Balla alias Santosh Kumar vs State of Madhya Pradesh

Hon''ble Mr Justice Pritinker Diwaker

The appellant has preferred this appeal against the judgment and order dated 20.8.1997 passed by Special Judge (Atrocities) Raipur in Special Case No. 382/1996 convicting him u/s 376 IPC and sentencing to undergo rigorous imprisonment for three years and pay fine of Rs. 1000, in default of payment of fine to further undergo rigorous imprisonment for two months. Facts of the case in brief are that on 14.8.1996 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) - a married lady aged about 20 years to the effect that on 12.8.1996 when she was cooking food in her house in the presence of her two children as her husband had gone to Raipur in connection earning livelihood, accused/appellant came there, threw her on the ground and when she tried to raise an alarm, he inserted his lungi in her mouth and then committed forcible sexual intercourse with her. Based on this FIR, offences under Sections 376 IPC and Section 3(1)(XI) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "Act") were registered against the accused/appellant. Prosecutrix was medically examined on 17.8.1996 vide Ex. P-7 by Dr. Meena Samuel (PW- 10) and after investigation challan was filed by the police on 29.8.1996 for the said offences. Court below however framed the charge against the accused/appellant u/s 376 IPC read with 3(2)(V), and 3(1)(XI) of the Act

So as to hold the accused/appellant guilty, prosecution has examined 11 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the trial Court has acquitted the accused/appellant of the charge under the Special Act but convicted and sentenced him as mentioned in paragraph No. 1 of this judgment. Hence, this appeal.

Counsel for the appellant submits that a highly improbable story has been put forth by the prosecution because it is literally impossible for anyone to commit forcible sexual intercourse with a married lady that too in presence of her two children. According to him, medical report of the prosecutrix also does not support the case of the prosecution and that apart, two days'' delay in lodging the FIR has not been satisfactorily explained by the prosecution.

State counsel however supports the judgment impugned and submits that looking to the act of the accused/appellant the Court below has already taken a lenient view in awarding only three years jail sentence to him which in fact should have been 7 years at least.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellant who is Dhimar by caste whereas she belongs to Satnami caste. On the date of incident at about 10 p.m. when she was cooking food in presence of her daughter and that her husband had gone to Raipur, the accused/appellant came there and after inserting his Lungi in her mouth committed bad work with her. She then has described as to in what manner the accused/appellant committed sexual intercourse with her. According to her, as the accused/appellant had pressed her hard, she could not resist to his act. After her husband got back home, she narrated the entire incident to him who on hearing the same had slapped her. Thereafter, she along with her husband went to the police station and reported the matter to the police. In cross examination the prosecutrix has stated that Bhagwani (her present husband) happens to be her fourth husband. Then she has stated that including her present husband Bhagwani she had three husbands. According to this witness, her husband and the husband of one Sonbati namely Sundarlal Lohar used to visit Raipur for earning their livelihood and in the absence of her husband, she slept in the house of Sonbati for 15 days. She has denied that on the date of incident she had gone to the house of Sonbati at 4 p.m. carrying food with her. She is said to have narrated the entire incident to Sonbati and this fact was disclosed to police also while lodging the FIR against the accused/appellant but if it is not written therein, she could not tell the reason for that. She is also stated to have narrated the incident to one Milap but not to Vimlu who used to live by the side of her house. According to her, in the house of Sonbati 7-8 members were there but she did not disclose the incident to them. In the next morning she also informed about the incident to village Kotwar and village Patel but if the same is not mentioned in the FIR, she could not say anything. According to this witness, it is the village Kotwar and village Patel who had asked her to go for lodging the report after arrival of her husband. She has denied that the report was lodged two days after the incident but according to her it was lodged on the same day and if it was not recorded on the same day, she could not tell the reason there-for. This witness has further stated that she had informed the police as to the manner in which the accused/appellant had committed rape on her such as gagging her mouth with Lungi and lifting her legs etc. but if it is not mentioned in the FIR she could not tell any reason. She denied that her husband had taken grocery items worth Rs. 100 from the shop of the accused/appellant on credit and as the payment for the same was not made, he had discontinued the credit transaction. She has further stated that a day before the arrival of her husband she had bought a soap from the shop of the appellant and that she was slapped by her husband saying that how it could be that the accused had given the soap to her though he discontinued the credit transaction with him. She has denied that the people belonging to her caste had held a meeting where she was asked to lodge a false report against the accused/appellant. According to this witness, on account of being thrown on the ground by the accused/appellant she sustained injury on her back which she had disclosed to the doctor and the police but if the doctor has not mentioned the same in his report, she could not tell the reason. Bhagwani (PW-2) - the husband of the prosecutrix has stated that after he returned from Raipur he was informed by his daughter Laxmi that the accused/appellant had committed rape on the prosecutrix after gagging her mouth by Lungi. Thereafter, the prosecutrix also informed the same to him. According to this witness, the prosecutrix also informed him that at the time of incident his daughter was pulling the accused by hair. Then according to him he took the prosecutrix to police station where the report was lodged by her. In cross examination, this witness has stated that after he returned from Raipur, his wife told him that the accused/appellant had thrown soap in his house and that she did not inform that the soap was bought by her from the shop of the accused/appellant. He has admitted that on account of that soap and the incident being disclosed to him by the prosecutrix, he had slapped the prosecutrix. He has admitted that when he visited Raipur along with Sundar Lohar, his wife used to sleep in the house of Sundar Lohar with his wife Sonbati. He has denied that a decision to implicate the accused/appellant in a false case was taken in the meeting attended by the people of his caste. According to him, he was not aware of the injuries sustained by the prosecutrix on her back nor did she inform him so. Neelambuj Chandrakar (PW-3) is the witness to seizure of petticoat of the prosecutrix made under Ex. P-2. Ku. Surhuti Laxmi (PW-4) - a year old step daughter of the prosecutrix has stated that on the date of incident her father had gone to Raipur and that she was in the house with her mother (prosecutrix) and sister namely Meena. On the date of incident her sister had not seen the appellant committing bad work with her mother but it is she who saw the same and she pulled the accused by hair. According to her, after arrival of her father, she narrated the entire incident to him. According to this witness, act of her pulling the accused by hair and going to the house of Lohar for sleeping was disclosed to the police and if it is not written in her statement, she could not say anything. She has stated that incident was disclosed by her mother (prosecutrix) to Milap, Jethu, Sonbati and Vimlu. In the last paragraph she has stated that she was not aware of anything and has made the statement as was told to her by her father. Smt. Leela Bai (PW-5) and Milap (PW-6) have not supported the case of the prosecution and have been declared hostile. Mansukhdas Manikpuri (PW-7) - the village Kotwar and witness to seizure made under Ex. P-5 has not stated anything specific. Shankar (PW-8) - the witness to seizure made under Ex. P-6 has also not stated anything specific. Jagmohan (PW-9) - witness to seizure of petticoat made under Ex. P-2 has also not stated anything specific. Dr. Meena Samuel (PW-10) who medically examined the prosecutrix and gave her report Ex. P-7 stating that she was habitual to sexual intercourse and no injuries were noticed on her person. B.L. Kurre (PW-11) is the investigating officer who has supported the case of the prosecution. Smt. Sonbati Lohar (DW-1) has stated that after the husband of the prosecutrix returned home, he started fighting with the prosecutrix saying as to from where she got the soap and how the appellant had given the same to her on credit. She has stated that when husband of the prosecutrix went to Raipur for livelihood, she and the prosecutrix used to go for work together and that during this period the prosecutrix used to sleep in her house.

Though the aforesaid discussion of the facts and the evidence on record goes to show that certain allegations have been made by the prosecutrix against the accused/appellant yet if the version of the prosecutrix is seen in its entirety, it does not appear to be worthy of credence inspiring full confidence of this Court. Moreover, there is no evidence on record that while being subjected to rape by the accused/appellant, she offered any resistance to the same or tried to come out of his clutches. As per the evidence of prosecutrix, she was subjected to rape by the accused/appellant in presence of her two daughters but out of them only one daughter namely Ku. Surhuti Laxmi (PW-4) has been examined whereas the other daughter has not been examined by the prosecution. Though daughter of the prosecutrix (PW-4) has made some allegations against the appellant in examination-in-chief, in cross examination she has stated that she has deposed as per the direction given by her father and she was not aware of the incident. Sonbati (DW-1) in fact should have been a witness of the prosecution but standing as defence witness she has not stated anything specific and the other witnesses namely Leela Bai (PW-5) and Milap (PW-6) have not supported the case of the prosecution and have been declared hostile.

Thus taking into consideration the evidence of the witnesses particularly that of the prosecutrix (PW-1), her husband (PW-2) and daughter (PW-4), this Court is of the opinion that the prosecutrix has not been able to prove its case beyond reasonable doubt and all this entitles the accused/appellant to have the benefit of doubt. Judgment of the Court below is thus not in conformity of the evidence of the witnesses and therefore the same is liable to be set aside. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As the appellant is already on bail his bail bonds stand discharged.