Madhya Pradesh High Court
Govind vs The State Of M.P. on 28 August, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2024:MPHC-IND:24558 1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CRIMINAL APPEAL No. 165 of 2001
GOVIND
Versus
THE STATE OF M.P.
Appearance:
Shri Bhagwan Singh, learned counsel for the appellant.
Shri Rajesh Joshi, PL for the respondent/State.
Reserved on : 22/08/2024
Pronounced on : 28/08/2024
__________________________________________________________________________________
This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, pronounced the following:
JUDGEMENT
This Criminal Appeal under section 374 of Cr.P.C is filed assailing the judgment of conviction and order of sentence dated 30/01/2001 passed by learned Sessions Judge, Dewas in S.T. no. 143/2000, whereby appellant / accused Govind was convicted for the offence punishable under sections 376 and 506 of IPC and sentenced to undergo rigorous imprisonment of seven years with fine of Rs. 500/- with default stipulation and rigorous imprisonment for six months respectively. For the sake of convenience, the appellant Govind shall be referred to as accused hereinafter.
2/ As per the case of prosecution, prosecutrix, resident of Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 2 village-Pankua, was alone at her home on 18th April, 2000,. She was sleeping after locking the door from inside. Around 12.00 in the night, accused Govind opened the door and entered the house of prosecutrix. The accused put off the lamp and pushed the prosecutrix on cot. Accused threatened to kill the prosecutrix and committed rape upon her. Around 5.00 in the night, husband of the prosecutrix returned home. She narrated the incident to her husband. Panchayat was called in the village. Thereafter, sister-in-law of the prosecutrix died, so she could not lodge FIR immediately. The prosecutrix lodged FIR on 20/04/2000. She was forwarded for medico-legal examination. Accused Govind was arrested on 24/04/2000. Relevant seizure was made. On completion of investigation, final report was submitted before the Additional Chief Judicial Magistrate, Bagali, District - Dewas, who committed the case for trial to the Court of Sessions, Dewas.
3/ Learned Sessions Judge, Dewas framed charges for the offence punishable under sections 376 and 506 of IPC against accused Govind. On completion of trial and hearing both the parties, learned Sessions Judge convicted accused Govind for the offence punishable under sections 376 and 506 of IPC and sentenced him as mentioned in para-1 of the judgment.
4/ Feeling aggrieved by the judgment of conviction and order of sentence, this appeal is filed on the following grounds :
i) Prosecution story as alleged by the prosecutrix is unreliable and improbable. Medical evidence does not support the theory of forceful rape.
ii) Demeanor recorded during the evidence of prosecutrix shows that she is unreliable witness. She did not make any noise, after the accused left her house.Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 3
iii) Learned trial Court committed error in convicting the appellant on sole testimony of the prosecutrix. Learned trial Court committed error in disbelieving the defence evidence.
On all these grounds, it is prayed that the appeal be allowed and impugned judgment be set aside.
5/ Learned counsel for the appellant, in addition to the grounds mentioned in the appeal, contends that the FIR is belated by two days and no plausible explanation is given for delay in lodging the FIR. Medical evidence does not corroborate the sole testimony of complainant. The incident as narrated by prosecutrix is highly improbable in view of the fact that her children were sleeping in same room below her cot at the time of alleged rape. Other witnesses did not support the prosecution. The learned trial Court did not consider these important aspects of the factual scenario revealed by evidence on record.
6/ Per-contra, learned counsel for the State submits that evidence of prosecutrix is supported by medical and FSL reports. Learned trial Court has given well-reasoned finding of conviction. The appeal being meritless, deserves to be dismissed.
7/ Heard rival contentions of both the parties and perused the entire record.
8/ Prosecutrix (PW2) stated that at the time of incident her husband had gone to the attend marriage ceremony. Around 12.00 in the night, Govind entered in her house and put off the lamp. Govind pushed her on the cot and committed sexual assault on her on the point of knife. Around 05.00 in the morning, when her husband returned, she narrated entire incident to her husband. Village Panchayat was called. Govind came to the Panchayat. As her sister-in-law (Jethani) expired, she could not report immediately. She lodged the report (Exhibit-P/2) a day after Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 4 the incident. Manoharsingh (PW3), husband of the prosecutrix supported the version of incident narrated by the prosecutrix. No other witness was examined by the prosecution with regard to the incident.
9/ In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, reported in AIR 1983 SUPREME COURT 753, it was held that-
"Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration not withstanding".
10/ In case of Pandurang Sitaram Bhagwat v. State of Maharashtra, (2005) 9 SCC 44, it was observed that-
"16. The approach of the learned trial Judge as noticed supra that ordinarily a lady would not "put her character at stake" may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where charges under Sections 376 and 354 IPC have been found to have been falsely advanced. 11/ In case of State of Rajasthan v. N.K The Accused, (2000) 5 SCC 30, it was observed that-
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 5
12/ In case of Tazuddin v. State (NCT of Delhi), (2009) 15 SCC 566, it was held that-
"9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable.
11.As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in court as witnesses though their statements had been recorded during the course of the investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken."
13/ Further, in case of Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92, it was held that-
"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.
12. It is true that the petticoat and the underwear allegedly worn by the appellant had some semen but that by itself is not sufficient to treat that the appellant had sexual intercourse with the prosecutrix. That would only cause some suspicion on the conduct of the appellant but not sufficient to prove the case, as alleged by the prosecution.
The evidence on record is considered in light of aforementioned prepositions of law.
14/ Head Constable Rameshwar Verma (PW6) stated that the First Information Report (Exhibit-P/2) was registered on complaint of prosecutrix on 20.04.2000 at 13.30 Hrs, which goes to show that the FIR Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 6 was lodged after a delay of 37 hours. As per the case of prosecution, the husband of the prosecutrix returned home around 05.00 in the morning. Prosecutrix had narrated the entire incident to him immediately, but they did not lodge any report. Rather, a Panchayat was convened on the next morning, but despite no resolution in the Panchayat, no report was lodged immediately. There is no evidence with regard to death of sister-in-law (Jethani) of the prosecutrix, which is stated as cause of delay in lodging the FIR 15/ Dr. Smt. Namita Thakur (PW1) stated that she did not find any external or internal injury on body of the prosecutrix. No opinion with regard to recent intercourse could be given as the prosecutrix was married, therefore, the medical evidence also did not support the allegation of forceful sexual assault. Although some semen stains were found on petticoat and veginal slide of the prosecutrix, but there is no evidence to connect these semen stains with the accused. Further, these source material were collected three days after the incident. Thus, FSL evidence also does not connect the appellant with the alleged offence.
16/ Learned trial Court convicted the appellant on the sole testimony of prosecutrix discarding all the inconsistencies and improbabilities reflected by the evidence on record as also the defense evidence produced by the accused.
17/ With regard to appreciation of evidence of solitary witness, the Apex Court in the case of Vadivelu Thevar Vs State of Madras, reported in AIR 1957 SC 614 observed as under-
"Generally speaking, the testimony of a solitary witness may be classified into following three categories, namely:
(1) wholly reliable, (2) wholly unreliable and Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 7 (3) neither wholly reliable nor wholly unreliable.
In respect of the first category, the court should have no difficulty in coming to conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court, equally has no difficulty in coming to conclusion. It is the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Cautioning against insistence on plurality of witnesses for establishing a fact the apex court observed in the aforesaid case that, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situation may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act such testimony.
18/ Prosecutrix(PW2) stated that her elder daughter was aged around 10 years followed by two sons. She was sleeping on the cot. Her children were sleeping on the floor below the cot. The accused committed rape on her on the cot. As she started shouting, accused threatened to kill her and committed rape on her. The fact- scenario revealed by the aforesaid statement of the prosecutrix makes the incident highly improbable that forceful sexual assault was committed on the prosecutrix while her grown up children was sleeping in the same room and they did not hear any shout or the sound of scuffle between prosecutrix and accused. None of the children were cited as witness by the prosecution.
19/ Prosecutrix (PW2) stated that the family of her uncle-in-law resides in the neighbourhood, but she refused to tell the name of her uncle-in-law. The prosecutrix stated that she went to the house of her uncle-in-law to see the watch, but she did not inform her uncle-in-law and his wife about the incident. Husband of prosecutrix (PW3) stated that his brother Harisingh resides alongwith family near to his house. On the date Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 8 of incident, Harisingh and his wife were at their home. Harisingh or the uncle-in-law of the prosecutrix were not cited as witness by the prosecution.
20/ Learned trial Court specifically noted the demeanor of the prosecutrix that in examination-in-chief and cross-examination, the prosecutrix was repeating that her husband went outside on Tuesday and in the night accused entered her house. Learned trial Court further noted that despite understanding the questions in cross-examination, the prosecutrix was not giving answer and repeating aforementioned statement. This conduct indicates that the prosecutrix was tutored and asked to repeat the allegations in the Court.
21/ Prosecutrix (PW2) and her husband Manoharsingh (PW3) have admitted that a Panchayat was called on the next day. Sarpanch Bholu Patel and others were present in the Panchayat. Govind was also present in the Panchayat. Although both of them had denied that prosecutrix had admitted at panchayat that no mistake was committed by the accused, but Sarpanch Bholu (DW1) stated that prosecutrix and her husband were present in the Panchayat. The prosecutrix had admitted that all the allegations are false, she was beaten and compelled to make the allegations.
22/ The trial Court in Para - 11 of the judgment has discarded the evidence of Bholu (DW1) on the ground that accused Govind is real nephew of Bholu (DW1). In fact, Bholu (DW1) has stated that husband of the prosecutrix is his nephew, therefore, the reason assigned for discarding the evidence of Bholu by the trial Court is against the evidence on record.
23/ In view of afore-stated inconsistencies and improbabilities, Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07 NEUTRAL CITATION NO. 2024:MPHC-IND:24558 9 the evidence of prosecutrix is not reliable. No corroborative evidence is available on record. Delay in lodging the FIR creates doubt on veracity of the allegations. The medical evidence also did not support the allegation of forceful sexual assault. Thus, the Trial Court committed error in convicting the appellant on sole uncorroborated testimony of the prosecutrix. The prosecution had failed to prove alleged offence beyond reasonable doubt.
24/ Consequently, the appeal is allowed and the judgement of conviction and order of sentence dated 30.01.2001 passed by learned Sessions Judge, Dewas in S.T. No. 43/2000 is set aside. The appellant is acquitted of the charges for offences punishable u/S 376 and 506 of IPC. His personal bond and surety bond for appearance are discharged. He shall be set at liberty forthwith. The appellant shall be entitled for remittance of fine amount.
25/ Let a copy of this judgment be forwarded to the trial Court alongwith original record.
CC as per rules.
(SANJEEV S KALGAONKAR) JUDGE amol Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 29-08-2024 14:11:07