Lakhan Lal Khangar 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 12/8/1996 passed by the Additional Sessions Judge, Khurai District Sagar in ST No. 163/1995, whereby the appellant was convicted for commission of offence punishable u/s 376(1) of IPC and sentenced for five years'' rigorous imprisonment with fine of Rs. 1000/-. In default of payment of fine, three months rigorous imprisonment was also directed. The prosecution''s case, in short, is that on 31.1.1995 at about 6:00 PM in the evening the prosecutrix (PW-1) was reaping some grass in a field situated near the Convent School of Township Bina. The appellant came to the spot and tried to hold Shashi (PW-2), daughter of the prosecutrix, but she ran away. Thereafter the appellant held the prosecutrix and threw her in the field of gram. On her shouting, the appellant assaulted her by slaps and fists and ultimately he committed rape upon the prosecutrix. The appellant gave a threat to the prosecutrix not to lodge any FIR. The incident was seen by the Watchman of the Degree College namely Nandu Saur and others. After sometime Shashi and Prakash, cousin of the prosecutrix reached to the spot and thereafter the appellant ran away from the spot. The prosecutrix went to her house and intimated the entire story to her husband Binda (PW-4) and thereafter she went to the Police Station Bina along with her husband and lodged an FIR Ex. P-1. She was directed for her medico legal examination to the Civil Hospital, Bina. Dr. K. Ojha (PW-5) examined the prosecutrix and gave her report Ex. P-2. No external or internal injury was found on the person of the prosecutrix. However, two slides of her vaginal swab were prepared by Dr. Ojha and handed over to the concerned Constable after sealing them. A green petticoat was also taken by Dr. Ojha from the prosecutrix and handed over to the concerned Constable for its forensic analysis after due sealing. The appellant was also arrested and he was sent for his medico legal examination. Dr. Mahendra Kumar Paul (PW-7) examined the appellant and gave his report Ex. P-9. No abnormality was found with the appellant. Dr. Paul prepared two slides of semen obtained from the appellant and handed over to the concerned Constable after due sealing for their forensic analysis. After due investigation, a charge sheet was filed before the Judicial Magistrate First Class, Bina, who committed the case to the Sessions Court, Sagar and ultimately it was transferred to the Additional Sessions Judge, Khurai.

The appellant-accused abjured his guilt. He did not take any specific plea in the case, but he has stated that he was falsely implicated in the matter. No defence evidence was adduced.

The learned Additional Sessions Judge, Khurai after considering the evidence adduced by the prosecution, convicted the appellant for commission of offence punishable u/s 376(1) 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 the FIR was lodged within one hour of the incident and it appears that it was ante-timed. The circumstances told by the prosecutrix and her daughter appears to be unnatural. It appears that the appellant was falsely implicated in the matter due to enmity. The prosecutrix was an aged woman, whereas the appellant was only 22 years old, and therefore it was not possible for the appellant to commit such a crime with the prosecutrix. The medical report is negative, hence the testimony of the prosecutrix is not believable. The learned counsel for the appellant has placed his reliance on the judgment of Hon''ble the Apex Court in the case of Dinesh Jaiswal Vs. State of M.P., . In the alternate, it is submitted by the learned counsel for the appellant that the appellant has faced the trial and appeal for last 17 years. He was a youth of 22 years of age at the time of incident. He was the first offender, and therefore he may not be sent to the jail again.

On the other hand, the learned counsel for the State has submitted that the trial Court has rightly convicted and sentenced the appellant, and therefore no interference is warranted from the side of this Court in the conclusion drawn by the trial Court.

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

The prosecutrix (PW-1) and Shashi (PW-2) have stated that the appellant held the prosecutrix and committed rape upon her. Shashi remained present at the spot for approximately half an hour and thereafter she left the spot due to shy. Shashi went to her house and intimated about the incident to her cousin Prakash (PW-3), who went to the spot with his friends. Prakash (PW-3) has stated that at about 5:00 PM in the evening Shashi told him that the appellant was assaulting her mother and thereafter when Prakash went to the spot, the appellant ran away. However, he could not see the incident, but his aunt (prosecutrix) had told that due to act committed by the appellant, she could not show her face to anyone.

Initially in the FIR, the prosecutrix had narrated a different story. She had stated in the FIR that the appellant was interested in holding her daughter Shashi, a girl of 16 years of age, but since she ran away, the appellant held the prosecutrix and committed rape upon her, but in the trial Court the prosecutrix as well as Shashi have stated that the appellant was interested in the prosecutrix only and he told to the witness Shashi to turn her face on other direction. These witnesses have told a very strange fact that Shashi remained present at the spot for sometime where the appellant was committing the offence of rape to her mother, after sometime she left the spot. The conduct shown by the witness Shashi appears to be unnatural. It was important and natural for the witness Shashi to make a hue and cry at that time so that her mother could be saved. In the FIR, it was mentioned that the incidence was viewed by Nandu Saur and other persons, who were working in either the Degree College or in the Convent School. In the Court the prosecutrix had stated that the appellant gave a threat to witness Nandu also, and therefore he ran away from the spot. In the FIR Ex. P-1, it is nowhere mentioned that the appellant gave any threat to the witness Nandu. Nandu who appeared before the Court was given up by the prosecution, and therefore it appears that he was not ready to support the prosecution story.

The most important fact in the case is that neither the prosecutrix nor her daughter Shashi made any hue and cry at the spot. The incident took place in the campus of the Convent School, and therefore if the prosecutrix had cried, then certainly some persons could have collected and she could be saved. Secondly, it was for the witness Shashi to call the nearest persons available on the road so that her mother could be saved. According to the evidence given by the witness Shashi, neither she cried nor she called anyone and she remained there for at least half an hour without any reason.

Prakash (PW-3) was not informed by the witness Shashi that the appellant was committing rape upon the prosecutrix, whereas it could a natural conduct of the witness Shashi to inform her father as well as her cousin about the incident. When Prakash went to the spot, he had the knowledge of fact that the appellant assaulted his aunt (prosecutrix). The conduct of the witness Shashi relating to the information given to her cousin Prakash appears to be unnatural.

The witnesses did not accept the enmity with the appellant. However, it was suggested that Binda (PW-4) was dismissed from his job by the authorities of the Convent School and such suggestion was accepted by the prosecutrix and her husband Binda (PW-4). However, they did not accept that the appellant was appointed for such a job in place of Binda. The prosecutrix and her husband have accepted that the wife of the appellant had a good relation with wife of one Kunja, whereas Binda had bad relations with Kunja. It is remote enmity established by the appellant, and therefore by such enmity, it was not necessary that the prosecutrix could falsely implicate the appellant in such a case.

The prosecutrix has stated that the appellant threw her in a ditch and thereafter he committed rape. On doing such an act on uneven surface, it was natural that the prosecutrix should have sustained some minor external injuries on her back and buttocks, but Dr. K. Ojha did not find any injury to the prosecutrix either external or internal. The prosecution has not submitted the letter issued by the Superintendent of Police to prove that the seized property was sent for forensic science analysis and no FSL report was submitted during the trial. Therefore, it was not proved that any semen or sperm particles were found in the vaginal swab of the prosecutrix hence the medical evidence does not corroborate the testimony of the prosecutrix.

Looking at the FIR Ex. P-1, the incident took place at about 6:15 PM and the FIR was lodged at 7:15 PM i.e. within one hour of the incident. If the entire time is calculated that the prosecutrix went to her house, told the story to her husband and thereafter she went to the Police Station in the township of Bina along with her husband, then period of one hour appears to be a reasonable time. However, if the evidence given by Prakash (PW-3) and Shashi (PW-2) is considered, then Prakash has stated that at 5:00 PM Shashi told him about the incident, and therefore it appears that the incident took place prior to 5:00 PM in the evening, whereas in the FIR it was shown that the incident took place at 6:15 PM. Shashi has also accepted that the incident took place at 4:30 PM in the evening. By such factual position, it appears that the time of incident is not correctly mentioned in the FIR Ex. P-1 to show that the FIR was lodged within time. The FIR was not lodged in ante-timed manner, but the time of occurrence was re-scheduled by the prosecutrix. If the incident took place at 4:30 PM in the evening, then the FIR lodged by the prosecutrix appears to be lodged with delay of at least one and half an hour. A sufficient time was available to the prosecutrix to cook a story against the appellant.

It was submitted that the incident took place in the end of January. In those days, there was no possibility of availability of green grass, which could be reaped by the prosecutrix, and therefore there is an inherent defect in the prosecution story that the prosecutrix was cutting the grass at the time of incident.

There is no material enmity shown by the appellant, but looking at the entire evidence, it is possible that the appellant was behind the witness Shashi, daughter of the prosecutrix and the prosecutrix had lodged a false FIR against the appellant so that the appellant may not proceed further with her daughter Shashi.

After considering the aforesaid factual position, it appears that there was no possibility for the appellant to commit a rape with the prosecutrix who was such an old person in comparison to the age of the appellant. It was not possible for a 16 years old girl to remain present at the spot at the time when the appellant was committing rape to her mother. It is also strange that neither the prosecutrix nor her daughter made any hue and cry. Witness Shashi did not bring anyone from the road to save her mother. She told a simple story of assault to her cousin Prakash. No medical evidence is found in corroboration to the prosecutrix. The FIR was lodged with delay and to meet the delay the time of incidence was manipulated in the FIR. The eye-witness Nandu was not at all examined before the trial Court. If such circumstances are considered simultaneously, then in light of the judgment of Hon''ble the Apex Court in the case of Dinesh Jaiswal (supra), the testimony of the prosecutrix cannot be believed. It is not proved beyond doubt that the appellant has done any crime with the prosecutrix. Therefore, he cannot be convicted either for the offence u/s 376 of IPC or for any inferior offence of the similar nature.

On the basis of above discussion, the instant appeal filed by the appellant appears to be acceptable, and therefore it is hereby accepted. The conviction as well as the sentence directed by the trial Court for the offence u/s 376(1) of IPC is hereby set aside. The appellant is acquitted from all the charges appended against him. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present the appellant is in jail, therefore the Registry is directed to issue a release 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.