Omkar and Others vs State of Madhya Pradesh

N.K. Gupta, J.—The appellants have challenged the judgment dated 27.6.1997 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Seoni in Special Case No. 48/1996 whereby each of the appellants has been convicted of offence under Section 376(2)(g) of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act 1989 (hereinafter referred to as "Special Act") and sentenced to seven years'' RI with fine of Rs. 1,000/- and six months'' RI. In default of payment of fine, additional RI for six months.

The prosecution''s story, in short, is that on 25.5.1996 the prosecutrix (PW-2) resident of Village Churka (Police Station Lakhnadon District Seoni) went to collect cow-dung. At about 4:00 PM she was collecting cow-dung in the jungle, then the appellants held her from her back and took her near the bushes. After giving threat of her life the appellant Omkar and Bundaram committed rape one by one upon her. Thereafter they went towards deep forest. In the incident the bangles of the prosecutrix were broken and consequently she sustained injuries. She suffered with fever, and therefore for one hour she remained at the spot in a lying position. Thereafter she went to her house and intimated about the incident to her husband Gudda @ Ramsingh (PW-3) and other family members. Since the prosecutrix could inform about the incident to her husband in late hours of evening and there was no arrangement of transportation available in the night, the prosecutrix could not go to the police station in the evening, and therefore she had lodged an FIR Ex. P-2 on the next date at about 10:00 AM at Police Station Lakhnadon. She was sent for her medico legal examination. Dr. Pushpra Saryam (PW-1) examined her at the District Hospital, Seoni and gave a report Ex. P-1. No external or internal injury was found on the body of the prosecutrix. However, two slides of her vaginal swab were prepared and handed over to the concerned Constable after their sealing. After due investigation, a charge sheet was filed before the Special Court, Seoni.

The appellants-accused abjured their guilt. They took a plea that one Dhiriya Bai (DW-1) was getting a house constructed in the village and for such construction, Khushal (DW-2) was meson and Munna (DW-3) was a labourer. The prosecutrix was also provided work in that construction and it was not possible for her to go and to collect cow-dung at about 4:00 PM in the evening. In defence Dhiriya Bai (DW-1), Khushal (DW-2) and Munna (DW-3) were examined.

The learned Special Judge after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.

I have heard the learned counsel for the parties.

In the present case there was no eye witness except the prosecutrix. The prosecution has examined the prosecutrix (PW-2) and her husband Gudda @ Ramsingh (PW-3), who has stated about the incident and the version of the prosecutrix told by her to her husband. Dr. Pushpa Saryam (PW-1) was also examined to prove the MLC report Ex. P-1, however no external or internal injury was found on the body of the prosecutrix. In this context, the report received from the Forensic Science Laboratory Ex. P-13 is also important, which is admitted by the appellants under Section 294 of Cr.P.C. In that report, it was found that on the vaginal swab of the prosecutrix and on her petticoat semen and sperm were found, however the Experts of the Laboratory did not give any positive report that such sperm and semen particles were of the appellants. The FIR was lodged on the next day of the incident, and therefore the prosecutrix had an opportunity to have cohabitation with her husband in the night, and therefore the FSL report Ex. P-13 looses its importance and support of the FSL report has no much evidentiary value unless the prosecutrix is otherwise believable.

The appellant took a plea that the prosecutrix was working in construction of a house of one Dhiriya Bai. Dhiriya Bai (DW-1), Khushal (DW-2) and Munna (DW-3) were examined to that effect. However, no such suggestion was given to the prosecutrix in her cross examination, and therefore it appears that the defence of alibi created relating to the prosecutrix is nothing but an after thought which was created after examination of the prosecutrix. The prosecutrix was given a suggestion that one Panchayat was called after the incident. She has accepted that one Panchayat was held but she did not visit in the Panchayat, however such story of Panchayat does not create any doubt in the testimony of the prosecutrix and it is not relevant to the story told by defence witnesses Hence, the evidence of the defence witnesses was rightly disbelieved by the trial Court.

The learned counsel for the appellants has submitted that since the prosecutrix did not sustain any injury either external or internal, her testimony is unbelievable. However, it is the settled view of Hon''ble the Apex Court that there is no need of any corroboration of the medical report to rely on the testimony of the prosecutrix. The prosecutrix was a labourer woman and she was habitual to intercourse, and therefore there was no possibility that any internal injury would have caused to her specially when she has stated that when the appellant Omkar had committed rape upon her, her hands were held by other appellant, and appellant Bundaram committed rape upon her, her hands were held by appellant Omkar, and therefore there was no possibility of any internal injury. However, the prosecutrix has stated that she resisted a lot, and therefore due to rough surface and small stones on the ground she sustained injuries on her back and buttock. Due to breaking of bangles, she sustained injuries in her wrist. The claim of the prosecutrix that she sustained injuries during the incident, can be considered with the help of the medical report to assess her testimony.

The prosecutrix had claimed so many injuries caused in the incident though she has stated that each of the appellant had an axe and they gave a threat with help of axe. However, such story of having an axe by the appellants is not mentioned in the FIR, and therefore it cannot be said that the prosecutrix was threatened by the appellants with the help of axe. If she was threatened by that axe, then certainly she could not sustain any such injury on her back and buttocks. The SDO (P) S.S. Sori (PW-5) had recovered the pieces of bangles from the spot and prepared a seizure memo Ex. P-7. If the bangles were broken in the incident and those were lying at the spot, then there must be injury of such nature on the wrist of the prosecutrix, whereas Dr. Pushpa Saryam (PW-1) did not find any such injury, and therefore the story of breaking bangles appears to be a falsehood. Similarly, in absence of any injury caused on her back and buttock, a doubt is created in the story of the prosecutrix.

Gudda @ Ramsingh has accepted in his cross examination that when he was informed about the incident by the prosecutrix, he sent his father to the house of Bundaram for enquiry. His father came back and intimated that the father of the appellant Bundaram has replied him to lodge an FIR. They were not ready to give any amount to father of Gudda. He has further accepted that when he contacted Kotwar of Village to lodge an FIR, the Kotwar did not come with him. According to him, neither Kotwar nor Village Patel took any interest in lodging the FIR. According to him, he was intimated about the incident at about 6-7 PM and the last vehicle was available at about 8:30 PM to visit Lakhnadon. However, he has stated that on contacting father of Bundaram and the Kotwar, the delay has been caused, and hence he and the prosecutrix could not catch the vehicle at about 8:30 PM, and therefore the FIR was lodged in the next day morning. Again he has stated that they left the Village at 7:00 AM and within half an hour they reached Lakhnadon. They tried to lodge an FIR at the police station Lakhnadon, but it was not recorded by the police upto 11-12 AM. If the FIR Ex. P-2 is examined, then it would be apparent that it was lodged at about 10:00 AM in the morning. It is not mentioned in the FIR that the prosecutrix and her husband were present at the police station at 7:30 AM and the FIR was not recorded upto 10:00 AM. Hence, by the statement of Gudda @ Ramsingh, it appears that the FIR could be lodged at 7:30 AM and it was lodged at 10:00 AM. The FIR could be lodged in the same night of the incident, but the prosecutrix and her husband did not visit the police station on that day. On the contrary, they tried to contact with Bundaram''s father. If the contradiction between the statements of the prosecutrix and her husband is considered, then according to Gudda @ Ramsingh, father of Bundaram refused to take any action against the appellants and to redress the grievance of the prosecutrix and husband, whereas the prosecutrix has stated that a Panchayat was called by the parents of the appellants to resolve the dispute between the parties, but the prosecutrix did not visit in the Panchayat. If the father of the appellant Bundaram refused to do anything in connection with the alleged crime, then there was no possibility of holding any Panchayat by the parents of the appellants, and therefore it is clear that the prosecutrix is telling a falsehood about holding of Panchayat.

The prosecutrix in para 5 of her statement has accepted that soon before her statement in the trial Court, she read the copy of FIR. She has accepted that when she was reading the copy of FIR, one constable visited her seat and asked for that papers and after looking the papers he returned the copy of FIR to the prosecutrix. If the incident actually took with the prosecutrix, then there was no need for her to refresh her memory with the help of copy of FIR. Looking to the overt-act of the prosecutrix, the possibility cannot be ruled out that a false case was lodged against the appellants, and therefore she refreshed her memory with the help of copy of FIR soon before her evidence recorded before the Court.

The learned counsel for the State has stated that no enmity was proved between the prosecutrix or her husband and the appellants, and therefore there was no possibility that the prosecutrix would have lodged a false FIR against the appellants. On the contrary the learned counsel for the appellants has submitted that the matter relates to the Special Act and such FIR could be lodged without any basis to claim a compensation from the Government. However, looking to the conduct of the prosecutrix and her husband soon after the alleged incident, delay in lodging the FIR, act of refreshing of memory with the help of copy of FIR soon before her examination before the Court and in absence of injuries on the body of the prosecutrix as claimed by her that those were caused in the incident on considering collectively indicate that the testimony of the prosecutrix is not believable beyond doubt. The possibility cannot be ruled out that the appellants are falsely implicated in the matter.

On the basis of the aforesaid discussion, when the testimony of the prosecutrix is not believable it cannot be said that the appellants have committed rape one by one upon her or they outraged the modesty of the prosecutrix. Therefore, the trial Court has committed an error in convicting the appellants for the aforesaid offences. When the testimony of the prosecutrix is not believable, the appellants cannot be held guilty of offence under Section 376(2)(g) of IPC or its inferior offence or of offence under Section 3(1)(xi) of the Special Act. Consequently, the present appeal filed by the appellants is acceptable and hence it is hereby allowed. Their conviction and sentence of the offence under Section 376(2)(g) of IPC and Section 3(1)(xi) of the Special Act are hereby set aside. They are acquitted from all the charges appended against them on giving a benefit of doubt. They would be entitled to get the fine amount back if they have deposited before the trial Court.

At present the appellants are on bail, and their presence is no more required, therefore it is directed that their bail bonds shall stand discharged.

A copy of this judgment be sent to the trial Court along with its record for information and compliance.