Lekh Ram vs State of M.P.

Ajit Singh, J.

Appellant Lekhram, the sole accused person in this case, has been convicted by the impugned judgment dated 7-3-90 passed in Sessions Trial No. 84/87 by the 1st Additional Sessions Judge to the Court of Sessions Judge, Chhindwara, for an offence u/s 450 of the Indian Penal Code and sentenced to undergo five years rigorous imprisonment and fine of Rs. 1000/ - or in default to undergo one year rigorous imprisonment. He has also been convicted u/s 376 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and fine of Rs. 1,000/- or in default to undergo one year rigorous imprisonment. Both the sentences are to run concurrently. The appellant has been found guilty for committing the offence of house trespass in order to commit rape. He has also been guilty for committing the offence of rape with the prosecutrix, Ku. Kusma Bai on 16-1-87 at about 4:00 p.m. in her house.

Briefly stated the facts giving rise to this appeal are as under :-

Prosecutrix Kusma Bai (P.W.1), her father Lungsi, mother Rango Bai and brother-in-law Tilak Ram (P.W.4) live in a small two room house constructed in the "Bhidka" of Radhelal, who is the father of the accused appellant. On 16.1.87, at about 4:00 p.m., prosecutrix (P.W.1) was alone in the front Verandah of her house when the appellant approached her and enquired about the presence of her family members. On being told that all of them had gone out for work and no one was in the house, the appellant lifted her and took her inside the room. Thereafter, he threw the prosecutrix on the ground and forcibly committed sexual intercourse with her. While committing rape, the appellant had (sic) a piece of cloth in the mouth of prosecutrix (P.W.1) to prevent her from shouting. The bangles of the prosecutrix (P.W.1) were broken during rape committed on her. Her sari and blouse which she had worn at the time of incident were also torn. It is alleged that while the appellant was committing rape, suddenly Smt. Rukma Bai (P.W.2). sister of prosecutrix (P.W.1), came to the house and seeing her, the appellant had ran away. Prosecutrix (P.W.1) narrated live incident to Rukma Bai (P.W.2). Thereafter, at about 8:00 p.m. she also narrated the incident to her father Lungsi. mother Rango Bai (P.W.3) and brother-in-law Tilak Ram (P.W.4) on their return from work. On 17.1.87. at about 3.30 p.m.. the prosecutrix, accompanied by her father Lungsi. went to the Police Station. Navegaon. District Chhindwara, situated at a distance of about 12 kms. and lodged First Information Report, Ex.P1, of the incident whereupon offences under Sections 450 and 376 of the Indian Penal Code were registered and investigation commenced.

On 3.1.87 the prosecutrix (P.W.1) was examined by Dr.Smt. Chaya Thakur (P.W.11). No marks of violence were found on any part of the body of prosecutrix (P.W.1) including her private parts. Vagina opening admitted one finger easily and two fingers tightly. There was no injury over hymen and vagina or vluva. There was no bleeding and tenderness. Dr.Chaya Thakur (P.W.11) in her report. Ex. P12, gave a categorical opinion that there was no sign of rape. The alleged approximate age of the prosecutrix (P.W.1) was 14 years at the lime of incident. She, however, prepared, sealed and handed over the vaginal smear slides to the Constable accompanying the prosecutrix (P.W.1) for their chemical examination which were seized by the police vide Ex.P6.

Investigating Officer, O.P. Vinodia (P.W.10) during investigation, seized three broken pieces of bangles from the spot vide Ex.P2 and also seized the sari and blouse of prosecutrix (P.W.1) vide Ex.P3. The sari was then sent to Dr.Chaya Thakur (P.W.11) for her opinion who prepared a sealed packet of the same and handed it over to the police for chemical examination vide Ex.P13. The appellant was arrested on 19.1.87. He was examined by Dr.N.R. Azad (P.W.12). He was found to be potent and capable of performing sexual intercourse. However, no mark of any injury was found on his person. Smegma was found to be present around the glans of penis. The medical report of Dr.N.R. Azad is Ex.P10. He was aged 21 years at the time of incident. His underwear was seized from him by the police vide Ex.P4. The police also prepared a sealed packet of public hair and semen slide of the appellant vide Ex.P7.

The Assistant Chemical Examiner of Forensic Science Laboratory (FSL) found the presence of seminal stains and sperms and also blood on the sari (Article A) and vaginal smear slides (Articles B1 & B2) of the prosecutrix. Nothing incriminating was, however, found on the underwear (Article C), semen slide (Article D) and public hair (Article E) of the appellant. The Forensic Science Laboratory (FSL) Report is Ex.P8. The Serologist Report, Ex.P9, also showed presence of human blood and semen on the sari of prosecutrix (P.W.1). The blood group of the stains and semen group of stains could not, however, be determined as they were insufficient for test.

The appellant in his defence pleaded that he was innocent and had been falsely implicated as Lungsi, father of prosecutrix, refused to pay his father, Radhelal, a sum of Rs. 2500/- which was outstanding against him in a Panchayat held on 17-1-87 i.e., a day after the incident. A false report has been made at the behest of Ammilal, an Uncle of the appellant, for teaching a lesson because appellant''s father, Radhelal, had dared to demand the money from Lungsi. It was also stated in defence that Ammilal and Radhelal, being brothers, are joint owners of the "Bhidka" and there is a dispute between them regarding eviction of Lungsi from it.

The trial court, relying upon the evidence of prosecutrix (P.W.1), Rukma Bai (P.W.2), Rango Bai (P.W.3) and Tilak Ram (P.W.4) and also the report of Forensic Science Laboratory (FSL), Ex.P8, and Serologist Report, Ex.P9, convicted the appellant for offences under Sections 450 and 376 of the Indian Penal Code and sentenced as aforesaid.

The learned counsel for the appellant, Shri Shamim Ahmed, challenged the convictions on the ground that the trial court ought to have disbelieved the evidence of prosecutrix (P.W.1) as her evidence stands uncorroborated by medical evidence, Ex.P13. He further argued that Dr.Chaya Thakur (P.W.11) has very categorically stated that there was no sign of rape on the prosecutrix (P.W.1). The learned counsel further asserted that the appellant has been able to prove his defence in the court and hence the trial court ought to have acquitted him. In support of his submission, he relied upon the decision of the Supreme Court in Dilip and Another Vs. State of M.P., ). On the other hand, Shri S.K. Gangrade, learned Panel Lawyer for the State, argued that the appellant has rightly been convicted by the trial court as there is overwhelming evidence against him.

The law is well settled that prosecutrix, in a sexual offence, is not an accomplice and there is no rule of law that her testimony can not be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of Himachal Pradesh Vs. Gyan Chand (2001) SCC 71, it has been held by the Supreme Court that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of Chemical Examination, etc., if the same is found to be natural, trustworthy and. worth being relied on. The Supreme Court further held :

If evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

In Madan Gopal Kakkad Vs. Naval Dubey and Another, , the Supreme Court has held that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded, provided the evidence of the victim does not suffer from any basic infirmity and the ''probabilities factor'' does render it unworthy of credence and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where having regard to the circumstances of the case, medical evidence can be accepted to be forthcoming.

Keeping the aforesaid well settled principle of law in mind, I have carefully perused the evidence of prosecutrix (P.W.1). She has deposed in her evidence that on 16.1.87 at about 4:00 p.m. while she was grinding "Jwar" in the front Verandah of her house, the appellant approached her and enquired about the presence of other family members. On being told that all of them had gone out for work and no one was in the house, the appellant lifted her, took her inside the room, threw her on the floor and thereafter forcibly had sexual intercourse with her for about five minutes. According to her, while the appellant was committing rape, her sister Rukma Bai (P.W.2) suddenly came to the house and seeing her, appellant ran away. She has deposed that her bangles were broken during rape committed on her. She has also deposed that her sari and blouse were also torn. According to her, she went alongwith her father Lungsi to lodge a report at the Police Station on the next day. She has further stated that the police seized her sari and blouse at the Police Station from where she was sent for her medical examination. In the cross-examination, prosecutrix (P.W. 1) has deposed that soon after the incident within one hour, her mother Rango Bai (P.W.3) returned home from work and thereafter within 5/10 minutes her father Lungsi and brother-in-law Tilak Ram (P.W.4) also returned. She narrated the incident to all of them. Immediately, thereafter her father Lungsi and brother-in-law Tilak Ram (P.W.4) went to the house of Ammilal with whom they stayed till 10:00 p.m. in the night. Ammilal is an Uncle of the appellant and the "Bhidka" in which her house is situated, belongs to both - Ammilal and father of appellant, Radhelal, and there is a dispute between them with regard to eviction of "Bhidka". Prosecutrix (P.W.1) has further admitted that on the next day during the early morning hours, a Panchayat was called in the court yard of Madhav Rao. In the Panchayat, both Ammilal and Radhelal were present. Prosecutrix (P.W.1) has categorically admitted in her cross-examination that in the said Panchayat, father of appellant, Radhelal, demanded Rs. 2500/-from her father Lungsi which was outstanding against him, but her father said that he would pay only Rs. 500/-, but Radhelal did not agree to accept the said amount. At that time, both Madhav Rao and Ammilal had insisted her father Lungsi for lodging a report against Radhelal at the Police Station as he had dared to demand money from him. Prosecutrix (P.W.1) has further admitted that after Panchayat, she came back with her father to "Bhidka" and after cleaning the house, cooked food. She has further admitted that she left with her father at about 10:00 a.m. for lodging a report at the Police Station and on the way her father and asked for Rs. 500/- from Radhelal (father of appellant) and said that if he paid Rs. 500/- he would not make any report to the police. Prosecutrix (P.W.1) has further started in her cross-examination that she had carried the broken pieces of bangles to the Police Station which were seized by the police. According to her, even her blouse and sari were also seized by the police in the Police Station and at that time she had only one sari. She has admitted that her mother also used to wear the said sari. Prosecutrix (P.W.1) has also deposed in her cross-examination that the appellant had removed his underwear and kept it at a place and while running away he left the same there. Dr.Chaya Thakur (P.W.11), as already stated above, has categorically reported after examining prosecutrix (P.W.1) that there was no sign of rape on her.

The evidence of prosecutirx (P.W.1) does not appeal to me at all. It is rather strange that on the very next day of the date of incident of rape, father of appellant in a Panchayat would demand a sum of Rs. 2500/- from her father Lungsi. On the contrary, had the incident of rape taken place, the demand of money would have been made by Lungsi. Here it is relevant to appreciate that Ammilal and Madhav Rao had instigated Lungsi for lodging a report as father of appellant had dared to demand money in the Panchyat. Not only this, after the Panchayat was over in which Radhelal refused to accept Rs. 500/- from Lungsi, both the prosecutrix (P.W.1) and her father Lungsi returned to their house and cooked food. Furthermore, prosecutrix (P.W.1) has categorically admitted that her father Lungsi had demanded a sum of Rs. 500/- from the father of appellant for not lodging a report against him. This means that if the father of appellant had paid Rs. 500/- to Lungsi, no report of the incident of rape would have been lodged against the appellant. It is also rather strange that in the entire Panchayat proceedings neither the prosecutrix (P.W.1) nor her father Lungsi made even a whisper with regard to incident of rape on her by the appellant. Surprisingly, Lungsi has not been examined by the prosecution which it self speaks volume. Under these circumstances, the evidence of prosecutrix (P.W.1) with regard to rape on her by the appellant appears to be totally false on the face of it.

Rukma Bai (P.W.2.) has deposed in her evidence that on the date of incident when she returned home at 4:00 p.m. he saw the appellant committing rape on the prosecutrix (P.W.1) and seeing her, the appellant ran away. She has further deposed that prosecutrix (P.W.1) first narrated the incident to her and thereafter to her father, mother and her brother-in-law. She has further deposed in the cross-examination that they did not disclose about the incident to any one in the village. Her this part of the evidence is contradicted by the evidence of prosecutrix (P.W.1). Prosecutrix (P.W.1) very specifically in her evidence stated that after she had narrated the incident, her father and brother-in-law has went to the house of Ammilal where they sat till late in the night. Ammilal is admittedly having enmical relations with the father of appellant. Rukma Bai (P.W.2) has also admitted in her cross-examination that in the Panchayat meeting the father of appellant, Radhelal, demanded Rs. 2500/- from the father of prosecutrix (P.W.1) which was outstanding against him but her father said that he would pay only Rs. 500/- but Radhelal did not agree to accept the said amount. She has also admitted that at that time, Ammilal had insisted the father of prosecutrix (P.W.1) to lodge a report against him. According to her, Radhelal and Ammilal are living separately since last 6/7 years. Rukma Bai (P.W.2) has further deposed that she too had gone along with the prosecutrix (P.W.1) at the Police Station to lodge a report but the police did not enquire anything from her. This apparently appears to be false because in the First Information Report, EX.P1, it is clearly mentioned that the prosecutrix went to Police Station only with her father Lungsi. Posecutrix (P.W.1) herself has not stated that her sister, Rukma Bai (P.W.2) accompanied her to the Police Station. Furthermore, had the incident of rape actually took place and Rukma Bai (P.W.2) was an eyewitness, the police would have definitely enquired from her about the incident. Rukma Bai (P.W.2) has also categorically admitted in her evidence that had the father of appellant made the payment to the father of prosecutrix (P.W.1) then they would not have lodged the report.

13-A. Rango Bai (P.W.3) in her evidence has denied the holding of Panchayat meeting itself. She has also denied that any amount is outstanding against her husband for which the father of appellant, Radhelal, was making a demand. She has, however, deposed that there were injuries on the person of prosecutrix (P.W.1) regarding which she had informed the police. Admittedly, no marks of violence have been found on the person of prosecutrix (P.W.1). Her evidence is false and unreliable on the face of it as the same stands contradicted by other witnesses particularly prosecutrix (P.W.1) and Rukma Bai (P.W.2). Tilak Ram (P.W.4) has deposed in his evidence that on his return from work, the prosecutrix (P.W.1) narrated the incident to him and other members of the family. He has admitted in his cross-examination that he did not go to the Police Station at the time of lodging the report. According to him, the police has never enquired from him about the incident and he has not disclosed about the incident of rape to any one and for the first time in the court he is stating about it. The conduct of Tilak Ram (P.W.4) makes his evidence unreliable and hence it is unworthy of any credit. Prosecutrix (P.W.1) herself has stated that after she narrated the incident to her father and brother-in-law Tilak Ram (P.W.4) both had left to meet Ammilal with whom they stayed till late in the night. As already stated above, the relations between Ammilal and father of appellant, Radhelal, are strained.

I am finding it difficult to accept the truthfulness of the version of prosecutrix (P.W.1) and that of witness Rukma Bai (P.W.2), Rango Bai (P.W.3) and Tilak Ram (PW.4) that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on being contradicted by the medical evidence and the defence of the appellant accepted by them.

In the present case, surprisingly, the sari of the prosecutrix is said to have been seized by the police at the Police Station itself. Prosecutrix (P.W.1) has admitted in her evidence that at that time she was having only one sari and her mother also used to wear the said sari. The seizure of the sari has been made on the next day of the date of incident. Under these circumstances, the alleged seizure of sari of the prosecutrix (P.W.1) by the police is doubtful. Normally, the sari of the prosecutirx is seized by the lady doctor at the time of her examination. Thus, the evidence in the form of Forensic Science Laboratory (FSL) Report, Ex.P8, and Serblogist Report, Es.P9, does not help the prosecution case at all. Under similar circumstances, the Supreme Court in Dilip and Another Vs. State of M.P., ) and Joseph Vs. State of Kerala ( AIR 2000 SC 1608) acquitted the accused persons.

Prosecutrix (P.W.1) has deposed in her evidence that she had carried the broken pieces of bangles to the Police Station at me time of report which was seized by the police. Just contrary to this, O.P. Vinodia (P. W.10) has deposed that me broken pieces of bangles were seized from me place of incident. Not only this, the prosecutrix (P.W.1) has also deposed that me underwear of the appellant was seized from her house which he had left while running away, whereas O.P. Vinodia (P.W.10) has stated in his evidence that the underwear was seized from the possession of appellant. Thus, according to me, the prosecution has not ruled out the possibility of false implication of the appellant in the present case. Furthermore, I find it difficult to hold the prosecution case as one on which an implicit reliance can be placed.

For the foregoing reasons, the appeal is allowed. The conviction of the accused appellant, as recorded by the trial court, is set aside. The appellant is acquitted of the charges framed against him. He is on bail. His bail bond shall stand discharged.