Lala @ Krishan Kumar and Others vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 7-6-1997 passed by Additional Sessions Judge & Special Judge, Bilaspur, in Special Criminal Case No. 111/1996 convicting the accused/appellants under Sections 376(2)(g) and 342 IPC and sentencing each of them to undergo rigorous imprisonment for ten years with fine of Rs. 1000 u/s. 376(2)(g) and rigorous imprisonment for one year u/s. 342 IPC, plus default stipulations. Case of the prosecution in brief is that on 9-2-1993 at 2.30 p.m. FIR Ex. P-11 was lodged by the prosecutrix (PW-10) a married lady aged about 25 years stating that she was residing in village Dangar with her husband Shivkumar and that at the relevant time she was carrying pregnancy of 4-5 months. On 8-2-1993 she along with Triveni, Rajkumari, Tara and Dilchand had gone to Shivrinarayan Mela and, she got down from the bus, after taking snacks she went to Shivrinarayan town along with her child and while she was opposite one shop, the shopkeeper called her, after going there she asked the shopkeeper to show the clothes for her child on which shopkeeper told her that clothes of good quality were inside the room and as soon as she entered the said room, shopkeeper bolted the door from outside, she raised her cries but the door was not opened and therefore she simply kept sitting there weeping. At about 10-11 in the night shopkeeper (appellant No. 1 herein) called accused/appellant No. 2 herein. Accused/appellant No. 2 came to her, separated the child from her and then after removing her as well as his own clothes committed forcible sexual intercourse with her. Thereafter, accused/appellant No. 1 namely Lala also committed the said act on her and then they left the place after bolting the door from outside. Thereafter also she was knocking the door but nobody opened the same and after some time two other persons came there whom she abused as a result of which they fled away from there and then taking this advantage, she came out of the shop. It is alleged that the prosecutrix left her petticoat at the place of incident and that her money was also taken. Naming the accused/appellants, the prosecutrix has stated that she was subjected to rape by these two persons. She has stated that she would identify both the accused persons after seeing them. Based on this information, offences under sections 342, 376/34 IPC and 3(11)(12) (appears to have been mentioned wrongly in the FIR of the SC, ST (Prevention of Atrocities) Act (for short the ''Act'') were registered against them. Prosecutrix was medically examined on 10-2-1993 by Dr. (Smt.) Rajkumari Paliwal (PW-5) vide Ex. P-5A. After investigation, charge sheet was filed on 4-5-1993 under Sections 342, 376/34 IPC and 3(2)(v) of the Act. Court below framed the charges under sections 342, 376(2)(g) IPC and 3(2)(v) & 3(2)(xi) of the Act. Statement of the prosecutrix u/s 164 Cr.P.C. was recorded on 17-3-1993.

In support of its case, prosecution has examined 12 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has acquitted the accused/appellants of the offences under the Special Act but convicted and sentenced them as mentioned in paragraph No. 1 of this judgment.

Counsel for the appellant submits that a very improbable story has been put forth by the prosecutrix. They submit that prosecutrix is a promiscuous woman and even medical report does not support her version. They submit that according to the prosecutrix herself the incident had taken place when it was absolutely dark and therefore she could not identify the accused/appellants and thus question of lodging named FIR does not arise. According to them, no test identification parade has been conducted and the dock identification was done after four years of incident which is not sufficient to convict the accused/appellants. They submit that the seized articles were not sent for chemical examination and therefore there is no proof about the sexual intercourse with the prosecutrix. They submit that the material witnesses including the husband of the prosecutrix, who could have corroborated the case of the prosecution, have not been examined by the prosecution. In support of their contention, they place reliance on decisions of the Apex Court in the matter of Khatri Hemraj Amulakh Vs. The State of Gujarat, , in the matter of Dilip and Another Vs. State of M.P., and in the matter of Krishan Kumar Malik Vs. State of Haryana,

On the other hand counsel for the respondent/State supports the judgment impugned.

Prosecutrix (PW-10) has stated in her evidence that she knew the accused/appellants. On the date of incident she along with her companions had gone to Shivrinarayan Mela from her village Rojhandih. Near a temple in Shivrinarayan, her companions were left behind and when she turned back and saw, the accused/appellant No. 1 herein called her for purchasing the cloth on which she declined for the same saying that she was just waiting for her colleagues. Thereupon the accused/appellant calling her sister asked to purchase the cloth as he would give the same at cheaper rate and then she went to the shop of accused/appellant No. 1. As soon as she entered the shop of accused/appellant No. 1, he shut the door of his shop on which she started crying for opening the door. Inside the shop she was shouting and weeping by carrying her child who at that time was three years old. When she was weeping inside the shop accused/appellant No. 1 asked the accused/appellant No. 2 Vinod to come there as he had caught a good looking girl. After detaining her in a room the accused/appellant No. 1 came out and bolted the door. Thereafter on being called by accused/appellant No. 1, accused/appellant No. 2 came inside, separated the child from her despite her resistance, beaten her brutally and then committed forcible sexual intercourse. On account of severe beating and rape committed by the accused/appellants she was almost unconscious. After commission of the offence, the accused/appellants left the place of incident leaving the prosecutrix there only. After accused/appellant No. 2 left the spot, accused/appellant No. 1 came there and he too committed forcible sexual intercourse with her after removing her petticoat and thereafter he called the third person namely Shankar saying that as they had committed sexual intercourse with her and now he should go. As her child was crying loudly, she gained power and as soon as Shankar was trying to get inside, she ran out by pushing him aside. After coming out of the shop she started thinking as to what to be done after such a great atrocity and that she was not in a position to walk. After she came out of the shop, the money which she had was missing and perhaps the accused/appellants had snatched the same. She has stated that when accused/appellant No. 1 Lala had called her to his shop, it was evening time but the sun had not set. When she came out of the shop, it was 12 midnight. After moving to a certain distance, she stopped near a tree so that after appearance of light she could search her colleagues. In the morning when she was weeping under a tree, one police constable who was on patrolling duty met her and asked as to why she was weeping on which she told him that after being called by one shopkeeper, she was subjected to sexual intercourse by three persons. She also told him that the money which she was having, was also taken by them and now how could she go home. She also told the said constable that she did not know the police station and that the persons committing rape on her had nail-scratched her. On this, police constable asked her to accompany him to the police station and accordingly she went to the police station with him where the report was registered by one Inspector on which she put her thumb impression. After lodging the report, she was taken to hospital at Janjgir for medical examination. After her medical examination, she came to Shivrinarayan police station along with one police officer and then on being informed by the Station House Officer on phone, S.P. also came there and asked him to send her to her village. Sari worn by her was seized by the police whereas the petticoat was left at the place of incident. In the police station she had asked the police people to send her to the maternal home instead of matrimonial home and accordingly she was sent to village Dhabadih where she had consumed rat poison as she did not want to live. In paragraph No. 10 she has stated that she has two names i.e. Mina Kumari and Satrupa. After the incident she was driven out of the house by her parents and in-laws also. She has stated that she belongs to Satnami caste and at the time of incident she did not know about the caste of the accused/appellant and later she came to know that he was of Baniya caste. In cross examination, this witness has stated that while lodging the report she had disclosed her name to the police as Satrupa and not Mina. She has admitted that her real name is Mina Kumari and that of her husband Mahadev. Her maternal home is village Dhabadih and matrimonial home Rojhandih. At village Dangar neither her maternal home nor the matrimonial home is there. She knew Shivkumar of village Dangar who happened to be her brother-in-law. According to her, on account of fear she had disclosed the name of her village to the police as Dangar. According to this witness, real name of her husband is Shivkumar. Then she has stated that her husband is known by two names i.e. Mahadev and Shivkumar. According to this witness, there before she did not disclose to anyone that her husband had two names and she was disclosing the same for the first time in the Court. She has stated that on account of fear of being beaten by the villagers and family members, she had disclosed the name of her husband as Shivkumar whereas his real name is Mahadev. According to her, in her maternal home she is known as Mina and in matrimonial home as Satrupa. Her statement was recorded twice-at the time of lodging of report and then in the hospital. She has admitted that the name of her husband is not Shivkumar. Then she states that Mahadev is also known as Shivkumar. She has denied that on account of fear of the society, she had disclosed incorrect name of herself as also of her husband to the police. She has then stated that on account of fear of being beaten by her family members, she had disclosed the incorrect name of her husband. She has admitted that as she had done bad work, on account of fear of society she had disclosed her name as also that of her husband incorrectly. Then she has stated that she did not do anything wrong but the people had done something wrong with her and therefore she has incorrectly disclosed her name as well as of her husband. She has stated that she had not been boycotted by the people of her caste but by her parents and husband. She has stated that it is correct to say that if someone is found guilty by the society, he/she is boycotted therefrom but at the time of recording her statement u/s 164 Cr.P.C. she had not disclosed that she was ousted from the society and that she wanted to be included in the society again. On being confronted with her statement u/s 164 Cr.P.C. regarding her ouster from the society, she has stated that she did not give such statement and the said portion has been marked by learned judge as B to B where she had asked for expenses to feed 8 persons for being included in the society and also for employment. According to her, though after the incident she has not been driven out by the society but such practice is very much prevalent there and in that case the person driven out is required to give feast to the society. In paragraph 17, this witness has stated that one Kamla Prasad Khoonte present in the court was in her relations and happened to be her brother. She has denied that she was tutored by said Kamla Prasad Khoonte as to in what manner she had to depose. When she was confronted with her statement recorded u/s 164 Cr.P.C. Ex. D-1, she did disclose her caste while recording her statement but if it is not written there, she cannot tell the reason for that. She has clarified that on the date of incident she had gone to see Shivrinarayan Mela from village Rojhandih and not from village Dangar. She had gone to the house of her brother-in-law namely Kapil at village Dangar 4-5 days before the incident. She has clarified that she was residing in village Rojhandih along with her family members and not at Dangar. According to her, she had mentioned in the report that she was residing at village Dangar along with her husband. Then she says that in connection with his work her husband had gone to village Dangar and therefore she also had gone there 4-5 days prior to the incident. In paragraph 21 she has stated that on the date of incident, Triveni Bai, Rajkumari, Tarabai and Dilchand were also with her in Shivrinarayan Mela and all of them are of her age group. According to her, all these persons had not accompanied her up to the shop and got dispersed on the way. Near the shop of accused/appellant No. 1 there is a Bajrangbali temple and in that shop all types of clothes were available. She has stated that the incident had occurred in the shop which was near the Bajrangbali temple. Half an hour after her reaching Shivrinarayan, she went near the cloth shop of accused/appellant No. 1 where she was called inside by him and she remained there till 12 o''clock in the night. She is stated to have come out of the shop at about 12 in the night and the incident had occurred half an hour there before. Then in paragraph 22 she has stated that incident of rape had taken place at about 11 in the night and meanwhile she did not eat anything and that her child was on breastfeed. After being detained in the shop she had raised noise and banged at the door also for about one hour after 1-1.30 a.m. and while doing so her bangles got broken and her hand started bleeding. The shop in question is said to be located in the heart of the market. As she was kept in a room, she was not aware about the customers visiting the shop in question. She has stated that though on the date of incident a huge crowd was there in Shivrinarayan Mela yet in spite of cries being raised, nobody came to her rescue. She has stated that the room where the incident of rape had taken place, it was complete dark and therefore she could not identify the offenders at that time but she could do so later. According to her, she came to know about the names of the accused persons after she returned from the police station after lodging the report. After getting out of the shop at about 12 in the night, she slept under a tree and then in the morning at about 6-7 o''clock one policeman came there with whom she went to police station to lodge the report. In the police station the inspector had asked to show the shop in question so that he could come to know about the persons who had committed the offence of rape and accordingly she accompanied the inspector to the said shop. At the time of incident, she was nail-scratched on her shoulder as a result of which it was bleeding but she did not disclose the same either to the doctor at the time of her medical examination or to the police while lodging the report or even to the Magistrate at the time of recording of her statement u/s 164 of the Code of Criminal Procedure. She has stated that she had asked the police people to leave her to her maternal home instead of matrimonial home only because in her matrimonial home she would have been put to defamation. While offering resistance, she also nail-scratched the accused persons but she was not aware about any such mark on their face as it was dark.

Dr. (Smt.) Rajkumari Paliwal (PW-5) is the witness who medically examined the prosecutrix and gave report Ex. P-5A has stated in her evidence that she did not find any internal or external injury on her person and that she was habitual to sexual intercourse and that no definite opinion regarding last sexual intercourse could be given as she was a married lady. Shyam Bai (PW-1) is the witness to seizure of sari of the prosecutrix who has not supported the case of the prosecution. Davva (PW-2) is the witness to seizure of empty liquor bottle and glass made under Ex. P-2 has also not supported the case of the prosecution. Dilharan Das (PW-3)-another witness to seizure of sari has also not supported the case of the prosecution. Dr. R.K. Pandey (PW-4) is the witness who medically examined accused/appellant No. 1 Lala and gave his report Ex. P-3 stating that he was capable of performing sexual intercourse. Dr. K.K. Shukla (PW-9) is the witness who medically examined accused/appellant No. 2 Vinod and gave his report Ex. P-10 stating that he was capable of performing sexual intercourse. Ramlal (PW-6) is the Patwari who prepared spot map Ex. P-7. He has stated that place of incident was surrounded by several shops such as video shops, book stall etc. Sushil Pahare (PW-7) has not supported the case of the prosecution and has been declared hostile. Gorelal (PW-8) is the witness to seizure of articles made under Ex. P-2 and P-9 has also not supported the case of the prosecution and has been declared hostile. Ram Lakhan Singh (PW-11) is the witness who took accused/appellant No. 2 Vinod for medical examination and made seizure of his underwear. B.S. Nisad (PW-12) is the investigating officer who has duly supported the case of the prosecution. Gulam Wahid Khan (DW-1) has stated that his shop is adjacent to that of accused/appellant No. 1 who used to sell mattress and quilt and not anything else.

Minute examination of the evidence of the prosecutrix makes it clear that she has been very inconsistent while deposing the things in the Court. In the FIR she has disclosed her name as Satrupa and that of her husband as Shivkumar whereas in the court Statement she has stated that her main name is Minakumari but she was also called as Satrupa and that name of her husband is Shivkumar and Mahadev. She has further stated that before recording her statement she did not inform anyone that her husband has two names i.e. Shivkumar and Mahadev and for the first time she disclosed the same in the Court, Further, as per the FIR she was resident of village Dangar where she was living with her husband Shivkumar whereas in the Court statement she has stated that her maternal home is at village Dhabadih and matrimonial home at village Rojhandih and she has no connection with village Dangar. According to this witness, name of her brother-in-law is Shivkumar who is resident of village Dangar whereas later she has stated that name of her husband is Shivkumar and the name of her brother-in-law is Kapil. In the FIR prosecutrix has stated that after getting down from the bus when she was standing opposite one shop the shopkeeper called her and when she went inside the shop and asked him to show the clothes for her child, he told her to come in another room where clothes of good quality were there and when she entered the said room, the shopkeeper bolted the door from outside, whereas in the Court statement she has stated that when her colleagues got separated from her, she turned back to see them and at that time the accused/appellant No. 1 called her to purchase clothes and when she told that she would not purchase the clothes and was waiting for her colleagues, he called her as sister and told that he would give her clothes at cheaper rate. According to her Court statement, she was subjected to rape by the appellants in the shop itself and nowhere she has stated that there was a separate room attached to the shop where appellant No. 1 took her and after bolting the door she was subjected to rape first by accused/appellant No. 2 and then by accused/appellant No. 1, In the FIR the prosecutrix has not stated that she was brutally beaten by accused Vinod whereas in the Court statement she has stated that accused Vinod had beaten her brutally as result of which she became almost unconscious. Further, in the FIR she has not stated that she came out from the shop of accused/appellant No. 1 at 12 midnight, kept sitting under the tree and then in the morning she met with one constable whereas in the Court statement she has stated that she spent the entire night under the tree, next morning one constable came to her and took her to police station where the report was lodged. FIR has been lodged by naming the present appellants and two other persons whereas as per the statement of the prosecutrix when she lodged the report she was not aware of their names and it is the police constable of concerned police station who asked her to accompany him to the shop of the accused/appellant No. 1 and only then she could come to know about the names of accused persons. Statement of the prosecutrix to this effect has been completely falsified by the investigating officer (PW-12) who has categorically stated that while lodging the report the prosecutrix came to him all alone. He however has denied that while the prosecutrix had come to him for lodging the report for the first time she was not aware of the names of persons who had raped her. This witness (IO) has categorically stated that when he asked the prosecutrix as to why she did not lodge the report in the night itself when she was subjected to rape at 10-11 p.m., he was informed by her that as she slept in the night under a tree, the report could not be lodged immediately. Prosecutrix has categorically stated that it was dark inside the shop and therefore she could not see or identify the accused persons whereas while lodging the report Ex. P-11 she has taken the names of accused persons. Undisputedly, test identification parade has not been conducted by the prosecution but as according to the investigating officer the report was lodged by naming the accused persons, the case of the prosecution itself becomes doubtful because the incident had taken place in the dark, accused persons were not previously known to the prosecutrix but yet a named FIR has been recorded. Further, as per the statement of the prosecutrix, she was brutally beaten by the accused/appellant No. 2 Vinod to the extent that she became almost unconscious and that on account of being beaten and banging at the door forcefully she sustained number of injuries on her body and blood was oozing but the medical report does not support the statement of the prosecutrix to this effect. Another important aspect of the case is that the incident had taken place on the eve of Shivrinarayan Mela where according to the prosecutrix herself number of villagers had gathered, that the shop in question is located in the heart of market, that prosecutrix was banging the door of the shop where she was kept till 12 midnight, was screaming in the night but nobody came to her rescue. Prosecutrix herself has stated that shop in question was in the market and as per the statement of Patwari (PW-6) it was surrounded by several other shops. Here again the statement of the prosecutrix becomes doubtful. As per the statement of the prosecutrix she came to attend Mela along with number of persons namely Triveni, Rajkumari, Tara and Dilchand but none of them has been examined by the prosecution. Even husband of the prosecutrix and the constable who allegedly met the prosecutrix in the next morning near the tree and took her to police station have not been examined by the prosecution. In her statement recorded u/s 164 of the Code of Criminal Procedure the prosecutrix has stated that the incident had taken place in the shop of the accused whereas in the FIR it is stated that the incident had taken place in a room adjacent to the shop and thus the statement made by her u/s 164 Cr.P.C. and that made at the time of her examination in the Court are not consistent. Likewise, in her 164 Cr.P.C. statement she has stated that after coming out of the shop of the accused/appellant and then having had a walk for about half kilometer she slept under a tree and in the next morning after making an enquiry about the police station she reached there at about 10 a.m. and lodged the report whereas according to her Court statement in the morning she was taken to the police station by a constable from where she was taken by the inspector to the shop of accused/appellant No. 1 Lala and then the report was lodged. In the statement recorded u/s 164 of the Code of Criminal Procedure the prosecutrix has stated that as after the incident she was ousted from the society and for being included again in the society she was required to offer food to 8 persons and therefore the expenses incurred in that feast as also a job may be directed to be given to her.

True it is that in a case of rape solitary evidence of the prosecutrix is sufficient to convict an accused if the same is absolutely trustworthy, unblemished, of sterling quality, without any shortcoming and thereby inspires full confidence of the Court. Unfortunately, this is not the position in the case in hand. Evidence of the prosecutrix on material particulars carries several lacunae such as contradictions, inconsistencies, exaggerations or embellishments leading to an inference that she was certainly not telling the truth. More importantly, the colleagues of the prosecutrix namely Triveni, Rajkumari, Tara and Dilchand who had been with her in Shivrinarayan Mela have not been examined by the prosecution and being material witnesses, their non examination gives rise to an inference that, if examined, they would not have supported the case of the prosecution. Even the seized articles have not been sent for chemical examination to prove the sexual intercourse with the prosecutrix. In this view of the matter, this Court is of the considered opinion that the prosecution has utterly failed to prove its case beyond reasonable doubt and its benefit, of course, should go to the accused/appellants. In the result, the appeal is allowed. Judgment impugned is set aside. Accused/appellants are acquitted of the charges levelled against them. As they are already on bail, their bail bonds stand discharged.