Arup vs State of Madhya Pradesh

S.L. Jain, J.

Appellant Arup stands convicted for offence punishable u/s 376(2)(g), IPC and sentenced to R.I. for ten years with fine of Rs. 5,000.00. he has further been convicted for offence punishable u/s 307, IPC and sentenced to R.I. for ten years with fine of Rs. 5,000.00, by the impugned judgment and order dated February 18, 1998, passed by Sessions Judge, Betul, in Session Trial No. 146/96.

The prosecution case, in brief, is that about then days before the date of incident, prosecutrix Sua Bai had come to her parental home from her matrimonial home. On 16.04.96 at about 9 P.M. she was cleaning utensils in the courtyard. Her mother, brother Jagannath and his wife were present inside the house. The appellant and acquitted accused Nav Kumar came in the courtyard, picked the prosecutrix up and took her in a shrub where both the accused committed rape on her one after the other. Thereafter, they picked the prosecutrix up and took her to a well and in attempt to finish her threw her in the well.

One Sukiya (PW 3) whose house is situated very near to the well, heard the splash of water in the well and thought that something has fallen into the well. He went to the well with a lamp. When he peeped in the well, he found a girl therein. He raised an alarm. On hearing his cries Ratan Chakrawarti (PW 4) and some other persons of the locality reached near the well. Ratan Chakrawarti (PW 4) jumped into the well and held the prosecutrix. With the help of the villagers prosecutrix was taken out of the well. She loadged FIR of the incident, Ex. P-1 in P.S. Chopna.

The prosecutrix was sent to District Hospital, Betul where she was examined by Dr. Nisha Badwe (PW 6). On medical examination of the prosecutrix an abrasion was found on her left elbow. After her examination Dr. Nisha Badwe reported that no definite opinion can be given regarding rape on the prosecutrix because she was a married woman and used to perform sexual intercourse. Ex.P-8 is the report of Dr. Nisha Badwe (PW 6). On ossification test of the prosecutrix, Dr. A. Jawalkar (PW 2), opined that she was 16 years of age. Ex. P-S is his report.

During investigation a school certificate of the prosecutrix was also recovered, according to which the prosecutrix was born on 11.06.80. From the spot soil smeared with semen was seized. The clothes of prosecutrix were also seized. Both the accursed persons were arrested. The clothes of the appellant were recovered. Acquitted accused Nav Kumar was identified by the prosecutrix in the identification parade. The clothes of the prosecutrix, underwear of the appellant, soil recovered from the spot and the slides of vaginal smear of the prosecutrix were sent for chemical examination to FSL, Sagar. In the report of FSL, semen and spermatozoa were found on the clothes of prosecutrix but on other articles nothing incriminating was found. The appellant was also examined by the doctor who found him capable of sexual intercourse.

After completion of the investigation a charge sheet was filed against the appellant and acquitted accused for the alleged commission of gang rape and attempt to commit murder.

Charges for the aforesaid offences were framed by the trial Judge against the appellant and acquitted accused. The appellant and the acquitted accused adjured the guilt. Appellant pleaded alibi stating that he was on the election campaign along with Satya Rajan and at the relevant time was not present on the spot. This appellant further pleaded that he has been falsely implicated by the prosecutrix at the instance of Ratan against whom he had filed a case. His defence is also to the effect that previously also he was prosecuted for the offence of abduction and rape on the report of the prosecutrix but he was acquitted.

Having concluded the trial, the learned Sessions Judge acquitted accused Nav Kumar but found the appellant Arup guilty for offences punishable under Sections 376 (2) (g) and 307, IPC and by the impugned judgment and order sentenced him as indicated above.

Aggrieved by the conviction and sentences recorded by the learned Sessions Judge, the appellant has come up in this appeal.

I have heard Shri S.C. Datt, learned senior counsel with Shri S. Pandit, Advocate, appearing for the appellant and Shri S.D. Khan, learned Govt. Advocate, appearing for the State, and perused the record of the trial Court.

Shri Datt, learned senior counsel, appearing for the appellant led me through the record and contended that the learned Additional Sessions Judge has committed an error in holding the appellant guilty of charges levelled against him. He submitted that the conviction and sentences imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside.

On the other hand, Shri Khan, learned State counsel has supported the judgment recorded by the trial Court convicting and sentencing the appellant as indicated above.

Sua Bai (PW 1) has stated that on the date of the incident at about 9 p.m. she was cleaning utensils in the courtyard at the back portion of her house. Her mother and brother were present in the front portion of the house. Appellant and the acquitted accused Nav Kumar Came there. The appellant gagged her. Both the accused persons lifted her and took her in a shrub. She was threatened and put to fear. Both the appellant and acquitted accused committed rape on her one after the other. After commission of rape she was taken near a well and was pushed in the well by the accused persons. She shouted for help. Sukia took her out of the well. She was unconscious. When she regained consciousness, she informed the villagers about the incident. She then lodged a report of the incident. Ex.P-1, in the police station.

Sukia (PW 3) has stated that when he heard sound of splash in the well he rushed towards the well with a lamp. He saw a girl inside the well and raised an alarm. On hearing his cries, Ratan was the first person to reach. He jumped into the well to save the girl. With the help of a rope the prosecutrix was taken out of the well. When Sua Bai regained her consciousness, she narrated villagers regarding the incident.

Ratan Chakrawarti (PW 4) has stated that on hearing the cries of Sukia, he reached the well. When Sukia informed him about presence of some person in the well, he jumped into the well and brought the prosecutrix out with the help of a rope. After half an hour Sua Bai gained her consciousness and narrated about the incident.

Jagannath (PW 5), who is brother of the prosecutrix, has stated that on the date of incident his sister, Sua Bai, was cleaning utensils. At that time he was feeding grass to his cattle. His mother was inside the house. When his mother went towards the back side of the house, prosecutrix was not found there. They tried to search the prsecutrix but she could not be found. After some time when they heard cries of Sukia from the side of the well they rushed towards the well. The prosecutrix was taken out of the well with the help of a rope. After half an hour when the prosecutrix regained her consciousness, she narrated the incident.

On careful scrutiny of the statements of above witnesses. I find many infirmities in their evidence. They do not inspire confidence. The prosecutrix, Sua Bai (PW 1), has admitted that previously also appellant and two other persons were prosecuted for abducting and committing rape on her. Copy of the previous judgment has been filed on record which reveals that previously also the appellant and two other persons faced a criminal trial in Sessions Trial No. 144/95 for alleged commission of rape on prosecutrix and another woman, named Sunita, but all the accused persons were acquitted in the case. In this background, the possibility of involving the appellant in a false case by the prosecutrix cannot be ruled out.

Ratan Chakrawarti (PW 4) has admitted that a litigation between him and the appellant regarding land is pending in the Court. He has also admitted that on his complaint a part of the appellant''s house was demolished by Naib Tahsildar. Remaing part was demolished by him. Therefore, the possibility that Ratan, with the help of prosecutrix and her near relatives Sukia, has falsely implicated the appellant, cannot be ruled out.

So far as the acquitted accused Nav Kumar is concerned, the evidence of prosecutrix has been disbelieved by the trial Court. There is no guarantee that her evidence against the appellant is true. In her evidence before the Court, the prosecutrix has herself admitted that Nav Kumar is resident of her own village and he was known to her and she disclosed his name in the FIR. But in fact, the name of Nav Kumar was not disclosed by her in the FIR and Nam Kumar was put to identification parade in which he was identified by the prosecutrix. Thus, the prosecutrix has falsely implicated Nav Kumar. In this background, the evidence of prosecutrix becomes doubtful against the appellant also.

The prosecution version appears to be unnatural also. It is admitted that entry in the house of the prosecutrix from the back side is not possible. If one is required to go to the back side of her house, the only way available to him is from the front side. Jagannath (PW 5) has admitted that he was present at front side of the house where he was feeding his cattle. If the appellant and acquitted accused Nav Kumar would have entered the house from the front side, naturally, they would have been seen by Jagannath. It is difficult to believe that when Jagannath was present in the front portion of the house and mother was present inside the house, the accused persons entered the courtyard and took away the prosecutrix. Admittedly, the house of Sukia is adjacent to the house of prosecutrix and Sukia was sitting in the front portion of his house. It is, therefore, difficult to believe that Sukia and Jagannath did not see the accused persons taking away the prosecutrix after having entered her courtyard.

The evidence of prosecutrix has not been corroborated by medical evidence. Dr. Nisha Badwe (PW 6) has reported that no definite opinion can be given regarding rape on the prosecutrix. It is alleged that soil smeared with semen was recovered from the spot but no semen or spermatozoa was found in the soil.

All the witnesses examined by the prosecution are interested witnesses. Sukia (PW 3) has admitted that he is nephew of the prosecutrix. Ratan Chakrawarti (PW 4) has admitted that a litigation is pending between him and the appellant in the Court regarding a piece of land.

When in the rape case the most important evidence of the prosecutrix is found to be false and fabricated, it will not be safe to convict the accused for the alleged offence. It is true that normally no woman would come forward to make a humilating statement against her honour, of having been raped unless it was true, but where there are doubtful circumstances, the oral testimony of the prosecutrix must be scrutinized with abundant caution and care to ensure that it is not concocted or embellished to any extent. Where the evidence of prosecutrix of sex offence is found to be infirm or not trustworthy or probative factors render it unworthy of credence, all that she says cannot be accepted on the face value and has to be tested and scrutinized with care. Evidence of the prosecutrix and other corroborating witnesses is suffering from infirmities marked by exaggeration and not accord with probative factors and it was not corroborated by medical evidence, therefore, the alleged story cannot be said to have been satisfactorily established and accused is entitled to be acquitted of the offence.

Where the evidence of the prosecutrix who was a married woman, was to make belief and motive to falsely involve the accused was disclosed and the possibility cannot be ruled out that the appellant has been involved by Ratan Chakrawarti due to the litigation pending between him and the appellant, the benefit of doubt has to go to the accused. The Court must keep in mind that it is easy to make the charge of rape, more so, in the case of married woman, but it is very difficult to refute it.

Where the medical evidence is inconclusive, the evidence of prosecutrix is contradictory, apparently, she gave a false evidence against the acquitted accused and there is possibility that she has falsely implicated the appellant at the instance of Ratan Chakrawarti (PW5) and evidence of other witnesses who were examined to corroborate the prosecution is suspicious, the conviction u/s 376, IPC cannot be sustained.

The identity of the appellant also cannot be said to be well established. The prosecutrix has admitted that because of the dark she could not recognize the appellant and she recognized him only on the basis of his voice. It is difficult to recognize a person by voice alone. Playing mimicry also cannot be ruled out, therefore, identification of the appellant on the basis of voice only also becomes doubtful.

So far as the offence punishable u/s 307, IPC is concerned, in this regard also the evidence on record is doubtful. As has already been stated, it is difficult to believe that at the time when mother and brother of the prosecutrix were in the house and Sukia (PW 2) was also sitting in front portion of his house, just adjacent to the house of the prosecutrix, the appellant and the acquitted accused picked the prosecutrix up from the courtyard of the house. The manner in which the prosecutrix was brought out of the well is also contradictory. There is material contradiction in this regard in the evidence of prosecutrix, Sukia (PW 3) and Ratan Chakrawarti (PW 4). Even if the prosecutrix was thrown in the well there is no clinching evidence that it was the appellant who threw her. In the dark night it was not possible for the prosecutrix to recognize the appellant. Therefore, the evidence of prosecutrix regarding this offence also cannot be believed.

The way, in which the learned Sessions Judge appreciated the evidence in the instant case shows that the evidence was not viewed from the correct perspective.

The aforesaid being the position regarding material brought on record to bring home the guilt against the appellant, the conviction and sentence imposed upon the appellant for the offences punishable under Sections 376(2) (g) and 307, IPC cannot be maintained.

In the result, the appeal succeeds and is allowed. The impugned judgment and order convicting and sentencing the appellant for the aforesaid offences is set aside and the appellant stands acquitted. The appellant is in jail. He be set at liberty forthwith, if not required in connection with any other case. The amount of fine, if has already been deposited by the appellant Arup, be returned to him.