Ashok Kumar vs State of Madhya Pradesh

N.K. Gupta, J—The appellant has preferred the present appeal being aggrieved with the judgment dated 5.2.1997 passed by the Sessions Judge, Khandwa in S.T. No. 172/95, whereby the appellant has been convicted of offence under Sections 376 Part-II and 450 of the IPC and sentenced to ten years and five years R.I. respectively.

Facts of the case in short are that the prosecutrix (PW-9) was married to one Mahesh (PW-12) in the year 1992 and thereafter, she was residing in the house of her husband at village Bamangaon (Police Station Kotwali, District Khandwa). Mahesh had a business of Dhaba (restaurant). The appellant was husband of sister-in-law of the prosecutrix. On 10.9.1995, husband and parents-in-laws of the prosecutrix went out of the house for some reason and she was all alone in the house in that night. Her brother-in-law and sister-in-law, who were children were also present in the house but, they were sleeping in other room of the house. At about 1:00 a.m., in the night, one Baliram by tearing a Tata (a tough sheet prepared by bamboo chips) in between Dhaba and resident portion, entered inside the house and kept knife on chest of the prosecutrix and committed rape. Thereafter, the appellant Ashok and other accused persons namely Rajesh and Sunil committed rape with the prosecutrix one by one. Accused Baliram took her silver and golden ornaments forcefully and gave such ornaments to Sunil, Ashok and Rajesh, and some ornaments kept by him. In the morning, the prosecutrix went to the house of maternal uncle Gendalal (PW-10) and informed about the incident. Bangles of the prosecutrix were also broken and her blouse was torn. Gendalal (PW-10) intimated about the incident to Mangaibai (PW-3) and Bhaiya Lal (PW-11). Bhaiya Lal was sent to intimate about the incident to parents-in-laws of the prosecutrix. Gendalal had also informed about the incident to Devram (PW-4). Devram had also confirmed about the incident from the prosecutrix and thereafter, he had recorded a written report Ex.P/3. Sarpanch Ramesh (PW-5) had also been intimated about the incident and thereafter, the prosecutrix had lodged an FIR Ex.P/3 at Police Station Kotwali, District Khandwa. On the next day, the prosecutrix was sent for her medico legal examination. Dr. Raksha Sharma (PW-1) examined the prosecutrix and gave a report Ex.P/1-A. No external or internal injury was found on her person. However, two slides of vaginal swab of the prosecutrix were prepared and one petticoat of the prosecutrix was taken and after sealing them, such articles were handed over to the concerned constable for forensic analysis. After due investigation, the charge sheet was filed before the CJM Khandwa, who committed the case to the Court of Sessions.

The appellant abjured his guilt. He did not take any specific plea but he has stated that he was falsely implicated in the matter however, no defence evidence was adduced.

The Sessions Judge after considering the prosecution''s evidence acquitted the accused persons namely Baliram, Sunil and Rajesh and acquitted the appellant Ashok from the charge of offence under Section 392 of the IPC, but convicted him for the offence under Sections 376 Part-II & 450 of the IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The prosecutrix (PW-9) has stated that she was all alone in her house. One brother-in-law and sister-in-law were also sleeping in the house, who were simply children aged 5-7 years. When she was sleeping, someone held her hands and therefore, she awoke. The accused Baliram closed her mouth and gave a threat with the help of a knife so that she could not shout, thereafter he committed rape upon her. Thereafter, the appellant committed rape. In the meantime, accused Baliram took the silver ornaments from her legs and gave to Ashok. Thereafter, accused Sunil committed rape upon her and in the meantime, the accused Baliram removed her golden ornaments and gave to the accused Sunil. After commission of rape done by the accused Rajesh and Baliram took her Mangalsutra and went away by giving a threat, not to inform anyone about the incident. In the next morning, the prosecutrix went to the house of her maternal uncle Gendalal (PW-10) and intimated about the incident. Gendalal (PW-10) has stated that after getting the information from the prosecutrix, he had called a Panchayat in his house and thereafter, Sarpanch Ramesh (PW-5) was intimated about the incident. In the meantime, Panch Devram (PW-4) had written a report Ex.P/3 as told by the prosecutrix and an FIR Ex.P/4 was lodged by the prosecutrix before the Police Station, Khandwa.

Dr. Raksha Sharma (PW-1) after examining the prosecutrix submitted a report Ex.P/1-A. No external or internal injury was found on her person. She found that the prosecutrix was habitual to do the intercourse. However, Dr. Raksha Sharma had prepared slides of vaginal swab of the prosecutrix and also collected her pubic hair. All the articles were handed over to the concerned constable for their forensic analysis after sealing them. The report Ex.P/22 received from the Forensic Science Laboratory reveals that in slides of vaginal swab and petticoat, semen articles were found, whereas some blood was also found on the petticoat. It is a settled view of the Hon''ble Apex Court that there is no need to get the medical corroboration to accept the testimony of the prosecutrix but her testimony should be examined otherwise, as to whether it is believable or not. Hence, the testimony of the prosecutrix may be considered accordingly.

In this particular case, the prosecutrix told about the accused persons before various villagers and Panch Devram (PW-4) had written the report Ex.P/3 according to the intimation given by the prosecutrix. According to the FIR Ex.P/3, it would be apparent that in the gang rape and house breaking committed, the biggest role was of the accused Baliram, who had not only committed rape upon the prosecutrix but also invited other accused persons to do so and he also robbed various golden and silver ornaments of the prosecutrix. However, the prosecutrix took a somersault that, when she was examined in the trial Court, she told that she did not know the names of other accused persons except the appellant Ashok, because the appellant Ashok was her relative. She has accepted in para 22 of her statement that name of other accused persons were told by other villagers. However, in para 30 of her statement she could not tell that amongst various witnesses, who informed the names of those accused persons except the appellant Ashok. On the other hand, Devram (PW-4), Mangaibai (PW-3) and Gendalal (PW-10) etc. have clearly stated that the prosecutrix told the names of each of the accused person before them on her own. It appears that the prosecutrix had tried to save other accused persons and therefore, she has stated that she did not know about the names of other culprits, whereas in the FIR Ex.P/3, she had shown a major role of accused Baliram. It is important to note that according to the spot map Ex.P/17, the accused Baliram was neighbour of the prosecutrix and it was not possible that he was not known to the prosecutrix. Looking to the conduct of the prosecutrix, the trial Court has acquitted all other accused persons except the appellant Ashok.

The reason is not clear as to why the prosecutrix saved Baliram, Rajesh and Sunil. The prosecutrix and her husband Mahesh (PW-12) have accepted that after the incident, the prosecutrix remained with Mahesh for 8-10 days and thereafter, she went to her father''s house and till the deposition recorded of the witness Mahesh, she did not come back to reside with the witness Mahesh. Mahesh has also made the position clear that due to incident, he did not oust the prosecutrix. He did not blame upon the prosecutrix for the incident then, what was the reason as to why the prosecutrix left the house of her husband for ever. The prosecutrix has accepted that she was not blessed with any child though, her marriage took place three years prior to the incident. Her husband Mahesh has accepted that names of the accused persons were known to the prosecutrix prior to the incident. Conduct of the prosecutrix indicates that, since she had lodged a false FIR against other accused persons and it was not possible for her to stay in the house of her husband, where she implicated the appellant Ashok as an accused, who was husband of her sister-in-law therefore, she had left the house of her husband otherwise. There was no other reason for the prosecutrix to leave the house of her husband and go her father''s house.

For accepting the testimony of the prosecutrix, other circumstances are to be seen. Firstly, a negative circumstance, which goes against the prosecutrix is that, she had alleged about the incident against the culprits that they took her silver and golden ornaments and she had also stated about the distribution of such ornaments done by accused Baliram. If the FIR Ex.P/3 is perused then, it would be apparent that after commission of rape, she alleged that all the accused persons took her ornaments, whereas before the trial Court, she has stated that Baliram removed her ornaments one by one and handed over to a particular accused, however, no such ornament could be recovered from any of the accused including the appellant Ashok.

Secondly, it is alleged by the prosecutrix that in the commission of offence of rape, her bangles were broken and the police had recovered such pieces of bangles from the spot. If bangles were broken on the hands of the prosecutrix and police has recovered such pieces of bangles by seizure memo Ex.P/18 then, certainly the prosecutrix should have sustained some injuries in her hands due to breaking of bangles, but no such injury was found on her hands by Dr. Raksha Sharma (PW-1) and therefore, the story relating to breaking of bangles taken in the incident appears to be incorrect. Thirdly, according to Dr. Raksha Sharma (PW-1), no blood was oozing from the vagina of the prosecutrix. No external or internal injury was found on her person and therefore, there was no possibility of blood stains either on her clothes or in her vaginal swab. However, in the Forensic Science Laboratory''s report Ex.P/22, it was found that blood was present on her petticoat. Hence, it appears that the prosecutrix gave such a petticoat to Dr. Raksha Sharma (PW-1), which was already stained by blood due to menses and possibility cannot be ruled out that she appeared before the doctor when she had cohabited with her husband so that semen could be found in her vaginal swab as well as on petticoat. Also, it is possible that she would have cohabited with someone else in the night and when she was caught by relatives of her husband then, she would have lodged the FIR with the help of Gendalal.

Gendalal (PW-10) initially, has accepted that he had no relation with the prosecutrix and in para 5, he has clearly accepted that he was not relative of the prosecutrix. However, in para 8, he has accepted that the prosecutrix tells him to be maternal uncle. In para 10, he has accepted that prior to that day, the prosecutrix did not visit his house. If the prosecutrix did not visit the house of Gendalal prior to the incident and there was no direct relation of prosecutrix or husband of the prosecutrix with Gendalal then, it was not possible for the prosecutrix to go and tell about the incident to the person, who was not a relative or otherwise intimated with the prosecutrix. According to the prosecutrix, the witness Gendalal was residing in front of house of Mangaibai. Similarly, house of the appellant Ashok was adjacent to the house of Gendalal. Hence, the possibility cannot be ruled out that Gendalal and the prosecutrix have proceeded according to their plans therefore, Gendalal called various reputed citizens of the locality and the prosecutrix told about the incident. In this connection, Mangaibai (PW-3) neighbour of the prosecutrix has stated that she was maternal aunt of husband of the prosecutrix and prosecutrix went to house of Mangaibai and told about the incident, whereas in the case diary statement, Mangaibai has stated that on intimation, she went to the house of Gendalal and at the house of Gendalal, the prosecutrix informed about the incident.

Devram (PW-4) has stated that after getting the information from the prosecutrix, he asked a question as to whether the prosecutrix wants to file an FIR and the prosecutrix gave an affirmative answer, therefore, he prepared a written report Ex.P/3 and thereafter, the prosecutrix appended her signature on the FIR. Panch Devram has also appended his note on the FIR Ex.P/3. Sarpanch Ramesh (PW-5) has accepted that the prosecutrix did not tell anything to him, whereas Panch Devram and others came to his house with the written report Ex.P/3 and therefore, he endorsed that report to the SHO concerned. In para 3 of his evidence, he has accepted that the prosecutrix told him about the incident. According to Ramesh, he went to the house of Gendalal, where the prosecutrix was telling about the incident, whereas according to Gendalal and panch Devram, Sarpanch Ramesh was not present at the house of Gendalal and after calling the Panchayat, Gendalal visited to the house of Sarpanch Ramesh and told about the incident. However, it appears that Gendalal and the prosecutrix told about the incident to panch Devram and thereafter, he had recorded a written report Ex.P/3. In the report Ex.P/3, some portion was written in another ink in which it was mentioned that the accused persons have taken ornaments of the prosecutrix including her Mangalsutra. The explanation given by Devram is not acceptable that such note was written by him in another ink because ink of previous pen was finished. It appears that when the report Ex.P/3 was given to Sarpanch Ramesh then, Ramesh endorsed a note to forward the FIR to SHO concerned and he used a blue ink and note was appended thereafter on Ex.P/3. After completion of report, the prosecutrix had signed on different ink, in which the entire FIR was written. Hence, it is clear that note relating to robbery of ornaments was appended at the house of Ramesh by the witness Devram himself, whereas the FIR was already signed by the prosecutrix at the house of Gendalal. During the investigation, no ornaments could be found with any of the accused including the appellant Ashok and therefore, that addition of note indicates that the witness Devram was also interested to make a grave case against the accused persons.

The most strange conduct of the prosecutrix is that while recording the evidence, she has accepted that names of the accused persons were told by other villagers, whereas no villagers have claimed that he told the names of accused persons to the prosecutrix. It is apparent from the spot map Ex.P/17 that house of accused Baliram was adjacent to the house of the prosecutrix and it is strange and most important fact that the accused Baliram was not known to the prosecutrix by his name. Hence, it would be apparent that either the prosecutrix saved other accused persons except the appellant or her entire story was fake and, since the appellant was relative of her husband Mahesh, she could not save the appellant at the time of her evidence, otherwise she would have been prosecuted for giving a false report to the police or to give a false statement before the Court. If conduct of the prosecutrix is considered with other drawbacks in the case then, summarily no injury was found to the prosecutrix due to breaking of bangles. The allegation was made against four persons that they committed rape upon the prosecutrix but no internal injury was found to her person. The prosecutrix visited to the house of Gendalal soon after the incident, whereas prior to that day, she never visited the house of Gendalal. It was not possible for her to tell about the incident to Gendalal. If the prosecutrix would have stated that initially, she went to the house of Mangaibai (PW-3) maternal aunt of her husband and thereafter, Mangaibail would have taken her to the house of Gendalal then, the story could have been believed and it was expected for the prosecutrix that she would have visited to the house of such a person and told about such incident, where she never visited prior to that incident. When she sent some persons to call her in parents-in-laws then, she would have done some wait for arrival of her parents-in-laws and thereafter, she could have lodged the FIR, but she did not wait for arrival of her parents-in-laws. She went to the house of Gendalal and got a Panchayat done and a written report Ex.P/3 was prepared by Panch Devram. Looking to the entire conduct of the prosecutrix, it appears that a fake case was prepared by the prosecutrix and her testimony is not otherwise believable so that in absence of medical corroboration, her testimony may be accepted.

Also, as discussed above, there was no reason to the prosecutrix in leaving the house of her husband after 8-10 days of the incident and thereafter, not to come back again, whereas she has stated against the appellant, who was relative of husband of the prosecutrix before the Court but she saved all other accused persons without any reason. Under these circumstances, the testimony of the prosecutrix is not believable. If the testimony of the prosecutrix is discarded then, there is no evidence to show that the appellant committed any offence of house breaking and after entering in the house, he committed gang rape with the prosecutrix alongwith other culprits. The trial Court has committed an error in convicting the appellant for the aforesaid offences.

On the basis of aforesaid discussion, the present appeal filed by the appellant appears to be acceptable and therefore, it is hereby accepted. His conviction as well as sentence of offence under Sections 450 or 376 (part-II) of the IPC is hereby set aside. He is acquitted from all the charges appended against him.

At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.

A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.