Madhya Pradesh High Court
Kalyan @ Kallu vs The State Of M.P. on 15 March, 2018
1 CRA 81/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
CRA 81/2005
Kalyan alias Kallu
Vs.
State of MP
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Shri Brijesh Sharma, counsel for the appellant.
Shri Devendra Chaubey, Public Prosecutor for the
respondent/ State.
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JUDGMENT
(Delivered on 15/03/2018) This Criminal Appeal under Section 374(2) of CrPC has been filed against the judgment and sentence dated 17 th January, 2005 passed by Second Additional Sessions Judge, Shivpuri in Sessions Trial No. 251/2004, by which the appellant has been convicted under Section 376 of IPC and sentenced to undergo the rigorous imprisonment of seven years and fine of Rs.2,000/- with default imprisonment. (2) The necessary facts for the disposal of the present appeal in short are that on 27/09/2004 at about 11:00 am the appellant forcibly committed rape on the prosecutrix against her consent. According to the prosecution case, on 28/09/2004, the prosecutrix lodged a FIR in Police Station Govardhan (Shivpuri) on the allegation that on 27/09/2004 at about 11:00 am, she had gone to her field to give water to her cattle and at that time, the appellant came there and 2 CRA 81/2005 with an intention to do ''Burakam'' took her at the side of a hut, threw her on the ground and when she raised an alarm, he gagged her mouth and committed rape on her. The prosecutrix was, all times continuously shouting but since the hut where the incident had taken place, was situated at an isolated place, therefore, nobody came there to rescue her. At that time, her mother-in-law Ajoodhi Bai came on the spot, who saw the appellant committing rape on the prosecutrix and, therefore, she abused him and pushed him, as a result of which the appellant ran away after leaving her. In the evening, her elder brother-in-law (Jeth) Hiraman came back to the house and thereafter, she went to the police station along with her brother-in-law (Jeth) and lodged the FIR. After registering the case, the police sent the prosecutrix for medical examination and the appellant was arrested. Spot map was prepared and the police, after completing the investigation, filed the charge sheet against the appellant for offence under Section 376 of IPC. (3) The trial Court by order dated 02/12/2004 framed the charge under Section 376 of IPC.
(4) The appellant abjured his guilt and pleaded not guilty. (5) The prosecution, in order to prove its case, examined prosecutrix (PW1), Gayajit (PW2), Ajoodhi Bai (PW3), Hariballav (PW4), Brijlal Sharma (PW5), Sitaram Rawat 3 CRA 81/2005 (PW6), Dr. Anjna Jain (PW7) and O.P. Jain (PW8). The appellant did not examine any witness in his defence. (6) The trial Court by judgment dated 17 th January, 2005, convicted the appellant for offence under Section 376 of IPC and sentenced him to undergo the rigorous imprisonment of seven years and fine of Rs.2,000/- with default imprisonment.
(7) Challenging the judgment and sentence passed by the trial Court, it is submitted by the counsel for the appellant that in fact, the prosecutrix herself was a consenting party and since she was seen by her mother-in-law in compromising position with the appellant and, therefore, a false FIR was lodged. If the offence was committed by throwing the prosecutrix on the rough surface, then the prosecutrix herself should have sustained some external injury but no injury was found by doctor on the body of the prosecutrix. It is further submitted that the trial Court has convicted the appellant by ignoring the material omissions and contradictions in the evidence of the witnesses. (8) Per contra, it is submitted by the counsel for the State that the trial Court after considering the evidence in detail, has rightly convicted the appellant for offence under Section 376 of IPC. The prosecutrix has specifically stated that she was sexually violated by the appellant and it is well- 4 CRA 81/2005 established principle of law that the prosecutrix cannot be treated as an accomplice and, therefore, if the evidence of the prosecutrix is worth-reliance, looking for corroboration is nothing, but it is adding an injury to her insult. (9) Heard the learned counsel for the parties. (10) Dr. Anjna Jain (PW7) has medically examined the prosecutrix. She did not find any sign of injury over the private part of the prosecutrix and hymen was found old ruptured. No tenderness was found. Slides were prepared and handed over to the Constable. The prosecutrix was wearing Tobacco coloured petticoat at the time of examination and it was having multiple white-stain areas, therefore, it was sealed and handed over to the Police Constable and this witness did not find any sign of injury or violence on any part of the body of the prosecutrix. The MLC report is Ex.P7.
(11) The prosecutrix (PW1) has stated that the appellant is known to her. About three months back, she had gone to her field for giving water to her cattle and it was around 12:00 noon. The moment, she entered into her hut situated in the field, the appellant came there and caught hold of her. She raised an alarm, but since nobody was there, therefore, nobody came to rescue her. The appellant thereafter forcibly committed sexual intercourse without 5 CRA 81/2005 her consent. The appellant before committing the offence, had taken off his clothes and had also taken off her clothes. Her mother-in-law came on the spot and abused the appellant and thereafter, the appellant after pushing her mother-in-law, ran away. Thereafter, in the night, her elder brother-in-law (Jeth) came back to the house and then, she went to the police station along with her elder brother-in- law (Jeth) for lodging the report. The FIR was lodged and the police prepared the spot map. The prosecutrix was sent for medical examination and her statement was recorded. (12) By referring to paragraph 7 of the cross-examination of prosecutrix, it is submitted by the counsel for the appellant that the prosecutrix has admitted that she got married about 20 years back and the appellant resides in a house situated in front of her house. She has further admitted that her mother-in-law had a suspicion on her character. She has further admitted that her mother-in-law had a suspicion that the prosecutrix has illicit relations with the appellant. By referring to the evidence of Ajoodhi Bai (PW3), it is submitted by counsel for the appellant that Ajoodhi Bai (PW3) has stated that the prosecutrix is her daughter-in-law. It was around 12:00 noon. The prosecutrix had gone to the field for giving water to her cattle and as the ox was injured, therefore, this witness went to the field 6 CRA 81/2005 along with ointment for applying on the broken horn of the ox. She saw that her daughter-in-law (prosecutrix) was on the ground and the appellant was sitting over her and was committing rape on her. Thereafter, she abused the appellant and asked that what is he doing with her daughter-in-law? The appellant thereafter ran away after pushing her. Both her sons had gone to see a fete (mela). The appellant had also come to her house and abused her. When her son came back to the house in the evening, then she and her daughter-in-law narrated the incident to him. The police came to the village where her daughter-in-law lodged the FIR. In cross-examination, this witness has stated that her son had gone to see a fete (mela). At about 11:00- 12:00 pm, her daughter-in-law (prosecutrix) had gone to the field and about half an hour thereafter, this witness had gone to the field. She has stated that the hut, where the offence was committed, is used for tying the cattle. When she came from back the field, she did not narrate the incident to any neighbourer.
(13) Gayajit (PW2), is the elder brother-in-law (Jeth) of the prosecutrix. He has narrated this incident in the same manner, in which Ajoodhi Bai (PW3) has deposed. He had stated that when he came back to the house, he was informed by his mother Ajoodhi Bai (PW3) about the 7 CRA 81/2005 incident and thereafter, on the next day, he went to the police station with the prosecutrix to lodge the FIR. (14) Hariballav (PW4) is the husband of the prosecutrix (PW1). He has stated that he had gone to see a fete (mela) and thereafter, he stayed back in the house of his sister, therefore, he came to the house after a day. He was informed by the prosecutrix (PW1) and his mother Ajoodi Bai (PW3) about the incident.
(15) Brijlal Sharma (PW5) is the person, who had prepared the spot map. In cross-examination, he has stated that the place of incident is a charnoi land and the name of the prosecutrix is not mentioned in the revenue record. (16) Sitaram Rawat (PW6) has stated that the counter of FIR is Ex.P3, which was sent to the concerning Magistrate by dispatch no.2035. The copy of dispatch register is Ex.P4 and photocopy of the same is Ex.P4C. The copy of dak book is Ex.P5C. The sealed packet containing clothes of the prosecutrix was received from the Hospital on 29/09/2004, which was seized by seizure memo Ex.P6.
(17) O.P. Jain (PW8) is the person, who had investigated the matter. This witness has not stated that the seized clothes or vaginal slide of the prosecutrix were ever sent to FSL. Thus, the FSL report is not available on record. (18) If the evidence of the prosecutrix (PW1) and Ajoodhi 8 CRA 81/2005 Bai (PW3) is considered, then it is clear that Ajoodhi Bai (PW3) had a suspicion on the character of the prosecutrix (PW1) and she had a suspicion that the prosecutrix (PW1) had illicit relations with the appellant. On the date of incident, Ajoodhi Bai (PW3) reached the spot and found that the prosecutrix was on the ground and the appellant was committing rape on her. Ajoodhi Bai (PW3) has not stated that at the time when she reached the spot, any resistance was being offered by the prosecutrix. Ajoodhi Bai (PW3) has also not stated that the prosecutrix was shouting or raising any alarm. The hut, where the incident is alleged to have taken place, is situated at an isolated place, as admitted by the prosecutrix. If the explanation given by the prosecutrix of raising an alarm is accepted, then it was expected that during the entire time of incident, she should have offered her resistance to the physical violence by the appellant, whereas Ajoodhi Bai (PW3) who reached the spot, has not stated that any resistance was being offered by the prosecutrix or she was shouting or raising an alarm. She has also not stated that prior to reaching the spot, she heard alarm or shouts raised by the prosecutrix. This witness had admitted that the hut, where the incident is alleged to have taken place, is used for tying the cattle. Thus, it is clear that the place where the incident had taken place, must be a rough place and under these 9 CRA 81/2005 circumstances, it was expected that the prosecutrix would have suffered some external injury, but Dr. Anjna Jain (PW7) has specifically stated that no sign of physical violence was found on the body of the prosecutrix. Thus, this Court is of the view that the evidence which has come on record, indicates that the prosecutrix herself was a consenting party, because when she went to a hut which is situated at an isolated place, there was nobody around the place of incident and possibility of inviting the appellant by the prosecutrix herself is not ruled out. Ajoodhi Bai (PW3) has specifically stated that when she reached the spot, she found that the prosecutrix was lying on the ground and the appellant was committing rape. However, there is no allegation that the prosecutrix was offering any resistance. Further, although the clothes and vaginal slide of the prosecutrix were seized, but no FSL report is available on record.
(19) The Supreme Court in the case of Narendra Kumar vs. State (NCT of Delhi), reported in (2012) 7 SCC 171 has held as under:-
''29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence.10 CRA 81/2005
However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003 SC 1639).
30. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony.
However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.
32. The instant case is required to be decided in the light of the aforesaid settled legal propositions. We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The given facts and circumstances, make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact-situation, the appellant becomes entitled to the benefit of doubt.'' 11 CRA 81/2005 In the case of Lalliram and Another vs. State of Madhya Pradesh, reported in (2008) 10 SCC 69 has held as under:-
''11.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 Ors. 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).
12. 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.'' (20) This Court is of the view that in fact, the physical relations between the appellant and the prosecutrix had taken place with the consent of the prosecutrix. Since the prosecutrix is a married and major woman, therefore, her consent is of considerable importance. A consensus act of physical relations between two major persons cannot be 12 CRA 81/2005 said to be a ''rape''. Accordingly, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the appellant had committed rape on the prosecutrix without her consent. Accordingly, the appellant is acquitted of the charge under Section 376 of IPC.
(21) Consequently, the judgment of conviction and sentence dated 17th January, 2005 passed by Second Additional Sessions Judge, Shivpuri in Sessions Trial No.251/2004 is hereby set aside.
(22) The appellant is on bail. His bail bonds and surety bonds are discharged.
(23) The appeal is Allowed.
(G.S. Ahluwalia)
Judge
MKB
Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2018.03.16 18:38:32 +05'30'