Madhya Pradesh High Court
Vinod Kumar Yadav vs The State Of M.P on 26 September, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.809 OF 1997
Vinod Kumar Yadav.
Vs.
State of Madhya Pradesh.
-------------------------------------------------------------------------------------------
Shri Nitin Jain, Advocate for the appellant.
Shri G.S.Thakur, Panel Lawyer for the respondent/ State.
-------------------------------------------------------------------------------------------
JUDGMENT
(Delivered on the 26th day of September, 2012) This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 11/4/1997 passed by the Sessions Judge, Sagar in ST No.368/1996, whereby the appellant was convicted for commission of offence punishable under Section 376 of IPC and sentenced for three years' rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, one month's rigorous imprisonment was also directed.
2. The prosecution's story, in short, is that on 21.9.1996 at about 7:00 PM in the evening the prosecutrix (PW-1) was all alone in her house situated at Village Bhatua (Police Station Cantt. District Sagar). Her husband Ramesh (PW-2) and her mother-in-law went to attend a Dastone ceremony at the house of Vinod (DW-1) at Village Kapuriya. 2 Cr.A.No.809/1997 The prosecutrix went to answer the call of nature near a Nala. When she was coming back the appellant appeared before her, having a knife. He gave a threat that if she shouts, he would kill her and thereafter he dragged the prosecutrix by closing her mouth. Then he threw the prosecutrix on the earth and ultimately he committed rape upon the prosecutrix. Since the mouth of the prosecutrix was closed by a hand of the appellant, she could not shout. She could not resist due to fear and ultimately he put on his clothes and thereafter he gave a threat again to the prosecutrix not to inform anyone about the incident. The prosecutrix went to the Village Kapuriya and called her husband Ramesh, who was in the house of Vinod (DW-1). She informed about the incident to her husband and thereafter she went to the Police Station and lodged an FIR Ex.P-1. She was directed for her medico legal examination. Dr. S. Mishra (PW-3) examined the prosecutrix and gave a report Ex.P-4. No external or internal injury was found on the person of the prosecutrix. However, two slides of her vaginal swab were prepared and handed over to the concerned Constable after sealing them, for their forensic examination. The appellant was also arrested. He was sent for his medico legal examination. After due investigation, a charge sheet was filed before the JMFC Sagar, who committed the case to the Sessions Judge, Sagar. 3 Cr.A.No.809/1997
3. The appellant-accused abjured his guilt. He took a specific plea that there was a platform for worship of Karakdev near the Nala and the prosecutrix was in habit to take her children for defecation to the place adjacent to the place of worship. When she was prohibited to do so, a quarrel took place between the prosecutrix and the appellant and ultimately a false case was registered against the appellant. In defence Ramrati (DW-2) was examined to establish the quarrel between the parties, whereas Vinod (DW-1) was examined to show that no any program of the Dastone etc. was arranged in his house and neither the prosecutrix nor her husband visited his house in such a program or otherwise.
4. The learned Sessions Judge after considering the evidence adduced by the parties convicted the appellant for commission of offence punishable under Section 376 of IPC and sentenced him as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that there was a dispute took place between the parties, because the place of worship was dishonoured by the prosecutrix by taking her children for defecation to that place, and therefore the appellant was falsely implicated in the matter. He has further submitted that the entire incident is shaky. No medical evidence is available to corroborate the evidence given by the prosecutrix. The 4 Cr.A.No.809/1997 Investigation Officer did not send the slides of vaginal swab etc. for forensic examination, because he knew that the case was a false case. The FIR was lodged ante-timed, and therefore it also creates a doubt in the prosecution story. The appellant be acquitted from the charges of offence punishable under Section 376 of IPC and his appeal may be allowed.
7. On the other hand, the learned counsel for the State has supported the impugned judgment. He has submitted that the conviction and sentence directed by the trial Court appears to be correct and there is no basis by which any interference may be warranted in the conclusion drawn by the trial Court.
8. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant may be accepted? And whether the sentence directed against the appellant can be further reduced?
9. The prosecutrix (PW-1) has stated that when she was coming back from the Nala where she went to answer the call of nature, the appellant held her and dragged her towards the Nala and threatened her with the help of a knife and ultimately he committed rape upon the prosecutrix. Thereafter she went to the house of Vinod (DW-1) at Village Kapuriya and told the entire story to her 5 Cr.A.No.809/1997 husband Ramesh (PW-2). Ramesh took her to the Police Station and the prosecutrix lodged an FIR Ex.P-1 at the Police Station Cantt. District Sagar. Dr. S. Mishra (PW-3) has proved her medical report Ex.P-4. No external or internal injury was found on the person of the prosecutrix. However, if there is no corroboration from the side of the medical evidence, then still the testimony of the prosecutrix can be believed, if there is no any contradictory situation visible otherwise.
10. In the present case, there are some inherent drawbacks visible in the prosecution evidence. Firstly, the prosecutrix and her husband have stated that at the time of incident, the husband was attending the function at the house of Vinod (DW-1) at Village Kapuriya, and therefore the prosecutrix went to the house of Vinod and told the entire incident to her husband. On the other hand, Vinod (DW-1) has stated before the Court that there was no function in his house and neither the prosecutrix nor her husband visited his house on that day. It is possible that Vinod took the side of the appellant due to any reason, and therefore the testimony of the prosecutrix and her husband may be considered on other grounds also. The prosecutrix has stated that she called her husband outside of the house of witness Vinod and told the entire story and thereafter her husband took her to the Police Station by the bicycle. She has also stated that she did not inform about the incident to 6 Cr.A.No.809/1997 anyone else in the house of witness Vinod. On the other hand, Ramesh (PW-2) contradicts the statement given by the prosecutrix. He has stated that the entire story was told to so many women, who were present in the function and also to the Pandit, who was observing the rituals in the function. But no such woman was examined in support of the prosecution case. Secondly, witness Ramesh has stated that first he went to his house to bring the bicycle and then took the prosecutrix to the Police Station. These two contradictions are material contradictions in the statements of the prosecutrix and her husband Ramesh. If the prosecutrix visited to the house of Vinod and if she did not tell anything to other, then how her husband tells the contradictory story that the incident was told to the various persons, but no such person was examined before the Court. Similarly, if the witness Ramesh had a bicycle at that time, then he could go directly to the Police Station, but witness Ramesh has stated that he went to his house to get the bicycle and thereafter he went to the house of the appellant to blame him before his father. He has accepted in para 5 of his statement that before going to the Police Station, he visited the house of the father of the appellant and blamed him, but father of the appellant ran towards him to assault him, and therefore he fled away from his house. This version of the witness Ramesh is nowhere corroborated by the prosecutrix. Under such circumstances, 7 Cr.A.No.809/1997 it appears that the inherent drawback is present in the prosecution story. If the incident took place as stated by these witnesses, then why the material contradictions are visible in each and every event stated by the witnesses.
11. Under such circumstances, it appears that the testimony of Vinod (DW-1) is believable that there was no function held in his house and the witness Ramesh had never visited to that house. Therefore, it was not possible for the prosecutrix to visit the house of Vinod. If the testimony of defence witness Vinod (DW-1) is accepted, then the entire story told by the prosecutrix comes in the cloud of doubt.
12. The prosecutrix has stated that the appellant closed her mouth by one hand and he had a knife in his another hand, but still she says that she was dragged and thrown on the earth. She has stated that she resisted, and therefore when she was lying on the earth, the appellant pushed her legs to take her in such a position. If it was so done, then she should have received some injuries on her back and buttocks. She denies that in such dragging, she did not receive any injury. Her version appears to be unnatural. She knew that she did not sustain any injury, and therefore she denied each and every suggestion for which she could not show that the injuries caused to her. The place of incident Nala was not far away from the house of the appellant and other residents of that locality and if the 8 Cr.A.No.809/1997 prosecutrix could have made a hue and cry, then certainly the person residing near by such place could visit the spot and she could be saved. Her version that the appellant kept her mouth closed by one hand and he had a knife in another hand appears to be unnatural. If both the hands of the appellant were engaged, then he could not do any intercourse with the prosecutrix unless she was a consenting party, but the explanation given by the prosecutrix appears to be hypothetical. She has stated that when the appellant was inserting his penis in her vagina, he dropped the knife. However, initially when the appellant holding the prosecutrix, she could start shouting, but it appears that she did not make any hue and cry. The incident took place on bare earth, and therefore if she was not a consenting party, then she could have sustained some injuries on her back and buttock. If such infirmities are considered with the contradictions came in the statements of the prosecutrix and her husband simultaneously, then it would be clear that the incident alleged by the prosecutrix appears to be doubtful.
13. Ratiram (DW-2) has stated that since the prosecutrix was prohibited to get the defecation of her children near the platform kept for Karakdev, a quarrel took place between the parties and therefore the witnesses were informed that the prosecutrix had lodged an FIR for offence of rape. However, the testimony of witness Ratiram appears 9 Cr.A.No.809/1997 to be false, because it was nowhere suggested by the prosecutrix that Ratiram was present at the time of incident when a quarrel took place between the prosecutrix and the appellant. It was stated that the platform of Karakdev was meant for worship done by Gwala community, whereas Ratiram is a Yadav by community. However, Ratiram could not prove that the incident took place between the appellant and the prosecutrix about the dirt caused near the platform of Karakdev.
14. However, the testimony of the prosecutrix and her husband appears to be not believable. Under such circumstances, if the testimony of the prosecutrix is not corroborated by the medical evidence, still it is not corroborated by other evidence. On the contrary, Vinod (DW-1) has rebutted the testimony of the prosecutrix and her husband. Therefore, it appears that the entire story is cooked by the prosecutrix and her husband to implicate the appellant. The learned counsel for the appellant has also invited attention of this Court that the prosecutrix was 28 years old married woman having four children, whereas the appellant was a young youth of 19 years, and therefore there was no need to the appellant to do such an act with the prosecutrix. However, difference of age is not so material for such type of incident. If someone likes any old woman to do such an activity, then he could do such an 10 Cr.A.No.809/1997 assault, and therefore such argument is not material in the case.
15. On the basis of the aforesaid discussion and the material contradictions arose in the statements of the prosecutrix and her husband where the prosecutrix did not make any hue and cry at the time of incident and there is no any witness examined to corroborate the version of the witness Ramesh as he stated about the incident in the house of Vinod (DW-1), the testimony of the prosecutrix looses its trust, and therefore it is not proved beyond doubt that the appellant committed rape upon the prosecutrix. If any doubt is created, then benefit of doubt is to be given to the accused. The learned Sessions has erred in convicting the appellant for commission of offence punishable under Section 376 of IPC. Looking to the prosecution evidence, the appellant could not be convicted either for the offence under Section 376 of IPC or for any inferior offence of the same nature. Hence the appeal of the appellant appears to be acceptable. Consequently, it is allowed. The conviction as well as the sentence directed by the trial Court for the offence under Section 376 of IPC is hereby set aside. The appellant is acquitted from the charge of offence under Section 376 of IPC. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
11 Cr.A.No.809/1997
16. At present the appellant is in custody, and therefore the Registry is directed to issue a release warrant as early as possible so that the appellant may be released.
17. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 26/09/2012 Ansari.