Madhya Pradesh High Court
The State Of M.P. vs Lalla And Anr. on 29 November, 2018
Bench: P.K.Jaiswal, B.K.Shrivastava
1 Cr.A.No.1246/2001
HIGH COURT OF MADHYA PRADESH, JABALPUR
DIVISION BENCH: BEFORE HON'BLE SHRI JUSTICE
P.K.JAISWAL & HON'BLE SHRI JUSTICE B.K.SHRIVASTAVA
CRIMINAL APPEAL NO.1246 OF 2001
The State of M.P.
Vs.
Lalla and another
Shri Rohit Sohgaura, learned Panel Lawyer, for the
appellant/State.
Shri Siddharth Datt, learned counsel for the respondents.
JUDGMENT
(29.11.2018) Per : B.K.SHRIVASTAVA, J.
This criminal appeal has been filed under section 374(2) of Cr.P.C. on 17.3.2001 by the State against the judgment of acquittal dated 8.12.2000 passed by the Additional Sessions Judge to the Court of Sessions Judge, Panna in Sessions Trial No.49/2000. The learned lower Court acquitted the respondents for the charges under sections 376(2)(g) and 506-B of IPC.
2. It is an admitted fact that Mangalia (P.W.3) is the husband of prosecutrix (P.W.1) and Lakhanlal (P.W.2) is the son of prosecutrix. The accused persons are residing in the same locality of the prosecutrix.
3. Prosecution case in brief is that on 16.2.2000 the husband 2 Cr.A.No.1246/2001 of prosecutrix had gone to Village Richhi and the prosecutrix was alone in her house situated at Gram Sarra with her two children. At about 12:00 a.m. between the intervening night of 16 and 17.2.2000 the prosecutrix came outside from her house for urination. At that time, both accused persons were standing armed with axe. When the prosecutrix asked them about the presence at the spot, they replied that they were playing gambling in the garden. Thereafter the prosecutrix said them that they should go to their house and the prosecutrix sat for urination. As soon as she stood up after urination, the accused Lalla closed her mouth by his towel and put her on the earth and committed rape. Thereafter, accused Tulsiram also committed rape with the prosecutrix. She could not raise any alarm because her mouth was tied with the towel. After committing rape when the towel was removed, then prosecutrix raised an alarm and her children came outside from the house. They also saw the incident. The accused gave threat and ran away. On 23.2.2000 when the husband of prosecutrix came back, then the prosecutrix narrated the entire incident. Thereafter, she reached to the Collector with a written report, Ex.P.1. As per endorsement written on the report, the application was submitted to the Superintendent of Police, Panna and thereafter upon the instructions of Superintendent of Police, Crime No.0/2000, Ex.P.2, was registered at Police Kotwali, Panna under section 376(2)(g)/34 of IPC. Later on, Crime No.10/2000 was registered at Police Station, Saleha, District Panna upon the basis of report, Ex.P.2.
4. Police sent the prosecutrix for medical examination and investigated the matter. The police prepared a spot map, Ex.P.4, recorded the statements of various witnesses, Patwari also prepared a map, Ex.P.9. Both accused arrested and also sent for medical examination, in which they found capable to perform 3 Cr.A.No.1246/2001 sexual intercourse. The material received after medical examination of the prosecutrix and accused were sent to the FSL and the report, Ex.P.7, was received from FSL.
5. After investigation, the police came to the conclusion that the accused committed rape with the prosecutrix. Therefore, Challan No.38/2000 was filed before the Chief Judicial Magistrate, Panna on 15.5.2000, who registered the Criminal Case No.296/2000 and committed the case to the Court of Sessions on 12.6.2000.
6. The Sessions Court registered the Sessions Trial No.49/2000 and on 7.8.2000 framed the charge under sections 376(2)(g) and 506-B of IPC. The accused denied the charges. Thereafter, the prosecution examined 11 witnesses. Accused also examined one witness in their defence.
7. After appreciation of the evidence, the lower Court passed the judgment on 8.12.2000 and acquitted both the respondents from all charges.
8. It is submitted by the counsel for appellant/State that the trial Court committed mistake by acquitting the respondents. The prosecution was success to prove its case beyond reasonable doubt but the lower Court did not appreciate the evidence in proper way. The evidence of prosecutrix was supported by her husband and son. The medical evidence also corroborated the statement of prosecutrix. Therefore, it is prayed that the judgment of acquittal be set aside and both the respondents be convicted and proper sentence be also awarded.
9. It is submitted by the counsel for respondents that 4 Cr.A.No.1246/2001 respondents were falsely implicated in this case. The statement of prosecutrix was not reliable. She changed her version from time to time. There was a delay in lodging the FIR, which was not explained by the prosecution. There was previous enmity because the husband of prosecutrix sold out the land of accused party. Therefore, the trial court did not commit any mistake by passing the judgment of acquittal. The appeal, having no force, hence liable to be dismissed.
10. Defence witness Bulua (D.W.1) stated in his statement that the husband of prosecutrix sold out the land of this witness. When the witness came to know about the aforesaid sale, then he lodged a complaint to Tahsildar, Shahnagar and upon that complaint a case was registered by the Tahsildar. The witness also proved the registry, Ex.D.5 and the notice of Tahsildar, Ex.D.6. In cross-examination, he also stated that at the time of registry, Land Survey No.105 and 354 was in the name of Mangalia but the witness was not having any knowledge that when Mangalia transferred the land in his name. He also explained that the land was sold out to Kalyan Singh Yadav and Kalyan Singh Yadav received Rs.10,000/- from this witness, thereafter, the matter was compromised. Therefore, it appears from the evidence of this defence witness that there was some dispute regarding the land, which was sold out by Mangalia to Kalyan Singh and Bulua (D.W.1) objected the aforesaid transfer and filed a case before the Tahsildar, which was compromised after giving Rs.10,000/- to Kalyan Singh. This witness is the father of accused Lalla.
11. Therefore, it appears from the evidence of Bulua (D.W.1) that there was some dispute regarding the land, which was sold out by the husband of prosecutrix. When this question was asked to the husband of prosecutrix Mangalia (P.W.3) then in 5 Cr.A.No.1246/2001 Para 6, he denied the fact of aforesaid transaction and he did not reply properly. The Court recorded his conduct that witness did not reply to the question related to the sale of land to Kalyan Singh. Therefore, this evidence is sufficient to draw the presumption that there was some dispute between the husband of prosecutrix and the accused party.
12. The second important fact is also found in the evidence of prosecutrix. In para 15 she admitted that the matter was discussed in Village Panchayat and Panchayat imposed fine of Coconut upon both the parties, but the prosecutrix did not accept the aforesaid judgment of Panchayat. She also said that the Panch were telling that she committed mistake, therefore, she is liable to pay the fine of Coconut. The husband of prosecutrix intentionally denied the fact of Panchayat in Para 9. This conduct also shows the intention of prosecutrix and her husband. The fact of Panchayat and imposition of fine upon prosecutrix gave an indication that Panchayat found the mistake of prosecutrix also. It transpires from the aforesaid evidence that prosecutrix may be a consenting party. Otherwise fine should not be imposed upon her.
13. In this case, the matter was registered upon written report of prosecutrix. The incident took place on 16.2.2000 as per the written report of prosecutrix. It is also admitted that the written report was submitted to the Collector on 24.2.2000 and after submission of the report, Crime Ex.P.2 was registered. It was the duty of the prosecution to explain the reason behind the delay in lodging the FIR because the matter was reported to the police after 8 days of the incident. This delay creates some doubt.
6 Cr.A.No.1246/200114. If we examine the evidence regarding the delay in lodging the FIR, then it reflects from the written application, Ex.P.1, that the prosecutrix stated in her application that her husband had been gone to Gram Richhi on 16.2.2000. In Para 3 of the application, it is stated that husband came back on 23.2.2000, thereafter, the prosecutrix narrated the incident to her husband. In the statement before the Court, the prosecutrix stated in Para 2 that in the morning her husband had gone to Richhi and the incident took place in the night. In Para 6, she says that her husband came back on the third day. Therefore, it appears that the prosecutrix is telling against her written report, because as per the written report her husband came after 7 days, while in Court statement she is telling that her husband came back on third day. Again in Para 6 she deposed that on 4th day she went to Kotwali, Panna and reported the matter. She also stated that before reaching to Kotwali, she met with Collector and prepared the application in the Court with the help of a Munshi. In Para 14, she again stated that her husband came back from Richhi on third day. In the aforesaid situation, it is appeared that the statement of prosecutrix is not supported by her own written report.
15. On the aforesaid ground, if we see the statement of husband of prosecutrix Mangalia (P.W.3), he also said in Para 2 that on third day he was returned from Village Richhi. The son of prosecutrix Lakhanlal (P.W.2) stated in Para 3 that before 2 days of the incident, his father had gone to Gram Richhi. Lakhanlal further says that when his father came back from Richhi, thereafter, father, mother and the witness himself doing their labourer work and after 2 days, they went for lodging the report. He denied the suggestion that her father came back after 6 or 7 days. Therefore, it appears from the evidence that husband of prosecutrix came back on the third day of the 7 Cr.A.No.1246/2001 incident but the report was lodged after 8 days and this false fact was mentioned in the report that the husband came back only one day before lodging the FIR. The delay is not properly explained by the prosecution and the evidence creates some doubt because the enmity was in existence. Therefore, the prosecution case became doubtful.
16. As per the allegations made, both accused committed rape upon the prosecutrix. But the statement of prosecutrix is not supported by the medical evidence. Dr.Pushpa Dwivedi (P.W.10) deposed that she examined the prosecutrix on 25.2.2000 at District Hospital, Panna. No any physical injury was found upon the body of prosecutrix. No any internal injury was found in the internal examination of prosecutrix. The doctor proved her report, Ex.P.15, and said that "no definite opinion can be given regarding the rape with the prosecutrix". Therefore, it is clear that medical evidence is not supported to the case of prosecution.
17. In this case, the slide of vaginal swab and petticoat of the prosecutrix was sent for FSL examination along with slides of both the accused and underwear of both accused. As per report, Ex.P.17, no semen was found upon underwears of accused. It is reported that in the slides of both accused, slide of prosecutrix and upon petticoat of prosecutrix, the spots of semen and human sperms were found. But this report also having no meaning because the incident allegedly took place on 16.2.2000 while the slides of prosecutrix was prepared on 25.2.2000 and the petticoat was also seized on the same day. Slides of both accused were prepared on 10.4.2000. Therefore, after a long time, slides were prepared and petticoat was seized. Therefore, this report cannot be related to the date of incident because the 8 Cr.A.No.1246/2001 prosecutrix is a married lady, who was living with her husband.
18. The prosecutrix stated in Para 9 that police seized her 2 bangles by Ex.P.5. But in this case, no any evidence has been produced regarding the seizure of broken bangles from the spot. Therefore, the seizure of bangles is also not having any meaning. The prosecutrix states in Para 22 that at the place where the crime was committed the earth was having small stones and no any cloth was put on the earth. She also stated in Para 23 that she tried to save herself by putting the hand and legs on the earth. She sustained the injuries on the left side of hip. She also said that her 2 bangles were broken. But if we see the statement of Investigating Officer and the doctor, then it is crystal clear that no any injury was found upon the hip of the prosecutrix and police did not seize any broken piece of bangles.
19. In Para 3, the prosecutrix stated that she was sleeping with her son Ashok Kumar on the earth and her elder son was also sleeping behind her. In the night, she came out from the house for the purpose to urinate both children. This is a contradictory statement because in her written report, it is mentioned that she herself was came out for the purpose of urination.
20. In Para 4 she stated that accused Lalla closed her mouth by the help of towel and put her on the earth, then committed rape. Thereafter, he removed the towel and said that if she would tell anything then he will cut her by the help of axe. Therefore, it appears that the allegation made against only one accused. But in this Para she again changed her statement and said that after Lalla, Tulsiram committed rape and thereafter towel was removed.
21. It is undisputed fact that there are several neighbours in 9 Cr.A.No.1246/2001 the locality but the prosecutrix did not raise any alarm. No any independent witness has been examined by the police.
22. The conduct of prosecutrix also found suspicious because if her husband was not available at the time of incident and he came back after 8 days, then she did not disclose the fact of incident to anybody of the village. She would have told to the Sarpanch, other authority of the village or the other elder person of the village and sought help of them in lodging the FIR as early as possible but she kept mum for a long time.
23. It is also appeared from the evidence that the prosecutrix is not the legally wedded wife of Mangalia (P.W.3). She was married with another person and gave birth to son Lakhan (P.W.2) and a girl, who was expired. After death of her husband, she came with Mangalia and gave the birth to another son Ashok. Thereafter, she became the Kept of Mangalia.
24. In Para 20, the prosecutrix denied her own report. She stated that in the written report, Ex.P.1 she did not mention portion B to B in which it is written that when she cried, then both children were came out. She stated in Para 5 of her statement that her both sons were present in the Osari and both seen the incident. While it is mentioned in her written report that after committing the crime and removal of towel, she cried then her children were came out. In her police statement, Ex.D.1, it is mentioned that when she cried then her son Lakhanlal came out, but in Para 21 of Court statement, she denied the aforesaid fact.
25. Therefore, it appears from the entire evidence that the statement of prosecutrix alone is not reliable. No any independent witness has been produced. The conduct of 10 Cr.A.No.1246/2001 prosecutrix and her husband is also suspicious. The case is not supported by medical evidence. There was previous enmity also. Delay in lodging of the FIR was also not explained. Therefore, the learned lower Court rightly passed the judgment of acquittal in which no interference is required.
26. In the above circumstances, the appeal having no force hence dismissed.
(P.K.JAISWAL) (B.K.SHRIVASTAVA)
JUDGE JUDGE
TG/-
Digitally signed by
TRUPTI GUNJAL
Date: 2018.12.09 22:00:52
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