Halke vs State of Madhya Pradesh

This Criminal Appeal has been filed by the appellant being aggrieved by judgment dated 22.6.2006 passed in Sessions Trial No.67/2005 by the Additional Sessions Judge, Ganj Basoda, Distt. Vidisha convicting the appellant under Section 376 of IPC with life imprisonment and fine of Rs.1,000/- and in default of payment of fine, one month's additional R.I., however, acquitting the appellant from the charge under Section 506 Part II of IPC.

Learned counsel for the appellant submits that appellant is the real brother of father of the prosecutrix, and therefore, being uncle of the prosecutrix has been falsely implicated on account of some property dispute.

It is submitted by the learned counsel for the appellant that alleged incident had taken place on 4.3.2005 at 21.00 hours as has been mentioned in the FIR (Ex.P/3) which has been recorded on the basis of a written application given by the prosecutrix to Sub-Divisional Officer (Police), Police Station, Ganj Basoda, enclosed as Ex.P/2 dated 9.3.2005. It is submitted that in the FIR (Ex.P/3) it is mentioned that intimation was received at the police Station at 16.30 hours on 10.3.2005, however, it was actually recorded on 13.3.2005 at 18.15 hours, whereas the distance of police Station, Tyonda, Distt. Vidisha is only 2.5 kms west of village Kaboolpur where such incident had taken place. It is also submitted that as per the spot map (Ex.P/4) house of the accused is adjacent to that of the prosecutrix and as per the statement given by the prosecutrix herself she was not alone at the time of incident, and therefore, probability of such incident of rape taking place in presence of other relatives of the prosecutrix in the house hold, which is admitted to be a one room hutment by her father (PW-2) seems to be improbable.

Learned counsel for the appellant further submits that appellant has examined his mother Shakkar Bai (DW-1) in defence and has submitted that in her examination-in-chief she has deposed that she lives in the same house in which her son Pappu lives and no partition has taken place between the family members and since accused and PW-2 were demanding their share, therefore, there was a fight between the two brothers to point out that grand-mother of the prosecutrix was present at home, and therefore, there was no occasion for the accused to have entered in the house and committed such act.

It is also submitted by learned counsel for the appellant that prosecutrix was subjected to MLC which is available as Ex.P/6 and Dr. Sapna Alia (PW-6) has mentioned that no definite opinion about recent sexual activity can be given. Hymen torn appears to be healed. It is submitted that such MLC was conducted on 9.3.2005 at 8.30 pm and since the hymen was found to be healed, therefore, probability of prosecutrix being subjected to rape on 4.3.2005 stands ruled out.

Learned counsel for the appellant also submits that accused was arrested on 14.3.2005 at 00.35 hours vide Ex.P/9, but was subjected to MLC on 15.3.2005 at 2.28 pm vide Ex.P/1. It is submitted that doctor who had performed MLC i.e. Dr.Pradeep Kumar Jain (PW-1) has categorically opined that injuries found on the body of the accused may be caused by hard and blunt object, simple in nature and duration is within 2-5 days since the time of examination. It is pointed out that since examination was conduced on 15.3.05 whereas the incident had allegedly taken place on 4.3.05, therefore, the injury marks which were found on the body of the accused were not pertaining to the alleged incident and that again proves his innocence.

It is also submitted by learned counsel for the appellant that as per the FSL report (Ex.P/11) though it is mentioned that there were human sperm marks on Article A and B, namely undergarment and slides of the prosecutrix, but such sperm marks were that of the accused has not been proved by the prosecution and on this ground also the impugned judgment deserves to be set aside.

Learned counsel for the appellant has exhaustively read examination-in-chief and cross-examination of (PW-2), father of the prosecutrix, wherein he has admitted that accused is his real brother and PW-2 has admitted that there is only one room in his house and all of his five kids were present in the house. It is submitted that though PW-2 has mentioned in his examination-in-chief that when on 4.3.05 he returned between 8-9 pm to his home, he found his daughter crying and she narrated the incident, but on the contrary (PW-3) prosecutrix has mentioned that incident had taken place at about mid-night and her parents had reached home after 30-45 minutes of the incident when she had narrated whole incident to her mother (PW-4). It is also submitted that prosecutrix (PW-3) has admitted in para 5 that she has studied at village school, but no mark-sheet from such school has been produced to show the age of the prosecutrix. It is also submitted that delay in FIR has not been explained and in para 17 prosecutrix has admitted that there is a dispute between her father and the accused on account of the fact that mother of the prosecutrix has entered into a liaison with PW-2. It is also submitted that PW-4, mother of the prosecutrix, has not supported the version of her husband (PW-2) and has narrated that incident took place at about mid-night, whereas PW-2 has stated that when they returned between 8-9 pm, then he was informed by the prosecutrix about the incident.

Learned counsel for the appellant has placed reliance on para 6 of the decision of the Supreme Court in the case of K.Venkateshwarlu Vs. State of Andhra Pradesh as reported in (2012) 8 SCC 73 and submits that even Supreme Court has discussed that when there is no medical evidence on record to establish that the spermatozoa detected on the skirt of PW-2 was that of the appellant, then that added to the weakness of the prosecution case.

Reliance has also been placed on the judgment of the Supreme Court in the case of Bavo alias Manubhai Ambalal Thakore Vs. State of Gujarat as reported in (2012) 2 SCC 684 to submit that Supreme Court has held that award of life imprisonment which is maximum prescribed is not warranted and had modified life imprisonment to RI for ten years, and therefore, it is prayed that looking to the fact that appellant is in custody since the date of arrest i.e. 14.3.05 and spent almost 14 years in custody, a lenient view be taken and his sentence be declared to have been undergone.

Learned Public Prosecutor on the other hand submits that impugned judgment does not call for any interference. Reality of rural life, specially for a persons belonging to underprivileged section is hard to envisage in an urban setting. There is evidence on behalf of the prosecutrix (PW-3) as well as her father (PW-2) that when they had approached Tyonda police Station on 5th March, their complaint was not lodged, as a result they had to seek counsel and approach SDO(P) at Ganj Basoda, where when a written application (Ex.P/2) was submitted, then police came into action and FIR (Ex.P/3) was lodged. It is submitted that therefore, delay in lodging of FIR is not of much relevance.

It is also submitted by learned Public Prosecutor that as per Ex.P/7 and Ex.P/8 requisition for ossification test and medical report, it is evident that Dr. Sapna Alia (PW-6) has categorically mentioned that in distal ends of radius and ulna process of fusion has not started. Metacarpal bone has fused, then she gave opinion that age of the prosecutrix was 14 years +- six months. This evidence could not be unsettled in cross-examination of Dr. Sapna Alia (PW-6). It is also submitted that MLC (Ex.P/6) of the prosecutrix clearly makes a mention that hymen was torn at 5 O' clock position + 8 O'clock position appears to be healed. It is submitted that a girl of 14 or 15 years of age undergoing such brutal experience will show same position as has been noted by Dr. Sapna Alia (PW-6) in Ex.P/6. It is also submitted that merely healing of the hymen with passage of time is not unnatural as incident had taken place on 4.3.05, whereas MLC was conducted on 9.3.05. Therefore, merely no definite opinion has been given by Dr. Sapna Alia (PW-6) does not mean that prosecutrix was not subjected to brutal act of forceful intercourse.

It is also submitted that as far as FSL report (Ex.P/11) is concerned, sperm marks were found on the undergarment (panty) of the prosecutrix and the slide which was obtained from the prosecutrix and there was no request for any DNA test by the accused to deny such marks on panty, of his own and this aspect has not been considered in the judgment rendered by the Hon'ble Supreme Court in the case of K.Venkateshwarlu (supra) on which reliance has been placed by the learned counsel for the

appellant.

It is further submitted by learned Public Prosecutor that it is an admitted position that PW-2 is step-father of the prosecutrix inasmuch as prosecutrix (PW-3) is not born out of the wedlock between PW-2 (step-father of the prosecutrix) and PW-4(mother of the prosecutrix) but is a child born from previous marriage of PW-4 but nonetheless it does not render the prosecutrix an easy prey for satisfying the lust of the appellant who happens to be the step-uncle of the prosecutrix . It is also submitted that judgment in the case of Bavo alias Manubhai Ambalal Thakore (supra) is distinguishable on facts, and therefore, impugned judgment does not call for any interference and appeal deserves to be dismissed and be dismissed.

In view of the aforesaid arguments and the material on record, we are of the opinion that there is sufficient and cogent reason for delay in lodging of the FIR as explained by PW-2 and PW-3, therefore, no interference is called for on this aspect.

As far as MLC of the prosecutrix is concerned, it clearly reveals that hymen was torn and was found in 5 O'clock and 8 O'clock position which when read with FSL report (Ex.P/11) corroborates that prosecutrix was subjected to forceful intercourse. Further so far as evidence of Dr.Pradeep Kumar Jain (PW-1) in relation to MLC (Ex.P/1) of the accused is concerned, accused was found to be capable of intercourse and merely Dr. Pradeep Kumar Jain (PW-1) has mentioned that such injuries as are found on the body of the accused were 2-5 days of duration does not belie the story of the prosecution in totality inasmuch as such injuries have been said to be caused by hard and blunt object, whereas nails are not hard and blunt object but hard and sharp object, therefore, even if the protest marks on the body of the accused had healed to some extent, that is not sufficient to discard the testimony of the prosecutrix inasmuch as she personally has no enmity with her step-uncle i.e. the accused and the enmity between her father (PW-2) and the accused is reported to be on account of PW-2 entering into a liaison with PW-4 for which prosecutrix (PW-3) was not responsible. It is not the case of the accused that because of such enmity between PW-2 and the accused, prosecutrix has falsely attributed something to her step-uncle. In fact, suggestion given to PW-2 that a false report has been lodged of the incident has been denied by PW-2, father of the prosecutrix, in para 13 of his cross- examination.

As far as burden of proof is concerned, the Supreme Court in the case of Ganga Singh Vs. State of M.P. as reported in (2013) 7 SCC 278 in para 11 has held as under :-

"11. Mr. Mehrotra is right in his submission that burden is on the prosecution to prove beyond reasonable doubt that the appellant is guilty of the offence under Section 376, IPC and this burden has to be discharged by adducing reliable evidence in proof of the guilt of the appellant. In the present case, the prosecution seeks to establish the guilt of the appellant through the evidence of PW- 5, the prosecutrix. The law is well - settled that the prosecutrix is a victim of, and not an accomplice in, a sex offence and there is no provision in the the Indian Evidence Act requiring corroboration in material particulars of the evidence of the prosecutrix as is in the case of evidence of accomplice. He submitted that the prosecutrix is thus a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured witness in cases of physical violence [see State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) 1 SCC 550]. Keeping this principle in mind, when we look at the evidence of PW-5, we find that she has categorically stated that the appellant fell her down, covered her mouth with one hand and restricted her hands with the other hand and lifted her petticoat and committed rape on her. It is true that on her medical examination the next day, PW-9 did not find any injury on the person of PW- 5, but PW-5 has explained that she fell on her back in the agricultural field which had a smooth surface and there were wheat and mustard crops in the field and this could be the reason for her not suffering injury. "

Thus, it is apparent that since there is no provision in the Evidence Act requiring corroboration in material particulars of the evidence of the prosecutrix as in the case of evidence of an accomplice, therefore, failure of the prosecution to resort to the provisions contained in Section 53-A of Cr.P.C. and subjecting the slides and other samples to DNA examination, is not sufficient to discard the case of the prosecution which prosecution has been able to establish beyond reasonable doubt.

The evidence of PW-2 and PW-3 has some contradictions in regard to the timing, but the fact is that PW-3 has given evidence which has not been contradicted during cross-examination by the defence and moreover when such evidence corroborates the factum of age of the prosecutrix to be minor which is supported by evidence of PW-6, the doctor who had performed MLC on the prosecutrix, it leave no manner of doubt that prosecution has been able to prove its case beyond reasonable doubt. In fact, statement of the prosecutrix admitting the dispute between her step-father and the accused shows that she is a witness who is narrating the correct facts and is not a tutored witness. As far as evidence of Shakkar Bai (DW-1) is concerned, she has admitted in her cross-examination that at the relevant time PW-2 and his wife had gone to the field when prosecutrix was alone at the house. Later on, she has improvised her statement saying that she was there itself and it is wrong to say that accused has committed any wrong, but the fact is that this witness Shakkar Bai (DW-1) in cross-examination has admitted the factum of the prosecutrix being alone at the time of incident which corroborates the story of the prosecution and there is possible reason for not supporting the story of the prosecution vis-a-vis the accused as prosecutrix is her step-grand daughter, whereas accused is her real son. Therefore, in terms of the admission that prosecutrix was alone, no extra word can be read in the testimony of Shakkar Bai (DW-1) to give any advantage to the accused.

As far as prayer of learned counsel for the appellant to convert the sentence from life imprisonment to one of undergone as appellant has spent a period of just less than 14 years is concerned, the facts of the case of Bavo alias Manubhai Ambalal Thakore (supra) are distinguishable inasmuch as in the present case the accused misused the liberty originating out of a relationship of trust. It is true that prosecutrix is a step-daughter of PW-2 but the responsibility does not flow out of DNA but flows out of a relationship of respect and affection towards the person who is admittedly a step-daughter of real brother of the accused, and therefore, there being a gross violation of the privacy and devastation of the body and soul of the prosecutrix, this Court does not intend to grant this prayer of the appellant, and therefore, finding no fault in the impugned judgment, appeal fails and is dismissed. The appellant is in jail, he shall suffer the sentence as imposed by the trial Court. Record of the trial Court be sent back.