Madhya Pradesh High Court
Makhmal Khan & Ors. vs The State Of M.P on 27 June, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Mr. Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.1739 OF 2002
Makhmal Khan & others.
Vs.
State of Madhya Pradesh.
-------------------------------------------------------------------------------------------
Shri A. Usmani, Advocate for the appellants.
Shri G.S.Thakur, Panel Lawyer for the respondent/ State.
-------------------------------------------------------------------------------------------
JUDGMENT
(Delivered on the 27th day of June, 2012) This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 11/10/2002 passed by the Second Sessions Judge, Sehore in ST No.136/2002, whereby the appellants were convicted for commission of offence punishable under Section 376(2)(g) of IPC and sentenced for ten years' rigorous imprisonment with fine of Rs.2000/-. In default of payment of fine amount, an additional RI for six months was directed.
2. The present criminal appeal was decided by the Single Judge of this Court on 13.8.2003 by reduction of sentence of the appellants, but vide judgment dated 5.10.2005 the Hon'ble Apex Court quashed the judgment of the Single Judge of this Court and case was remanded back for fresh hearing and decision on merits of the case.
2 Criminal Appeal No.1739/2002
3. Prosecution case, in short, is that prosecutrix (PW-2) aged 30-35 years was sleeping in her field situated near village Imalia Police Station Ahmedpur District Sehore in the night of 4th and 5th March, 2002. At about 2:00 AM in the morning all the accused came to the spot and they forcefully undressed her and committed rape upon the prosecutrix, hence committed gang rape with her. Thereafter the appellants ran away from the spot. On shouting of the prosecutrix, Bablu brother of her husband came to the spot, who saw the appellants running from the spot. Thereafter the prosecutrix went to the police station Ahmedpur District Sehore where she lodged an FIR Ex.P-9. It was mentioned in the FIR that because of the incident the prosecutrix sustained injuries on her both elbows and thighs. She was sent for her medical examination and treatment to Government Hospital, Sehore. Dr. Smt. Manju Saxena (PW-1) examined her and gave a report Ex.P-8. No internal injury or any bleeding or discharge was found on her private parts. Two linear abrasions were found on each of the thigh. Dr. Saxena prepared the slide of the vaginal swab and also took salwar of the prosecutrix and handed over the same things to concerned constable after sealing them. Such articles were seized by Head Constable Ram Niwas (PW-3) by seizure memo Ex.P-10 and they were duly sent for analyzing to Forensic Science Laboratory. All the appellants were arrested and they were also directed for 3 Criminal Appeal No.1739/2002 their medical examination. After due investigation, a charge sheet was filed before the Judicial Magistrate First Class, Sehore, who committed the case to the Sessions Court and ultimately it was transferred to the Second Additional Sessions Judge, Sehore. Report from Forensic Science Laboratory was not filed till disposal of the case.
4. The appellants-accused abjured their guilt. They did not take any specific plea but have stated that daughter of the prosecutrix performed Nikah with nephew of the appellants, and therefore the prosecutrix was unhappy with that incident, hence the appellants were falsely implicated in the matter. However, no defence evidence was adduced by the appellants.
5. The learned Sessions Judge after due consideration of the prosecution evidence convicted and sentenced the appellants as mentioned above.
6. I have heard the learned counsel for the parties at length.
7. It is submitted by learned counsel for the appellants that due to enmity the present appellants are falsely implicated in the matter. The evidence of the prosecutrix was nowhere corroborated by her brother-in- law Bablu (PW-7). It is alleged that three persons committed a gang rape upon the prosecutrix but no internal injury was found on her person and no discharge or bleeding was found from her private part. The report of the 4 Criminal Appeal No.1739/2002 FSL relating to vaginal swab was not filed till the end of the trial, and therefore medical report is nowhere corroborative to the prosecutrix. Linear abrasions which were found on thighs of the prosecutrix could not be caused in a gang rape. Dr. Saxena (PW-1) has admitted that those abrasions were the nail marks and could be caused by scratching the skins by pointed object. The prosecutrix has also stated that she sustained some injuries on her elbows, but no injury was found on her elbows. The FIR was lodged in a delayed manner, and therefore looking to the entire evidence of the case, the prosecutrix could not be believed. It is also submitted that the case is much old and the appellants are the first offenders, therefore reduction in jail sentence may be directed.
8. On the other hand, learned counsel for the State has submitted that since it is a case of gang rape, the jail sentence awarded to the appellants cannot be reduced. The case is sound on merits. The appellants have committed gang rape upon the poor woman, who was lonely sleeping in her field at the time of incident. She went to the police station by her own with a lot of difficulties, and therefore such type of delay could be caused in lodging the FIR. Under such circumstances, it is submitted that conviction and sentence inflicted by the trial Court appears to be correct.
5 Criminal Appeal No.1739/2002
9. In the present case findings of the Court below are totally dependent upon the evidence of the prosecutrix and her conduct. Learned Additional Sessions Judge relied upon the evidence of the prosecutrix on the basis of some case laws. However, it is to be made clear that a precedent given by the upper Court may apply in the case, if facts of the case are similar. First of all, it is to be assessed on appreciation of evidence that whether the witnesses are believable or not. In the present case, there are several discrepancies visible in the evidence of the prosecutrix and her conduct. Firstly, there was no possible reason to commit gang rape by the appellants upon the prosecutrix, secondly there was one sided enmity between the parties, and therefore false implication of the appellants in the matter cannot be ruled out, thirdly Bablu (PW-7), brother- in-law of the prosecutrix did not support the evidence of the prosecutrix, fourthly the medical evidence is not in support of the prosecutrix, fifthly conduct of the prosecutrix in lodging the FIR makes her statement doubtful and lastly if discrepancies are summarized in totality, the prosecutrix appears to be unbelievable?
10. A rape can be committed by a mature person for the reason of lust, but for such a reason there must be some background. It is not stated by the prosecutrix that the appellants had a bad eye upon her in past or they tried to do such an act with her in the past. The prosecutrix was a 6 Criminal Appeal No.1739/2002 mature woman aged 35 years at the time of incident. Whose daughter was married with the nephew of the appellants, and therefore it is apparent that it is not a case of lust. Secondly, a rape can be committed upon the mature woman only to embrace her, to defeat her or to insult her. In the present case, there was no enmity shown by the prosecutrix against the appellants so that they could commit such a crime to insult her. It is not a case where the prosecutrix or her husband was in possession of some property of the appellants, and therefore to pressurize her such an act was committed with her. The prosecutrix did not allege any enmity between herself or her husband with the appellants. She was suggested that her daughter Hasina left her house with one Jafar Khan and now living as a wife of Jafar Khan, whereas Jafar Khan is son of one Qasim Khan, real brother of appellant Makhmal Khan, whereas remaining appellants are uncles of said Jafar Khan. The prosecutrix admitted the fact that her daughter Hasina left her house with Jafar Khan and she is residing as a wife of Jafar Khan at present. Remaining portion of suggestions was not accepted by the prosecutrix. However, it is apparent that the appellants are beneficiaries in the relationship. Their nephew took his wife of his own choice and therefore there was no need to take any revenge by the appellants against the family of the prosecutrix. But on the other hand, the prosecutrix might have felt insulted because of that incident and hence she 7 Criminal Appeal No.1739/2002 could implicate the appellants falsely in such a heinous matter. Under such circumstances, it is apparent that there was no object or motive with the appellants to commit a gang rape with the prosecutrix whereas she was relative to the appellants.
11. The conduct of the prosecutrix appears to be unnatural as depicted by herself. She had alleged that gang rape done by three persons in turn by turn, but for such an act at least time of 30 minutes must have been spent. According to the prosecutrix, her brother-in-law Bablu (PW-7) came to the spot after hearing hue and cry of the prosecutrix, it means that Bablu came after 30 minutes of the incident. It would be natural for a woman held by any criminal to make hue and cry from the very beginning and if Bablu was present near by the spot, then he could hear the hue and cry of his sister-in-law. If he was very near to the spot, then it is unnatural that he took 30 minutes in reaching to the spot when the appellants were running from the spot. The conduct of the prosecutrix and Bablu (PW-7) shown by the prosecutrix appears to be unnatural. Secondly, Bablu (PW-7) turned hostile. He did not support the version of the prosecutrix. It is possible that since both the parties are relatives therefore Bablu could have saved the appellants in his evidence. But the prosecutrix herself admitted in para 15 of her statement that when she came back after lodging the FIR, her brother-in-law Bablu asked 8 Criminal Appeal No.1739/2002 her as to where she had gone and she informed him that she went to the police station to lodge an FIR about the incident took place with her. If Bablu came to the spot soon after the incident, then story relating to the incident could have been narrated to Bablu at that time by the prosecutrix, and therefore it was not required for Bablu to ask as to where the prosecutrix had gone in the entire day. Secondly, if Bablu came to the spot, then there was no problem to the prosecutrix in taking Bablu with her to lodge the FIR at the concerned Police Station. It appears from the FIR Ex.P-9 and the evidence of the prosecutrix that she went to the Police Station all alone. Under such circumstances, it is apparent that Bablu (PW-7) did not turn hostile, but he is telling a truth that he never reached to the spot at the time of incident or he did not see the incident. Under such circumstances, the story of the prosecutrix about the presence of her brother-in-law Bablu soon after the incident is unbelievable.
12. The prosecutrix was a major woman, who had a major girl and son in the family. When such incident took place with her, then her natural conduct could be to come back to her house and to take help of her son in lodging the FIR. It is unnatural that from the spot she went directly to the police station without informing anyone in the family. Also it is accepted by her that there was no electric connection in her field, and therefore there was no light of 9 Criminal Appeal No.1739/2002 electric bulb etc. at the spot. The incident took place at the midnight, then how she could identify the appellants at the time of incident in the dark night. The learned Additional Sessions Judge by his own found that it was 7th day after the full moon, and therefore there must be sufficient moon light by which the appellants could be identified. Such type of approach is not correct. An opportunity was to be given to the appellants that it was 7th day after full moon, and therefore there was sufficient moon light. For such observations, copy of National Almanac must have been shown to the appellants during their examination under Section 313 of Cr.P.C. otherwise such fact could not be used by the trial Court in the judgment. It was night in which no arrangement of light was there on the field of the prosecutrix, and therefore it was for the prosecutrix to explain in the FIR as well as in her statement as to how she could identify the appellants. If she would have identified the appellants in the moon light, then it was for her to state that she could see the appellants in the moon light otherwise she could have said that she could identify the appellants as per their voice and talks. The prosecutrix had lodged the named FIR against the appellants but did not mention about their identification in the night where no arrangement of light was there on her field. It is a discrepancy which makes the prosecutrix unbelievable.
10 Criminal Appeal No.1739/2002
13. It appears that the prosecutrix went from the spot to the police station on foot but it is not possible to visit the police station in such a manner. Now a days, various local taxi, tempos are available. The police station Ahmedpur is informed to be 25 kms away from the spot and if a person clears 3 kms per hour, then the prosecutrix must have taken eight hours in reaching Ahmedpur police station. She has said that she started from the field in the morning, but the FIR was lodged at 12:30 PM. Under such circumstances, her version that she went to the police station on foot cannot be accepted and if she went with the help of any vehicle, then she could have reached the police station within two hours, and therefore the FIR lodged at 12:30 PM appears to be delayed by 2 ½ hours. Secondly, since Bablu (PW-7) was not present, his name could not be inducted in the FIR without his consent, and therefore possibility could not be ruled out that the prosecutrix contacted her brother-in-law Bablu prior to lodging the FIR. Under such circumstances, conduct of the prosecutrix appears to be unnatural. When she went to lodge an FIR, she did not take her brother-in-law or her son with her in lodging the FIR. It is also an unnatural act, which makes the prosecutrix unbelievable.
14. Most important fact was shown by Sub Inpector Rakesh Shrivastava (PW-4) while proving the spot map Ex.P-11, that the crop was not sown in the fields either of 11 Criminal Appeal No.1739/2002 the prosecutrix or his brother-in-law Bablu. Under such circumstances, the prosecutrix had no reason to have a night stay at the field away from all family members, who stayed at their house in the residential area of the village.
15. It is true that if prosecutrix is a mature woman, then it is not necessary that she may sustain some internal injury. However, there should be some discharge from her private part. If three persons threw her on earth and committed rape, then she must have sustained injuries on her buttock, back of the thighs, elbows etc. She had complained about the injuries on her elbows, but Dr. Saxena did not find any such injury on her elbow. Abrasions found on the thighs of the prosecutrix were not on the back of the thighs. It could not be said that those abrasions were caused due to small stones lying on earth during the offence. Some scratches were found in the internal side of the thigh, but the same could not be caused by such alleged gang rape. There is no possibility in that crime by which such type of scratches could be caused on the interior portion of the thigh unless specially scratched. Doctor has opined that those abrasions could be nail marks and they could be self inflicted. Thus injuries found to the prosecutrix could not be caused in committing alleged gang rape unless any of the accused scratched her thighs by his nails. But the prosecutrix did not allege against any of the accused that he created some nail marks on her thighs.
12 Criminal Appeal No.1739/2002 Under such circumstances, the injuries visible to the prosecutrix were not duly connected with the present crime, and therefore it cannot be said that the medical report given by Dr. Saxena was positive or corroborative to the prosecutrix. Dr. Saxena could not give a definite opinion about the intercourse or the rape, and therefore she prepared a slide of the vaginal swab of the prosecutrix and sent it to the Forensic Science Laboratory. It is unfortunate that till the conclusion of the case, such FSL report relating to slide of vaginal swab could not be filed in the case. Under such circumstances, medical evidence is not at all corroborative to the prosecutrix. Presence of the scratch marks which were not connected with the crime indicates that such nail marks were created on the person of the prosecutrix to falsely implicate the appellants in the case to show their violence.
16. On the basis of the aforesaid discussion, it appears that there was one sided enmity between the parties by which the appellants could be falsely implicated in the matter. There was no reason with the appellants so that they could have committed a gang rape with an aged woman like the prosecutrix. There was no light in the field and no reason has been shown by the prosecutrix as to how she identified the appellants. By her own version, it is apparent that Bablu, brother-in-law of the prosecutrix did not come to the spot but his presence is unnecessarily 13 Criminal Appeal No.1739/2002 shown in the FIR. The prosecutrix could take her brother-in- law or her son to the police station with her, but no reason has been shown as to why she did not take them with her. The FIR is delayed and possibility cannot be ruled out that the story could be cooked in that time. The medical evidence is not at all corroborative, on the contrary it appears that some injuries were created to show the violence by the appellants. Also there was no reason with the prosecutrix to stay lonely at the field for the night. Under such circumstances, the prosecutrix cannot be believed for such a heinous crime.
17. Learned counsel for the appellants has placed his reliance upon the judgment of the Hon'ble Apex Court in the case of "Dilip and another Vs. State of MP", (AIR 2001 SC 3049) in which the prosecutrix was disbelieved in similar circumstances. In the light of the aforesaid judgment of the Hon'ble Apex Court, if facts of the present case are considered, then the prosecutrix cannot be believed and she does not appear to be trustworthy to believe, therefore the appellants cannot be convicted for commission of gang rape or any inferior offence of the same nature.
18. On the basis of aforesaid discussion, the appeal filed by the appellants is allowed. The conviction and sentence directed by the trial Court against the appellants are hereby set aside. They are acquitted from the charges 14 Criminal Appeal No.1739/2002 appended against them. The appellants shall be entitled to get the fine amount back, if they have deposited the same before the trial Court.
19. The appellant No.1 Makhmal Khan and appellant No.2 Lalmiya @ Lalkhan are in custody, and therefore their release warrant be issued forthwith. Appellant No.3 Wahid Khan is declared absconding, but looking to the fate of the appeal, when appellants No.1 and 2 could not be convicted, appellant No.3 will also get the benefit of the result of this appeal, and therefore he is also acquitted and his perpetual warrant be called back unserved.
20. A copy of the judgment be sent to the trial Court for information and compliance.
(N.K.Gupta) Judge 27/06/2012 Ansari.