1 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT, JABALPUR SINGLE BENCH PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA CRIMINAL APPEAL NO.1416/1995. Jagdish Vs. State of Madhya Pradesh ............................................................................................................ For the appellant : Shri J.A.Shah, Advocate For the respondent: Shri J. K. Jain, learned Deputy Advocate General. ............................................................................................................ Date of hearing : 21.5.2010 Date of judgment : 25.6.2010 ............................................................................................................ JUDGMENT
The appellant has preferred this appeal against the judgment dated
10-10-1995, passed by Sessions Judge, Tikamgarh, in S.T. No. 109/1992
by which he was convicted for offence under Section 376 read with
Sec.511 I.P.C. and inflicted sentence of rigorous imprisonment for two
years with fine of Rs. 500/-. In default he has to undergo six months
2. In short the prosecution story is that on 20-3-1992, the prosecutrix
(PW2) was all alone in her house at village Gova, district Tikamgarh. At
about 7:00 pm accused suddenly entered the house and threw the
prosecutrix on earth, unwrapped the saree worn by her and committed
rape. Witnesses Lakhan, Ganesh (PW1) and Vijay (PW3) had seen the
accused when he was entering the house of the prosecutrix. The
prosecutrix on 21-3-1992 at about 4:40 pm lodged FIR regarding the
incident. Ultimately Police A.J.K. had submitted challan. J.M.F.C. Jatara
committed the case for sessions trial to Sessions Judge, Tikamgarh.
3. After due trial learned Sessions Judge passed the Judgment dated
10-10-95 of conviction with aforesaid punishment order.
4. The prosecutrix (PW2) has stated that the appellant/accused
committed rape with her when she was in her house. She has further
stated that at that time her husband had already gone to beat drums in a
festival. On her shouting witness Ganesh (PW1) and witness Vijay (PW3)
came and they saw the accused leaving her house. Ganesh (PW1) has
supported the version of the prosecutrix in his evidence but it seems that
he has exaggerated the entire story. There is material contradiction in
his statement and case diary statement Ex.D-1. Witness Vijay (PW3) did
not support the prosecution story. He was declared hostile. However,
he accepted having seen the prosecutrix abusing the accused when the
accused was standing in front of the house of the prosecutrix. The
prosecutrix has lodged an FIR Ex.P-1 in which she has narrated the story
in a very short manner. FIR Ex.P-1 was delayed by 21 hours
approximately. Incident took place at 7.00 p.m on 20.3.1992 whereas
F.I.R was lodged at about 4.40 p.m on 21.3.1992. No sufficient reason
has been shown for that delay. The prosecutrix stated that her husband
was out and he came in the evening at about 8.00 p.m, accused and his
brother Rajaram came and started assaulting her husband and, therefore,
her husband left his house and went to his parents house only to return
the next day in the morning. Such allegation against the accused and his
brothers is neither made in FIR Ex.P-1 nor in case diary statement Ex.D-2.
Therefore, story of her husband’s moving to his parents house at about
8.00 p.m in the evening seems to be cooked one.
5. Husband of the prosecutrix when came at 8.00 p.m in the evening
then he could take the prosecutrix to the Police Station, Jatara in the
night or at the most next day in the morning. There was no reason for
him to have left his house on that day unless he had found his wife to be
guilty. However, explanation given for delay in lodging FIR seems to be
after thought and is not acceptable. Secondly in Ex.P-1 it is mentioned
that village Gova comes in jurisdiction of Police Station, Jatara but the
prosecutrix has not lodged the FIR in Police Station, Jatara which was
nearest but she lodged the report in Kotwali, Tikamgarh which was far
away. Such selection of Police Station creates a grave doubt that she or
her husband could not record a cooked report in Police Station Jatara.
6. The evidence given by witness Vijay (PW3) shows that the
prosecutrix was abusing the accused and the accused was standing in
front of her door. If he was guilty of some crime then certainly he could
not stand to hear her abuses. He being guilty conscious must have left
the spot immediately. The circumstances as stated by the prosecutrix do
not seem to be natural. The prosecutrix has not said anything about
previous relations of accused and her husband. It is not possible for a
stranger to go inside any house and do such crime. If the prosecutrix
was not known to the accused, accused could not dare to enter in the
house in broad day light when the house was situated on the main road
of the village. Similarly the prosecutrix has admitted that she has five
children. Out of them eldest daughter was of 8-9 years of age and
youngest daughter was 1 ½ years of age but she did not explain the
absence of all the five kids at the time of incident, where as the accused
would not have done such a crime in presence of five children. Her
conduct for not explaining the absence of those five kids creates a great
doubt in the prosecution story. The prosecutrix has tried to give an
explanation regarding absence of her husband, but she did not tell
anything about her children.
7. Apparently it seems that witness Ganesh (PW1) supports the version
of the prosecutrix. He was believed by the trial court only because he has
stated that the accused assaulted him two months prior to his statements
before the Court, whereas he has stated such version without asking. He
was suggested that he was in party of one Mahendra Pratap Singh a rival
of the accused but he denied. Though he has denied the suggestion, but
his evidence seems to be prepared one. In case diary statement Ex.D-1
he has informed that at the time of incident he was sitting in his shop
with Vijay and Lakhan, whereas in the Court he claims to reach the spot
earlier than other two witnesses. He said that he was sitting in the shop
all alone whereas he has admitted that in those festival days he was
extremely busy in his shop. He has denied the presence of other two
witnesses at the shop only because he was aware that his story would not
be supported by other two witnesses. It is clear that Vijay does not
support his story whereas Lakhan was not examined by the prosecution.
Learned A.P.P. on 24-9-1993 expressed before trial court that he does not
wish to examine him and no summons be issued to him.
8. In the circumstances witness Ganesh being busy in the shop neither
he could see the accused entering in the house of the prosecutrix nor he
has seen anything. And therefore his confirmation of the version of the
prosecutrix against his own previous statement indicates that he is an
interested witness telling falsehood before the court.
9. As discussed above, conduct of prosecutrix and her husband makes
them disbelievable. In present case entire merits depend upon the
testimony of the prosecutrix. If she is believable then appeal shall be
dismissed. The learned Sessions Judge erred in disbelieving the
prosecutrix in part. He believed the prosecutrix and held that incident
took place but he did not hold the appellant guilty for offence under sec.
376 of IPC by disbelieving the prosecutrix. Such an approach can not be
said to be legal. He found that there was no injury on any external or
internal part of her body. Police has not placed F.S.L. Report before the
trial Court. If F.S.L. Report was not produced, that part of evidence may
not be available but no adverse inference could be drawn. It is not
necessary that a grown up woman who is mother of five children may get
injury in such an act though done against her wish. Similarly, due to
washing and bathing nothing could be obtained from her vaginal swab
prepared after more than 24 hours.
10. If prosecutrix is believable then fact of penetration must be
accepted and the offence made out would be rape and not just attempt.
Unfortunately learned Sessions judge took a wrong decision on this point.
Since the State has not preferred any counter appeal for this purpose, this
Court can not interfere in this matter. It is now held that the prosecution
story seems to be unreasonable, F.I.R. is highly delayed and no
acceptable reason has been shown, F.I.R. has not been lodged in nearest
police station, the prosecutrix has not explained the absence of her five
children at the time of occurrence and no witness supports her version
accept witness Ganesh who is not at all believable, the prosecutrix can
not be believed. Hence the accused can not be convicted for offence
punishable under sec. 376 I.P.C. or for offence punishable under sec. 376
read with 511 I.P.C.
11. On the basis of above discussion appeal can be accepted. Hence
appeal is hereby allowed. Impugned conviction and sentence is quashed.
The appellant is acquitted from the charges appended against him. He will
get fine amount back if he has deposited.
12. Appeal is disposed off accordingly.
(N. K. GUPTA)