injuries on the private part of the prosecutrix could be caused on 20-1-2013, i.e, one day after the alleged incident. Further more, according to the witnesses, the appellant was taken in custody on the same day, thus, it is clear that the appellant didnot try to run away from the village. Thus, the immediate conduct of the appellant also indicates towards his innocence. The Trial Court has held that since, the prosecutrix had fallen unconscious, therefore, She was not aware of the further incident of rape, but in the light of the medical evidence, it has been held that the appellant must have raped the prosecutrix. This Court is of the considered opinion, that in the present case, the incident is alleged to have taken place on 19-1-2013 and the F.I.R. was lodged on 20-1-2013 and on the said date, the prosecutrix didnot complaint of any injury on her private part. However, on 21-1-2013, a written complaint was filed and the prosecutrix was again examined on 21-1-2013. According to Dr. Mamta Pardesi (PW5) the injuries found on her private part could have been caused on 20-1-2013 also. Thus, it cannot be said that immediately after the appellant left the prosecutrix, her hymen was found ruptured. Further, according to the father and maternal uncle of the prosecutrix, her cloths were changed. According to Dr. Mamta Pardesi (PW5), no blood was found on the vaginal slide of the prosecutrix, but in the FSL report, Ex. P.16, blood was found on the vaginal slide as well as on underwear of the prosecutrix, therefore, the Trial Court itself has disbelieved the FSL report Ex P.16. Further the presence of sperms on the vaginal slide, swab and underwear of the prosecutrix, clearly indicates, that false evidence was created. Thus, it appears that there are inherent weakness in the prosecution story and it appears that an attempt was made to create 13 evidence against the appellant. Further the possibility of sustaining injuries due to wood lying in the room is also not ruled out.
(22) The Supreme Court in the case of Bhagwan Jagannath Markad v. State of Maharashtra reported in (2016) 10 SCC 537 has held as under :
18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions--(i) when a person feels absolutely certain of a fact--"believes it to exist", and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence.
The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability.
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or 14 embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated.
Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.
(23) Thus, from the above mentioned facts and circumstances, it is clear that there are various material contradictions in the evidence of the witnesses, and therefore, it cannot be held safely that the prosecutrix was raped by the appellant. Accordingly it is held that the prosecution has failed to establish beyond reasonable doubt that the appellant had committed rape on the prosecutrix.
(24) The prosecutrix has stated that the appellant had pressed her neck while she was sitting on the platform situated outside the house. Thus, the prosecution has failed to prove that the appellant committed house trespass. However, it is the case of the prosecution that the appellant had 15 pressed the neck of the prosecutrix. This fact is mentioned in the F.I.R., Ex. P.1 and it is alleged by the prosecutrix in her evidence also. However, there is nothing on record to suggest that this act of the appellant was with a sexual intention. Therefore, the conviction of the appellant for offence under Section 323 of IPC is upheld.
(25) The word "Sexual Assault" has been defined under Section 3 of the POCSO Act which reads as under :
''3. Penetrative sexual assault.- A person is said to commit "penetrative sexual assault" if-
a.he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or b.he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or c. he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or d. he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.'' Section 7 of POCSO Act, 2012 reads as under :
7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
(26) As already held, that the prosecution has failed to prove that the appellant had pressed the neck of the prosecutrix with a sexual intention, further as this Court has already come to a conclusion that the prosecution has failed to prove that the appellant had committed rape on the prosecutrix, therefore, the conviction of the appellant for offence under 16 Section 3/ 4 of POCSO Act is also set aside.
(27) The Trial Court for offence under Section 323 of I.P.C. has awarded jail sentence of rigorous imprisonment of 3 months and a fine of Rs.1000/- in default simple imprisonment of 15 days. The same is accordingly affirmed.
(28) The appellant is in jail. He has already undergone the rigorous imprisonment of 3 months. Therefore, he be released immediately if not required in any other case.
(29) With aforesaid modifications, the judgment and sentence dated 20-9- 2014 passed by Additional Sessions Judge, Ganjbasoda, Distt. Vidisha in Sessions Trial No. 105/2013 is hereby affirmed.
(30) The appeal succeeds and is allowed to the extent mentioned above.
(G.S. Ahluwalia) Judge MKB* Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.08.13 18:43:04 +05'30'