Betu vs State of M.P.

R.C. Mishra, J.—This appeal has been preferred against the judgment-dated 10/10/95 passed by the Sessions Judge [designated as Special Judge under the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989] (for short ''the Act*), Chhatarpur in Special Case No. 18/95, whereby the appellant was convicted and sentenced as under:-

Convicted under Section

Sentenced to

376 of IPC read with 3(1)(xii) of the Act

undergo R.I. for 7 years and to pay fine of Rs. 1000/- & in default, to suffer R.I for 6 months.

450 of IPC

undergo R.I. for 5 years and to pay fine of Rs. 1000/- & in default, to suffer R.I. for 6 months.

3(1)(xi)oftheAct

undergo R.I. for 1 year and to pay a fine of Rs. 500/- & in default, to suffer R.I. for 3 months.

with the direction that custodial sentences shall run concurrently

Prosecution story, in short, may be narrated thus -

(i) At the relevant point of time, the prosecutrix (PW1), a married woman aged about 20 years and a member of Scheduled Caste i.e. Kori, was residing in her matrimonial home situated in Village Urdipurva Majra, the native place of the appellant, who belongs to Gadariya (shepherd) caste.

(ii) On 12.1.95 at about 10 a.m., the prosecutrix had gone to Bakhri (cottage) used as the cattle-shed located at the outskirt of the village, to throw cow-dung. After doing the work, as she was taking out pieces of firewood for cooking from the heap collected in the cottage, the appellant suddenly entered thereinto and forcibly subjected her to sexual intercourse. Alarms raised by the prosecutrix attracted attention of Dasua (PW3), Ramkaran, Shivram and other inhabitants of the locality, who were able to see the appellant running away from the Bakhri.

(iii) Since husband of the prosecutrix as well as his elder brother namely Barra @ Barelal (PW2) had gone out, it was upon return of Barra that she informed the police about the incident. Recording the information as Dehati Nalishi (Ex.P-1), ASI G.L. Singh (PW8) registered a case under Sections 354 of the IPC and 3(1)(xi) of the Act.

(iv) In her statement, u/s 161 of Code of Criminal Procedure, the prosecutrix disclosed that in fact, she was ravished by the appellant. The case was, accordingly, converted into one u/s 376 of the IPC and Section 3(1)(xii) of the Act.

(v) On 27th of January, 1995, the prosecutrix was sent to the Civil Hospital at Chhatarpur for medical examination. Dr. Smt. Sangeeta Choubey (P W6), while expressing her inability to give any definite opinion as to rape, prepared two slides from vaginal smear of the prosecutrix for chemical analysis.

(vi) During investigation, although the appellant was apprehended on 13.1.1995 only yet, he was subjected to medical examination on 9.2.95. Dr. R.P. Gupta (PW7) found the appellant capable of performing sexual intercourse.

On being charged with the offences punishable under Sections 450 & 376 of IPC and 3(1)(xi) & 3(1)(xii) of the Act, the appellant pleaded false implication due to prevailing animosity in view of dispute as to agricultural land.

Legality and propriety of the conviction have been challenged on the under-mentioned grounds -

(i) Non-disclosure of the factum of rape in the Dehati Nalishi (Ex.P-l)by ASI C.L. Singh (PW8) at the instance of the prosecutrix.

(ii) Improbability of the story regarding rape at a place referred in the spot map (Ex.P-2) as situated near the residences of Ramkaran, Bhavanidin, Buddhu etc.

(iii) Absence of corroborative medical or forensic evidence as to rape.

(iv) Probability of the defence.

In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence, has contended that the convictions are well founded.

As per statement of the prosecutrix (PW1), at about 10 a.m. when she was picking up pieces of jungle wood stored in the Bakhri, the appellant came from behind; caught hold of her hands; threatened to kill her in case she raised alarm; put his hands on her breasts, felled her down and committed rape on her. According to her, she raised alarm only after the appellant had left the spot and on arrival of persons in the neighbourhood namely Dasua, Shivram, Raje Budhua and Horilal, narrated the incident to them. Amongst these persons, only Dasua and Shivram were named in the Dehati Nalishi (Ex.P-1).

Dasua (PW3), related as maternal uncle-in-law to the prosecutrix, corroborated her version but Shivram (DW1) came forward to support the defence of false implication due to animosity arising out of land dispute between the appellant and husband/Jeth of the prosecutrix. Moreover, the following inconsistencies in the evidence of other witnesses clearly indicated as to how a false case of rape was cooked up from the occurrence that had taken place in a different manner -

(i) The prosecutrix (PW1) was emphatic in saying that on the date of the incident only at about 4 p.m., the report (Ex.P-1) was recorded by the Police Inspector who had come to the house of Gram Pradhan in the presence of her Jeth Barra whereas Barra (PW1) clearly admitted that he had returned to the village on the following day of the incident i.e. 12.1.95 at 10 a.m. and on being informed about the incident, had gone to lodge report at Police Outpost but, instead of scribing the information, the Inspector had proceeded to the village where the report was ultimately recorded at the house of the Pradhan.

(ii) As per the version given in the report recorded as Dehati Nalishi (Ex.P-1), the appellant had only caught hold of the prosecutrix with intent to outrage her modesty but was not able to subject her to sexual assault as her screams had attracted attention of the neighbours, who had immediately rushed to the spot.

(iii) ASI G.L. Singh (PW8), the scriber of Dehati Nalishi, candidly acknowledged that since the factum of rape was not disclosed by the prosecutrix, the investigation could not be proceeded with accordingly. This admission gathered more support from the circumstances enumerated below -

(a) Upon the report, initially a case under Sections 3 54 IPC and 3(1)(xi) of the Act was registered.

(b) Even though, the appellant was arrested on 13.1.95 yet, he was subjected to medical examination, by way of letter of request (Ex.P-10) on 9.2.95.

(c) The prosecutrix was referred to District Hospital, Chhatarpur for her medical examination on 27.1.95, as reflected in letter of request (Ex.P-8).

(d) Sari said to have been worn by the prosecutrix at the time of the incident was seized on 25.1.95, by way of seizure memo (Ex.P-4).

Medical examination of the prosecutrix, a married woman, nearly 15 days after the incident was a futile exercise and that of the appellant nearly a month after the incident, was also inconsequential. A bare perusal of the Dehati Nalishi would reveal that last four lines containing the allegations to the effect that after finding the prosecutrix all alone, the appellant had subjected her to rape were added subsequently. This inference drew strength from the fact that no offence of rape was registered upon recitals of the Dehati Nalishi.

The proposition of law that no corroboration is necessary to act upon the evidence of victim of rape is well settled ( Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, referred to). But, the approach that a married lady would not ''put her character at stake'' by making a false charge of rape cannot be applied universally as each case has to be determined on the touchstone of the factual matrix thereof ( Pandurang Sitaram Bhagwat Vs. State of Maharashtra,

In the facts and circumstances of the case as projected above, probability factor favoured the defence and, therefore, it was not possible to act upon testimony of the prosecutrix, so far as it related to the offence of rape, simply because it was not in consonance with her earliest version and the corresponding lines of investigation pursued by the police (Radhu v. State of Madhya Pradesh 2007 AIR SCW 5845 referred to).

It is well settled that maxim ''falsus in uno falsus in omnibus'' has no application in India, but while discharging its solemn duty to separate grain from the chaff, the Court is further required to ascertain as to whether the residue left after discarding major portion of the prosecution evidence, would be sufficient to prove guilt of the accused in respect of any offence.

In the instant case, though the rape did not appear to have been committed but the offence of outraging modesty of the prosecutrix, a member of Scheduled Caste, punishable u/s 3(1 )(xi) of the Act, was clearly established from the prosecution evidence comprising of sworn testimony of the prosecutrix, contents of the Dehati Nalishi (Ex.P-1) lodged by her and corroborative evidence of Dasua (P W3). Accordingly, the conviction u/s 450 of the IPC also deserves to be converted into the one u/s 454 of the IPC.

Coming to the question of sentence, it may be observed that a considerable period of more than 16 years has already elapsed after the incident in question and meanwhile, the appellant has already suffered imprisonment for a period of more than 5 months. In these circumstances, interests of justice would be met if substantive term of custodial sentence is reduced to 6 months, which is the minimum prescribed for the offence under the Act, and a fine of Rs. 1,250/- is imposed.

Consequently, appeal is partly allowed. In the result -

(i) The impugned conviction of the appellant for the offence u/s 376 read with Section 3(1)(xii) of the Act and consequent sentence are hereby set aside.

(ii) The conviction of the appellant for the offence u/s 3(1)(xi) of the Act is also maintained but the period of custodial sentence is reduced from 1 year to 6 months and the sentence of fine is enhanced from Rs. 500/- to Rs. 1250/-and in default of payment of fine, he would undergo R.I. for 2 months.

(iii) The conviction of the appellant for the offence u/s 450 of the IPC is converted into one u/s 454 of IPC and he is sentenced to undergo R.I. for 6 months.

With the direction that jail sentences shall run concurrently

The appellant is on bail. He is directed to appear before the trial court on 21.2.12 for being committed to custody for undergoing the remaining part of sentence and also to deposit the fine amount, if not deposited so far.