Komal Yadav vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 4/3/2008 passed by the Sessions Judge, Shahdol in ST No. 148/2007, whereby the appellant was convicted for commission of offence punishable under Sections 323, 506(B) and 376 of IPC and sentenced for three months'' RI, one year''s RI and ten years'' RI, with fine of Rs. 5000/-. In default of payment of fine, six months rigorous imprisonment was also directed. The prosecution''s case, in short, is that on 8.4.2007 at about 4:00 AM in the morning one Duasiya Bai came to the house of the Kalawati (PW-4), aunt of the prosecutrix to bring the girls to reap the crop in the field situated at village Hardi (Police Station Kotwali District Shahdol). Initially the girls had shown their unwillingness to go in the morning, but thereafter the prosecutrix and her cousin Laltu (PW-16) went with Duasiya Bai. After sometime the appellant came to the spot and requested that the prosecutrix and Laltu that they should go to help him in reaping his crop. Thereafter they went with the appellant. Near the house of the appellant, the appellant held the hands of the prosecutrix and threw her on the earth and tried to commit rape. The appellant also assaulted the prosecutrix with a stick on her left thigh. Laltu went to the house of the prosecutrix, and therefore Dudhan, brother of the prosecutrix and Ramkhilawan (PW-8), elder brother of father of the prosecutrix rushed to the spot. After viewing them, the appellant ran away from the spot. He gave a threat that the prosecutrix should not lodge a report in the Police Station otherwise he would kill her. The prosecutrix along with Kalawati went to the Police Station Kotwali and lodged an FIR Ex.P-7 accordingly. The prosecutrix was sent for her medico legal examination. The duty doctor available at District Hospital Shahdol examined the prosecutrix and gave his report. He found abrasion of 8 x 1 cm in size on her left thigh. On 12.4.2007 the prosecutrix sent a written report Ex.P-8 to the Superintendent of Police, Shahdol in which it was alleged that the appellant committed rape upon her. Thereafter the prosecutrix was sent again for her medico legal examination. Dr. Sudha Namdeo (PW-3) examined the prosecutrix and gave her report Ex.P-3. No external or internal injury was found on the person of the prosecutrix. Her hymen was old torn. Only one finger could be inserted in her vagina. Two slides of the vaginal swab were prepared and handed over to the concerned Constable after due sealing for forensic examination. The prosecutrix was also referred for the ossification test. Dr. Sudha Namdeo herself examined the X-ray reports of the prosecutrix and gave her report Ex.P-4. She found radiologically age of the prosecutrix to be 17 to 19 years. The appellant was also arrested and sent for his medico legal examination. Dr. Pradeep Khare (PW-2) examined the appellant and gave his report Ex.P-2. No abnormality was found to the appellant. Two slides of his semen were prepared and handed over to the concerned Constable after due sealing. After due investigation, a charge sheet was filed before the Chief Judicial Magistrate, Shahdol, who committed the case to the Sessions Court, Shahdol.

The appellant-accused abjured his guilt. He took a specific plea that his father was killed in the past. Ramkhilawan, uncle of the prosecutrix was the witness in the case, who changed his statement in the Court, and therefore the culprit was acquitted on this count. There was a dispute between the family of the prosecutrix and the family of the appellant since long, and therefore the appellant was falsely implicated in the matter due to that enmity. However, no defence evidence was adduced.

The learned Sessions Judge, Shahdol after considering the evidence adduced by the prosecution, convicted the appellant for commission of offence punishable under Sections 323, 506(B) and 376 of IPC and sentenced as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that there are two FIRs lodged by the prosecutrix. In the first FIR, the time of the incident was shown to be 4:00 AM in the morning and no allegation of rape was made in the first FIR. But in the second FIR, time of offence was shown to be 11-12 PM in the night, whereas no witness has corroborated that time of incident in their evidence. It appears that a false report was lodged by the prosecutrix after due deliberations with her parents and relatives thereafter. The appellant was falsely implicated in the matter due to enmity, and therefore no offence is made out against him. In the alternate, it is submitted that the appellant is in custody for last four years and at the most offence under Sections 354 and 323 of IPC may constitute. The appellant is in custody for the period of four years, which is higher than the maximum sentence given for such offences, and therefore he may be released forthwith.

In rebuttal, the learned counsel for the State has supported the decision of the trial Court. He has submitted that the enmity between the parties was not such so that the witness Ramkhilawan was required to do anything against the appellant. On the contrary, looking at the enmity, it was for the appellant to do something wrong to the family members of Ramkhilawan and under such circumstances the appellant has committed the crime with the prosecutrix.

After considering the submissions made by learned counsel for the parties, it is to be considered as to whether the appeal of the appellant can be accepted? And whether the sentence passed by the trial Court can be reduced?

Kalawati (PW-4), Ramkhilawan (PW-8), the prosecutrix (PW-9) and Laltu (PW-16) were examined as witnesses relating to the incident. Kalawati and the prosecutrix have stated that at about 4:00 AM in the morning Duasiya Bai took the prosecutrix and Laltu etc. for reaping the crop. The prosecutrix and Laltu have stated that the appellant took them to reap the crop of his field, but near his house he held the hands of the prosecutrix and threw her on the earth. He assaulted the prosecutrix with a stick on her left thigh and thereafter he undressed the prosecutrix. Laltu went to her house to inform her elders and thereafter Ramkhilawan (PW-8), Dudhan etc. went to the spot and the appellant ran away. The prosecutrix has stated that the appellant committed rape upon her and she told about that rape to her uncle Ramkhilawan.

If the story told by the prosecutrix was told to the Ramkhilawan as it is, then it is told that Ramkhilawan and Kalawati went with the prosecutrix to the Police Station and it was not possible for anyone to write a wrong report against the narration of the prosecutrix. In the report Ex.P-7, it is not mentioned that the appellant had committed any rape upon the prosecutrix. The witnesses Kalawati, Ramkhilawan and Laltu have confirmed the time of the incident to be 4:00 AM in the morning. The entire story is duly corroborated by the FIR Ex.P-7. The prosecutrix had lodged a separate written report Ex.P-8 on 12.4.2007 i.e. four days after the incident. However, in the FIR Ex.P-8 it was mentioned that the prosecutrix and other girls were taken in the evening itself and the incident took place in between 11-12 PM in the night, but none of the witnesses has established that any incident took place at 11-12 PM in the night or girls were taken in the evening to reap the crop. Under such circumstances, where no substantial evidence supports the facts as mentioned in the report Ex.P-8, then it is apparent that the FIR Ex.P-8 was prepared after due deliberations with the various persons against the appellant. It is admitted by the witness Ramkhilawan that the father of the appellant was killed and witness Ramkhilawan was the witness in that case. However, he turned from his statement. The prosecutrix has admitted that the relation of the family members of the prosecutrix and the family members of the appellant were not cordial. The family members of the prosecutrix were not going to the house of the appellant or they were not invited in any function of the appellant''s family. Under such circumstances, it appears that the enmity told by the appellant appears to be correct. But it is also clear from the description of enmity that the appellant and his family members were annoyed, because Ramkhilawan turned his evidence, and therefore it was not for the Ramkhilawan to take any revenge from the family of the appellant. On the contrary, it was for the appellant to do something wrong with the family members of the witness Ramkhilawan, but it appears that when the incident took place with the prosecutrix, the FIR was lodged. Thereafter a second FIR was also lodged to make the case grave against the appellant otherwise there was no reason so that the prosecutrix could not mention about the incident of rape from very beginning. The first report lodged by the prosecutrix was written by the police officers and she was sent for her medico legal examination. An injury on her left thigh was also found. According to her version, the FIR Ex.P-7 is duly corroborated by all the witnesses about the time of incident and manner in which the prosecutrix and other girls were taken in the field.

Dr. Sudha Namdeo (PW-3) did not find any external or internal injury on the person of the prosecutrix corresponding to the offence of rape. It is nowhere clear as to whether the slides of the vaginal swab were sent to the FSL or not, but no report of the FSL was submitted before the trial Court till the end of the trial, and therefore according to the medical evidence and the first FIR Ex.P-7, it is apparent that the allegation of rape is not proved beyond doubt. This possibility cannot be ruled out that when a case was lodged against the appellant, then the witness Ramkhilawan and other had tried to make a grave case, and therefore a concocted FIR Ex.P-8 was lodged in the written form to the Superintendent of Police Shahdol. Further, looking at the circumstances, where the incident did not take place at 11-12 PM and there was no possibility at that time that the appellant could hold the prosecutrix in the night hours, it is not proved beyond doubt that the appellant had committed the rape upon the prosecutrix. The trial Court has erred in convicting the appellant for the offence u/s 376 of IPC.

However, the testimony of the prosecutrix and Laltu is duly corroborated by the FIR Ex.P-7. It is further corroborated by the evidence given by Ramkhilawan and Kalawati that the appellant took the prosecutrix, held her hands and threw her on the earth to commit the rape, therefore he had used a criminal force to outrage the modesty of the prosecutrix, and therefore he had committed an offence u/s 354 of IPC. Similarly, it is proved beyond doubt that the appellant assaulted the prosecutrix with a stick causing her an injury on her left thigh, and therefore he is guilty of offence u/s 323 of IPC.

It was suggested to the witnesses Laltu that the prosecutrix and witness Kalawati had sickles in their hands, and therefore the prosecutrix could not be held by the appellant, but it is stated by the witness Laltu that the appellant gave a threat that he would kill them by firing from a gun and throw their dead bodies in the well, and therefore due to fear they could not use the sickles to save themselves. The explanation given by witness Laltu appears to be acceptable, and therefore the testimony of the prosecutrix is acceptable that the appellant gave her a threat that he would kill her. Under such circumstances, the trial Court has rightly convicted the appellant for commission of offence punishable u/s 506-B of IPC.

So far as the sentence is concerned, the appellant is in custody for last four years, whereas he was sentenced for the offence u/s 323 and 506-B of IPC for a maximum period of one year''s rigorous imprisonment, and therefore the sentence directed for commission of offence punishable u/s 506-B and 323 of IPC is already executed. So far as the offence u/s 354 of IPC is concerned, the maximum sentence is provided for that offence is two years imprisonment, whereas the appellant remained in the custody for four years, therefore he has already undergone in the custody for the period more than the period prescribed for the offence u/s 354 of IPC, and therefore it would be proper that the sentence for the offence u/s 354 of IPC may be imposed to the period which the appellant has already undergone in the custody.

On the basis of above discussion, the instant appeal filed by the appellant is partly allowed. The conviction as well as the sentence directed by the trial Court for the offence under Sections 323 and 506-B of IPC is hereby maintained, but the conviction u/s 376 of IPC is set aside. Instead of conviction u/s 376 of IPC, the appellant is convicted for commission of offence u/s 354 of IPC and sentenced for the period which he has already undergone in the custody. No fine is imposed upon the appellant for the offence u/s 354 of IPC, therefore the appellant would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

The Registry is directed to issue a supersession warrant against the appellant forthwith so that the appellant may be released without any delay. A copy of this judgment be sent to the trial Court with its record for information and compliance.