Madhya Pradesh High Court
Karu Survanshi vs The State Of Madhya Pradesh Judgement ... on 25 September, 2013
1 Cr.A. No.451 of 2007
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
CRIMINAL APPEAL NO.451 OF 2007
APPELLANT : Karu Suryawanshi
S/o late Madho Suryawanshi,
Caste: Kirad,
Aged: 52 years,
Occupation: Agriculture,
R/o Village Amadoh, Thana Saikheda,
Tahsil - Multai, District Betul (M.P.)
Versus
RESPONDENT : State of Madhya Pradesh
through Incharge P.S. A.J.A.K. Betul,
Tahsil & District Betul (M.P.).
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Smt. Nirmala Raikwar Advocate for the appellant. Shri Piyush Dharmadhikari, Government Advocate for the respondent /State.
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Judgment reserved on : 25.07.2013 Judgment delivered on : 25.09.2013 (J UD GM E NT ) Appellant Karu Suryawanshi has filed this appeal under Section 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 06.02.2007 passed by the learned Special (Sessions) Judge, District Betul in Special Case No.45 /2006 (State of M.P. Through P.S. AJAK Betul vs. Karu), whereby the appellant was convicted under Section 376(1) of the IPC and awarded a punishment of rigorous imprisonment of ten years and fine of Rs.10,000 / - , in default of payment of fine, further to suffer three years' rigorous imprisonment.
02. (A) The case in hand has a very peculiar circumstance that prosecutrix of this case is not examined because, she is deaf and dumb. The case of prosecution as stated in the F I R in short is that 2 Cr.A. No.451 of 2007 on 06.01.2006 at about 10:00 AM the prosecutrix went near to the fields of Babulal to ease herself, at that point of time accused caught hold and unrobed her on fields committed rape. Because, the prosecutrix was unable to speak and communicate the signs hence, her brother Manikrao reported the matter. The source of incident mentioned in the FIR is that Chandrakala who was grazing her cattle witnessed the incident and informed Hasantibai that the accused slept over the prosecutrix after unrobed her. Hasantibai informed this matter to Gendu and grandfather of the prosecutrix. In the night at above 8 PM Dondibai, mother of the prosecutrix informed the incident to Manikrao. Gendu also informed the matter to Janpad member Raj Kumar Uike. Manikrao reported the matter on 07.01.2006 which set criminal law in motion.
(B) Investigation officer managed to sent prosecutrix District hospital Betul where lady Doctor examined her. For age verification, she was referred to the Radiological examination. In furtherance of investigation, Officer recorded statement of Chandrakala and other witnesses, arrested appellant and after completion of investigation, a challan was submitted by Police A.J.K., Betul as the prosecutrix belongs to schedule caste in the learned trial Court.
03. The learned trial Court on the basis of evidence available on record framed charge against the appellant punishable under Section 376(1) of Indian Penal Code and Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, who abjured his guilt, therefore, was put to trial.
04. (A) The prosecution in furtherance of its case examined star witness Chandrakala (PW/2), follower of prosecutrix. 3 Cr.A. No.451 of 2007 Other witnesses were examined Manikrao (PW/1), Hasantibai (PW/
6) and Dondibai (PW/7) and other 6 witnesses who participated in investigation as per their official duties. Documents were filed Ex.P-1 to Ex.P-13.
(B) Medical Officer Shri Chandra Prakash Tiwari (CW/1). Dr. S.K. Pippal (CW /2), Dr. Keshav Singh (CW/3) also examined as court witnesses. Documents Ex.C- 1 to Ex.C- 4 exhibited during statements of these court witnesses.
05. During statement under Section 313 of Cr.P.C., the appellant denied all the evidence put forth against him and pleaded his innocence on the ground that he was falsely implicated with conspiracy. Defence did not examine any witness.
06. (A) The learned trial Court after detailed consideration of evidence of star witness Chandrakala (PW/2) found the appellant guilty of the offence punishable under Section 376(i) of IPC and imposed 10 years rigorous imprisonment with fine of 10,000 / - and entire fine amount will be given to the prosecutrix.
(B) Though, the learned trial Court acquitted the appellant from the charges punishable under Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, against which respondent /State does not prefer an appeal.
07. Smt. Nirmala Raikwar, learned counsel for the appellant has submitted that witnesses have not supported the prosecution case and appellant is convicted on the ground of conjecture and surmises. She further submitted that the learned trial Court did not look into the fact that FIR is delayed without any explanation 4 Cr.A. No.451 of 2007 on the instance of Janpad Member Rajkumar @ Kumma. The prosecution case is also not corroborated by the medical evidence. Thus, the appeal deserves to be allowed.
08. Shri Piyush Dharmadhikari, learned Government Advocate for the State has opposed the appeal vehemently contending that the appellant has rightly been convicted believing the testimony of Chandrakala and other witnesses. The finding so recorded by the learned trial Court does not warrant any interference, thus, this appeal is liable to be dismissed.
09. Considered the rival submissions made by learned counsel for the parties at length and perused the impugned judgment and entire record carefully.
10. Before dealing with the prosecution evidence in this appeal it will be appropriate to state that the prosecutrix found deaf and dumb hence she was not examined before the learned trial Court. In this regard learned trial Court adopted positive approach and got examined Medical Officer Shri C.P. Tiwari (CW/1), Dr. S.K. Pippal (CW /2) and Dr. Keshav Singh (CW/3) as Court Witnesses but, all efforts became futile because, these experts finally opined that though the prosecutrix is not mentally retired person not insane but, she is deaf and dumb, therefore, her behavior is like a child.
11. Dr. S.K. Pippal (CW /2) examined the prosecutrix on 19.08.1996 at Gandhi Medical College, Bhopal and found that:-
(1) She is responding to loud sound only (no verbal response) (2) She understand the instructions.
5 Cr.A. No.451 of 2007
(3) She is not responding to question or Ishara
She need psychotic evaluation
She is not cooperating with test. So, hearing
assessment is not possible.
Advise BERA
This investigation is not available in GMC, Bhopal.
12. The prosecution witness Shri Anugraham Alfuse (PW/3) also vide his report Ex.P-4 stated that prosecutrix is mentally handicapped she is not able to understand any voice or any gesture. Shri Gyanendra Purohit (PW/9) also stated the same facts.
13. Merely because a victim not available due to her mental health consequently could not be examined can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned. Chandrakala (PW/2) is available for this purpose.
14. But, it is also another peculiar feature of the instant case that the entire story of the prosecution rests on the evidence of star witness Chandrakala (PW/2) who is minor girl of 11 years age.
Child Witness - duty of the trial Court
15. Court should not start with a presumption of untrustworthiness of the evidence of a child witness. The credibility of the evidence has to be judged on the touchstone of the intrinsic worth of the evidence.
16. A child witness is not an incompetent witness by reason of his age. Age of a child is not important factor. His degree of 6 Cr.A. No.451 of 2007 intelligence, maturity and knowledge matter. He must be capable of understanding questions and give rational answers thereto.
17. A child indisputably is competent to testify if he understands the questions put to him and gives rational answers thereto. In each case the court has to decide whether a particular child who has appeared in the witness box is intelligent enough to be able to understand the question and to be able to give rational answers.
18. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.
19. The Apex Court in case of Rameshwar Singh v State of Rajasthan AIR 1952 SC 54 held that it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of witness may be seriously affected so much so, that in some cases it may be necessary to reject the evidence altogether.
20.. After asking 11 questions to Chandrakala (PW/2), the learned trial Court recorded its finding that she knows how to answer that way wisely fulfill its duty.
21. A child below 12 years of age need not be administered oath as provided under Section 4, Proviso of Oaths Act, 1969. Notwithstanding Section 5 of Oaths Act child's evidence is not 7 Cr.A. No.451 of 2007 inadmissible merely on the ground that no oath was administered to it.
22. Therefore, learned trial Court rightly looking to her age of 11 years did not administer the oath. The learned trial Court also instructed the learned counsel of the parties that questions asked to her be in simple language.
Evidence of Child Witness, precautions
23. The Apex Court in case of C.P. Fernandes v Union Territory of Goa AIR 1977 SC 135 : 1977 CrLJ 167 observed that the evidence of a child witness has to be approached with great caution. His testimony is unacceptable if it suffers from infirmities and contradiction. In case of Bhagwan Singh v State 2003 CrLJ 1262 (SC) the Supreme Court held that the evidence of a child witness has to be evaluated carefully because he is an easy prey to tutoring. Therefore the court with always look for adequate corroboration from other evidence.
24. A child is an easy prey of tutoring. Nevertheless his evidence cannot be rejected if he is found reliable. His evidence must be evaluated more carefully and with greater circumspection. Please see Panchhi v State AIR 1998 SC 2726 .
25. Therefore, the court has to see first whether there is any evidence of tutoring of a child witness. Secondly, court should not convict an accused on a serious charge relying on the evidence of a child witness, unless he is materially corroborated.
26. Keeping in above precautions in mind, now I carefully scrutinized the evidence of Chandrakala (PW/2). 8 Cr.A. No.451 of 2007
27. Chandrakala (PW/2) rightly explained the reason for her presence on the spot. She stated that she was following the prosecutrix as she was also going for grazing the goats.
28. About main incident she narrated that under the tree of Mahua one person after unrobing the prosecutrix slept over the prosecutrix. [Fhir Mahua Ke Jhad Ke Neeche Ak Adami (name of prosecutrix) Ke Kapade Nikal Kar Usake Upar So Gaya]. In the same fluence she also narrated after seeing her, the person run away. So this much is statement of Chandrakala (PW/2) about the sexual assault on the prosecutrix.
29. Now, question arises whether above piece of statement is "rape" under the definition of Section 375 of the IPC?
30. In interpreting the explanation to Section 375 of the IPC whether complete penetration is necessary to constitute an offence of rape, various High Courts have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial.
31. As regards the proof of offence of "rape" under Section 376 of the IPC it is seldom, that direct evidence is available beyond the evidence of the raped woman. In the instant case the evidence of the prosecutrix is not available due to above mentioned valid reasons. But, even then it is the duty of the prosecution to prove this essential part of the proof of rape that there should have been not only an assault but actual penetration.
32. In the instant case, there had not been any evidence of penetration to the slightest degree. It is no where mentioned in the FIR (Ex.P-1) that the appellant undressed himself so there was no question of penetration. Chandrakala (PW/2) did not explain during 9 Cr.A. No.451 of 2007 her version that the person also unrobed himself. In other simple words, she did not explain that the person was also naked. To answer the question of learned trial Court, though it was a leading question, she did not admit that the person was naked.
33. It is difficult to presume that sleeping of one person, not naked, over one naked woman, will amount to sexual intercourse only. The situation is full of doubts. In the chain of these facts and circumstances when Smt. Nirmala Raikwar, learned counsel for the appellant argues that learned trial Court acted upon conjecture and surmises, finds substance.
34. In the absence of any slightest degree of actual penetration, the conviction under Section 376 (i) of the IPC is wholly illegal and unsustainable. On this count alone, the appellant deserves to be acquitted, but the learned trial court ignored it.
35. Now, scrutiny of remaining part of the evidence of Chandrakala (PW/2). She is not able to explain or give details regarding following material facts during her evidence:-
(i) Name of the appellant, more than once.
(ii) Caste of the appellant.
(iii) Day of the incident.
(iv) Period elapsed between date of her court evidence and
date of incident.
(v) Distance of place of incident from village vicinity.
36. Ignoring above facts, it is pertinent to mention here that this fact is averted in written complaint (Ex.P-1) and her police statements that Chandrakala (PW/2) was following the prosecutrix soon before the incident. But, during her evidence she specifically denied that she was not following the prosecutrix soon before the incident. She stated contradictory fact that after half an hour she saw the person over the prosecutrix. Distance between place of incident and where she was standing she stated it was 200 feets. It is also not 10 Cr.A. No.451 of 2007 case of the prosecution that Chandrakala (PW/2) witnessed the incident from hillock, but, during her cross examination she repeatedly stated that she saw the incident from hillock.
37. It is pertinent to mention here that during examination- in- chief Chandrakala (PW/2) herself stated she does not know the name of the person, knows him by face only. She identified first time the appellant from witness box in the court room. In above mentioned facts and circumstances test identification was needed to fix the identification of the culprit, which is very much lacking.
37. If the entire factual scenario tested in a proper perspective manner, it would reveal that 11 years aged child witness Chandrakala (PW/2) not appearing to be witness of sterling quality on whose sole testimony conviction of the appellant can be safely based, without corroboration of well founded satisfactory evidence.
38. It is pertinent to mention here that not only Hasantibai (PW/6), aunt of the prosecutrix but, her mother Dondibai (PW/7) is also declared hostile.
39. Hasantibai (PW/6) during examination- in- chief stated that Chandrakala informed her that appellant caught hold hands of prosecutrix. When she admitted that she does not know about the incident because Chandrakala did not told her any fact except above she was declared hostile. During leading questions she stated that she only complaint this fact to Gendubaba, grant- father of the prosecutrix that why he is not scolded appellant, who caught hold hands of the prosecutrix. She denied that she had given any statement during her police statement Ex.P-8 about sexual assault on the prosecutrix. She categorically refused the suggestion that 11 Cr.A. No.451 of 2007 she wants to save the appellant therefore, she is not narrating anything materially against the appellant.
40. Mother of the prosecutrix Dondibai (PW/7) also declared hostile, because during examination- in- chief she stated that nobody committed any sexual assault on her daughter and whatever is her knowledge that is based on information given by her father- in- law Gendubaba. Dondibai (PW/7) admitted that Hasantibai stated this fact to his father- in- law. Dondibai (PW/7) specifically admitted that she did not know when and what happened with her daughter.
41. Evidence of Manikrao (PW/1) is at all not admissible, because neither Chandrakala (PW/2) nor Hasantibai (PW/6) given any information directly to this witness. Whatever is knowledge of Manikrao (PW/1) is based on the information given to him by his mother Dondibai (PW/7), who is declared hostile. It is pertinent to mention here that the source of Dondibai's information was her father- in- law Gendubaba, who was an important witness, but he did not examined by the prosecution.
42. Therefore, it is clear that none of the prosecution witnesses Hasantibai (PW/6), Dondibai (PW/7) or Manikrao (PW/1) corroborating statement that of Chandrakala (PW/2).
43. The p rosecutrix was medically examined by Dr. Nisha Badve (PW/4) who did not find any injury mark on the person or private part of the prosecutrix vide her MLC report (Ex.P-5). She opined that no definite opinion can be given regarding rape on the prosecutrix. Therefore, it is clear that the medical evidence is also not supporting the case of the prosecution.
12 Cr.A. No.451 of 2007
44. Lady Doctor collected vaginal smear, public hair and undergarments of the prosecutrix and packed, sealed and handed over to the concerned lady police constable.
45. The learned trial court based the FSL report for conviction of the appellant, in para 25 of impugned judgment:-
" Mk0 cM+os us ihfM+rk dk fpfdRlh; ijh{k.k fnukad 8-1-2006 dks fd;k FkkA mlh fnu mldk v.Mjfo;j Hkh tIr fd;k Fkk vkSj ;s oLrq,a iVsy us ,Q0,l0,y0 Hksth Fkh rFkk ,Q0,l0,y0 fjiksVZ esa izkFkhZ ds v.Mjfo;j ij oh;Z ds nkx ik;s tkuk vkSj mlds xqIrkax esa oh;Z 'kqdzk.kq ik;s tkuk ;g vo/kkj.kk djus ds fy, i;kZIr gS fd ftl le; izkFkhZ dks fuoZL= djds vfHk;qDr izkFkhZ ds Åij ysVk Fkk ml le; vfHk;qDr us vius xqIrkax dk izos'k ihfM+rk dh ;ksuh esa fd;k Fkk vkSj ;g lk{; cykRdkj dks izekf.kr djus ds fy, bl U;k;ky; ds er esa i;kZIr gSA"
46. Learned trial court materially relied on the evidence of presence of semen on the undergarments of the prosecutrix. Semen stains may exist on underwear of a young woman for variety of reasons and would not necessarily connect with this presumption that she was sexually assaulted. The discovery of dried stain of semen on undergarments of the prosecutrix is circumstance far too feeble to establish that she was raped. As regards the dried stain of semen on undergarments of the prosecutrix, who is a grown up lady of more than 17 years so, no compelling interference can arise that the stain was caused during the course of the sexual assault committed by the appellant on the prosecutrix.
13 Cr.A. No.451 of 2007
47. Dr. O.P. Yadav (PW/5) examined prosecutrix for determination of her age and vide report (Ex.P-6) prosecutrix found to be age of 17 years. During cross examination, Dr. O.P. Yadav (PW/5) admitted that there may be 2 years (+) (-) difference in the age which is stated by him.
48. Mere presence of sperm on private part of major prosecutrix, in above mentioned facts and circumstances, cannot be basis of conviction as accepted by the learned trial Court. The science of presence of spermatozoa has not yet developed into a positive science. There are various other factors which may negative that only presence of spermatozoa cannot be basis of conviction, i.e. faulty taking of the smear, its preservation, quality of semen, etc.
49. Presence of semen on private part of the prosecutrix does not found by Dr. Nisha Badve (PW/4). The learned trial court again acted upon conjecture and surmises, which ruined very basis of our criminal justice delivery system.
50. Incident took place on 06.01.2006 at 10:00 a.m. and written complaint (Ex.P-1) filed after more than 28 hours on 07.01.2006 at 20:30 p.m. Any plausible reason is not assigned in FIR (Ex.P-2) for this delay. Learned trial court ignored this important fact that FIR (Ex.P-2) was filed after delay and any reason for this delay is not explained.
51. On the other hand, Standard 12 th passed Manikrao (PW/1) admitted that from his village to P.S. Saikheda and from village to Multai- Saikheda road are 12 kms and 2 km away, respectively. He also admits availability of truck and jeep throughout day and night for Multai to Saikheda.
14 Cr.A. No.451 of 2007
52. It was argued by the learned counsel for the appellant that it was Rajkumar @ Kumma who tutored Chandrakala (PW/2) for give evidence against the appellant. It is also submitted that unfortunately learned trial judge did not give weight to admissions of prosecution witnesses available on record.
53. It is part of written complaint (Ex.P-1), on basis of which H.C. Satya Prakash Bajpai (PW/10) written FIR (Ex.P-2), that prior to filing it Manikrao (PW/1) consulted with one Rajkumar. Shri Patel (PW/8) stated that he did not recorded statements of Rajkumar @ Kumma because he was hearsay witness and admitted that Kumma is Janpad member.
54. When Chandrakala (PW/2) examined on 23.06.2006 in the trial Court she admitted that Kumma is also came with us up to the Court.
55. In this sequence admissions of Chandrakala (PW/2) are very much important which were not taken into account by learned trial Court:-
" dqqaHkk vkt gekjs lkFk vk;k gSA dqaHkk vkt eq>s fdlh odhy ds ikl ugha ys x;kA lk{kh ls ;g iwNk x;k fd dqaHkk us rqEgsa dk: dk uke dc crk;k bl ij lk{kh dgrh gS fd mlh fnu eSaus dqaHkk dks crk;k FkkA lk{kh ls ;g iwWaNk x;k fd dqaHkk ds crkus ij dk: dk uke ekywe gqvk bl ij lk{kh igys gkWa dgrh gS ijarq iqu% dgrh gS fd eSaus dqaHkk dks dk: dk uke crk;k FkkA ftl fnu dh ?kVuk gS ml fnu 'kke dks eSaus dqaHkk dks ?kVuk ugha crkbZ] eSaus galrh dks crk;k FkkA fQj galrh eq>s cqykus vkbZ Fkh vkSj eq>s cqykdj ys xbZ FkhA esjs igys gh dqaHkk dks galrh us crk fn;k FkkA esjh Hkh dqaHkk ls mlh fnu 'kke dks ckr gqbZ FkhA"15 Cr.A. No.451 of 2007
56. During examination- in- chief Chandrakala (PW/2) stated that next morning Kumma came to her residence with two other persons and asked her about incident, then she narrated incident to Kumma what happed with prosecutrix. In this sequence she did not narrated name of accused Karu.
57. Manikrao (PW/1) stated that his grand father Gendubaba narrated incident to Rajkumar in the evening and next morning Rajkumar himself came to their residence.
58. During her examination after one and half month on dated 15.08.2006 Hasantibai (PW/6) admitted that Kumma is present outside with this additional fact that he took them for the Court.
59. In light of above facts and circumstances, child witness Chandrakala (PW/2) not appearing to be witness of sterling quality to convict the appellant on her sole evidence. In this situation, corroboration sought from outside but, that is also not available. The evidence of Hansantibai (PW/6), Dondibai (PW/7) and Manikrao (PW/
1) is not corroborating the statement of Chandrakala (PW/2).
60. Written complaint (Ex.P-1) is filed after delay but, delay is not explained with plausible reasons. Learned trial Court did not look into the evidence of Rajkumar @ Kumma, who is the person behind filing of the written complaint (Ex.P-1). The Medical evidence is also not supportive to the case of prosecution. Apart from it, the impugned judgment was passed by learned trial Court acting upon conjecture and surmises.
61. Therefore, appeal is allowed. Conviction and sentence awarded to appellant Karu Suryawanshi by the learned trial Court is 16 Cr.A. No.451 of 2007 hereby set aside and he is acquitted from the charges under Section 376 (1) of Indian Penal Code leveled against him.
62. Appellant Karu Suryawanshi be released forthwith from the custody unless required to be in custody in connection with any other case.
Appeal allowed.
(SUBHASH KAKADE) JUDGE AK+SJ/-