State Of Mp vs Pappu @ Sahilendra

Ashok Kumar Joshi, J

Challenge in this appeal is to the judgment passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in

short, the SC and ST Act), Shivpuri on 21.03.2007 in Special Sessions Trial No.111/2006, whereby present respondent/accused was acquitted from

the charge of Sections 450 and 376 (1) of the IPC and Section 3(2)(5) of the SC/ST Act.

 2. Undisputedly, the Prosecutrix/married complainant (PW-1), resident of village Karsena, is a member of Scheduled Caste and respondent belongs

to Brahmin caste.

The prosecution story in brief is that on 18.07.2006 at 10-00 AM, Prosecutrix (PW-1) a married lady aged about 30 years, lodged FIR (ExP-2) to

the effect that on 17.07.2006 in the night at about 10-30 PM, she was sleeping on cot in the courtyard of her house, as her husband has gone to see his

cousin father-in-law's son, who was ill. At the same time, Pappu @ Shailendra, R/o village Karsena came to her house and after lifting her, thrown on

the ground and by his one hand, he caught hold Prosecutrix and by his another hand, he caught hold the neck of Prosecutrix and threatened that she

would be killed, if she shouted. At that time, Prosecutrix had worn petticoat and blouse. Thereafter, Pappu @ Shailendra committed rape with her and

being frightened, she remained silent. At the same time, her husband Santosh (PW-2) returned back to house and after seeing her husband, Pappu

stood up for running, but Prosecutrix's husband caught hold Pappu, then Pappu pushed her husband and fled away. As incident occurred in the night,

being threatened, the matter could not be reported in the night and at the time of incident due to throwing of her on soil, a blunt injury occurred on her

waist. The FIR (ExP-2) was scribed by Station House Officer, R.D.Mishra (PW-4), Police Station Subhashpura, District Shivpuri and thereafter

Prosecutrix (PW-1) was sent to District Hospital, Shivpuri, where on 18.07.2006 she was examined by Dr. Smt.Anjana (PW-3), who did not find any

injury over her body including private parts and the lady doctor prepared two slides of vaginal swab of the Prosecutrix and she also sealed the worn

petticoat and the lady doctor remained unable to gave any opinion regarding recent sexual activity with the Prosecutrix and recorded her report (ExP-

4).

As the crime was registered for an offence punishable under SC/ST Act, further investigation was conducted by Pranay Nagvanshi (PW-7), the

then SDOP, Shivpuri, who prepared the spot map (ExP-9) on 19.07.2006 and on the same day, he seized in total twelve pieces of red coloured bangles

of Prosecutrix vide seizure memo (ExP-3). On 20.07.2006 the respondent was arrested vide arrest memo (ExP-10) and he was sent to District

hospital, Shivpuri for examining his sexual competency, where on 20.07.2006 he was examined by Dr. P.D. Gupta, who recorded his report (ExP-1).

The sealed articles were sent to regional FSL, Gwalior with a letter (ExP-13) dated 3.8.2006 drafted by S.P. Shivpuri. Later-on the regional FSL,

Gwalior's report (ExP-14) was received. After completing the formalities of the investigation, charge sheet was filed in the court of Judicial

Magistrate First Class, Shivpuri, who committed the arisen criminal case to Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, Shivpuri.

Above mentioned framed charges were denied by the accused/respondent. At the time of framing of charge, his MLC was admitted in evidence as

(ExP-1) by defence. Seven prosecution witnesses were examined before the trial Court. It was the defence of respondent that he has been falsely

implicated as he was having prior enmity with complainant's husband. Hariram (DW-1) was examined in defence. The Special Judge, after hearing,

acquitted the present respondent from all the charged offences, therefore, this criminal appeal by State against his acquittal.

Appearing Public Prosecutor on behalf of appellant-State contends that the evidence of Prosecutrix (PW-1) was corroborated by the evidence of

her husband Santosh (PW-2) and their neighbour Vijay Singh (PW-5) and according to Regional FSL, Gwalior's report (ExP-14) in chemical

examination the spots of semen and human sperms were found present on the petticoat of Prosecutrix and the prepared slides of vaginal smear of

Prosecutrix by lady doctor, and on underwear of the respondent, but learned Special Judge erred in acquitting the present respondent. Therefore, it is

prayed that the appeal be allowed and respondent be convicted and adequately punished.

Dr. Smt. Anjana (PW-3) examined the Prosecutrix on 18.07.2006 has testified that on examination of 30 years old married Prosecutrix, she found

that secondary sexual characters were well developed and there was no sign of any violence over her body including her private parts and she

prepared two slides of Prosecutrix's vaginal smear and also seized the worn blue coloured petticoat and as the married Prosecutrix was habitual of

sexual intercourse, she was unable to gave any definite opinion regarding recent sexual intercourse. In cross-examination, the lady doctor deposed that

if the sealed petticoat of Prosecutrix by her would have been torn, then she would have definitely mention this fact in her report (ExP-4).

Complainant/Prosecutrix (PW-1) deposed that about six months ago, in the month of savan of Indian calender at about 10-30 PM, when she was

sleeping inside her house on cot with her three years old son and at that time her husband went to see his uncle's son and at that time accused Pappu

came, where she was sleeping and Pappu caught hold her, then she got awaken, then Pappu by uttering the name of her caste threatened that if she

would cry, she would be killed. Thereafter, Pappu forcefully got lifted her and committed rape with her.

She also testified that at that time she had worn petticoat and blouse and respondent was wearing only an underwear and during the incident her

husband returned back to their house, thereafter Pappu stood up and fled away and her husband saw him running and Pappu after pushing her

husband fled away. At the same time, her neighbour Vijay Singh (PW-5) who was sleeping in his khalihan also came to her house.

Prosecutrix's husband Santosh (PW-2) deposed that on the date of incident, in the night at 10 p.m. when he returned to his house then he saw that

Shailendra was lying on his wife and was committing rape, then he asked who is there, then Shailendra stood up, then he ran for catching respondent,

then after pushing him the respondent fled away and during his scuffle with respondent, after hearing the noise their neighbour Vijay Singh (PW-5)

came to their house.

Vijay Singh (PW-5) deposed that on the date of incident he was sleeping in his khalihan, at about 10 p.m. but after hearing the sound of shouting

he got awaken and enlightened the torch, then in the torch light he saw Pappu coming from the house of Santosh and thereafter Pappu fled away.

Thereafter, he reached to the house of complainant, who intimated him that Pappu had committed rape with her. Vijay Singh also deposed that when

he saw Pappu running, then Pappu had worn only underwear on his body.

R.D.Mishra (PW-4), who was posted as Station House Officer at Police Station Subhashpura, on 18.07.2006 deposed that on that date, he

recorded the FIR (ExP-2) lodged by Prosecutrix and thereafter sent the Prosecutrix for medical examination to Shivpuri hospital vide application

(ExP-5).

There appears material contradictions between the evidence given by Prosecutrix (PW-1) and her FIR (ExP-2). Prosecutrix deposed before the

trial Court that when she was sleeping on a cot with her son, then after catching her respondent committed rape, whereas in the FIR (ExP-2), she

disclosed the fact that she was sleeping on a cot, but respondent lifted her from the cot and thrown her on the ground and thereafter committed rape

with her. In FIR (ExP-2) she has clearly mentioned that at the time of incident she was sleeping in the courtyard of her house on a cot and at the

same place, i.e., in the courtyard, her rape was committed and in the spot map (ExP-9) prepared by investigating officer Pranay Nagvanshi (PW-7) on

19.07.2006, the place of incident is shown as courtyard of the complainant's house, outside from her room, whereas Prosecutrix deposed in her

examination-in-chief that she was sleeping inside her house and rape was committed in her room. Therefore, it is clear that there are material

contradictions and inconsistencies appearing in complainant's evidence regarding place of incident and her acquaintance with the present respondent

prior to the incident.

The complainant's husband Santosh (PW-2) and their neighbour Vijay Singh (PW-5) have deposed in their cross-examination that present

respondent Pappu @ Shailendra was Deputy Sarpanch of their village's Panchayat prior to the incident. Vijay Singh (PW-5) deposed in cross-

examination that after the incident he reached to Prosecutrix's house and he had identified the respondent under his torch light. Vijay Singh deposed in

para 7 that when he reached to complainant's house, then complainant was wearing a red coloured saree and her blouse was torn from the front side

and Prosecutrix intimated her that in the incident, her blouse has torn, but Prosecutrix clearly deposed in para 13 that during the incident her blouse

was not torn, but her petticoat got torn. This fact is falsified by the evidence of Dr. Anjana (PW-3), who had not recorded the fact that the sealed

petticoat of the Prosecutrix was torn, therefore, it is clear that Prosecutrix's neighbour Vijay Singh (PW-5) has introduced much improvements and

exaggerations in his evidence given before the Court. Vijay Singh (PW-5) also deposed that at the time of incident, complainant's house was not

having electricity connection and when he reached to complainant's house, then the chimney was not lighting.

Santosh (PW-2) also deposed in para 7 that the incident had occurred in the room, where his three sons were also sleeping and in that room his

two children were sleeping on one cot and on another cot her wife was sleeping with their youngest son, but in para 10, Santosh deposed that his wife

was sleeping in the open courtyard of their house and in para 11, he deposed that where his wife was sleeping, there was total dark and as the

respondent stood up, then he caught hold of respondent's hand and identified him even in the darkness by his face and voice. Santosh deposed in para

13 that when he saw respondent lying on his wife then respondent had lowered down his underwear and when respondent stood up then he was

wearing only underwear.

Prosecutrix in paras 15 and 17 of her deposition clearly deposed that in her village police officials remained on duty for twenty four hours, but after

the incident she and her husband did not intimate the police officials present in their village and they reached Police Station Subahshpura on the next

day at 9 AM. Prosecutrix (PW-1) deposed in para 20 that prior to the incident, she was acquainted with the fact that respondent Pappu's another

name is Shailendra, but prior to the incident she never saw him. Therefore, it is clear that Prosecutrix's evidence is full of mutually contradictory and

unnatural facts, which indicates the weakness of her total evidence. In para 9 of cross-examination, prosecutrx deposed that prior to rape, she shouted

once and when respondent came to her house he was wearing only underwear and at the time of incident, she saw accused for the first time in her

life. In para 10, she deposed that accused did not remove her clothes from her body but he only lifted her clothes upward. Contrary to her evidence

given in para 9, she deposed in para 11 that respondent by his one hand caught hold her and by his another hand lifted her petticoat, but at that time

she could not cry as respondent had pressed her mouth, though respondent had pressed her mouth towards the soil but even then no abrasion or injury

caused to her cheek. Contrary to her FIR (ExP-1), she deposed in para 11 that during incident no abrasion occurred to her loin/waist, then immediately

corrected herself by testifying that she received blunt injury over her waist, but her evidence is falsified on this point by medical evidence of Dr.

Anjana (PW-3).

The Prosecutrix (PW-1) deposed in para 20 that respondent's house is about 300 feet away from her house, but she clearly deposed in para 9 that

when respondent reached to her house, at that time he was wearing only underwear. It appears totally impossible and unnatural that a totally unknown

person to the Prosecutrix would reach to her house in the night at bout 10 p.m. only wearing an underwear. Prosecutrix was a married lady of about

30 years old at the time of incident. She deposed before the trial Court that during incident the bangles worn by her on one hand got broken, but

surprisingly even then she did not receive any injury on her wrists.

According to prosecution's case, she was thrown on ground after lifting her from the cot and her mouth was pressed towards soil and she clearly

deposed that during and after the incident her three sons were sleeping and they did not get awaken. All these facts clearly indicate that the total

evidence given by the Prosecutrix is unnatural and unbelievable and if any physical relation established between respondent and Prosecutrix, then she

appears to be a consenting party, otherwise the happening of such surprising events or facts would not have been possible.

After considering all the facts and circumstances, the possibility could not be ruled out that when suddenly her husband came back to his own

house and saw his wife/Prosecutrix in a compromising position with the respondent, then naturally allegation of rape was levelled by the Prosecutrix

on respondent to save her prestige.

Much emphasis has been given by the learned Public Prosecutor appearing on behalf of the appellant on the fact that presence of semen and

human sperms was found on the petticoat, slides of her vaginal smear prepared by lady doctor and sealed underwear of the accused, but as both the

Prosecutrix and respondent were married persons, mere presence of semen and human sperms on clothes of Prosecutrix and respondent could not

connect the respondent only with the incident. It is clear that Prosecutrix has materially changed her evidence given before the trial Court and

introduced new facts and exaggerated version before the trial Court and the absence of any injury clearly establishes that she had not offered any

resistance or protest at the time of incident.

Defence witness Hariram (DW-1) deposed that Prosecutrix's husband Santosh is his nephew and his house is adjacent to the house of

complainant and respondent's house is about seven to eight houses away from his house and respondent has been implicated in a false case of rape.

As discussed earlier, the Prosecutrix's evidence has not inspired confidence and her total evidence was materially contradicted by her delayed FIR

(ExP-2) and it could not be held that her evidence is appearing totally reliable.

We are of the considered opinion that learned Special Judge has properly and legally analyzed the entire evidence available on record and did not

commit any error in acquitting the respondent from the charged offences. The findings recorded by the trial Court appears to be just and plausible.

The appeal filed by the State against acquittal is devoid of any substance.

Consequently, appeal filed by the State under Section 378 of the Cr.P.C. against the judgment of acquittal passed by the Special Judge is hereby

dismissed. With a copy of this judgment, record of the trial Court be returned immediately.