Rambharat vs State of M.P.

U.C. Maheshwari, J.—On behalf of the appellant this appeal is preferred under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment dated 1.3.2000 passed by the Special Judge constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short ''the Act'') and Sessions Judge, Shivpuri, in Special Case No. 74/1999, whereby the appellant has been convicted and sentenced under Section 376(1) of IPC read with Section 3(2)(v) of the Act and under Section 450 of IPC for life imprisonment with fine of Rs. 5,000/- in the earlier count while R.I. for one year with fine of Rs. 1,000/- in the latter with stipulation of further imprisonment in default of depositing the fine amount.

The facts giving rise to this appeal, in short, are that in the midnight of 1st and 2nd July, 1999 when the prosecutrix was sleeping in her residence at village Kanakhedi and her mother-in-law was also sleeping in some other place of such house, the appellant with intention to commit an offence entered in the house of the prosecutrix and after pressing her neck lifted her clothes and committed rape on her. After committing such act, when the prosecutrix was set free by the appellant, then she cried, on which her mother-in-law Dhantibai (PW-2) came there on which the appellant ran away from such house. It is also the case of the prosecution that on such fateful night the husband and father-in-law of the prosecutrix, namely Seetaram and Bharosi, were not at the residence as they had gone to some other village to attend some marriage. After returning the husband and father-in-law, she apprised such incident to them and thereafter accompanied with her husband she came to police Station, Kotwali, Shivpuri, and lodged the first information report (Ex.P/1). After lodging such report, she was sent to the hospital where her medical examination was carried out and MLC report (Ex.P/2) was prepared by Dr. Smt. Veena Kumhra (PW-3). Her clothes were also seized and sent to FSL from where the report Ex.P/7 was received. In further investigation, the appellant was arrested, interrogatory statements of the witnesses were recorded and on completion of the investigation, the appellant was charge-sheeted for the offence punishable under Sections 376(1), 450 of IPC and Section 3(2)(v) of the Act.

After committing the case to the Sessions Court, on evaluation of the charge-sheet, the charges for the above mentioned offences were framed against the appellant. He abjured the guilt on which the trial was held. After recording the evidence and on appreciation of the same, by holding guilty to the appellant for above mentioned offences, he has been convicted and sentenced as mentioned above. Being dissatisfied with such conviction and sentence, the appellant has come to this Court with this appeal.

The appellant''s counsel Shri Madhukar Kulshrestha after taking us through the evidence adduced by the prosecution alongwith the exhibited papers of the charge-sheet, so also the impugned judgment argued the case with two angles.

Firstly learned counsel said that on proper appreciation of the evidence adduced by the prosecution in the light of the enmity factor between the family of the appellant and husband of the prosecutrix on account of some property, the possibility to implicate the appellant on false averments cannot be ruled out. In support of such contention, he has referred some part of the cross-examination of the prosecutrix (PW-1) as well as Dhantibai (PW-2) and Seetaram (PW-5), the husband of the prosecutrix, so also the deposition of the defence witnesses Feran (DW-1) and Bhagti (DW-2). In continuance, he said that such aspect was not properly considered by the trial Court before holding the conviction against the appellant.

Learned counsel for the appellant argued the case with another angle saying that it is apparent from the averments of the FIR (Ex.P/1), on which the offence was registered at police Station, Pohri, (EX.P/8), that the alleged incident was happened in the midnight and it is undisputed in the matter that on such night the husband and father-in- law of the prosecutrix were not at the residence as they had gone to attend some marriage in some other village and as per averments of it, till performing the entire act of rape/intercourse no alarm was given by the prosecutrix to call her mother-in-law or any other neighbour. Although in this regard she has explained that her neck was pressed by the appellant before committing the alleged act of rape, but it is not explained by the cogent and reliable evidence by the prosecution as to why the door of the house was opened in such midnight, especially when husband and father-in-law of the prosecutrix were not at home and after entering the appellant in the house probably the notice of such entrance was taken by the prosecutrix, but in spite of that till reaching the appellant to the prosecutrix why she has not given the alarm to call her mother-in-law or neighbour, such unexplained circumstance shows that it was a case of consent between the appellant and the prosecutrix and it is undisputed fact that both were major on the date of incident. In support of such contention, he has also referred some part of the in-chief of the prosecutrix and demonstrated that while performing such consenting act, mother-in-law of the prosecutrix came in between and saw them and that is why at later stage the matter was reported to the police. In such background, he also said that if the incident was happened in between 1st and 2nd July, 1999, then the FIR should have been lodged on any of the police Station on 2.7.1999, but the same was lodged on 3.7.1999 at 4.30 p.m. at police Station, Kotwali, Shivpuri, from where the same was sent and offence was registered on some other date at police Station, Pohri. So in the available circumstances, if the first information report was lodged after near about 36 hours, then such circumstance makes the case of the prosecution suspicious. He further said that mere perusal of the MLC report of the prosecutrix, it is apparent that no sign or injury to show violence between the appellant and the prosecutrix was found, even the doctor has not given any definite opinion about committing rape on the prosecutrix. So in the available circumstances, in the lack of medical evidence also, the impugned conviction of the appellant is not sustainable.

Apart the aforesaid, the learned counsel has also argued that on taking into consideration the entire scenario of the case and the available evidence, it could not be said that alleged incident was happened with intention to commit the alleged act by the appellant to humiliate the prosecutrix on account of her caste covered under the schedule of the Act or knowingly that she is belonging to such community covered under the Act. In continuance, he said that on taking into consideration the entire evidence as accepted in its entirety, even then it is apparent that prosecution has utterly failed to prove the requisite ingredients of the offence of Section 3(2)(v) of the Act and in the lack of any documentary or ocular evidence, the conviction of the appellant under Section 376(1) of IPC with the help of Section 3(2)(v) of the Act is also not sustainable. He further said that mere testimony of the prosecutrix or her mother-in-law regarding their caste is not sufficient to draw the inference to hold that they are belonging to the community covered under the Act. In every criminal case, the prosecution is bound to prove such fact by admissible documentary and other evidence. With this submission, the counsel prayed for extending the acquittal to the appellant by setting aside the impugned judgment.

On the other hand, responding the aforesaid argument Shri B.K. Sharma, learned Govt. Advocate for the State, has justified the impugned conviction and sentence of the appellant by saying that the same being based on proper appreciation of the evidence is in conformity with law and does not require any interference at this stage. In continuance by referring the deposition of the prosecutrix (PW-1) and her mother-in-law Dhanti (PW-2), he said that their depositions are in consonance with the averments of the FIR and according to them, the appellant by entering in the house of the prosecutrix without her consent after lifting the clothes of the prosecutrix had committed the alleged offence under threat of her life by putting the hand on her neck. He further said that it is undisputed that at the time of offence the husband and the father-in-law of the prosecutrix were not at the residence as they had gone to attend some marriage in some other village, so lodging the FIR by the prosecutrix and her mother-in-law in the absence of any male member of the family was not possible on early date and soon after coming the husband and father-in-law, the prosecutrix went to the nearest police Station and lodged the report, hence, FIR could not be treated to be belated. He further said that as per settled proposition merely the testimony of the prosecutrix is sufficient to hold conviction against the appellant in the rape cases if the same appears to be reliable in view of other available circumstances of the case and in the case in hand although the neighbours have not been examined by the prosecution and in medical the prosecutrix being married woman, no sign of violence was found, but fact remains that prosecutrix herself has stated the alleged act of the appellant which is further supported by her mother-in-law and such evidence has been rightly relied on by the trial Court for holding the conviction against the appellant and at this stage there is no scope in the matter to interfere in such conviction and sentence. He also said that in the available circumstances, there is no scope to draw any inference that appellant has not committed the aforesaid offence alongwith the offence of the Act and prayed for dismissal of this appeal.

Having heard counsel at length, keeping in view their arguments, we have carefully gone through the record of the trial Court, including the depositions of the prosecution witnesses as well as defence witnesses and the exhibited papers of the charge-sheet alongwith the impugned judgment.

In order to prove the prosecution case, the prosecution has examined three witnesses from the family of the prosecutrix, one is prosecutrix (PW-1), the mother-in-law of the prosecutrix Dhanti (PW-2) and husband of the prosecutrix Seetaram (PW-5).

On perusing in-chief of the prosecutrix (PW-1), we have not found any averments to show the explanation that in the midnight of the date of incident when her husband and father-in-law both were not at the residence, why the door of the house was kept open. Such version has also not been explained in the FIR also. On perusing the spot map (Ex.P/4), we have not found any explanation in such document also in this regard. So in such circumstances, one thing is certain that on the date of incident the door of the house of prosecutrix was kept open even at midnight. We have also not found any explanation either in the FIR or in the deposition of the prosecutrix that after entering the appellant in her house till reaching to her why the alarm was not given by the prosecutrix to call her mother-in-law or to the neighbours. According to the FIR as well as the deposition the alleged act was committed by the appellant after pressing her neck and that is why soon after committing rape when the appellant stood up, then she cried, on which her mother-in-law came there, but such version does not appear to be reliable, on the contrary, on joint reading of the deposition of the prosecutrix as well as her mother-in-law, it appears that the door of the room of the prosecutrix was opened on such date, the appellant entered, committed the alleged act, but when such act was known to the mother-in-law of the prosecutrix, then the appellant ran away from the spot and subsequently for near about 36 hours the first information report was not lodged. Although according to the explanation, the husband and father-in-law of the prosecutrix were not at the residence, therefore, the report was not lodged immediately as they were under fear from the appellant and his family, but it is not come on record that on which date the husband and father-in-law or any of them came to the residence and why the report was not lodged on the very next day. So in such premises, it appears that after happening the alleged incident with consent, under pressure of the other family members, mother-in-law and husband, the first information report, was lodged.

Mere perusal of the MLC report of the prosecutrix (Ex.P/2) and the deposition of the doctor Smt. Veena Kumhra (PW-3), it is apparent that on medical examination of the prosecutrix no sign of violence on any part of person of the prosecutrix, including the neck part, was found and doctor could not give any definite opinion about committing rape or intercourse with the prosecutrix. So in the lack of any sign, mark or injury on the neck part of the prosecutrix, the story put forth by the prosecutrix that the alleged act was committed by the appellant by pressing her neck appears to be suspicious and such version appears to be afterthought in the FIR as well as in the deposition. We are of the considered view that in the lack of any mark, sign or injury on the neck of the prosecutrix such explanation put forth by the prosecutrix cannot be relied on.

State counsel has mainly relied on the deposition of the prosecutrix as well as her mother-in-law and also on FSL report (Ex.P/ 7). We have already discussed about the testimony of the aforesaid both the witnesses and on appreciation of their depositions, it has been established that it was a case of consent between the appellant and the prosecutrix because on the alleged midnight door of the house of prosecutrix was remained open to facilitate the appellant to enter in the house and as stated above, from the door till reaching the appellant to the prosecutrix there was no alarm on the part of the prosecutrix and as per prosecutrix only after committing the alleged act of rape, she had given the alarm on which her mother-in-law came. In such premises, it appears that because of the intervention of the mother-in- law of the prosecutrix the matter was reported to the police. So, in such premises, on the basis of the FSL report no inference could be drawn against the appellant because the prosecutrix was undisputedly married and if something has come on her cloth, then on that basis no inference could be drawn against the appellant.

In view of the aforesaid discussion, we are of the considered opinion that alleged act was committed by the appellant with the prosecutrix with her consent in her house and in such premises the approach and the findings of the trial Court holding conviction and sentence against the appellant are not sustainable. Consequently, the same deserves to be set aside. Pursuant to it, we are of the considered view that when the appellant deserves to be acquitted from the aforesaid charges of Sections 376(1) and 450 of IPC, then conviction of the appellant under Section 3(2)(v) of the Act is also not sustainable. The same also deserves to be set aside. Even otherwise, it is apparent from the record that prosecution has failed to prove that the alleged act was committed by the appellant with the prosecutrix with intention to humiliate her because of her caste covered under the Act. Apart this, the prosecution has also not adduced any documentary or reliable admissible evidence to prove the prosecution case under the purview of the community covered under the Act.

Resultantly by allowing this appeal the impugned judgment alongwith the conviction and sentence imposed against the appellant is hereby set aside and the appellant is acquitted from the alleged charges. The amount of fine if deposited the same be refunded to the appellant after proper verification. The bail bonds of the appellant are hereby discharged.