Daddi Baiga vs The State of Madhya Pradesh

Subhash Kakade, J.—Appellant Daddi Baiga has filed this appeal u/s 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 17.12.1997 passed by the learned Additional Sessions Judge, Umaria, District-Shahdol, in Session Trial No. 134/97 (State of M.P. vs. Daddi Baiga), whereby the appellant was convicted u/s 376(1) of IPC and awarded a punishment of rigorous imprisonment of seven years and fine of Rs. 1,000/-, in default of payment of fine, further to suffer six months� rigorous imprisonment. The case of the prosecution, in short, is that on dated 10.06.1997 while prosecutrix was sleeping with her children, younger sister and husband Mannulal in open courtyard of her residence at Village-Pipradi, accused/appellant Daddi Baiga committed rape on her. Mannulal awoke and caught hold the appellant. The appellant injured Mannulal and then managed to escape. On hearing hue and cry of the prosecutrix, neighbours came to the spot. In the morning, matter was reported at Police Station-Norojabad. Prosecutrix and her injured husband were sent for the medical examination, and after usual investigation, charge sheet was submitted before the competent committal Court, which on its turn committed the case to the Court of Sessions and the learned trial Court has conducted the trial.

The learned trial Court framed the charge against appellant for commission of offence punishable u/s 376 of IPC. The appellant pleaded not guilty, therefore, he was put to trial. The prosecution examined six witnesses and produced documents Ex. P/1 to Ex. P/4.

During statement u/s 313 of Cr.P.C., the appellant denied all the evidence put-forth against him and pleaded his innocence on the ground that he was falsely implicated due to money matter. However, no defence witness has been examined.

The learned trial Court, after appreciating the evidence available on record, has held the appellant guilty u/s 376(1) of IPC and sentenced him, as mentioned herein above, against which, this appeal.

Shri Umakant Sharma, learned senior counsel appearing for the appellant, has submitted that the impugned judgment is bad in law and facts both. The learned trial Court has not considered that the prosecution story is quite un-natural as it was not possible for the appellant to enter in the courtyard when the entire family of the prosecutrix was sleeping near the prosecutrix. He categorically argued that looking to the spot map and Nazari Mauka Naksha, it seems impossible for the appellant to commit rape with the prosecutrix on that spot. He further stated that the independent witnesses have not supported the prosecution case, and the medical report is also not supporting the case of prosecution. Therefore, the appeal deserves to be allowed.

Per contra, Shri Samdarshi Tiwari, learned Govt. Advocate appearing for the State has opposed the appeal and submitted that appellant has rightly been convicted believing the testimony of the prosecutrix as well as other prosecution witnesses. The finding, so recorded by the learned trial Court, does not call for an interference by this Court, thus, this appeal is liable to be dismissed.

I have considered the rival submissions made by learned counsel for the parties, perused the impugned judgment and entire available record carefully.

It is uncommon but, in this case at hand, learned counsel for the appellant before the learned trial court straight way suggested to the prosecutrix that she was extra marital relations with the appellant, therefore, she was consenting party. Though, the prosecutrix has denied that she herself invited the appellant and when her husband noted the presence of the appellant, the matter came to be reported. She specifically denied this suggestion that to show herself innocent, she blamed the appellant and leveled charge of rape against the appellant.

Therefore, the question arises for consideration:- whether the prosecution story, as alleged, inspires confidence of the court? or whether prosecutrix was a consenting party to the crime?

The couple, prosecutrix and her husband Mannulal admitted these facts that prior to incident the appellant and Mannulal were worked together, therefore, known to each other very well.

The prosecutrix is a married woman of 22 years age having three children. The prosecutrix stated the sequence of sleeping in the open courtyard that she was slipping with her husband, two children and with sister Mamta because it was summer days. About the main incident she stated at about 12 O''clock in the night she perceived that somebody is sleeping along with her, stroking her body here and there and also trying to unrobed her, till that she was slumberous. As soon the person started intercourse she wake up and ask who is? But, that person gagged her mouth by his towel, pressed her hands and completed intercourse. Listening Oh-Oh her husband wake up and trapped the culprit.

To believe above statement of the prosecutrix that her husband, two children (though Mannulal stating three children) and her sister was continuously slipping during the incident of complete intercourse in open courtyard near to her and nobody of these four (five) awake is clearly not trustworthy, at all not believable.

The prosecutrix also given some explanations but these explanations are contradictions only. She gave first explanation that because her mouth were gagged and her hands also pressed therefore, she was not raised cry for help. It is pertinent to mention here that against the version of the FIR the prosecutrix stated that when after completion of intercourse, the appellant removed towel from her mouth, then she cry for help so her husband awake. During cross examination the prosecutrix deviated from her earlier version stating that her husband did not wake up his own, but, he wake up hearing her cry, when the culprit removed towel from her mouth.

During this chain of explanations secondly, she stated because she struggled for save herself in that process she got injury on elbow. Without repeating this fact that such struggle is not part of the FIR (Ex. P-1). On the other hand, Dr. Dwivedi (PW/6) admitted that injury found on elbow of prosecutrix can be inflicted if a person rubbed on rough surface. And if there was an struggle, then it was naturally that atleast Mannulal wakes up, but it is not so.

All this evidence clearly goes to show that truth has been suppressed from the court and probability of false allegation being leveled against the appellant cannot be ruled out. There is no witness on implicit reliance could be placed. In a case of this nature need of corroboration was there as probability factor operated against the prosecutrix. Please see Dilip and Another Vs. State of M.P., and Suresh N. Bhusare and Others Vs. State of Maharashtra,

Learned counsel for the appellant drawn attention to case of Sitaram Rameshwar Kewat Vs. State of Madhya Pradesh, has argued that it is also possible that presence of the appellant noted by her husband Mannulal and thus the matter came to be reported by the prosecutrix otherwise she was a consenting party. Actually in the facts of the present case such a possibility can not also be ruled out. On the whole in my considered opinion the prosecutrix in this case is not wholly and safely reliable. Her story does not inspire confidence from any angle, except that she was a consenting party from following reasons also.

On the spot husband-wife caught the culprit and dragged him near to the source of light and identified him as the appellant. The couple further stated that after struggle appellant succeeded to set free himself and take to heels. But, Mannulal again caught hold the appellant near the hand-pump, there the appellant dashed down Mannulal and finally run away. Mannulal (PW/2) and his wife the prosecutrix (PW/1) specifically stated that during this scuffle Mannulal got injuries.

Dr. K.S. Lahori (PW/3) examined Mannulal on 12.06.1997 and found following 6 injuries on his person vide MLC report (Ex. P-3):-

(1) Irregular lacerations over palmer side of right and left hands near wrist joint. Reddish-black in colour.

(2) Irregular multiple abrasions over left side of chest sub axillary region, just lateral to Nipple. Reddish-black in colour.

(3) Irregular abrasion over left side of lumber region of back (lower portion of back) Anterior-Laterally. Reddish-black in colour.

(4) Irregular abrasion over left elbow joint medically. Reddish-black in colour.

(5) Tiny abrasions over upper �th of right leg below knee joint, Anteriorly. Reddish-black in colour.

(6) Irregular abrasion over Dorsum of right foot at near root of great toe (right foot). Reddish-black in colour.

Opinion - All injuries were caused by hard, blunt and rough object, within 24 hours. Injuries were simple in nature.

To believe above facts of struggle between appellant and Mannulal (PW/2) and who received 6 injuries is also not trustworthy, believable. Because, in this struggle the appellant did not received a single injury on his person, who was also arrested on 12.06.1997 and medically examined by Dr. A.K. Singh when Mannulal (PW/2) was also examined by Dr. Lahori (PW/3).

The prosecutrix stated during scuffle with her chain of appellant were broken so she kept with her. She also stated that while escaped from the spot, the appellant leaves his shoes in her courtyard. Investigation Officer seized this broken chain and shoes in presence of witnesses as per seizure memo Ex. P-2 which is dully supported by Mannulal (PW/2) also.

Mere recovery of property is not enough to bring home the charge of rape particularly, when the nature of property is such which can change hands easily and easily available in the market. Moreover, having no specific identity that the property belongs to only and only to the appellant. Therefore, no presumption can be drawn against the appellant u/s 114 illustration (a) of the Evidence Act in these facts and circumstances. Suspicion should not take place of proof in any case.

Where the omission(s) amount to contradiction, creating a serious doubt about the truthfulness of the prosecutrix and his husband also making material improvement before the court, it cannot be safe to rely upon such evidence. The evidence of the prosecutrix (PW/1) her husband Mannulal (PW/2) is of same category therefore, at all not acceptable. Thus, the appeal is allowed. Appellant Daddi Baiga is acquitted, his sentence is set aside. Fine amount if deposited be returned back to him. He be set free if not required in any other case.