Kalyan Alias Kallu vs State Of Madhya Pradesh

This Criminal Appeal under Section 374(2) of CrPC has been filed against the judgment and sentence dated 17th January, 2005 passed by Second

Additional Sessions Judge, Shivpuri in Sessions Trial No. 251/2004, by which the appellant has been convicted under Section 376 of IPC and

sentenced to undergo the rigorous imprisonment of seven years and fine of Rs.2,000/- with default imprisonment.

(2) The necessary facts for the disposal of the presentappeal in short are that on 27/09/2004 at about 11:00 am the appellant forcibly committed rape

on the prosecutrix against her consent. According to the prosecution case, on 28/09/2004, the prosecutrix lodged a FIR in Police Station Govardhan

(Shivpuri) on the allegation that on 27/09/2004 at about 11:00 am, she had gone to her field to give water to her cattle and at that time, the appellant

came there and with an intention to do ''Burakam'' took her at the side of a hut, threw her on the ground and when she raised an alarm, he gagged her

mouth and committed rape on her. The prosecutrix was, all times continuously shouting but since the hut where the incident had taken place, was

situated at an isolated place, therefore, nobody came there to rescue her. At that time, her mother-in-law Ajoodhi Bai came on the spot, who saw the

appellant committing rape on the prosecutrix and, therefore, she abused him and pushed him, as a result of which the appellant ran away after

leaving her. In the evening, her elder brother-in-law (Jeth) Hiraman came back to the house and thereafter, she went to the police station along with

her brother-in-law (Jeth) and lodged the FIR. After registering the case, the police sent the prosecutrix for medical examination and the appellant was

arrested. Spot map was prepared and the police, after completing the investigation, filed the charge sheet against the appellant for offence under

Section 376 of IPC.

(3) The trial Court by order dated 02/12/2004 framed the charge under Section 376 of IPC.

(4) The appellant abjured his guilt and pleaded not guilty.

(5) The prosecution, in order to prove its case, examined prosecutrix (PW1), Gayajit (PW2), Ajoodhi Bai (PW3),

Hariballav (PW4), Brijlal Sharma (PW5), Sitaram Rawat (PW6), Dr. Anjna Jain (PW7) and O.P. Jain (PW8). The appellant did not examine any

witness in his defence.

(6) The trial Court by judgment dated 17th January, 2005, convicted the appellant for offence under Section 376 of IPC and sentenced him to undergo

the rigorous imprisonment of seven years and fine of Rs.2,000/- with default imprisonment.

(7) Challenging the judgment and sentence passed by the trial Court, it is submitted by the counsel for the appellant that in fact, the prosecutrix herself

was a consenting party and since she was seen by her mother-in-law in compromising position with the appellant and, therefore, a false FIR was

lodged. If the offence was committed by throwing the prosecutrix on the rough surface, then the prosecutrix herself should have sustained some

external injury but no injury was found by doctor on the body of the prosecutrix. It is further submitted that the trial Court has convicted the appellant

by ignoring the material omissions and contradictions in the evidence of the witnesses.

(8) Per contra, it is submitted by the counsel for the State that the trial Court after considering the evidence in detail, has rightly convicted the appellant

for offence under Section 376 of IPC. The prosecutrix has specifically stated that she was sexually violated by the appellant and it is wellestablished

principle of law that the prosecutrix cannot be treated as an accomplice and, therefore, if the evidence of the prosecutrix is worth-reliance, looking for

corroboration is nothing, but it is adding an injury to her insult.

(9) Heard the learned counsel for the parties.

(10) Dr. Anjna Jain (PW7) has medically examined theprosecutrix. She did not find any sign of injury over the private part of the prosecutrix and

hymen was found old ruptured. No tenderness was found. Slides were prepared and handed over to the Constable. The prosecutrix was wearing

Tobacco coloured petticoat at the time of examination and it was having multiple white-stain areas, therefore, it was sealed and handed over to the

Police Constable and this witness did not find any sign of injury or violence on any part of the body of the prosecutrix. The MLC report is Ex.P7.

(11) The prosecutrix (PW1) has stated that the appellant isknown to her. About three months back, she had gone to her field for giving water to her

cattle and it was around 12:00 noon. The moment, she entered into her hut situated in the field, the appellant came there and caught hold of her. She

raised an alarm, but since nobody was there, therefore, nobody came to rescue her. The appellant thereafter forcibly committed sexual intercourse

without her consent. The appellant before committing the offence, had taken off his clothes and had also taken off her clothes. Her mother-in-law

came on the spot and abused the appellant and thereafter, the appellant after pushing her mother-in-law, ran away. Thereafter, in the night, her elder

brother-in-law (Jeth) came back to the house and then, she went to the police station along with her elder brother-inlaw (Jeth) for lodging the report.

The FIR was lodged and the police prepared the spot map. The prosecutrix was sent for medical examination and her statement was recorded.

(12) By referring to paragraph 7 of the cross-examinationof prosecutrix, it is submitted by the counsel for the appellant that the prosecutrix has

admitted that she got married about 20 years back and the appellant resides in a house situated in front of her house. She has further admitted that

her mother-in-law had a suspicion on her character. She has further admitted that her mother-in-law had a suspicion that the prosecutrix has illicit

relations with the appellant. By referring to the evidence of Ajoodhi Bai (PW3), it is submitted by counsel for the appellant that Ajoodhi Bai (PW3)

has stated that the prosecutrix is her daughter-in-law. It was around 12:00 noon. The prosecutrix had gone to the field for giving water to her cattle

and as the ox was injured, therefore, this witness went to the field along with ointment for applying on the broken horn of the ox. She saw that her

daughter-in-law (prosecutrix) was on the ground and the appellant was sitting over her and was committing rape on her. Thereafter, she abused the

appellant and asked that what is he doing with her daughter-in-law? The appellant thereafter ran away after pushing her. Both her sons had gone to

see a fete (mela). The appellant had also come to her house and abused her. When her son came back to the house in the evening, then she and

her daughter-in-law narrated the incident to him. The police came to the village where her daughter-in-law lodged the FIR. In cross-examination, this

witness has stated that her son had gone to see a fete (mela). At about 11:00- 12:00 pm, her daughter-in-law (prosecutrix) had gone to the field and

about half an hour thereafter, this witness had gone to the field. She has stated that the hut, where the offence was committed, is used for tying the

cattle. When she came from back the field, she did not narrate the incident to any neighbourer.

(13) Gayajit (PW2), is the elder brother-in-law (Jeth) of theprosecutrix. He has narrated this incident in the same manner, in which Ajoodhi Bai (PW3)

has deposed. He had stated that when he came back to the house, he was informed by his mother Ajoodhi Bai (PW3) about the incident and

thereafter, on the next day, he went to the police station with the prosecutrix to lodge the FIR.

(14) Hariballav (PW4) is the husband of the prosecutrix(PW1). He has stated that he had gone to see a fete (mela) and thereafter, he stayed back in

the house of his sister, therefore, he came to the house after a day. He was informed by the prosecutrix (PW1) and his mother Ajoodi Bai (PW3)

about the incident.

(15) Brijlal Sharma (PW5) is the person, who had preparedthe spot map. In cross-examination, he has stated that the place of incident is a charnoi

land and the name of the prosecutrix is not mentioned in the revenue record.

(16) Sitaram Rawat (PW6) has stated that the counter ofFIR is Ex.P3, which was sent to the concerning Magistrate by dispatch no.2035. The copy

of dispatch register is Ex.P4 and photocopy of the same is Ex.P4C. The copy of dak book is Ex.P5C. The sealed packet containing clothes of the

prosecutrix was received from the Hospital on 29/09/2004, which was seized by seizure memo Ex.P6.

(17) O.P. Jain (PW8) is the person, who had investigatedthe matter. This witness has not stated that the seized clothes or vaginal slide of the

prosecutrix were ever sent to FSL. Thus, the FSL report is not available on record.

(18) If the evidence of the prosecutrix (PW1) and AjoodhiBai (PW3) is considered, then it is clear that Ajoodhi Bai (PW3) had a suspicion on the

character of the prosecutrix (PW1) and she had a suspicion that the prosecutrix (PW1) had illicit relations with the appellant. On the date of incident,

Ajoodhi Bai (PW3) reached the spot and found that the prosecutrix was on the ground and the appellant was committing rape on her. Ajoodhi Bai

(PW3) has not stated that at the time when she reached the spot, any resistance was being offered by the prosecutrix. Ajoodhi Bai (PW3) has also

not stated that the prosecutrix was shouting or raising any alarm. The hut, where the incident is alleged to have taken place, is situated at an isolated

place, as admitted by the prosecutrix. If the explanation given by the prosecutrix of raising an alarm is accepted, then it was expected that during the

entire time of incident, she should have offered her resistance to the physical violence by the appellant, whereas Ajoodhi Bai (PW3) who reached the

spot, has not stated that any resistance was being offered by the prosecutrix or she was shouting or raising an alarm. She has also not stated that prior

to reaching the spot, she heard alarm or shouts raised by the prosecutrix. This witness had admitted that the hut, where the incident is alleged to have

taken place, is used for tying the cattle. Thus, it is clear that the place where the incident had taken place, must be a rough place and under these

circumstances, it was expected that the prosecutrix would have suffered some external injury, but Dr. Anjna Jain (PW7) has specifically stated that

no sign of physical violence was found on the body of the prosecutrix. Thus, this Court is of the view that the evidence which has come on record,

indicates that the prosecutrix herself was a consenting party, because when she went to a hut which is situated at an isolated place, there was nobody

around the place of incident and possibility of inviting the appellant by the prosecutrix herself is not ruled out. Ajoodhi Bai (PW3) has specifically

stated that when she reached the spot, she found that the prosecutrix was lying on the ground and the appellant was committing rape. However, there

is no allegation that the prosecutrix was offering any resistance. Further, although the clothes and vaginal slide of the prosecutrix were seized, but no

FSL report is available on record.

(19) The Supreme Court in the case of Narendra Kumar vs. State (NCT of Delhi), reported in (2012) 7 SCC 171 has held as under:-

''29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish

and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have

falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence.

However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is

established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an

initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The

accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v.

State of Karnataka, AIR 2003 SC 1639).

Prosecution has to prove its case beyondreasonable doubt and cannot take support from the weakness of the case of defence. There must be

proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix

provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may

look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix

case becomes liable to be rejected.

The court must act with sensitivity andappreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the

prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused

committed rape on the victim on the occasion complained of.

The instant case is required to be decided inthe light of the aforesaid settled legal propositions. We have appreciated the evidence on record and

reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the

appellant prior to the incident. The given facts and circumstances, make it crystal clear that if the evidence of the prosecutrix is read and considered in

totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that

her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact-situation, the appellant

becomes entitled to the benefit of doubt.''

In the case of Lalliram and Another vs. State of Madhya Pradesh, reported in (2008) 10 SCC 69 has held as under:-

''11.It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each

case. As was observed by this Court in Pratap Misra and Ors. v. State of Orissa(1977 (3) SCC 41) where allegation is of rape by many persons and

several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But

if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar & Ors. v. State of Haryana(2004 (4) SCC

379).

As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the factual scenario. In criminal

cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar's case (supra) it was

observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony

cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal then the injured witness. In the latter case there is

injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the

version of a prosecutrix on the face value it may search for evidence direct or circumstantial.''

(20) This Court is of the view that in fact, the physical relations between the appellant and the prosecutrix had taken place with the consent of the

prosecutrix. Since the prosecutrix is a married and major woman, therefore, her consent is of considerable importance. A consensus act of physical

relations between two major persons cannot be said to be a ''rape''. Accordingly, this Court is of the considered opinion that the prosecution has failed

to prove beyond reasonable doubt that the appellant had committed rape on the prosecutrix without her consent. Accordingly, the appellant is acquitted

of the charge under Section 376 of IPC.

(21) Consequently, the judgment of conviction and sentence dated 17th January, 2005 passed by Second Additional Sessions Judge, Shivpuri in

Sessions Trial No.251/2004 is hereby set aside.

(22) The appellant is on bail. His bail bonds and suretybonds are discharged.Â

(23) The appeal is Allowed.