Toran Singh vs State of Madhya Pradesh

Hon''ble Justice Shri. N.K. Gupta

The appellant has preferred this appeal against the judgment dated 30.8.2006 passed by the IIIrd Additional Sessions Judge, Raisen in ST. No.228/2005 whereby the appellant has been convicted and sentenced as mentioned in the table below :

Section

Act

Sentence

Fine amount

Sentence, in default of payment of fine.

376

I.P.C

Seven years R.I.

Rs.1000/-

Three month�s simple imprison.

366

I.P.C

Three years R.I.

Rs.300/-

One month�s simple imprison.

506

I.P.C

Six months R.I

NIL

NIL

The prosecution''s case in short is that the prosecutrix (PW1) was the wife of Sanu @ Latif (P.W.8). On 22.8.2005 the prosecutrix and her husband went for a picnic in the forest near Sehatghanj. They were sitting near a river. At about 1.00 p.m, the appellant came to them with a stone and assaulted Sanu @ Latif on his head with that stone and thereafter, he snatched the hand of the prosecutrix and took her forcibly to the jungle. The appellant had also stated that police was behind him and his name was Toran Singh. He threatened Sanu @ Latif that he should not follow them otherwise, Toran Singh would kill him and therefore, Sanu @ Latif did not chase the appellant and the prosecutrix. He took the prosecutrix in the jungle and under a threat, of harm he committed rape upon her. Thereafter, he took the prosecutrix to his own house in the Village Chiklodkhurd. The Salwar of the prosecutrix remained in the jungle and therefore, prosecutrix reached the house of the appellant without her salwar. In the night he again committed rape upon the prosecutrix for two times and thereafter, in the morning when he went to his fields, the prosecutrix escaped from his house and went to the house of Rambai (PW2). The prosecutrix informed Rambai about the incident who, then sent her to the house of Om Prakash (PW3), the Choukidar. Rambai and the Choukidar summoned Mehboob Khan (PW4) and Naseeruddin and they took the prosecutrix to the Police Station, Umraoganj where she lodged an FIR Ex. P/1. She was sent for her medico legal examination and treatment. Dr. Kalpana Saxena (PW5) examined the prosecutrix. She found one lacerated wound on her right leg situated between the ankle and the knee. Also multifarious scratches were found on her back. Injuries were found to be 24-36 hours old but, there was no external or internal injury on her private parts. There was no discharge from the vagina. Dr. Saxena prepared two slides of vaginal swab and also took the sample of pubic hair. Full Pant worn by the prosecutrix was also taken and after sealing, it was handed over to the concerned Constable for forensic analysis.

Police investigated the matter in detail and arrested the appellant on 30.8.2005. He was also directed for his medico legal examination. Dr. M.I. Khan (PW7) found that the appellant sustained five injuries on his body. Such injuries could have occurred within the last two weeks. He was found potent. Two slides of his semen sample were prepared, underwear was also taken from the appellant. Dr. Khan sealed all these articles and handed them over to concerned constable to be dispatched for forensic science examination. All the articles received from the prosecutrix and the appellants were sent to the forensic science laboratory and it was found in FSL report Ex. P/5 that the slide prepared from vaginal swab and the slide prepared from semen sample of the appellant contained human sperms whereas on full pant, public hair of the prosecutrix and the underwear of the appellant, no such evidence of sperm or semen was found. After due investigation a charge sheet was filed before the CJM, Raisen who, committed the case to the Sessions Judge, Raisen and ultimately it was transferred to the IIIrd Additional Sessions Judge, Raisen.

The appellant abjured his guilt. He took a plea that he was falsely implicated due to enmity with one Naseeruddin. Father of Naseeruddin had killed a peacock and the appellant had lodged a complaint about that fact and therefore, due to that enmity the appellant was falsely implicated by the prosecutrix who, is relative of that Naseeruddin. However, no defence evidence was adduced by the appellant.

I have herd learned counsel for the parties at length.

Learned counsel for the appellant has submitted that the husband of the prosecutrix turned hostile and therefore, story of abduction appears to be incorrect. The prosecutrix has accepted that she was taken to Chiklodkhurd by foot and therefore, it was a tiring journey of more than seven hours walk but, she did not raise any hue and cry in the way. Therefore, the story of abduction appears to be doubtful. Similarly she went to the house of the appellant and thereafter, she did not raise any hue and cry at the time of rape. On the contrary she escaped from the house in the morning when there was nobody in the house. Her allegations appear to be unnatural. Her behavior appears to be of an unpaid prostitute and therefore, either she was a consenting party or a false case is created against the appellant. No alleged offence is made out against the appellant. He is in custody since last 4 1/2 years and therefore, the sentence may be reduced to the period which he has already undergone in the custody.

On the other hand learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be appropriate. No interference is required in the present appeal.

After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the prosecution it is to be considered that Whether the prosecutrix was abducted with intention that she would be forced for an illicit intercourse? Whether the prosecutrix was a consenting party or the appellant is falsely implicated in the matter? and Whether the sentence awarded to the appellant can be reduced

Prosecutrix (PW1) has stated that she went for a picnic at the dam site near Sehatganj with her husband and the appellant came to them, with a stone and assaulted her husband. Sanu @ Latif (PW8) has turned hostile. He denied that he went with his wife to a dam near Sehatganj. It is admitted by Sanu @ Latif and the prosecutrix that the prosecutrix was examined before the trial Court on 16.2.2006 whereas, a divorce took place between the prosecutrix and her husband 15 days prior to the examination of the prosecutrix and therefore, it is natural for the husband of the prosecutrix to turn hostile. Sanu @ Latif was highly annoyed with his wife. He has accepted in his cross-examination that the prosecutrix habitually left her house and went with different persons from time to time. Under such circumstances, it is to be seen whether the testimony of the prosecutrix can be believed on this point.

Testimony of the prosecutrix appears to be shaky because according to her, she was taken to Chiklodkhurd on foot. Journey took place between 3.00 p.m in the noon to 1.00 a.m in the night. She has accepted that during that journey, she went away from the path for urination etc. They passed many villages but, she did not raise any hue and cry. The prosecutrix has stated that the appellant had threatened her with a stone and fearing that, she could not shout. In her cross examination she has stated that the appellant had a dagger. This fact is not mentioned either in the FIR or her case diary statement. Under such circumstances, it appears that the prosecutrix did not shout during the entire walk of at least 7 to 8 hours. It was not possible for a woman in a situation like the prosecutrix that she could walk for 7-8 hours silently. Though Sanu @ Latif turned hostile due to the reason that he took a divorce from the prosecutrix but, when the incident took place, according to the prosecutrix, Sanu @ Latif was assaulted on his head by the appellant with a stone and she was abducted and therefore, his natural conduct should have been to return home and to lodge an FIR for that abduction done by unknown person. No such FIR has been produced before the Court. On the contrary Sanu @ Latif has accepted in his cross-examination that he had lodged an FIR against the prosecutrix that she was absconding.

Under such circumstances, genesis of the offence of abduction as stated by the prosecutrix appears to be a fake story. Neither the witness Sanu @Latif lodged an FIR about the abduction of his wife nor the story told by the prosecutrix appears to be natural. She had a lot of opportunities to escape. Appellant had no dagger or other deadly weapons. If he had a stone then the prosecutrix also could assault him or threaten him by picking a stone from the earth. While crossing so many villages, she did not raise any hue or cry. She did not try to escape. Then looking at the conduct of the prosecutrix, it appears that either the story is hypothetical or the prosecutrix is implicating the appellant falsely or she was a consenting party. She went with the appellant with her own will. Therefore, no offence u/s 366 of I.P.C is made out against the appellant. The learned Sessions Judge has erred in convicting the appellant for offence punishable u/s 366 of I.P.C.

The prosecutrix has alleged against the appellant that he committed rape upon her during the journey and thereafter, he committed rape for two times in his own house. In support, it is alleged that she sustained some abrasions on her back which was noticed by Dr. Kalpana Saxena (PW5) in her report Ex. P/6. However Dr. Kalpana Saxena found a lacerated wound on her right leg situated between ankle and knee. No reason has been shown by the prosecutrix as to how that injury was caused to her. Looking to the place of injury, such injury could not be caused in a forceful sexual assault. Under such circumstances, the possibility cannot be ruled out that the prosecutrix sustained such injuries due to some other reason. When the story of the prosecutrix that she was abducted from the jungle is unbelievable then her story that a rape was committed with her in the jungle cannot be accepted. If the appellant was the person who abducted her, he would have been interested in saving himself from the Police and so he could not have committed any rape with the prosecutrix soon after her abduction. It was for the appellant''s benefit touse the prosecutrix as a screen so that he could be saved from the Police and thereafter, he could commit such a crime as rape. Under such circumstances, the story of the prosecutrix cannot be believed that the appellant committed rape upon her during the journey.

It is alleged by the prosecutrix that in the morning she went to the house of Rambai (PW2) and thereafter, to the house of Choukidar Om Prakash (PW3) and ultimately they called Mehboob Khan (PW4) and one Naseeruddin. With their help, she went to the Police Station, Umraoganj. From the testimony of the witnesses Rambai (PW2) and Om Prakash (PW3), it is proved beyond doubt that the prosecutrix stayed at the house of the appellant in the night but, the house of the appellant was situated in a dense locality. Om Prakash was the neighbour of the appellant and Rambai was residing in the house which was situated in front of the house of the appellant. There was a street full of houses in which appellant was residing in a house. Then if appellant committed rape for two times in the night then what prevented the prosecutrix from raising any hue and cry. She has stated that at that time, appellant had a dagger and therefore, she did not raise any hue or cry. Her testimony cannot be accepted in such a scenario. If she was kept forcefully in the house of the appellant and a dagger was shown at the time of incident then before leaving the house it was for the appellant to make arrangements so that the prosecutrix could not leave the house on her own. According to the prosecutrix, in the morning, the mother of the appellant came in the room and told him to go to the fields and the appellant went to the fields without making any such preventive arrangement. If the statement of the prosecutrix in that context is accepted as such then it would be apparent that the appellant was confident that the prosecutrix was residing in the house with her own freewill and she would not leave the house otherwise, he would have bolted the room from outside or would have made an arrangement with the help of his mother so that prosecutrix could not leave the house. Under such circumstances, where the prosecutrix did not raise any hue and cry at the time of incident and she remained in the house on her own throughout the night and the appellant did not try to confine her in the room or the house, it appears that she was a consenting party. Her behavior is like an unpaid prostitute who, lodged an FIR in the morning with the help of neighbours but, she was free to leave the house of the appellant at that time. Under such circumstances, looking at the conduct of the prosecutrix, she appears to be a consenting party to the intercourse with the appellant in the night. Under such circumstances, no offence punishable u/s 376 of I.P.C is made out against the appellant in any manner. The learned Additional Sessions Judge has erred in convicting the appellant for offence punishable u/s 376 of I.P.C.

It is discussed above that the story of abduction appears to be a fake one and there was no threat to the prosecutrix at the time of intercourse. Therefore, it is not at all proved beyond doubt whether at any point of time the appellant gave her any threats with help of any weapon. The entire story comes in the cloud of the doubt and no positive finding can be given about the threats made by the appellant. It is not proved beyond doubt that the appellant made any threats to the prosecutrix and therefore, the appellant cannot be convicted for any part of the offence u/s 506 of I.P.C.

On the basis of the aforesaid discussion the appeal filed by the appellant appears to be acceptable and therefore, it is accepted. Conviction as well as sentence directed by the trial Court for offence punishable under Sections 366, 376 and 506(B) of I.P.C is hereby set aside. The appellant is acquitted from all such charges. He would be entitled to receive the fine amount back if he has deposited the same before the trial Court.

Office is directed to issue a release warrant so that the appellant may be released forthwith. Copy of the judgment be sent to the trial Court along with its record for information and compliance.