Madhya Pradesh High Court
Prakash Dawar vs The State Of Madhya Pradesh on 23 April, 2010
Reported in 2010 ILR M.P. 2349
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.1886/2005
Prakash Dabar, aged about 46 years
son of Narsingh Dabar, Resident of
Gopal Nagar, Distt. Burhanpur ... Appellant
vs.
The State of M.P., through SHO,
P.S. Lalbagh, Distt. Burhanpur ... Respondent
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Shri S.K.P. Verma, Advocate, for the appellant.
Ms. Chanchal Sharma, Govt. Adv. for the respondent/State.
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Date of Hearing : 12/3/2010.
Date of Judgment : 23/4/2010.
JUDGMENT
This appeal has been preferred against the judgment dated 15.7.2005 passed by Additional Judge to the Court of Additional Sessions Judge, Burhanpur in S.T.No.198/2004 whereby the appellant was convicted under Section 376(2)(a)(i) of the IPC and sentenced to undergo R.I. for 10 years and to pay fine of Rs.5000/- and in default, to suffer R.I. for 2 years.
2. Prosecution case, in short, may be narrated thus -
(i) At the relevant point of time, the appellant was posted as Assistant Sub-Inspector at Lalbagh Police Station in Burhanpur.
(ii) In the night intervening 7th and 8th Sept. 2004, on the festive occasion of Krishna Janmashtmi, a religious function was organized in Adarsh Colony, Burhanpur. At about 11.30 p.m., Sunil (PW10), an inhabitant of the colony, heard cries of a woman coming from the backside of his house. He immediately rushed to the :: 2 ::
Criminal Appeal No.1886/2005 temple and informed Balbir Arora and Vijay (PW9) accordingly. All the three boys came to the spot located in front of Param Restaurant and found a motorcycle parked there. They also saw that in the nearby bushes, the prosecutrix (a mentally challenged beggar aged about 50 years), who had been staying in the temple for last few days, was sitting in a half-naked condition holding her salwar and the appellant was coming out therefrom pulling his trousers up. He angrily asked them as to why they were making a noise and the corresponding reply led to an altercation that attracted attention of the other inhabitants of the locality.
(iii) In the meanwhile, at about 11:50 p.m., Amritlal (PW7), an Ex-member of Parliament, who was returning home, situated behind the Restaurant only, in a Maruti Car, happened to pass that way. He stopped the vehicle; got down and asked for the reason for the assemblage. In response, he was informed that a police officer in uniform viz. the appellant was seen in the bushes with the prosecutrix under suspicious circumstances. Amritlal asked the appellant, who was in a drunken condition, as to what was going on. In turn, shouting that what authority he had to enquire into the matter, the appellant started misbehaving with him. Disclosing his identity as Dabar ASI posted at P.S. Lalbagh Burhanpur, the appellant further threw a challenge to settle the score with Amritlal in case, he came to the Police Station. At this juncture, Amritlal could also witness that the prosecutrix was standing near the bushes with salwar in her hand.
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Criminal Appeal No.1886/2005
(iv) Amritlal immediately proceeded towards the Police Station in his car only and the appellant also reached there on the motorcycle. However, in the process, he left wireless set allotted to him at the place of occurrence only. At the Police Station, as Amritlal disclosed his identity as Ex-Member of Parliament, the appellant started hurling filthy abuses and threats at him and his companions including Sunil and Vijay.
(v) It was upon the FIR (Ex.P-6) lodged by Amritlal that a case under Sections 294, 506B and 354 of the IPC was registered at the police station at 1.40 in the night.
(vi) The prosecutrix was immediately sent to Nehru Hospital for medical examination. It was conducted at about 3:00 in the same night, by a panel of doctors comprising Dr. Jainuddin Bohra (PW4) and Dr. Lalita Gupta (PW11).
Not being able to give any definite opinion as to recent sexual intercourse, Dr. Lalita Gupta prepared two slides from vaginal smear of the prosecutrix and also preserved her pink coloured salwar for chemical examination.
(vi) The appellant was apprehended and subjected to medical examination at about 4:50 in the night. Dr. K.M. Gupta (PW6) noticed that the appellant had consumed alcohol but was not under intoxication.
(vii) During investigation, on 8.9.2004, a uniform said to have been worn by the appellant at the time of alleged incident was also seized and the wireless set allotted to him was also recovered from the spot. The uniform along with salwar of the prosecutrix and the slides prepared from her vaginal smear were forwarded to FSL, Sagar for chemical examination. Corresponding report (Ex.P-11) indicated that the seminal :: 4 ::
Criminal Appeal No.1886/2005 stains and human spermatozoa were found on the slides, salwar and the trousers. Accordingly, on 18/10/04, the case was converted into one under Section 376 of the IPC. On the same day, the appellant was again arrested and subjected to medical examination. Dr. Ashok Pagare (PW12) found him capable of performing sexual intercourse.
3. On being charged with the offences under Sections 294, 506- B and 376(2)(a)(i) and in the alternative under Section 354 of the IPC, the appellant abjured the guilt and pleaded false implication at the instance of Manoj, the brother of complainant Amritlal and Amit Mishra, brother of a Minister namely Archana Chitnis due to animosity. In the examination, under Section 313 of the Code of Criminal Procedure, he further asserted that nearly a month before the incident in question, Manoj, Amit and other supporters of Bhartiya Janta Party were intercepted by him while roaming in the odd hours of night and on being asked to explain the cause of their apparently suspicious movements, they had not only entered into a quarrel but had also threatened him with dire consequences. According to him, the case was registered under the political pressure exerted by the complainant and his associates.
4. On a critical appraisal of the entire evidence, learned trial Judge, for the reasons assigned in the impugned judgment, proceeded to acquit the appellant of all other charges. However, she further concluded that even in absence of testimony of the prosecutrix, guilt of the appellant in respect of the offence of rape was proved beyond a reasonable doubt.
5. Legality and propriety of the conviction have been questioned on the following grounds -
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(i) Non-examination of the prosecutrix despite the admission made by Sunil that she was able to understand Marathi.
(ii) Non-production of the husband or any relative of the prosecutrix in evidence.
(iii) Interestedness of Sunil (PW10) and Vijay (PW9) as neighbours and political followers of the complainant Amritlal (PW7) in securing conviction of the appellant on a false charge.
(iv) Non-examination of Balbir.
(v) Probability of the defence.
In response, learned Govt. Advocate, by making reference to the incriminating pieces of evidence on record, submitted that the conviction was fully justified.
6. In the wake of the contention relating to non-examination of the prosecutrix coupled with absence of reason for not citing her as a witness in the charge sheet, the entire record of the trial Court was perused. It was found that upon the Istgasha (complaint) made by SHO, Burhanpur under Section 23(1)(a)(b) of the Mental Health Act, 1994, Shri P.S. Rawat, the then JMFC, Burhanpur had forwarded the prosecutrix to the Mental Hospital located in Banganga at Indore for medical examination and necessary treatment. The corresponding report given by the Psychiatrist posted at M.G. Medical College, Indore, revealed that till the date of examination conducted on 10.9.2004, the prosecutrix was a person of unsound mind and was also suffering from Schizophrenia- Paranoid type. The medical expert also noticed the following facts :-
(i) Auditory hallucination
(ii) Nonsensical talks
(iii) Muttering to self
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7. Upon a query made by this Court as to whether the prosecutrix was discharged from Hospital, learned Govt. Advocate has informed that the prosecutrix is still undergoing medical treatment as an indoor patient in the Mental Hospital at Indore. These reports, being essential for the decision of the present case, are accordingly taken on record.
8. It is true that after evaluating the extent of the disorder, evidence of a mentally retarded witness can be recorded with the help of an expert in the field or the person with whom he or she is able to communicate by words or by way of gestures but considering the fact that the appellant has been in prison since 18/10/2004, an order for re-trial even for a limited purpose of bringing the evidence of the prosecutrix or her incapacity to communicate would not be conducive to the ends of justice.
9. As such, in the light of the rival contentions, this Court is required to re-appreciate the evidence of Sunil (PW10), Vijay (PW9) and Amritlal (PW7) as to the involvement of the appellant in the alleged sexual assault as well as the nature and extent thereof.
10. Sunil (PW10) is the key witness. As per his statement, after hearing the shrieks of the woman, it was he who had brought Balbir and Vijay to the spot by apprising them of the circumstances suggesting that there was something wrong. He was emphatic in stating that he had seen the appellant, while adjusting his trousers, coming out of the bushes where the prosecutrix was sitting in a semi- naked condition. Vijay Singh (PW9) duly corroborated the version given by Sunil. Although, their companion namely Balbir Singh was given up by the prosecution yet, his non-examination did not assume any significance as it is not the number of witnesses but quality of evidence that counts.
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11. Further, Amritlal (PW7), who being a reputed inhabitant of the locality, also came forward to substantiate the testimony of Sunil (PW10) and Vijay Singh (PW9). He reiterated the allegations as recorded by R.K. Sonkar, the then SHO, in the FIR (Ex.P-6). According to him, at about quarter to 12 in the night, while returning home from his factory in his car, he happened to pass by the place where a gathering comprising Sunil, Vijay and Balbir had informed him that the appellant was spotted with the prosecutrix who was staying at the nearby temple for the last few days and on being asked to disclose identity, the appellant, while emphasizing that he was on duty in the capacity of Inspector posted in the Lalbagh police station, started scolding him. As per her statement, the prosecutrix was also seen sitting with salwar in her hand. He categorically denied the suggestion that the appellant was falsely implicated against the backdrop of the quarrel that had ensued between his brother Manoj and his associates including Amit Mishra and the appellant nearly a month prior to the incident. Although, SHO R.K. Sonkar (PW13) clearly admitted that Manoj and Amit had made a complaint against the appellant to the effect that he was discharging his duty of night surveillance in a drunken condition yet, he did not support the defence that the appellant was roped in a false charge of rape at the instance of Manoj and Amit only. The appellant also did not explain as to why he had not recorded misdemeanour of Manoj and Amit in the Rojnamcha of Police Station or as to why he had not informed his superior officers about the threat allegedly given by Manoj and Amit Mishra. As a police officer on duty, he could also scribe his explanation in the Roznamcha as to actual cause of altercation with Amritlal. However, admittedly, no such entry was made by him in the Roznamcha. Evidence of Head Constable Bhaskar Prajapti (DW1) only proved the report (Ex.D-7C) to the effect that Amit Mishra had also come to the police station along with :: 8 ::
Criminal Appeal No.1886/2005 Sunil, Vijay, Pradeep and Chandan at about 1.40 in the night to pressurize the SHO to register a case against the appellant.
12. Still, fact of the matter is that the appellant was not able to explain his presence in the bushes where the prosecutrix was found sitting in a semi-naked condition. Moreover, contents of the seizure memo (Ex.P-7) evidencing recovery of his wireless mobile phone set from the spot by SHO R.K. Sonkar (PW13) were also not subjected to challenge. He further explained the circumstances leading to registration of the case upon the FIR (Ex.P-6) scribed by him at the behest of Amritlal in the presence of the appellant only. Testimony of S.L. Kataria (PW14), the then SHO of Kotwali Burhanpur further suggested that the investigation was handed over to him on 08.09.2004 only. As per his statement, he not only seized the uniform worn by the appellant but also arrested him on the same day. In such a situation, the defence that he was falsely implicated by Amritlal, an Ex-M.P. representing BJP, at the instance of some party workers was apparently improbable.
13. In the light of the overwhelming evidence on record, learned trial Judge did not commit any illegality in holding that the appellant was found at the place where the prosecutrix was sitting in a half- naked condition. Now, the core question is as to what was the offence committed by the appellant ?
14. At the outset, it may be observed that in accordance with the well settled position of law on the point, as explained by a single Bench of this Court in Samedas v. State of M.P. 1969 JLJ-SN 54, un-exhibited Istagaza, forwarding letter and the corresponding report regarding mental condition of the prosecutrix as given by the psychiatrist could be used by the appellant to support his defence.
15. A bare perusal of the impugned judgment would reveal that the finding of guilt in respect of the offence of rape was recorded :: 9 ::
Criminal Appeal No.1886/2005 inter alia on the ground that the corresponding report of the FSL indicated that the seminal stains were found not only on the slides prepared from the vaginal smear of the prosecutrix and her salwar but also on the trousers said to have been worn by the appellant at the time of alleged incident. However, the fact of the matter is that there was no positive opinion as to matching of the seminal stains.
16. In such a situation, mere availability of seminal stains found on the trousers of the appellant, who was a married man, would not be sufficient to connect him with the offence of rape. It is relevant to note that in the forwarding letter sent to the CMO, Nehru Hospital (Ex.P-3A) as well as in the Istagasa, the prosecutrix was also described as wife of one Janardan. However, no attempt was made to examine her husband or any other relatives. It also came in the statement of Sunil (PW10) that the prosecutrix was in a habit of moving around wrapping a Tat (sack cloth) over her body. Admittedly, the appellant was neither seen in a compromising position with the prosecutrix nor in a naked condition. Initially, upon the information given by Amritlal and his companions, a case under Section 354 of the IPC was registered.
17. Further, the appellant was not subjected to medical examination with reference to the offence of rape despite the fact that absence of smegma on the glans penis would have provided a definite clue as to involvement of the appellant in the ravishment of the prosecutrix. In the light of these facts and circumstances, it was not possible to conclude that he was able to subject the prosecutrix to coition.
18. This brings me to the question as to whether the appellant could be held guilty of making an attempt to ravish the prosecutrix ?
19. As explained by Justice Patterson in R. v. James Lloyd 173 ER 141 -
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Criminal Appeal No.1886/2005 "in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part".
[Quoted with approval by the Apex Court in Raju Pandurang Mahale v. State of Maharashtra (2004) 4 SCC 371 and Aman Kumar v. State of Haryana, (2004) 4 SCC 379]
20. As further observed by the Supreme Court in the aforesaid decisions, the point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused, which would show that he was just going to have sexual connection with her. Surrounding circumstances many times throw beacon light on that aspect. In this view of the matter, the appellant could not be held guilty of attempt to commit rape on the prosecutrix.
21. In Nuna v. Emperor (1912) 13 CRLJ 469, the accused, who took off a girl's clothes, threw her on to the ground and then sat down beside her but said nothing to her nor did he do anything more to her, was held guilty of an offence under Section 354 IPC only. In Jai Chand v. State 1996 CRLJ 2039, where the accused forcibly laid the prosecutrix on the bed and broken her pyjama's strings but made no attempt to undress himself and when the prosecutrix pushed him away, he did not make efforts to grab her again, it was held that it was not an attempt to rape but only outraging of the mod- esty of a woman.
22. As explained by the Apex Court in State of Punjab v. Major Singh AIR 1967 SC 63, modesty of a mentally challenged female can also be outraged. The relevant observations made by Bachawat, J, speaking on behalf of majority may be reproduced as under -
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Criminal Appeal No.1886/2005 ... the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be un- der the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section".
23. Accordingly, in the light of factual scenario proved from the evidence on record as re-appreciated above, the appellant ought to have been convicted under Section 354 of the IPC.
24. Considering the social impact of the crime and other relevant circumstances of the case including that the victim was mentally handicapped, interests of justice would be met if the appellant is sentenced to undergo maximum custodial sentence prescribed for the offence. However, imposition of fine sentence would not be justified in view of the fact that the appellant has already suffered a period of more than 5 years in custody.
25. Consequently, the appeal is allowed in part. The conviction of the appellant for the offence under Section 376(2)(a)(i) is converted into one under Section 354 of the IPC and he is sentenced to undergo R.I. for 2 years. As an obvious consequence, he shall be released forthwith if not required in any other case.
Appeal partly allowed.
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Criminal Appeal No.1886/2005 (R.C. MISHRA) JUDGE 23.04.2010 :: 13 ::
Criminal Appeal No.1886/2005