Madhya Pradesh High Court
Tilak Singh And Ors. vs The State Of M.P. on 23 June, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR.
(Single Bench - H.P. Singh)
Criminal Appeal No.109/1998
Tilak Singh and others
Vs.
State of Madhya Pradesh
AND
Criminal Appeal No.124/1998
Munnalal
Vs.
State of Madhya Pradesh
Shri S.K. Nema, learned counsel for the appellants.
Shri D.K. Shukla, learned Panel Lawyer for respondent-
State.
JUDGMENT
(23.06.2017) This Judgment shall govern the disposal of aforementioned two Criminal Appeals. Since both these appeals arise out of the same judgment and common questions are involved in these appeals, the same were heard together and are being decided by this common judgment.
2. Both, these appeals are directed against the judgment dated 17.12.1997, passed in S.T.No.129/1996, by the learned First Addl. Sessions Judge, Mandla, whereby the present appellants, namely, Tilak Singh, 2 Dharm Bai and Badan Singh have been convicted for offence punishable under Section 366 of IPC and sentenced to undergo R.I. for 3 years, each with fine amount of Rs.500/- to each appellant and in default of payment of fine additional R.I. for two months each, and appellant Munnalal has been convicted for offence punishable under Section 376 of IPC and sentenced to undergo R.I. for 7 years, with fine amount of Rs.1,000/-, with default clause.
3. In nutshell, the case of prosecution is that on the date of incident i.e. 27.9.1990, the accused/appellants allured the prosecutrix to provide her Govt. work and to earn more remuneration, have kidnapped the prosecutrix from Village Bhabhera, taken to Village Jarga, P.S. Maharjpur and kept her in the house of one Vipatiya Bai. Thereafter, the accused/appellants Badan Singh, Dharm Bai and Tilak Singh left her in the house of appellant Munnalal and took Rs. 1500/- from the appellant Munnalal. Appellant Munnalal kept her in his own closed room upto 25.1.1991 and during stay Munnalal had committed rape upon her. He used to rape her by threatening and showing arms. Munnalal took ornaments which she had worn on her body, thereafter, on 25.1.1991, she escaped herself and reached at Mandla on 27.1.1991 where her father-in-law and husband met her. Thereafter, prosecutrix (PW/3) made a written complaint Ex.P/4 to Superintendent of Police, Mandla, on the basis of which Crime No.12/1991 for offence punishable under Sections 366, 376 & 34 of IPC, has been registered against the appellants. During 3 investigation, she was medically examined by Dr. Anjana Bhalavi (PW/7), who opined vide Ex.P/6, that no definite opinion can be given about recent intercourse. Dr. Anjana Bhalavi (PW/7) prepared slides of prosecutrix, advised for chemical examination and handed over the same to the concerned constable. Accused/appellant Munnalal was also medically examined by Dr. Ashok Kumar Gupta (PW/8), who gave his opinion that accused/appellant Munnalal is able to do intercourse. Dr. Ashok Kumar Gupta (PW/8) also prepared slides of semen of accused/appellant Munnalal, cloths of accused/appellant Munnalal were kept in sealed packet and handed over to concerned constable. Seized articles were sent to FSL Sagar vide Ex.P/5 for chemical examination. During investigation, the statements of prosecution witnesses were recorded and after completing investigation, appellants were charge- sheeted for commission of offence punishable under Sections 366, 376 read with Section 34 of IPC, before the concerned Court.
4. The learned trial Court framed charges as aforesaid offences against the appellants. Contents of the charges were read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. They took plea that they have been falsely implicated in this case and examined one witness in their defence.
5. But the learned trial Court upon hearing the parties, on going through the evidence of the witnesses, exhibited documents and material available before it, 4 convicted and sentenced the appellants as above by the impugned judgment.
6. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence, the appellants have preferred these appeals.
7. Learned counsel for the appellants submitted that learned trial Court has failed to appreciate the factual aspects of the case. They have been falsely implicated in this case. Learned counsel further submits that ingredients to constitute offence under Section 366 & 376 r/w Sec.34 of IPC are completely missing in the instant case. He further submits that since the accused/appellants denied to allure the prosecutrix, taken her to provide Govt. labour job to gain more remuneration, they have been roped in this false case. The medical evidence Ex.P/6 recorded by Dr. Anjana Bhalavi (PW/7), does not support the case of prosecution. The important witnesses, namely, Chando Bai (PW/1) and Halki Bai (PW/5) examined by the prosecution have given contradictory statements and they turned hostile. The learned trial Court erred in holding the appellants guilty. He prays for acquittal of the appellants by setting aside the judgment of the trial Court.
8. Combating the above arguments, learned Panel Lawyer appearing on behalf of the respondent/State has submitted that there is enough evidence to hold guilty the appellants for commission of above mentioned 5 offence. Prosecution witnesses and medical reports have supported the case of prosecution. The learned Panel Lawyer has vehemently argued that learned trial Court in its detailed judgment has considered thoroughly each and every factual and legal position submitted by the defence as well as prosecution and rightly convicted and sentenced the appellants for the aforesaid offences.
9. I have heard learned counsel for both the parties and perused the record.
10. The prosecution has examined total 8 witnesses, namely, Chando Bai (PW/1), head constable Lahardas (PW/2), prosecutrix herself as (PW/3), Ramgopal (PW/4), Halki Bai (PW/5), Sub Inspector of P.S. Barghat, Amol Singh Pandram (PW/6), Dr. Anjana Bhalavi (PW/7) and Dr. Ashok Kumar Gupta (PW/8), in its support.
11. Now the question which is crucial to be decided here is whether the accused/appellants, namely, Tilak Singh, Dharm Bai and Badan Singh have kidnapped the prosecutrix and accused/appellant, namely, Munnalal has committed rape upon prosecutrix?
12. Prosecutrix (PW/3) in her statement has deposed that she is married and her marriage was solemnized in her childhood and she does not know the name of her that husband. In her cross-examination, at para 4, she has deposed that her second marriage was solemnized with Akal Singh and her third marriage was solemnized with Ramgopal, but she did not live with Akal Singh.
6She further stated that she lived with accused/appellant Munnalal for about three months along with his wife and children. In para 6, she has further stated that when she was not happy with accused/appellant Munnalal, she came back to live with her husband Ramgopal. She also stated that she came to Mandla in search of job along with accused/appellants Tilak, Dharm Bai and Badan Singh.
13. Ramgopal (PW/4) in his examination-in-chief has stated that prosecutrix is his wife, but she is not his duly married wife. He stated that on the day when her wife- prosecutrix went from his house, he was not at her home. He went to his father at Beejadandi. He further stated that when he went to his father at Beejadandi, his father told him to go back. Thereafter, he returned to her home then he found that his wife, the prosecutrix was not present in his house. He further stated that he inquired about her from neighbourers and they informed that accused/appellants Tilak Singh, Badan Singh and Dharm Bai had taken prosecutrix for labour job. Thereafter, he asked, about her wife the prosecutrix, from accused/appellants Tilak Singh, Badan Singh and Dharm Bai, then they told that his wife had made accused/appellant Munnalal as her husband. In the cross-examination, he has stated that earlier the marriage of her wife was solemnized with Haridas and they were blessed with three children. He does not know that her marriage took place at Devri. He further stated that accused/appellants Tilak Singh, Badan Singh and Dharm Bai told him that prosecutrix on her own had 7 made accused/appellant Munnalal as her husband. Further, Ramgopal (PW/4) in para 4 of his cross- examination, has stated that prosecutrix had lived with him for a period of about 8 years prior to the incident. He further stated in para 5 of his statement that his wife went from his house without informing him.
14. Dr. Anjana Bhalavi(PW/7), who had examined the prosecutrix has stated that she has not found any external marks of injury and her vagina admits two fingers easily. She opined that no definite opinion can be given about recent intercourse. Dr. Ashok Kumar Gupta (PW/8) has also medically examined accused/appellant Munnalal and opined that Munnalal was able to perform intercourse. He prepared slides of semen of accused/appellant Munnalal and handed over to police with advise to chemical examination. Sub-Inspector Amol Singh Pandram (PW/6) has stated that he had sent the seized articles to FSL Sagar, vide memo Ex.P/5, for chemical examination. It is pertinent to note here that no examination report of FSL Sagar has been produced on record.
15. From the aforesaid statement of prosecutrix (PW/3), it is clear that Ramgopal is the husband of prosecutrix, who had gone to Beejadandi. Prosecutrix (PW/3) herself has stated that when she was at her residence, accused/appellants Dharm Bai, Tilak Singh and Badan Singh asked her to go with them to cut the bamboo trees, then she went with them. About 8 to 9 days, they were cutting said bamboo trees. Appellant 8 Munnalal gave Rs.1500/- to one Padam and asked him that all is well. Thereafter, appellant Munnalal took her in a room, closed the door of that room and on asking, he told her that he had purchased her on giving a sum of Rs.1500/-. Appellant-Munnalal started to commit rape upon her regularly and taken her jeweleries also. She further stated that she has been subjected to intercourse without her consent. She further stated that she lived with accused/appellant Munnalal for about three months and he did not leave her alone in the room. She has further stated that when she was residing with appellant-Munnalal in his house, at that time, his wife and children were also residing with him. Chando Bai (PW/1), wife of appellant Munnalal, in her deposition, has also stated that prosecutrix came to her house and started to live there and on her objection, she told that she will live in her house. She further stated that she called a Panchayat of senior persons of locality and in that Panchayat, prosecutrix further told that she will live in the house of appellant-Munnalal. In her cross- examination, prosecutrix (PW/3) herself has stated that "सस्वततः कहहा कक जब ममेरहा कदिल ममुनहा कमे यहहाहाँ नहहीं लगहा तब रहामगगोपहाल कमे यहहाहाँ जहाकर रहनमे लगग".
16. In view of the aforesaid statements of prosecutrix, it is clear that she was a consenting party in whole incident. It is not the case of prosecution that at the time of incident, the prosecutrix was minor or her age was below 18 years. Thus, looking to her consent and her own role, offence under Section 376 of IPC is not made out against the accused/appellant Munnalal and considering the overall facts and circumstances of the 9 case as stated herein above, since the prosecutrix has gone herself for job along with accused/appellants Tilak Singh, Dharm Bai and Badan Singh, no case is made out against these accused/appellants, namely, Tilak Singh, Dharm Bai and Badan Singh, for offence punishable under Section 366 of IPC.
17. In view of the above discussion, taking the cumulative effect of the circumstances, it appears that material placed on record by the prosecution does not bring home the charges against the appellants. I am of the considered opinion that upon the material placed on record, it would be unsafe to convict the appellants. On careful consideration of the evidence on record, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. If the court is of the opinion that on the evidence two views are reasonably possible, one that the accused/appellants are guilty, and the other that they are innocent, then the benefit of doubt goes in favour of the accused.
18. In the result, I allow the appeals, set aside the judgment of trial Court and quash the convictions of the appellants. Appellants are on bail. Their presence is no more required and, therefore, it is directed that their bail bonds shall stand discharged.
19. A copy of this judgment be sent to the trial Court along with its record for information.
(H.P. SINGH) JUDGE A.Praj.