Gandharv Singh vs State of Madhya Pradesh

M.A. Siddiqui, J.—This appeal u/s 374 of Cr.P.C. has been preferred against the judgment dated 12.08.2004 passed by Special Sessions Judge, Shivpuri in Special Sessions Trial No.112/04 by which appellant Gandharv Singh has been convicted with R.I. for seven years and fine of Rs.500/-under Section 376 of IPC and one month simple imprisonment for the offence punishable u/s 323 of IPC.

In brief, the prosecution case is that prosecutrix (PW-1) wife of Aparival Bangar lodged a report at Police Station Sihore, district Shivpuri that at about 10 P.M. on 03.04.2004 when she was sleeping alone in her house, accused Gandharv Singh entered her house and caught her and asked about her husband and shut her mouth, threatened her and committed rape with her. When she started shouting, her mother-in-law Kausabai and uncle-in-law Jagdish came there, appellant ran away. She narrated the story to them. She was a member of Scheduled Castes and accused Gandharv Singh was a member of upper Castes. The report has been lodged by the prosecutrix at Police Station Sihore, District Shivpuri. A case has been registered under Sections 376 and 323 of IPC and u/s 3(i)(xii) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities ) Act against the appellant. Prosecutrix and accused were sent for medical examination and after usual investigation, the charge-sheet has been filed and accused was charged and legally was tried after charge.

To substantiate its case, prosecution examined the prosecutrix (PW-1), Jagdish (PW-2), Dr. Vinod Chaurasiya (PW-3), Dr. Smt. Anjana Jain (PW-4) and Mohinder Kunwar, I.O., Section Officer in this support.

Learned counsel for the appellant has submitted that prosecutrix (PW-1) though narrated the story of rape but she did not recognize the person who committed rape with her and it was complete darkness and she did not name the accused in her F.I.R. vide Exhibit P-1. Jagdish (PW-2), maternal uncle of prosecutrix has also not supported the story saying that some unknown person has committed rape. Dr. Vinod Chaurasiya (PW-3) is a formal witness, who stated that no sexual intercourse has been committed by him and Dr. Smt. Anjana Jain (PW-4), who examined the prosecutrix has not given any opinion about sexual intercourse. Mahinder Kunwar, I.O. has given his statement, which is of formal nature.

Learned counsel for the appellant has vehemently argued that there is no iota of any evidence against the appellant. Appellant has been convicted on the ground that prosecutrix has stated in her statement u/s 164 of Cr.P.C. Such statement u/s 164 Cr.P.C. is not substantive piece of evidence and the learned trial Court has used them as substantive piece of evidence. Where witness do not support the prosecution story in the Court, then their statements u/s 164 of Cr.P.C. cannot be used as substantive piece of evidence. The proper way is first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. The statement of witness made behind back of accused cannot be used as evidence against him. The only object in regarding such statement is to obtain a hold over the witness. The statements recorded u/s 164 of Cr.P.C. are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness, as it has been held in the case of State of Delhi Vs. Shri Ram Lohia, .

From the perusal of the judgment of learned trial Court, it is very much clear that learned trial Court in its judgment vide paragraph 9 has discussed the evidence of prosecutrix together with her statement u/s 164 of Cr.P.C. which is Exhibit P-4 and it has been discussed that as she admitted that she entertained into compromise and she gave statement u/s 164 of Cr.P.C. that the incident was presumed to be proved.

Legally when statement u/s 164 of Cr.P.C. is not substantive evidence then it can be used for corroboration. Though, the learned counsel for the State has supported the impugned judgment but he was not able to give satisfactory explanation that how far the statement u/s 164 of Cr.P.C. was taken into consideration as substantive piece of evidence.

There is no legal in the evidence though the prosecution could have been prosecuted but the incident could not be said to have been proved.

There is no iota of evidence against the appellant and he has wrongly punished on taking erroneous consideration of statement u/s 164 of Cr.P.C. The identification of person was not established and it was not proved that it was the appellant, who committed rape. Hence, the appeal is allowed. The judgment passed by the learned trial Court is set-aside. Appellant is acquitted from the charge of offence punishable u/s 376 of IPC with R.I. for seven years and u/s 323 of IPC for simple imprisonment of one month. Appellant is on bail, his bail bonds are hereby discharged. Fine amount if, any deposited by the appellant/accused be refunded to him by the trial Court.