State Of Madhya Pradesh. vs Mahesh Singh

A.K.Joshi, J

In this appeal filed by the appellant/State of M.P. under Section 378 of Cr.P.C., challenge is to the judgment dated 17.06.2005 passed by Sessions

Judge, Gwalior in S.T.No.96/2005, whereby present respondent/accused was acquitted from the charge of offence punishable under Section 376(1)

and Section 506 part-II of the IPC.

2- Undesputedly, on the date of incident 16.01.2005 in the day time, Prosecutrix (PW-3) came with Sunita (PW-7) in the agricultural field of Rambabu

for cutting grass, however, present respondent was arrested by the Police on 27.01.2005.

3- Prosecution story, in brief, is that on the date of incident, i.e., 16.01.2005, when Prosecutrix (PW-3) a married lady aged about 26 years went to the

agricultural field of Rambabu for cutting grass with Sunita (PW-7) then respondent Mahesh Singh was present in that field. Mahesh Singh talked with

Sunita (PW-7) for some time and, thereafter, Sunita went outside from that field, then after getting a chance, Mahesh Singh came nearer to

Prosecutrix (PW-3) and gave her greed of Rs.150/- and asked her for making physical relation with him, then Prosecutrix (PW-3) told the respondent

that he should be ashamed of this because she is his aunt in relation, thereafter, Mahesh Singh started scuffling with the Prosecutrix (PW-3) and

caught hold Prosecutrix 's both hands and threw her on the soil and, thereafter, Mahesh Singh removed his pant and underwear and after lifting the

worn sari and petticoat of the Prosecutrix (PW-3), he forcefully committed rape with the Prosecutrix and after committing rape, Mahesh Singh

threatened the Prosecutrix (PW-3) that if this fact is disclosed by her to anyone, she would be killed. Thereafter, Mahesh Singh fled away towards

path of village Madanpura and, thereafter, Prosecutrix (PW-3) shouted, then Sunita (PW-7) came nearer to her. The Prosecutrix (PW-3) narrated the

said incident to Sunita and after reaching her house, Prosecutrix (PW-3) intimated her family members about the incident and when her husband

Hakim Singh came back to house at 05:00 PM, then he was also intimated and on the same day, in the night at 09:00 PM, she reached with her

husband at the Police Station Purani Chhawani, which is about 12 KM away, and lodged the FIR (Ex.P-4), which was inscribed by G.S.Tomar (PW-

8), SHO, Police Station Purani Chhawani.

4- After recording of the FIR, Prosecutrix (PW-3) was sent to J.A. Group of Hospitals, Gwalior, where, on the same day, Dr. Urmila Tripathi (PW-1)

physically and sexually examined the Prosecutrix and recorded her report (Ex.P-1). Dr. Urmila Tomar also seized the Prosecutrix worn petticoat in a

sealed packet and also prepared slides of vaginal smear of Prosecutrix and sent the sealed material to relating police station through constable.

Investigating Officer, G.S.Tomar (PW-8) on 17.01.2005, prepared the spot map (Ex.P-5) at the instance of Prosecutrix and arrested the respondent

on 27.01.2005 vide arrest memo (Ex.P-7). After arrest of the respondent, he was sent to Civil Dispensary, Janakganj regarding examination of his

sexual capacity, where Dr. Kamlesh Sharma (PW-8) examined the present respondent and recorded his report as Ex.P-3. The sealed material of the

case were sent for Chemical Examination to Regional F.S.L. Gwalior with a letter dated 24.04.2005 sent by Superintendent of Police, Gwalior. Later

on, report (Ex.P-8) of above-mentioned laboratory was received. After completing the formalities of the investigation, charge-sheet was filed in the

Court of JMFC, Gwalior, who committed arisen criminal case to the Sessions Judge, Gwalior.

5- The above-mentioned charge framed by the Sessions Judge, Gwalior was denied by the present respondent. During trial, respondent's medical

report (Ex.P-3) and F.S.L. report were admitted by the respondent, therefore, they were admitted in evidence as Ex.P-3 and Ex.P-8 respectively.

Nine prosecution witnesses were examined before the trial Court. It was defence of the accused that he has been falsely implicated in the crime as he

was having a previous enmity with elder brother of husband of the Prosecutrix (Shrikishna), as respondent was desirous to make the matrimonial

relation of his sister-in-law with Shrikrishna, which could not be happened. No defence witness was examined. After hearing, the Sessions Judge

Gwalior, vide impugned judgment acquitted the present respondent from both the charged offences. Hence, this criminal appeal.

6- Appearing Public Prosecutor on behalf of appellant/State of M.P. vehemently contended that the evidence of Prosecutrix (PW-3) was

corroborated by the FSL report (Ex.P-8), as spots of semen and human sperm were found on the sealed petticoat and prepared slide of vaginal smear

by the lady doctor. Husband of the Prosecutrix -Hakim Singh (PW-6) and other family members Kamlesh (PW-5) and her Jethani Vimla (PW-4)

have corroborated the evidence of Prosecutrix (PW-3) on the point that after returning to the house, Prosecutrix has intimated them about the incident

and evidence of Prosecutrix (PW-3) was materially corroborated by her FIR (PW-4). It is also argued that the learned Sessions Judge, erred in

acquitting the present respondent, therefore, it is prayed that appeal be allowed and respondent be convicted for charged offences and be adequately

punished.

7- Per contra, learned Counsel for the respondent contends that the evidence of Prosecutrix (PW-3) was not corroborated by Sunita (PW-7) and

there were material contradictions and inconsistencies between the evidence of Prosecutrix and her FIR (Ex.P-4) regarding the manner, wherein,

alleged rape was committed with her and the absence of any injury over the body and private parts of the Prosecutrix indicates that she did not offer

any protest at the time of alleged incident. It is also argued that as perosecutrix was a married lady, the FSL report (Ex.P-8) is not enough to connect

only respondent with the incident. Therefore, dismissal of the criminal appeal is prayed for.

8- It is clear from the evidence of Dr. Urmila Tripathi (PW-1) and her medical report (Ex.P-1) that on 17.01.2005 at 01:00=AM at J.A. Hospital

Gwalior, she medically examined about 26 years old married lady Prosecutrix , but she did not find any mark of injury over her body and private parts

and, therefore, she was unable to give any definite opinion regarding recent sexual intercourse with the Prosecutrix and she also sealed the petticoat

worn by the Prosecutrix and prepared slides of vaginal smear of the Prosecutrix and sent the sealed material to the relating police station through the

constable, who brought the Prosecutrix for medical examination. Dr. Urmila (PW-1) deposed in her cross-examination that at the time of her

examination, Prosecutrix did not make complaint regarding any injury received by her or regarding pain and she did not find any stain on the sealed

petticoat and the clothes worn by the prosecutrix. Lady doctor also opined in her cross-examination that if a lady is raped on a hard surface then the

elbows, hands and back of the lady could receive marks of injuries.

9- Prosecutrix (PW-3) deposed that Mahesh Singh is resident of village Susera and witness Sunita (PW-7) is her aunt and at about 02:30 or 03:00=PM

on the date of incident she went with Sunita for taking grass from the field of Rambabu and at that time Mahesh came there and talked with Sunita for

a long period and, thereafter, Sunita went outside from that field, then after getting chance, Mahesh came nearer to her and offered that she should

take Rs.150/- from him and should have sexual relation with him, then she replied to the accused that she is his aunt and he should not have such

obscene talk with her. Prosecutrix deposed that she made three or four calls to Sunita but Sunita did not come because she was far away from them,

thereafter, Mahesh started scuffling with her for a longtime and therein she kicked Mahesh, but Mahesh forcefully committed rape with her.

Prosecutrix gave details of the incident that Mahesh lifted her sari and petticoat and, thereafter, zipped his pant and took out his male organ from his

underwear and entered his male organ in her private parts and during rape, she was still crying, then Mahesh threatened that on her shouting he would

kill her and after completion of his work, Mahesh fled away towards the path of village Madanpura. The detail regarding the manner in which

respondent committed rape with her as deposed by Prosecutrix is totally different from the facts disclosed in her FIR (Ex.P-4) wherein she disclosed

the facts that after throwing herself on soil, Mahesh removed his pant and underwear from his body and, thereafter, sat her sari and petticoat

upwards, forcefully lifted on her body and committed rape. Prosecutrix in her cross-examination in Para-14 clearly deposed the fact that “after

removing his pant and underwear by Mahesh Singhâ€, was not mentioned by her at the time of recording of FIR, but the SHO, G.S.Tomar (PW-8)

who recorded the FIR (Ex.P-4) deposed that “B†to “B†marked portion of FIR was recorded by him, as it was disclosed by the Prosecutrix.

Therefore, material contradictions and inconsistencies are appearing in the evidence of Prosecutrix (PW-3) regarding the manner in which present

respondent committed rape with her.

10- Prosecutrix (PW-3) deposed that after Mahesh's fleeing away, she came to the farmyard, but at that time Sunita herself came nearer to her, then

she narrated the entire incident to Sunita, thereafter Sunita advised her that she should not disclose the incident to her family members otherwise

Prosecutrix would be defamed. Prosecutrix deposed that she immediately returned to her house, where her sister-in-law Kamlesh (PW-5) met her

and after some time, elder brother of her husband Shrikrishna came to the house, then she intimated the incident to both of them. She also intimated

her another jeth Pancham Singh who is a resident of Gwalior. On the date of incident, her husband had gone outside, who returned in night, then she

intimated her husband about the incident and after narrating the incident to all of them, she went to Police Station, Purani Chhawani on same day at

08:30PM, where she lodged FIR (Ex.P-4) which is bearing her signature and later on, she was medically examined in the late night.

11- Though the Prosecutrix 's sister-in-law Kamlesh (PW-5), Jethani Vimla (PW-4) and her husband Hakim Singh (PW-6) have corroborated the

evidence given by Prosecutrix that on the same day, when they reached their house, Prosecutrix intimated them about the incident of rape committed

by Mahesh Singh, but surprisingly Sunita (PW-7) has not corroborated the evidence given by the Prosecutrix . Sunita (PW-7) was declared hostile by

the prosecution. Sunita (PW-7) deposed that on the date of incident, Prosecutrix PW-3

had gone for taking grass from the agricultural land of Mahesh's brother and when she advised the Prosecutrix that she should take grass from her

own agriculture land, then Prosecutrix (PW-3) told her that they should go to Mahesh's agriculture land for taking grass and when they both were

taking grass from the Mahesh's agricultural land, then Mahesh came there, but Mahesh did not talk with her and did not commit any act in her

presence. Sunita also deposed that she had not left Mahesh and Prosecutrix in that agricultural land and Prosecutrix did not intimate her about any

incident of rape. She clearly deposed in cross-examination that she had gone with the Prosecutrix to the relating agriculture land and in relating field

both of them cut the grass nearer to each other and both of them returned to their houses jointly. After declaring Sunita hostile, she denied from giving

her police statement (Ex.P-6) to the Investigating Officer.

12- It is well settled that conviction could be based only on the evidence of Prosecutrix regarding offence of rape, provided her evidence is found

totally trustworthy. Prosecutrix deposed in her evidence that before committing the rape by Mahesh, there occurred a long scuffle between her and

respondent, wherein she kicked respondent repeatedly. At the time of incident, Prosecutrix was a married lady of 26 years of age. She herself has

deposed that she kicked before rape on respondent to indicate her resistance or protest prior to the rape. She also deposed that thereafter, she was

forcefully raped by present respondent, but surprisingly despite such heavy resistance by the Prosecutrix during alleged forcefully committed rape, she

did not receive any injury over her body including her private parts. It is clear from the evidence of Dr. Urmila Tripathi (PW-1) that in the late night

and at the time of medical examination of Prosecutrix, she did not give complaint about any pain over any organ or part of her body and even her

cloths were not stained with mud or soil whereas Prosecutrix (PW-3) deposed in her cross-examination (para-13) that when she was being thrown on

the ground, then she received blunt injuries on her back and both elbows and her bangles also got broken and thereby she received injuries over her

wrists. In the same para, she also deposed that later on when she reached on the spot with Investigating Officer, then she had given pieces of her

broken bangles to the Investigating Officer, but on this point, her evidence is not supported by the evidence of Investigating Officer, G.S.Tomar (PW-

8) who prepared the spot map (Ex.P-5) in the presence of Prosecutrix . Investigating Officer clearly deposed in his cross-examination that Prosecutrix

did not mention pieces of her broken bangles and he did not seize broken bangle and at the time of evidence, Prosecutrix has not deposed regarding

receiving any injury by her or getting her cloths torn therefore, it is clear that Prosecutrix has introduced much variation, improvement and

exaggeration in her evidence in comparison to her FIR and her police statement (Ex.D-1).

13- Procecutrix deposed that at the time of lodging of FIR and recording of her police statement, she disclosed the fact that before committing rape,

Mahesh made scuffle with her for a long time wherein, she kicked on Mahesh repeatedly, but all these significant facts are totally missing in her FIR

(Ex.P-4) and police statement. In para-15, she deposed that before rape, when Mahesh offered her Rs.150/- then she repeatedly tried to save herself

and later on when she was thrown on ground and Mahesh pressed his hands over her neck then she also cried and all these facts were disclosed by

her in her FIR and Police statement, but all these facts are missing in her report and police statement.

14- Prosecutrix (PW-3) clearly deposed that in her report and police statement, she had disclosed that without removing his pant and underwear,

respondent committed rape only by zipping his pant and took out his male organ from the worn underwear and pant and in this position rape was

committed by respondent whereas the facts mentioned in her FIR, shows that respondent had removed his pant and underwear from his body prior to

committing rape with her.

15- Prosecutrix (PW-3) herself has deposed that after fleeing away of Mahesh, when she intimated Sunita aunty about the incident, then Sunita

advised her for not disclosing the fact regarding alleged rape at her house, otherwise she would be defamed. This fact clearlyindicates that actually at

the time of alleged rape, no resistance or protest was offered by the Prosecutrix and the absence of external injuries, pieces of allegedly broken

bangles and alleged greed of Rs.150/- offered by the respondent before rape indicates that she was a consenting party to the alleged sexual activities

happened at the scene of occurrence. Prosecutrix deposed that she had gone for taking grass with Sunita (PW-7) and it is common experience that

during the cutting grass a sickle is kept by the person who cut the grass. Therefore, if Prosecutrix had gone for cutting grass, naturally she would be

having a sickle in her hand and in such situation during alleged scuffle or her heavy protest, non-use of sickle appears to the unnatural or surprising.

Prosecutrix deposed in para-16 that when Mahesh was committing rape with her, even at that time she kicked on Mahesh several times and she also

scratched on the face of Mahesh by her nails of finger but she was not aware whether any injury on the face of Mahesh occurred by her scratching.

Allegedly the incident occurred at 03:00=PM and according to evidence of Prosecutrix , after this incident, she immediately returned back to her

house, but she deposed in cross-examination in para-18 that till 05:00 PM she did not disclose the incident to her family members because her family

members were returning back to their house slowly and separately and as elder brother of her husband, had gone for bringing diesel who returned at

about 05:30 PM or 06:00 PM, then she disclosed the relating facts. All the above-mentioned conduct of the Prosecutrix falsify her evidence that she

disclosed the incident to her family members, just after returning to house.

16- It is well settled that the scope of interference in criminal appeal against judgment of acquittal is limited and in absence of any perversity in the

finding recorded by the trial Court, such judgment of acquittal could not be interfered.

17- We are of the considered opinion that the trial Court has properly and legally analyzed and appreciated the entire evidence available on record and

did not err in acquitting the present respondent from the charged offences. The appeal filed by the State/appellant appears to be devoid of any

substance.

18- Consequently, this appeal filed by the appellant fails and is hereby dismissed. With a copy of this judgment, the record of the trial Court be

immediately sent back.