Gokul vs State Of M.P

(1) This appeal calls in question the judgment dated 16.01.2015 passed in Criminal Trial No.107/2014 passed by Second Additional Session Judge,

Jaora, Link Court Alot, District Ratlam, M.P.

(2). The appellant, is aggrieved by his conviction for commission of offence punishable under Section 450 and 376(2)F of the Indian Penal Code (for

short ‘IPC’) and has been sentenced to undergo 5 years RI with a fine of Rs.2000/- for offence under Section 450 IPC with default stipulation

of additional 6 months RI. Further, the appellant has been sentenced to undergo 10 years RI and fine of Rs.2000/- with default stipulation of 1 year

additional imprisonment. It has been ordered that the sentences shall run concurrently.

(3). The facts leading to the filing of present Criminal Appeal commences with a complaint made by Dhapu Bai (PW-3) on 13.04.2014 alleging that, in

the night intervening 12.04.2014 and 13.04.2014 at about 1 AM, the present appellant entered into her house where the prosecutrix was sleeping in the

courtyard of the house. Further the appellant overpowered the prosecutrix and committed rape on her. It has also been stated in the complaint that, the

prosecutrix is dumb and is partially retarded. Since, the appellant had covered the mouth of prosecutrix by his hand, due to which she was unable to

raise alarm, but still his brother namely Govardhan (PW-2) heard a sound and went out to check on the prosecturix. The complaint further reads that

Govardhan (PW-2) saw the appellant committing rape on the prosecutrix and upon finding Govardhan (PW-2) at the place of incidence, the appellant

tried to run away, however, in the process, Govardhan (PW-2) threw a brick on the appellant which hit him on his forehead, however, the appellant

succeeded in fleeing from the place of incidence.

(4). The complaint (Exhibit P-1) lead to registration of FIR bearing Crime No.118/2014 with Police Station Alot, District Ratlam M.P. Subsequently,

the police recorded the statements of Dhapu Bai (PW-3), Nayan Singh (PW-5), Shankar Singh, Tej Singh (PW-6) and Bherulal (DW-1).

(5). Later the statement of Govardhan (PW-2) and Dhapu Bai (PW-3) were also recorded before the JMFC under Section 164 CrPC. It is worthy to

mention that, the statement of prosecutrix was also recorded under Section 164 CrPC on 09.05.2014 with the assistance of Shashi Kumar Singh (PW-

8) who assisted as interpreter for the prosecutrix due to her medical condition.

(6). The police after completion of investigation filed the charge-sheet before the Court of Judicial Magistrate alleging commission of offence under

Section 450 and 376(2)F of IPC. The learned JMFC committed the case to the Court of Sessions as the offence involved was triable by the Court of

Sessions.

(7). The trial Court proceeded with the trial and framed charges for the offence indicated above, however, the accused abjured his guilt and pleaded

complete innocence which lead to recording of evidence by the prosecution witnesses.

(8). The prosecution presented 15 witnesses to prove the charges framed against the accused/appellant, whereas, Bherulal appeared as a defense

witness.

(9). The prosecutrix (PW-1) recorded her statement before the Court with the assistance of Shashi Kumar Singh (PW-8 ) who appeared as an

interpreter. The prosecutrix supported the prosecution case and stated that on the date of incidence she was sleeping in the courtyard of her house

with her sister-in-law (Bhabhi), whereas her mother (PW-3) had gone to village Jalodhiya to attend a family function. She pointed towards the

accused in the open Court to indicate that he had came in the night when she was asleep and thereafter he lifted her clothes and he grabbed her hands

and put his other hand on her mouth. It is further borne out from her statement that, she used sign language to indicate that the accused had performed

sexual intercourse, however, the accused fled after her brother had come at the place of incidence. The prosecutrix (PW-1) used sign language and

tried to communicate that her mother was not at home at the time of incidence.

(10). Since the statement of the prosecutrix (PW-1) is being discussed it would be appropriate to simultaneously discuss the statement of Shashi

Kumar Singh (PW-8) who was the interpreter when the statement of prosecutrix recorded before the Court.

(11). Shashi Kumar Singh (PW-8) stated that he has diploma in the subject and he is discharging his services on the post of subject teacher in Jan

Chetna (Deaf & Blind) School, Ratlam since 1986. He further stated that he is able to understand the sign language of such persons as he has been

teaching such children for a long period of time. He also stated that contents of deposition by prosecutrix (PW-1) are accurate and reflected exactly

what was stated by her. Although he has stated that when the statement were recorded before the Court of Judicial Magistrate on 09.05.2014, he was

present in the Court and the proceeding was videographed, however, the mother and brother of prosecutrix were also assisting the prosecutrix at the

time of recording of her statement on the pretext that the mother is able to better understand the signs made by the prosecutrix.

(12). It is worthy to note that, the statement recorded by the trial Court were not videographed, however, the learned trial Court in paragraph 15 of the

impugned judgment has recorded that the statement of the prosecutrix are being reduced in writing in terms of Section 119 of CrPC which clearly

appears to be a typographical error as the trial judge obviously meant under Section 119 of the Indian Evidence Act, 1872 (for short ‘the Evidence

Act’) which deals with the process for recording of statement of witness who is unable to communicate verbally.

(13). Be that as it may. It is appropriate to discuss further the evidence of other witnesses before appreciating the effect of non-compliance of proviso

to Section 119 of the Evidence Act.

(14). The mother of the prosecutrix (PW-3) Dhapu Bai stated that on the date of incidence she was in village Jalodhiya and her two sons Shankar

Singh and Nayan Singh had gone to Well (Kua) for attending the machine installed in the Well, whereas, her third son Govardhan Singh (PW-2) was

at home alongwith the prosecutrix. She stated that after the occurance of incidence her son Govardhan Singh (PW-2) did not report the incidence to

anyone and had directly came to village Jalodhiya where she was attending family function and asked her to accompany him, although he did not

narrate the incidence to her at that juncture. Later on when the witness alongwith her son (PW-2) had reached the house, he narrated that the

accused had committed rape on his sister. He further narrated that mouth of the prosecutrix was covered by the accused by his hand and thereafter

he lifted the clothes of prosecutrix and committed rape on her. She further states that his son Govardhan Singh (PW-2)Â Â Â Â Â Â Â Â Â Â Â

witnessed the commission of offence from behind the wall and thereafter he threw brick which hit the accused on his forehead. Then the witness

alongwith prosecutrix (PW-1), Govardhan Singh (PW-2) went to the police station for lodging report which is Exhibit P-1. Thereafter the prosecutrix

was taken to the hospital for medical examination.

(15).    The sole ocular witness Govardhan Singh (PW-2) stated that the prosecutrix is his sister and on the date of incidence she was at home

with him and his mother Dhapu Bai (PW-3) had gone to village Jalodhiya whereas remaining two brothers had gone to the fields to attend the machine

installed at the Well. He further stated that the prosecutrix is aged about 27 years and her marriage was solemnized with Shankar Singh at village

Dafna around 6 years ago, however, due to the inability of the prosecutrix to speak, Shankar Singh left her and solemnized second marriage, since

then she is residing with them. He further stated that, on the date of incidence he upon hearing the sound which appeared to be made by the

prosecutrix went to check on her where he saw the accused committing rape on the prosecutrix. Thereafter, he stated that while the accused was

trying to flee, he threw a brick which hit him on his forehead, although, the accused succeeded in fleeing from the place of incidence. The testimony of

Govardhan Singh (PW-2) further reflects that the witness went to the other village where his mother had gone to attend some family function and also

gave intimation to his other brothers, leading to lodging of report before the police station. In this manner Govardhan (PW-2) has supported the

prosecution story.

(16). So far as the testimony of Nain Singh (PW-5) and Tej Singh (PW-6) is concerned they appeared to have been informed by Govardhan (PW-2)

about the incidence and therefore, they supported the prosecution story in the manner stated by Govardhan (PW-2).

(17). The prosecution presented Dr. Prakash (PW-7) who had performed the medical examination of the accused after his apprehension by the police

on 14.04.2014 and opined that there existed an injury on the forehead, although, the same cannot be conclusively caused by a brick or a stone and has

been caused within 24 hours of examination.

(18). The medical examination of the prosecutrix was performed by Dr. Seema Choudhary (PW-13) on 13.04.2014. According to her deposition the

prosecutrix had no internal or external injuries on her person and that, the prosecutrix was habitual in intercourse and had old ruptured hymen.

Thereafter, it was stated that no definite opinion could be expressed about commission of rape.

(19). The Investigating Officer (PW-15) stated that immediately after registration of FIR he apprehended accused and also took steps for medical

examination of prosecutrix and the accused. He further stated that clothes of the prosecutrix were seized and were sent for forensic examination in a

sealed packet. As per FSL report Exhibit P-12, there existed semen on the clothes worn by the prosecutrix, however, the same were not present on

the pubic hair of the prosecutrix. Further the report provided that no definite opinion about the fact that semen present on the clothes of the prosecutrix

were of the accused could be recorded due to insufficiency of semen present on the clothes of the prosecturix.

(20). It is borne out from the aforesaid that the prosecution has tried to establish the charges against the accused on the basis of statements of

prosecutrix (PW-1), sole ocular witness Govardhan Singh (PW-2) and mother of the prosecutrix Dhapu Bai (PW-3) as the medical report and FSL

report are not sufficient to establish the charges against the accused.

(21). So far as the defense is concerned it presented Bhurelal as a sole witness who stated that he is the neighbor of Govardhan (PW-2) and on the

date of incidence there was a marriage ceremony which had to take place at his house which involved many guests thereby implying that if the

incident as alleged had occurred, he alongwith his guests would have witnesses it. He further stated that there was previous enmity between the

accused and Govardhan (PW-2). He stated that a quarrel had taken place around 8 O’clock one day prior to the date of incidence.

(22). In this background, learned counsel for the appellant submitted that the trial Court grossly erred in appreciation of evidence of prosecutrix (PW-

1) as she had stated in her examination-in-chief that at the time of incidence her sister-in-law (Bhabhi) was sleeping besides her, however, she was

never presented by the prosecution as a witness. This fact discredited the prosecution version and makes it clear that the brother of the prosecutrix

(PW-2) has tried to frame the present appellant. In order to further substantiate his statement regarding previous enmity of the appellant and

prosecution witness (PW-2) namely Govardhan Singh, learned counsel for the appellant submitted that it has been categorically admitted by the

prosecutrix (PW-1) and mother of the prosecutrix Dhapu Bai (PW-2) that accused and Govardhan (PW-2) were not on talking terms for the last 3-4

years and there was constant quarrel which used to occur between them. It has been further submitted by him that, from the statement of Bherulal

(DW-1) who is the neighbor of Govardhan (PW-2) and Dhapu Bai (PW-3), it is clear that there was quarrel which had occurred between Govardhan

(PW-2) and accused one day prior to the date of incidence.

(23). Moreover it has been submitted by learned counsel for the appellant that statement of Govardhan PW-2 deserves to be discarded for the reason

that in the cross-examination an specific question regarding previous enmity between him and accused was put, however, the same was denied by

him. Whereas, the mother and prosecutrix have admitted that accused and Govardhan had previous enmity and there was fight one day prior to the

date of incidence. It has also been submitted by learned counsel for the appellant that due to non-compliance of proviso to Section 119 of the Evidence

Act the statement of prosecutrix (PW-1) deserves to be discarded as such non-compliance caused grave prejudice to the case of the accused as he is

unable to prove his innocence by pointing out inherent lapses in the statement of the prosecutrix (PW-1).

(24). Per contra learned counsel for the State has supported the impugned judgment and submitted that the prosecution sufficiently discharged its

burden to prove the guilt of the accused which is vivid from the appreciation of statements of prosecutrix (PW-1), Govardhan Singh (PW- 2) and

Dhapu Bai (PW-3). He further stated that the statement of Bherulal (DW-1) does deserve any consideration for the reason that even though he has

stated about the quarrel between the accused and Govardhan (PW-2) but since no complaint was made to the police such statement deserves no

consideration.

(25). I have considered the rival contentions of the parties and have perused the record. However, before dealing with them, it would be appropriate to

discuss about the degree of proof which is required to be meted out in a case involving punishment which may extend to imprisonment for life which

mean imprisonment for remainder of that person’s natural life.

 (26). In this regard I may profitably refer to the series of judgments pronounced by the Apex Court starting from the case of Kashmira Singh Vs.

State of Madhya Pradesh, AIR 1952 SC 159, wherein it has been held that, in a case involving shocking nature of crime a dispassionate judicial

scrutiny of the facts and law is to be carried out.

(27). The Apex Court in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra (1984) 4 SCC 11 6has discussed about the degree of

proof in paragraphs 179 and 180 of the judgment in the following manner:

We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any Court yet suspicion,

however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.

It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject

was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.

(28). In another case of Punjab Vs. Baldev Singh (1999) 6 SCC 172 the Apex Court observed that, it must be borne in mind that severe the

punishment, greater is to be the case taken to see that all the safeguard provided in the statute are scrupulously followed.

(29). Later the Apex Court in the case of Mousam Singha Roy & Ors Vs. State of west Bengal (2003) 12 SCC 37 7observed in paragraph 28 of the

judgment that it is a settled principle of criminal jurisprudence that more serious the offence the stricter is the degree of proof. Since a higher degree

of assurance is required to convict an accused in such cases.

(30). It would be not out of place to refer to the observation of the Apex Court in the Noor Aga Vs. State of Punjab & Anr (2008) 16 SCC 417

wherein it is observed:Â Â Â Â Â Â Â Â Â Â Â

56.         The provisions of Section 35 of the Act as also Section 54 thereof, in view of the decisions of this Court, therefore, cannot be said to be ex

facie unconstitutional. We would, however, keeping in view the principles noticed hereinbefore examine the effect thereof, vis-`-vis the question as to whether the

prosecution has been able to discharge its burden hereinafter. BURDEN OF PROOF The provisions of the Act and the punishment prescribed therein being

indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of

minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of

guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof

beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the

court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to

uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the

provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization'. The courts must

always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of

assurance, thus, would be necessary to convict an accused. In State of Punjab v. Baldev Singh, (1999) 3 SCC 977, it was stated:

It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.

 (31). In the context of the judgments referred hereinabove this Court is obliged to examine the evidence with caution to ensure that there exists the

degree of assurance to uphold the conviction of the appellant.

(32). It may first be examined whether there exist any independent evidence to establish the commission of rape by the accused. Generally in a case

involving allegation of rape where the report has been promptly made before the police, medical report of the prosecutrix assumes significance.

Consequently, I have perused the medical report Ex. P-5 and have also read through the statement of Dr. Seema Choudhary (PW-14). A critical

appreciation of the above reflects that, there exists no indication which may give rise to a finding that the prosecutrix was subjected to sexual assault

in the recent time. Moreover, the FSL report Ex.P-12 is also not sufficient to observe that rape was committed by the accused on the prosecutrix

meaning thereby that in order to uphold the conviction of the appellant this Court will have to rely on the deposition by the prosecutrix (PW-1)

Govardhan (PW-2) who is the brother of the prosecutrix and Dhapu Bai (PW-3) the mother of the prosecutrix.

 (33). Out of the aforestated depositions it would be appropriate to first deal with the statement of Govardhan who has been presented by the

prosecution as sole ocular witness. His statement before the trial Court creates a suspicion as to his credibility. The reason for making such

observation is the fact that he stated falsely on oath about his previous enmity with the accused/appellant.

(34). According to his deposition there was no previous enmity between them, whereas, paragraph 8 and 11 of the statement of Dhapu Bai (PW-3)

and paragraph 25, 26 & 27 of prosecutrix (PW-1) clearly indicates that Govardhan (PW-2) had a long standing enmity with the accused/appellant.

Therefore, the conduct of the witness raises a suspicion on his testimony.

(35). Moreso, it has come on record that Govardhan PW-2 had a mobile phone which he could have used for intimating about the incidence to his

mother who had gone to attend a family function at a different village rather he went to the village where his mother had gone and did not narrate

about the incidence at such place rather brought back his mother to the house and thereafter narrated the incidence.

(36). In view of the above, the possibility that design was prepared for framing the accused cannot be ruled out. In any case, the law is well settled as

to appreciation of statement by interested/partisan witness. The Apex Court in the case of Mohinder Singh and Anr. Vs. State of Pubjab and Ors

(2004) 12 SCC 311 has made following observation :

Similar is the evidence of PW-5 who is the son of deceased Raghbir Singh. He in his examination-in-chief practically repeats what PW-4 had to say in his

examination in chief. In his case also the injuries were declared to be simple by the doctor. PW-1, who also opined that these injuries could be caused by friendly

hands. In his cross examination he has stated that there were other villagers also present on the spot but the Police did not inquire anything from them. According to

him, he did not mention anything to the Police at the spot or to the doctor when he was examined and his statement was recorded only on the next day even though

he was present when PW-4""s statement was recorded and other proceedings like inquest proceedings took place in the village. He did not tell the Police in his

previous statement that PW-4 had received injuries when he intervened in the assault. This witness admits that his father was bleeding profusely when he lay on his

(PW-5) body but states that his clothes were not smeared with blood nor his clothes seized by the Police. Bearing in mind the enmity between the two families and

non-examination of any independent witness and the serious contradictions in regard to the time of incident we think it not safe to place reliance on the evidence of

this witness without any independent corroboration which is lacking in this case.

We will now take up for consideration the evidence of PW-19. I.O. who in our opinion has played a very dubious role in the investigation. As quoted earlier, A-10

has specifically alleged bias against this witness because of their personal rivalry and there is material on record which we will presently discuss to show that there

were complaints and counter-complaints against each other. When this witness was in the box and was being cross examined he was asked a specific question

whether he knew A-10 personally. He replied that he did not know Jaswinder Singh A-10 personally and he came to know him only after he registered the present

case. Interestingly, he admitted immediately thereafter that A-10 had made a complaint against him much earlier to the registration of the present case. He was then

asked whether he had any relatives in the U.P. Police of the rank of an IPS Officer. He denied the said suggestion in the first instance but later admitted that it is

correct that one Mr. Harish Kumar, IPS Officer of U.P. is related to him though he volunteered to say that he is distantly related. Then when he was asked whether he

had taken the assistance of said Harish Kumar to deal with the complaint filed by A-10, he admitted that said Harish Kumar had told him that he would talk to the SSP

against A-10. It was also suggested to him that in the present case even after he was transferred from Hajipur he was taking keen interest to see that no bail was

granted to A-10. In reply, he admitted that he had taken the file of this case with him before the S.P. (D) in connection with the inquiry of this case. He also admitted

that he made a complaint against the Inquiry Officer of the rank of Superintendent of Police alleging that the said officer was favouring A-10. In the said complaint

this witness had mentioned about the granting of bail and cancellation of the same. In that complaint he had also alleged that the S.P. inquiring into the complaint was

a relation of A- 10 but when specifically asked whether the S.P. and A-10 belonged to the same community, he denied he had any such knowledge. He had also

admitted in his/evidence that he himself had filed a complaint against A-10. From the above material, it is crystal clear that the relationship between PW-19Â and A-

10 was not at all cordial and there were attempts to implicate each other. We also notice the conduct of PW-19 when he was tendering evidence in this case. He in his

evidence had stated that he did not remember at whose instance the rough site plan was prepared. When it was suggested to him that he may answer the question

after looking into the case diary for refreshing his memory, he refused to do so by blatantly answering that suggestion in the following manner : ""I do not want to

consult the zimnis to tell this fact. There is no reason for not seeing the zimnis."" When he was asked about the preparation of the inquest of Gurdip Singh's body

which was completed at 2 a.m. and which contained in the Last para presence of PW-4 he contradicted the same by saying that PW-4 was not present at the time of

the inquest but his name was mentioned in the last paragraph because PW-4 was present only when the proceedings were started, forgetting for a moment he had

mentioned the presence of PW-4 even at the subsequent inquest of the body of Raghbir Singh which was taken up only after completing the inquest of Gurdip Singh.

(37). Now moving to the testimony of prosecutrix PW-1, this Court is obliged to consider the fact of non-compliance of proviso to Section 119 of the

Evidence Act which reads as under :

Section 119. Dumb witnesses.â€"A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as

by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.

(38). The proviso which has been incorporated by the amendment Act No.13/2013 and given effect from 03.02.2013, applies in the facts of the

present case as the date of incidence in the present matter is 13.04.2014.

(39). At this juncture if the observation of the Hon’ble Apex Court in the case of Baldeo Singh (supra) is considered which makes it obligatory to

ensure that, all safeguards which are provided in a statute are scrupulously followed. Since in the present case, the conviction of the accused hinges

on the testimony of the prosecutrix who is a witness unable to communicate verbally, the learned trial Court ought to have ensured compliance of the

proviso to Section 119 of the Evidence Act and have videographed the statement of the prosecutrix.

(40). It is also observed that the obligation of videography of the statement is mandatory since the term “shall†is used in the proviso to Section

119 of the Evidence Act.

(41). It is well established that one of the functions of the Court is to expound the intent of the legislature and once an amendment is made in a statute

which is unambiguous, there can be no iota of doubt that intention of the legislature was to ensure mandatory compliance of such duty.

(42). In the light of the above this Court has no hesitation in observing that non-compliance of proviso to Section 119 of the Evidence Act is fatal to the

prosecution case and the statement of the prosecutrix is not worthy of reliance.

(43). So far as statement of Dhapu Bai (PW-3) is concerned it is the case of the prosecution itself that she was not present at the place of incidence

and her knowledge about the incidence is based on the narration of the event by Govardhan (PW-2) therefore, her statement cannot be a ground for

upholding the conviction of the accused/appellant.

(44). Upon cumulative consideration of the above, this Court is of the considered view that the learned trial Court erred in convicting the present

appellant and grossly erred in appreciation of evidence. The conduct of Govardhan (PW-2) as discussed above is sufficient to discard his testimony as

a reliable witness. Further the statement of Bherulal (DW-1) in which it has been clearly stated that a quarrel had occurred between the accused and

Govardhan who is the brother of the prosecutrix just one day prior to the date of incidence has been improperly discarded by the trial Court merely on

the ground that no police complaint of such quarrel was made. It is not necessary that every quarrel is required to be reported to the police. Further it

has categorically come in evidence of Dhapu Bai (PW-3) that accused and Govardhan (PW-2) were not on talking terms for the last 3-4 years and

there was reoccurrence of quarrel at regular intervals, therefore, it is possible that similar quarrel had occurred and looking to earlier quarrels not

reported to the police by either party. Therefore, the premise on which statement of Bherulal (DW-1) has been discarded is improper.

(45). Consequently, for the reasons recorded above, the present appeal is allowed and judgment dated 16.01.2015 passed in Criminal Trial

No.107/2014 is hereby set-aside. Appellant is acquitted of the charges under Section 450 and 376(2) F of IPC. Appellant is in jail. It is directed that

the appellant be released forthwith if not required in any other case.

Let a copy of the judgment be sent alongwith record to the concerned court for information and necessary compliance.