Madhya Pradesh High Court
Gopal Bhanwar Lal vs The State Of M.P. on 16 September, 2014
1
HIGH COURT OF MADHYA PRADESH :
BENCH AT INDORE
S B : HON'BLE MRS. JUSTICE S.R. WAGHMARE
Cr.A. No.363/1997
Gopal s/o Bhanwarlal
23 years, Harijan Gandhi Chowk,
Moman Badodiya, District Shajapur. ..... Appellant
vs.
State of Madhya Pradesh, Bhopal. ...... Respondent
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Shri P.K. Saxena, learned Senior Counsel with Shri Sunil
Verma, learned Counsel for the appellant.
Shri C.R. Karnik, learned Govt. Advocate for the
respondent/State.
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JUDGMENT
(Judgment delivered on 16/9/2014) By this criminal appeal under Section 374 of the Cr.P.C. appellant Gopal has challenged the judgment dated 11.4.1997 passed by the Additional Sessions Judge, Shajapur in S.T. No.180/1997 whereby the appellant has been convicted for offence under Sections 376(1), 341 and 2 506 Part- II of the IPC and sentenced to undergo 10 years of R.I. with fine of Rs.1,000/-, 1 month's of R.I. and one year's R.I. with fine of Rs.500/- respectively. In case of failure to pay the fine, the accused was to undergo an additional sentence of six months' and three months' R.I. respectively. The sentences were directed to run concurrently.
2. Brief facts of the prosecution case are that the prosecutrix on 4/5/1995 at 10 a.m. in the morning was returning after giving water to the cattle, when she reached near a culvert (nallah) she saw the accused Gopal Harijan and Kamal Baba. Accused Gopal caught hold of her hand and stopped her and asked Kamal to keep watch and then accused Gopal tried to molest her. She tried to shout, but he threatened to kill her and thereafter he raped her. She shouted for help, but nobody had come. Thereafter the accused ran away from the spot along with accused Kamal. On returning home she narrated the incident to the lady members of the house. The male members of the house had gone to another village for performing some custom. Upon returning the male members of the house in the evening, she narrated the story to her husband Murlidhar Patidar and her brother in-law Durgashankar. On 4/5/1995 i.e. on the same 3 day at 11 p.m. in the night the incident was reported at police station Moman Badodiya and case was registered for offence under Sections 341, 376 and 506/34 of the IPC at crime No. 46/95. The spot map was prepared at Ex.P/5. The prosecutrix was sent to the District hospital, Shajapur for her medical examination and she has been examined by Dr. (Smt.) Asha Pandit. The medical report is Ex.P/2-A and the accused were duly arrested vide arrest memo Ex.P/6 & P/7. Accused Gopal was also examined. The underskirt of the prosecutrix and two slides of her vaginal discharge were collected and sent to the laboratory for the F.S.L.in Indore. The report is Ex.P/10. The prosecution was launched. The accused were duly committed to their trial.
3. The accused abjured their guilt and stated that they have been falsely implicated in the matter. However, they did not examine anybody in their defence. On considering the evidence, the Trial Court has acquitted co- accused Kamal Baba from the offences, but accused Gopal has been convicted and sentenced as hereinabove indicated. Hence the present appeal.
4. Counsel for the appellant has vehemently urged the fact that it was a case of false implication. Counsel also 4 vehemently urged the fact that the FIR Ex.P/3 was delayed by 14 hours and since the police station is 10 minutes away from the victim and Counsel submitted that it was filed only after deliberation by family members at 11 p.m. in the night. Judgment of the conviction is also challenged by Counsel since it was based on the sole testimony of the prosecutrix; whereas she has changed her version several times. In impugned para 12 of the judgment the prosecutrix has stated that accused Gopal did not utter a single word then how can this be treated as evidence of threat. Similarly the prosecutrix has stated that the rape has been committed at the culvert at 10.30 am in the morning when there is a lot of hustle and bustle around. Similarly she has stated that there was a scuffle between her and the accused and she had shouted yet he had thrown her on the floor. It was also unbelievable because her statement is not supported by the medical report available on record. P.w.2 Dr. (Smt.) Asha Pandit examined the prosecutrix and she has stated in the medical report that the prosecutrix was 32 years of age and there were no external injuries found on the body of the prosecutrix. She was habituated to sex as her hymen was ruptured and wide enough to easily allow two fingers. The F.S.L. report also did not help giving any concrete opinion regarding the rape. Counsel submitted that in a place like 5 culvert, the prosecutrix's version is considered then she should have received some injuries, which has not been indicated in the medical report. And although the prosecutrix had told the story to her sister-in-law Rukmabai and her mother-in-law Pushpa Bai, they have not been examined in Court. It was only when the male members returned home she narrated the story, but both the male members Babulal and Durgashankar have not been examined in Court. There was no corroboration in the statement of any independent witness. Counsel also pointed out impugned para 22 of the judgment that although the prosecutrix stated that she did not know accused Gopal, she knew that accused Gopal was a resident of Harijan Colony and she had seen him and she has also knew his name. Counsel submitted that there was a false implication and accused Gopal used to graze the cattle in the neibhourhood village and he was known to the prosecutrix. It was an affair of heart and she had sexual relations with the accused and on that day had been caught in the act by co-accused Kamal and hence raised a false alarm. Whereas accused Gopal in his statement under Section 313 of the Cr.P.C. has submitted that there was rivalry between the accused and the husband of the prosecutrix regarding electricity and it was a case of false implication.
6Considering the testimony of p.w. 4 Murlidhar, husband of the prosecutrix, he has categorically stated that his wife named accused Gopal and she knew his name since he used to come in the neighbourhood to graze cattle. He had also admitted that he had returned home at 7 p.m. yet the report was lodged only in the night at 11 pm, which is unbelievable. No other witness has been examined in Court. Under these circumstances, Counsel prayed that the impugned judgment be set aside and the accused be acquitted from all the offences.
To bolster his submissions, Counsel for the appellant placed reliance on Rajoo and others vs. State of M.P. AIR 2009 SC 858 whereby the Court has held that although the evidence of the prosecutrix is at par with injured witness, her evidence cannot always be accepted as truth. The accused must also be protected against the possibility of false implication particularly where a large number of accused are involved.
Undoubtedly Counsel submitted that the matter pertains to the case of gang rape. However, the ratio laid down clearly indicated that if evidence of the prosecutrix is unreliable then the accused must not be convicted. Counsel further relied on State of Rajasthan vs. Babu Meena AIR 2013 SC 2207 whereby the Court has held that 7 there was a contradiction at the time of offence. Plea that she shouted not supported by landlord of place of offence. The medical and FSL report also not supporting the allegation of rape then the acquittal of accused is proper. The Apex Court held that it was not liable to be interfered in appeal against acquittal and refusal to grant leave to appeal was justified.
Counsel submitted that in the said case the medical evidence on record by the doctor as well as the FSL did not support the allegation of rape and the testimony of the prosecutrix was not at all reliable and would have to be considered in the light of classification of the testimony of the prosecution to either be wholly reliable, wholly unreliable or neither wholly reliable nor wholly unreliable. And in the present case the testimony of the prosecutrix was wholly unreliable. Hence, Counsel prayed for acquittal of the accused.
5. Counsel for the respondent/State, on the other hand, has vehemently opposed the submissions put forth by the Counsel for the appellant. He has submitted that there was perfectly valid and cogent reasons for the report FIR Ex.P/3 having been recorded so late. All the male members of the house had gone to another village to perform some 8 ritual custom and only on their return the incident has been narrated by the prosecutrix. Moreover, the medical evidence did not support the prosecution case primarily because the victim is a married lady and she was also seven months' pregnant, according to the report of Dr. Asha Pandit, p.w.2. Hence it cannot be said to be a case of consent. Counsel submitted that the trial Court had properly observed that a pregnant lady would not unnecessarily raise allegation that she was raped by the accused. Counsel prayed that merely because there was some discrepancies in the statement of the prosecutrix, her entire testimony could not be discarded. In the statement of the prosecutrix she has stated that co-accused Kamal was keeping watch and preventing people from coming there. Besides the recovery of the knife and the fact that the prosecutrix was pregnant are all indicative of the fact that the prosecutrix was not lying about the incident. Counsel prayed that the appeal is without merit and the same be dismissed as such. The FSL, the medical report and the evidence of the prosecutrix all established beyond doubt that the accused committed rape of the prosecutrix and the impugned judgment did not call for any interference.
96. On considering the above submissions and on perusal of the record, I find that the sole question that arises for consideration in this appeal is whether the conviction can be based on the sole testimony of the prosecutrix p.w.3 and it is in accordance with the provisions of law?
Placing reliance Babu Meena (supra), I find that oral testimony of the prosecutrix has to be classified first,(1) whether it is reliable, (2) unreliable or (3) partially reliable? I find that there are certain instances narrated by the prosecutrix, which are unreliable. Firstly the fact that she was raped by accused Gopal in a culvert, which is a common way used by the whole villagers. Secondly the prosecutrix has stated that she was subjected to rape at 10 am in the morning, which is the time of busy activities in a village. And thirdly more important that even in the medical evidence available on record indicates that she did not have a single abrasion on her body and since she was subjected to rape in the culvert, which is full of stones and other material, it must have caused damage to the skin of her body and more so she was seven months pregnant as evident from the doctor's report at Ex.P/2-A. Similarly if it is considered in juxta position of her statement that she did not know the name of the accused, whereas her husband Murli has categorically stated that the accused was known 10 to his wife as he always came in the vicinity of village to graze the cattle. Lastly the important fact that cannot be marginalized is that the defence to the accused, is of false implication. The unnatural conduct of the prosecutrix, the delay in filing of the FIR Ex.P/3 and the fact that the time that she was subjected to rape at 10 am in the morning are all instances which lead to the inevitable conclusion that the testimony of the prosecutrix is wholly unreliable. And to base the conviction on such scanty evidence would result in miscarriage of justice since it would be based on conjecture and surmise and in view of the glaring infirmities in the prosecution case and hence the conviction cannot be sustained. Placing reliance on (2002) 7 SCC 317 Ashish Batham vs. State of M.P. this Court had categorically held that in the administration of criminal law and justice delivery system the innocence of the accused is of prime importance and is to be presumed unless the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeccable evidence and hence mere suspicion however, strong or probable cannot take the place of proof. And therefore, it would be crucial to convict the appellant of the aforesaid offences under these circumstances.
117. In this light, I find that the appeal needs to be allowed and it is hereby allowed. The impugned judgment of the lower Court is set aside and accused Gopal is acquitted from all the aforesaid offences. He is on bail; his bail bond and surety bond are hereby discharged.
(Mrs. S.R. Waghmare) Judge moni