Pan Singh vs State Of Madhya Pradesh

This Criminal Appeal has been filed by appellant Pansingh son of Sunva Jatav resident of Bagedari police Station Karera, Shivpuri, being aggrieved by

judgment dated 7.12.2005 passed in Sessions Case No.61/2005 by the Additional Sessions Judge, Karera, Shivpuri, whereby learned Additional

Sessions Judge has convicted the appellant under the provisions of Section 450 of IPC with 4 years of RI and fine of Rs.500/-. Appellant has been

further convicted under Section 376 of IPC with ten years of RI and fine of Rs.500/-. In default of payment of fine, appellant is required to undergo

further RI of two months each.

As nobody was appearing for the appellant, this Court appointed Shri B.S.Gaur as counsel from the Legal Aid and requested him to prepare and

argue this case.

The facts of the case, which are not in dispute, are that on 12.1.2005 at about 12.30 am when prosecutrix was in her room, accused had entered

her room and made himself comfortable by the side of the prosecutrix, on her bed. Thereafter, he committed rape and when prosecutrix tried to

oppose, he put a piece of cloth in her mouth, as a result she could not shout. Once the act was over, she shouted, which was heard by her sister-in-law

Suman (PW-3) and she called Bhaggo (PW-2), mother-in-law of the prosecutrix, and Lalu (PW-4), husband of the prosecutrix, who was available in

the house of Bhaggo at a distance of 20-25 steps. It is also the case of prosecution that at that point of time, witness Hariram (PW-6) had arrived at

the scene of crime and he had seen the whole incident. FIR was lodged on the same day at 1.30 pm i.e. there is a gap of 13 hours between the

incident and the time when FIR was lodged.

It is the contention of learned counsel for the appellant that this is a case of false accusation whereby appellant has been falsely accused of

committing rape. It is submitted that prosecutrix (PW-1) is habitual of making false allegations and this can be verified by the statements of

Prosecutrix (PW-1), Bhaggo (PW-2) and Suman (PW-3). It is submitted that because of rivalry over the election to the post of Sarpanch, accused has

been falsely framed. It is further submitted that the version of the prosecution witnesses is full of contradictions and is not reliable. He has taken this

Court through the detailed evidence of each of the prosecution witnesses, namely prosecutrix (PW-1) who has admitted in her cross-examination that

accused had taken about a minute's time in committing rape and when thereafter he started running, then her sister-in-law, who was in the

neighbouring room, called her husband and mother-in-law. She has admitted that she had not sustained any injury during the said incident either on the

body or on her face including mouth. In para 6 of her cross-examination, she has admitted that accused was opposing her mother-in-law in the

election. She also admitted that about 1 and half years prior to the present incident, she had filed a case for committing rape against Badam, Lakhan,

Bhassu and Raghuvar and all those persons have been acquitted in that case.

Bhaggo (PW-2), mother-in-law of the prosecutrix, has mentioned that when she reached the incident, then accused was not present there. She saw

her son Lalu lying down on floor and she offered water to him and then he informed her that accused Pansingh had throttled his neck and ran away.

In cross-examination, Bhaggo (PW-2) has admitted that she was a candidate for the election to the post of Sarpanch, but later on she withdrew her

candidature by supporting one Dubeyji. She also admitted that accused Pansingh was her opponent in the election. She has further improvised the

story which has not been mentioned by the prosecutrix to the effect that not only the accused had tried to scuffle with her son Lalu, but also had given

two kick blows to her daughter-in-law. This portion of giving kick blows to her daughter-in-law is not mentioned in the statement of the prosecutrix

(PW-1). She has also admitted that earlier a case was lodged against other persons with whom matter was compromised.

Suman (PW-3), sister-in-law of the prosecutrix, has mentioned in her examination-in-chief that when she heard voice of her sister-in-law, the

prosecutrix, she opened door of her room and came out and saw that a scuffle was going on between her brother-in-law Lalu and accused Pansingh,

then she went to call her mother-in-law. This is another material contradiction in the prosecution story because as per the prosecutrix it was Suman

who had gone and called both husband Lalu and mother-in-law Bhaggo. Bhaggo (PW-2) has on the contrary submitted that when she reached the

scene of crime, her son was lying in a semi-conscious state. Suman (PW-3) has admitted that prosecutrix had informed her that she was insulted by

Pansingh. In cross-examination, she has admitted that in the immediate neighbourhood there are houses of Chironji and Bindaram. She further

admitted that in the interrogation she informed the police that her sister-in-law had informed her that she was insulted by the accused. She further

narrated that scuffle between her brother-in-law and accused took place for about 5 minutes. She admitted in para 3 that her mother-in-law was a

candidate for election to the post of Sarpanch and accused Pansingh was her opponent.

Lalu (PW-4), husband of the prosecutrix, on the other hand has narrated in his examination-in-chief that when he heard voice of her sister-in-law,

then he came running to his house from the house of his mother where he was having dinner and he saw his wife in a naked state when the accused

was in a compromising position and was raping her. In para 2, Lalu (PW-4) has mentioned that they could not lodge the report in time because they

had first gone to Surendra Maharaj, Sarpanch, and then when they tried to approach police Station, accused met them with a Farsa and threatened

them with their life, as a result of which, he could not lodge the report. It is submitted that prosecution has not examined Sarpanch Surendra Maharaj

and there is no such version of the prosecutrix or Bhaggo (PW-2), who had gone to lodge the report, that since the accused was armed with a Farsa

and had threatened them, they could not lodge the FIR during night time.

Learned counsel for the appellant has further pointed out that in the cross-examination, there is material omission and contradiction in the testimony

of Lalu (PW-4) inasmuch as it is not the case of the prosecutrix that Lalu, her husband, had seen the accused committing rape on her. In reply to

question that if he had seen the accused committing rape on his wife, then why he had not given such statement before the police in case diary

statement EXD/2, Lalu (PW-4) could not give any reason for such omission. Lalu (PW-4) has further mentioned that when he had caught hold of the

accused, at that point of time, his mother had lighted Chimni. It is submitted that this is again contradictory to the statement of Suman (PW-3) that

there was a source of light, whereas as per the statement of Bhaggo (PW-2) when she arrived at the scene of crime accused had already run away

and she saw her son lying in a semi-conscious state. In para 5, Lalu (PW-4) submitted that there were injury marks on the body of the prosecutrix and

her blouse and petticoat were torn. It is further pointed out that this is also contradictory to the version of the prosecutrix (PW-1), Bhaggo (PW-2) and

Suman (PW-3).

Dr. Aneeta Bhilwar (PW-9), who had conducted MLC on the body of the prosecutrix, categorically reported that there was no sign of injury on the

body or private parts of the prosecutrix. There were many spots on the petticoat of the prosecutrix which she had sealed and given to the Woman

Constable alongwith vaginal slides. She has further deposed that no definite opinion about rape could have been given on the basis of the evidence. In

cross-examination, she admitted that there were no sign of any protest on the body of the prosecutrix.

Woman Constable Prabhawati (PW-8) has admitted receiving sealed packet of petticoat and slides for which Panchnama (Ex.P/4) was prepared,

but IO of the case G.L. Parihar (PW-7) has nowhere deposed that as to what report was received in regard to such petticoat and such slides which

were received from the doctor and whether they were sent for FSL examination or not. On such premises, learned counsel for the appellant prays for

allowing this appeal by acquitting the appellant.

Learned Public Prosecutor for the State on the other hand submits that in rural areas such minor omissions cannot be exaggerated to record a

finding of acquittal in favour of the accused.

Learned Public Prosecutor further submits that in para 27 of the impugned judgment reason for delay has been dealt with by the learned Additional

Sessions Judge and it is mentioned that there is no sufficient cross-examination either on G.L.Parihar (PW-7) or on the prosecutrix (PW-1) who have

categorically mentioned that FIR could be lodged with delay because of night and the fact that they were required to walk upto the police Station. It is

further submitted that in the aforesaid backdrop, it is not such a case where accused be acquitted because of certain minor omissions and

contradictions in the testimony of prosecution witnesses.

As far as FIR (Ex.P/1) is concerned, distance of police Station is mentioned as 8 kms. The hypothesis put forth by Lalu (PW-4) that they were

confronted by the accused is not supported by any other witness, even there is no mention of such threat in the FIR as has mentioned by Lalu (PW-4).

Travelling a distance of 8 kms will not take 13 hours for the prosecutrix and her relatives.

There is no independent witnesses though Suman (PW-3) has admitted that there are two persons living in the immediate neighbourhood. There is

no testimony of Sarpanch to whom Lalu (PW-4) says that they had visited before lodging of the FIR. Now, in view of such facts, when there is no

independent witnesses, testimony of each of the witnesses is to be examined and analyzed.

As far as Lalu (PW-4) is concerned, his testimony does not inspire any confidence. He cannot be said to be a witness at the time of the incident

because he has given a version that he had seen his wife naked being raped by the accused which is contrary to the version given by the prosecutrix

(PW-1), Bhaggo (PW-2) and Suman (PW-3), who was the first to hear the cries of the prosecutrix, therefore, evidence of Lalu (PW-4) is not of

much use to uphold the conviction of the accused, and hence, it needs to be brushed aside.

As far as Bhaggo (PW-2) is concerned, there is material contradiction in her statement. She states that when she arrived at the scene of incident

she saw her son lying in a semi conscious state and she offered water to him and he narrated that accused Pansingh tried to throttle him as a result of

which he fell down, whereas Lalu (PW-4) has mentioned that he had seen the accused in the light of Chimni which was lit by his mother Bhaggo,

therefore, presence of Lalu at the place of incident at that very point of time becomes doubtful. It is doubtful that he had seen the accused as Bhaggo

says that she had arrived on the scene after accused had run away, then Lalu could not have seen him in the light of Chimni lit by Bhaggo. Further her

testimony to the effect that earlier also certain persons were implicated in the case of rape and matter was compromised, reveals that no woman

worth her salt will compromise her chastity and make such accusation and compromise the matter when such serious offence is committed not only

against her body but also having serious ramifications of psychological and social dimensions.

Suman (PW-3) has admitted that when she opened door of her room on hearing cries of her sister-in-law, she saw Lalu (PW-4) fighting with the

accused Pansingh. Therefore, version of the prosecutrix that Suman had called her husband and mother-in-law gets diluted inasmuch as Suman has

also admitted that she had never called her brother-in-law and her brother-in-law Lalu was already present at the scene of incident. Further, Suman

has deposed that prosecutrix had only informed that she has been insulted. This fact has been reiterated in her cross-examination and she had narrated

the same version to the police that her sister-in-law was insulted by accused Pansingh. There is a difference between insult and rape and if insult

would have been committed, it would be a case under Section 294 of IPC and if it would have been a case of physical insult, then it would be a case

under Section 323 of IPC but by no stretch of imagination it would have been a case under Section 376 of IPC.

Dr. Anita Bhilwar (PW-9) has not supported the prosecution case by giving any independent finding. Though the learned Additional Sessions

Judge has placed reliance on the judgment of this High Court in the case of Ram Vilas vs. State of M.P. as reported in 2004(2) M.P.H.T. 135

wherein it is held that even if a prosecutrix, who was a major, married woman and accustomed to sexual intercourse, dose not sustain any injury on

her private part, it cannot be said that either story of the prosecutrix is false or she was a consenting party. This judgment is to be seen in the light of

the testimony of prosecution witnesses. Lalu (PW-4) has mentioned that his wife, the prosecutrix, had sustained injuries on face, however, the doctor

does not corroborate any of the injuries as mentioned by Lalu. It is also true that prosecutrix, who is a grown up married woman and mother of three

children, may not have sustained any injury on the private part when she was being raped, but at the same time, there would have been some protest

marks on the other parts of her body and the story of the prosecution witness Lalu would have been corroborated either by the prosecutrix or by the

independent medical evidence. In absence of there being any sign of protest, as mentioned by Dr. Anita Bhilwar (PW-9) this judgment in the case of

Ram Vilas (supra) is distinguishable on facts and is not applicable in the facts and circumstances of the present case.

In view of such analysis of the evidence, it is apparent that it is a case of political rivalry and the accused who was a opponent to the mother-in-

law of the prosecutrix has been framed in a case of rape by falsely accusing the appellant and also there is no justification for not getting the FSL

report on the basis of sealed petticoat and the vaginal slides which were given by Dr. Anita Bhilwar (PW-9) to Woman Constable Prabhawati (PW-8)

for which Panchnama Ex.P/4 was prepared. In absence of even any independent scientific evidence to point out that any rape was committed, which

would have been the best piece of evidence for the prosecution, but prosecution has failed to produce such evidence, specially when there was no

independent eye-witness, the case of the prosecution does not appear to be standing on the foundation of truth but appears to be a case of vindictive

false accusation. Thus, appellant deserves to be acquitted and is acquitted. He will be free to claim compensation from the prosecution as well as

State for such false accusation by undertaking independent proceedings. This appeal is accordingly allowed with cost which is quantified at

Rs.10,000/- to be borne by the State and which will be payable to the appellant. The appellant is on bail, his bail bonds shall stand discharged.