Ravi Shankar and Another vs State of M.P.

Shantanu Kemkar, J.

This appeal has been filed against the judgment dated 31.12.2002 passed by the Sessions Judge, Narsinghpur in S.T. No. 96/ 02 where by the appellants have been convicted of offence u/s 376 (2) (g) of the Indian Penal Code and sentenced to ten years rigorous imprisonment.

As per prosecution case, on 30.3.2002, parents of the prosecutrix had gone from their village Kareli to village Kacharkona. The prosecutrix, her brother Ramkumar (PW-8) and her cousin Sunil Kumar (PW-9) were in the house. In the night at about 2 A.M. the prosecutrix woke up from her sleep for urination. When she was urinating in the courtyard, the appellants who were sitting in the dark pounced on the prosecutrix and gagged her mouth. The appellants then carried her to an open ground behind the house of one Girjabai. After reaching there they threatened her not to make a noise else they will kill her. Thereafter, the appellants committed rape on her one after another. After this, both the appellants again threatened the prosecutrix not to inform about this incident to anyone else they will kill her, Thereafter prosecutrix came to home and slept. On the next morning, the prosecutrix along with her brother Ramkumar (PW-8) went to her aunt Prabhabai (PW-6) and narrated the incident to her. Prabhabai (PW-6) advised the prosecutrix to wait till her mother returns from village Kacharkona. The prosecutrix narrated the incident to her parents when they returned. Thereafter, Ramdas (PW-5) father, Geetabai (PW-7) mother of the prosecutrix and Ramkumar (PW-8) brother took the prosecutrix to the police station, Kareli where the prosecutrix lodged the F.I.R. Ex. P-7.

The police referred the prosecutrix to medical examination at Government Hospital, Narsinghpur. Dr. Preeti Singhai (PW-1) examined the prosecutrix. The report of Dr. Preeti Singhai is Ex.P-1-A. Dr. Preeti Singhai referred the prosecutrix to the Radiologist for age determination. Report of Radiologist is Ex. P-2. After investigation, the charge sheet was submitted. The trial court recorded the evidence and convicted the appellants as mentioned above.

Shri V.P. Singh, learned counsel for the appellants has urged that the trial court was in error in holding that the age of the prosecutrix was below 16 years; the evidence of the prosecutrix is not reliable; her version is not supported by the medical evidence Ex. P-1-A. On the other hand Shri Vivekanand Awasthy, learned Govt. Advocate for the respondent has contended that the evidence about the age of the prosecutrix being below 16 years is fully trustworthy. He also contended that the prosecutrix version is fully reliable and in such circumstances even though the medical report Ex. P-1-A does not support the prosecution case about commission of rape, the judgment of conviction cannot be said to be erroneous or illegal.

In order to prove the age of the prosecutrix the prosecution examined Yashoda Chouhan (PW-2), headmistress of Primary School Kareli. Yashoda Chouhan (PW-2) deposed that in the school admission register Ex.P-5, the date of birth of the prosecutrix was recorded as 18.9.88. In her cross examination she has deposed that in the school admission register the age is recorded as disclosed by the parents. Ramdas (PW-5) has deposed that the age of the prosecutrix was 13 years. However, he could not depose as to what was the date, month and year of birth of the prosecutrix. He has further deposed that only the mother of the prosecutrix accompanied her for admitting her to the school. Geetabai (PW-7) mother of the prosecutrix has deposed that she does not know the actual date of birth of the prosecutrix. She further deposed that while admission to the school she disclosed the date of birth of the prosecutrix merely by guessing. As per report of the Radiologist Ex.P-2-A, the age of the prosecutrix was in between 15 to 16 years. In her medical report Ex. P-1, Dr. Preeti Singhai (PW-1) has observed that the sexual characters of the prosecutrix were well developed. Considering this evidence in my view, there is no convincing evidence to hold that the age of the prosecutrix was less than 16 years. Thus, the trial court has committed error in holding that the prosecution has been able to prove that the prosecutrix was less than 16 years of age.

To find out whether the prosecution has been able to prove the charge against the appellants, the evidence led by the prosecution to prove the offence is being scanned herein under.

The prosecutrix (PW-4) has testified that on 30.3.2002, her parents had gone to village Kacharkona. She was sleeping with her brother Ramkumar and cousin Sunil Kumar. In the night at about 2 A.M. she woke up for urination. She informed her brother Ramkumar and went for urination in the courtyard as suggested by him. When she was urinating, she could not notice the applicants were sitting in the dark nearby. The appellants pounced on her and gagged her mouth by cloth. The appellants then lifted her and took her to an open ground behind the house of Girjabai. Thereafter, the appellants committed rape on her one after another. After commission of rape, the appellants again threatened her not to inform about this incident to anyone otherwise they will kill her. She further deposed that thereafter she came to her house and narrated the incident to her brothers. On the next morning she and her brother Ramkumar went to her aunt Prabhabai (PW-6) and narrated the incident of rape to her. As advised by Prabhabai she waited for her parents to return. On their return, she narrated the incident to them. Thereafter her parents took her to the police station Kareli where she lodged the E.I.R. Ex.P-7. In her police case diary statement Ex.D-1, the prosecutrix has not stated that she went for urination after informing her brother Ramkumar. She has also not stated that her mouth was gagged by the appellants by a cloth and that she was lifted by the appellants and taken to the ground. She has also not stated that after being raped when she returned she narrated the incident to her brothers. On the other hand she stated that in the night due to fear she did not disclose the incident to anybody. Thus, I find material contradiction in her evidence in the court and in her case diary statement Ex.D-1, Dr. Preeti Singhai (PW-1) in her medical report Ex.P-1 has found hymen old torn and did not find fresh bleeding. There was no external injury on any part of the body. No injury was found over private parts. In her conclusion she has opined that no definite opinion regarding recent intercourse can be given. Admittedly, the prosecutrix was unmarried girl. No signs of rape were found. Her hymen was found old torn. Thus the medical evidence does not support the testimony of the prosecutrix.

On careful scrutiny of the prosecutrix''s version in my opinion she is not a truthful witness. The contradiction as discussed above in her case diary statement Ex.D-1 and in her deposition in the court are material in nature. Her version that the appellants pounced on her and lifted her is hardly convincing. It cannot be believed, in the absence of any evidence, that the appellants had any prior knowledge that the prosecutrix would come out to urinate at 2 O''clock in the night and they would get a chance to sexually abuse her and for which they would wait for her in the courtyard. It is also unbelievable that the prosecutrix who is of age more than 16 years would not shout because it is not the case of the prosecutrix that the appellants were armed and therefore it is also inconceivable that when the prosecutrix was carried to an open place through a public road, which had houses at both the sides she did not cry for help and nobody saw them. Her story is not only not corroborated by the medical evidence, but appears to be untrustworthy. I find it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her. I do not find it necessary to deal with other evidence and the defence of the appellants as I am not satisfied generally of the correctness of story as told by the prosecutrix. Thus in my view it is not safe to convict the appellants on the basis of such evidence.

In somewhat similar circumstances the Supreme Court in the case of Dilip and Another Vs. State of M.P., has observed as under:

"In the instant case the gang rape is alleged to have been committed at about 2 p.m. in house of prosecutrix situated in a populated village by the side of the main road where people were moving on account of holy festival. The prosecutrix alleged to have raised hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not corroborated by the medical evidence is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the Court. In the circumstances the thruthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her cannot be accepted in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. Since the testimony of the prosecutrix cannot be relied upon, the accused in the circumstances would entitled to acquittal."

Accordingly, this appeal is allowed. The conviction of the appellants as recorded by the trial court is set aside. The appellants be released forthwith, if not required in connection with any other offence. Appeal allowed.