Madhya Pradesh High Court
Ramdayal vs The State Of M.P. on 14 June, 2016
Author: Jarat Kumar Jain
Bench: Jarat Kumar Jain
-: 1:- Criminal Appeal No.1204 of 1997.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Jarat Kumar Jain )
Criminal Appeal No.1204 of 1997
Ramdayal s/o Sitaram Gujar
VERSUS
State of Madhya Pradesh
*****
Shri Manoj Saxena, learned counsel for the appellant.
Shri Mukesh Parwal, learned Govt. Advocate for the
Respondent/State.
*****
JUDGMENT
( Delivered on this 14th day of June, 2016 ) THIS criminal appeal under Section 374 of the Code of Criminal Procedure [in brief "the Code"] has been filed against the judgment dated 17.11.1997 passed by ASJ, Agar, District Shajapur in S.T.No.127/1996, whereby convicted the appellant under Section 376 of IPC and sentenced to undergo RI for 7 years.
[2] Brief facts of this case are that on 27.02.1996 prosecutrix [aged 35 years] came to her parental house at Village Karkadiya and accompanied with her nephew Lalji (aged 12 years) proceeded on foot to visit the fare at Village Ladon. On way, when she reached near the appellant's field, appellant - Ramdayal (aged 18 years) came near the prosecutrix, and he kicked Lalji, hence Lalji run
-: 2:- Criminal Appeal No.1204 of 1997.
away. Thereafter he dragged the prosecutrix in his field and committed rape on her. Thereafter the prosecutrix proceeded to her parental house. On way her father - Kaluram met her then she narrated the incident. Her brothers were out of station, therefore, on third day of the incident i.e. on 01.03.1996 she accompanied with her brothers went to Police Station Nalkheda and lodged the FIR, where Crime No.39/1996 for the offence under Section 376 of IPC has been registered against the appellant. The prosecutrix was sent for medical examination. Lady Dr. Jafari examined the prosecutrix and gave a report (Ex.P/6). No external or internal injury on her private part was found and no definite opinion about the commission of rape has been given. Lady doctor has prepared two slides of her vaginal swab and a Petticoat in a sealed cover handed over to the concerned constable. The appellant was arrested on 22.04.1996. After completing the investigation, final report has been filed against the appellant.
[3] Learned ASJ has framed the charge against the appellant for the offence under Section 376 of IPC. The appellant abjured the guilt and pleaded false implication. The prosecution examined 4 witnesses; namely, prosecutrix (PW-1); child witness Lalji (PW-2); Seetabai (PW-3) - Bhabhi of the prosecutrix and Investigating Officer - A. K. Shukla (PW-4). MLC report (Ex.P/6) has been admitted by the appellant under Section 294 of the Code, therefore, lady doctor has not been examined. The appellant has not examined any witness in his defence. After hearing parties,
-: 3:- Criminal Appeal No.1204 of 1997.
learned ASJ convicted the appellant for the offence under Section 376 of IPC and sentenced as aforesaid.
[4] Learned counsel for the appellant submits that the FIR is delayed by 3 days and the delay has not been properly explained by the prosecution. The prosecutrix in her Court statement improved the material facts. Her conduct during incident and after incident was unnatural. No mark of resistance was found on her person. Therefore. Learned ASJ has committed a mistake in relying sole testimony of the prosecutrix.
[5] Learned counsel for the appellant further submits that Lalji (PW-2) is a child witness and his conduct was unnatural, therefore, his presence at the scene of occurrence is doubtful. Besides this, there is material contradictions between his and prosecutrix's Court statements. So far as the evidence of Seetabai (PW-3) is concerned, she is a "hear say" witness. As per the prosecutrix she has immediately narrated the incident to her father Kaluram, but prosecution has not examined him and in this regard no explanation put forth by the prosecution.
[6] Learned counsel for the appellant concluded his submissions that the FIR is lodged after 3 days and delay has not been properly explained. There is no adverse medical finding in the medical report of prosecutrix. There is material improvement in the Court statement of prosecutrix and the appellant has not been medically examined. In such circumstances the offence is not proved beyond reasonable doubt as held by this Court in the case of
-: 4:- Criminal Appeal No.1204 of 1997.
Bhallu v/s State of M.P. [1984 MPWN 423]. Thus, the appeal be allowed and the appellant be acquitted from the aforesaid charge.
[7] On the other hand, learned Govt. Advocate for the Respondent/State submits that the prosecution has explained the delay in lodging the FIR. The prosecutrix is a major and married woman, therefore, no injury has been found on her person. It is settled law that the evidence of the prosecutrix is at par with injured witness. Therefore, even without corroboration on the sole testimony of the prosecutrix conviction can be based. The appellant has not been medically examined as he was granted anticipatory bail, therefore, he could be arrested on 22.04.1996 i.e. after 55 days of the incident, therefore, his medical examination was of no value. The evidence of prosecutrix is duly corroborated by the evidence of Lalji (PW-2) and Seetabai (PW-3). The conviction is based on proper appreciation of evidence. Therefore, no interference is called for by this Court.
[8] After hearing learned counsel for the
parties, perused the record.
[9] Firstly, I have considered whether the
prosecution has properly explained the delay in lodging the FIR. The incident had taken place on 27.02.1996 at about 10.30 AM; whereas the FIR has been lodged on 01.03.1996 at 8.00 PM. In the FIR it is mentioned that the prosecutrix was suffering from fever, therefore, the FIR could not be lodged in time. After the incident, prosecutrix returned back
-: 5:- Criminal Appeal No.1204 of 1997.
to her parental house and she narrated the incident to her Bhabhi - Seetabai (PW-3). Seetabai (PW-3) deposed that the prosecutrix returned in the evening and she narrated the incident to her and her brothers and thereafter she went to her matrimonial house at Borkhedi. She did not depose that the prosecutrix was suffering from fever.
[10] The prosecutrix in her Court statement gave another explanation for delayed FIR that for 3 days the appellant has restrained her brothers and also offered money to settle the matter, therefore, the FIR could not be lodged in time. This fact is missing in FIR as well as in her police statement (Ex.D/1). Therefore, this explanation cannot be accepted for delayed FIR. Thus, the FIR is delayed by 3 days and the prosecution has failed to explain the delay. It creates a doubt on the prosecution case.
[11] Now I have considered the evidence of prosecutrix (PW-1). She deposed that the appellant has
committed rape upon her for about one hour and thereafter restrained her in the field and had offered 5 to 10 thousand rupees for not lodging the report. The appellant has restrained the prosecutrix's brothers for 3 days and said not to lodge the report. The prosecutrix has made such improvements in her Court statement. I am of the view that these improvements are significant in the context of this case.
[12] Now I have considered the conduct of the prosecutrix during incident and after the incident. The prosecutrix was aged about 35 years at the time of incident;
-: 6:- Criminal Appeal No.1204 of 1997.
whereas the appellant was about 18 years. They know to each other before the incident. No mark of resistance has been found on the person of the prosecutrix. It is clear from the spot map (Ex.P/3) that the place of occurrence is surrounded by fields of Chandersingh, Bhagwansingh and Sitaram and the incident had taken place in the day light at about 10.30 AM in the open filed of appellant and the prosecutrix deposed that after committing rape the appellant had restrained her for some time. It is highly improbable that the appellant has taken a risk to commit such offence in an open field surrounded by the other fields and 10.30 AM in the morning is the time of busy activities in the agriculture fields.
[13] Now I have considered whether the evidence of prosecutrix has been corroborated by the other witnesses. According to the prosecution, she was accompanied with her nephew Lalji (PW-2), a child aged 12 years. He (PW-2) deposed that at the time of incident, the appellant has kicked him, therefore, he run away and came to his house but he has not narrated the incident to any body as he has an apprehension that the uncle may beat him. He has not made any hue and cry and called any body for rescue. This is an unnatural conduct of a child witness. Therefore, his presence at the scene of occurrence is doubtful.
[14] Now I have considered the evidence of Seetabai (PW-3) who is Bhabhi of the prosecutrix. She deposed that the prosecutrix has narrated the incident in the
-: 7:- Criminal Appeal No.1204 of 1997.
evening to her. Whereas prosecutrix deposed that she has immediately narrated the incident to her Bhabhi Seetabai. This is an omission in FIR. In the FIR it is averted that immediately prosecutrix has narrated the incident to her father Kaluram. The incident has taken place in the morning at abut 10.30 AM, whereas prosecutrix has narrated the incident to Seetabai in the evening i.e. after considerable delay. Thus, the evidence of Seetabai is "hear say" evidence, therefore, it is not corroborating evidence of the prosecutrix.
[15] With the aforesaid, I am of the view that the FIR is delayed by 3 days and the prosecution has failed to explain the delay. No mark of resistance has been found on the person of the prosecutrix. Material witness i.e. father of the prosecutrix has not been examined to whom the prosecutrix has narrated the incident immediately. Thus, the evidence of prosecutrix cannot be kept in the category of wholly reliable witness. Hon'ble apex Court in the case of Rajoo v/s State of M.P. [AIR 2009 SC 858] held that although the evidence of the prosecutrix is at par with injured witnesses, her evidence cannot always be accepted as truth. The accused must also be protected against the possibility of false implication when there is no corroborating evidence oral as well as circumstantial.
[16] The incident had taken place in a day light at about 10.30 AM and the place is surrounded by the other fields. Morning is the time of busy activities in the agriculture fields. In such circumstances the story of the prosecution is not acceptable.
-: 8:- Criminal Appeal No.1204 of 1997.
[17] As discussed above, the child witness Lalji
(PW-2) is unreliable; whereas Seetabai (PW-3) is "hear say"
witness, therefore, their evidence is not helpful to the prosecution.
[18] Hon'ble apex Court in the case of Ashish Batham v/s State of M.P. [(2002) 7 SCC 317] 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 charge is proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeccable evidence and hence mere suspicion, however, strong or probable cannot take place of proof and, therefore, it would be crucial to convict the appellant of the aforesaid offences under these circumstances.
[19] With the aforesaid, I am of the view that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. Thus, the appeal is hereby allowed and the impugned judgment is set-aside. The appellant is acquitted from the aforesaid charge. The appellant is in jail. If he is not required in any other case, he be released forthwith.
[20] Copy of this judgment be sent to the concerned jail authority as well as the Trial Court for compliance.
[ JARAT KUMAR JAIN ] JUDGE Sharma AK/*