Lakhan Singh vs State of M.P. and Others

A.K. Shrivastava, J.

Feeling aggrieved by the judgment of conviction and order of sentence dated 21-7-2000 passed by Addl. Sessions Judge, Pichore, District Shivpuri in Sessions Trial No. 235/99 whereby the appellant has been convicted under Sections 376(1) 341 and 506 Later Part of the Indian Penal Code (hereinafter referred to as ''IPC) and has been directed to suffer rigorous imprisonment of seven years and fine of Rs. 500/-, in default further imprisonment of one month u/s 376, IPC and to suffer one month rigorous imprisonment for Section 341, IPC and further one year rigorous imprisonment for Section 506 Later Part of the IPC, the appellant has knocked the door of this Court u/s 376 of Code of Criminal Procedure, 1973 by preferring an appeal.

Sans unnecessary details the facts lie in narrow compass, that on 7-7-99 at 12 in the noon prosecutrix was coming back from hospital in a tractor. She alighted at Village Masori and was going on foot to her village, on the way appellant met her. It is said that the appellant was also sitting in the same tractor in which the prosecutrix was sitting. It is also said that the appellant went to the hospital for the treatment of her son and her son was also accompanying her.

The story of the prosecution is that on the way appellant met and caught hold her. Thereafter, she was thrown on the ground and when she resisted he pressed her neck, as a result of which she sustained injuries by the nails of the accused. It is said that the appellant directed the prosecutrix not to shriek otherwise she may face the dire consequences. Thereafter, the appellant undressed her and committed rape upon her. The prosecutrix thereafter went to her house and narrated the incident to his brother Kamal (P.W. 4) and to her mother Teja (P.W. 3). Thereafter, these persons went to the police station where the report (Ex. P-2) was lodged.

On the basis of the first information report, the criminal law set in motion. The investigating officer sent the prosecutrix for medical examination and thereafter, recorded the statement of the witnesses, arrested the accused and sent him to jail. After completion of the investigation, a charge-sheet was filed by the prosecution before the Competent Court who on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial.

The learned Trial Judge on the basis of the charge-sheet framed charges punishable under Sections 341 376(1) and 506 Later Part, IPC against the appellant. Needless to emphasis the appellant abjured his guilt. The defence of the accused is of maladroit implication.

In order to prove the charges, prosecution examined as many as six witnesses and placed Exs. P-1 to P-6, the documents on record. The accused in his defence did not choose to examine any witnesses.

The learned Trial Judge after X-raying the evidence came to hold that appellant did commit the offence for which he was charged and eventually convicted him and passed the sentences mentioned hereinabove. Hence, this appeal.

In this appeal, Shri Anoop Nigam, learned Counsel for the appellant has contended that the evidence of the prosecutrix does not inspire any confidence. He has also submitted that in the present case the best evidence has been concealed by the prosecution by not examining the lady doctor, who examined the prosecutrix. To bolster his submission, the learned Counsel placed reliance on Nandlal Yadav Vs. State of M.P., Asha Ram v. State of M.P. 1995 (2) MPWN 24. The learned Counsel by placing reliance on the decision in the case of Dhan Singh v. State of M.P. 2001 (1) MPWN 123, has contended that the chemical report has also not been filed and, therefore, adverse inference should be drawn against the prosecution. On these premised arguments it has been contended by learned Counsel that the appeal deserves to be allowed and the conviction deserves to be set aside.

Refutting the aforesaid submission of learned Counsel for the appellant, it has been contended by Ku. Chitra Saxena, learned Counsel appearing for the State that the Trial Court after appreciating the evidence came to hold that the appellant committed the offence and, therefore, no interference is required in this appeal and the same deserves to be dismissed.

After having heard the learned Counsel for the parties, I am of the view that the appeal deserves to be allowed.

In the present case, the prosecutrix was examined by the lady doctor but unfortunately the prosecution has not examined her. According to me, in a case of rape the evidence of lady doctor is very material. My view is supported by two decisions of this Court. In the case of Nandlal Yadav (supra), this Court held that the doctor who examined the prosecutrix was not produced and it was fatal to the prosecution similar view was taken by this Court in the case of Asha Ram (supra).

On going through the record it transpire that vaginal swab and the petticoat of the prosecutrix were sent for chemical examination but the report has not been produced by the prosecution. In the case of State of M.P, v. Dayaram 1987 JU 681, the Division Bench of this Court in Para 10 held as under:--

"It was also argued by the learned Counsel for the respondent that medical evidence is lacking, so also the Chemical Examiner''s report does not support the prosecution case, so far as rape is concerned, no seminal stains were found on the clothes on chemical examination, as per report (Ex. P-11)."

The present case is rather on better footings. In the present case, no report of Chemical Examiner has been submitted. According to me it would have been one of the best evidence, because according to FIR the accused after completion of the rape cleaned his male organ by the petticoat of the prosecutrix. On the basis of the decision of Dayaram (supra) it can be very well said that the prosecution concealed the material piece of evidence and, therefore, adverse inference should be drawn against it.

The evidence of the prosecution does not inspire any confidence. Admittedly she is a major lady, according to her, in the broad day light she was ravished on the way, which could be hardly digested. According to the prosecutrix, she was being accompanied by her son but the prosecution has not examined her own son. Though corroboration of the statement of the prosecutrix is not required but in the peculiar facts and circumstances of the case, when her own son was accompanying the prosecutrix, according to me, he was an important witness and by not examining him, adverse inference should be drawn against prosecution. This is more so when the defence of the accused is that he is not having good relation with the brother of the prosecutrix, Kamal and there is enmity between them. See Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another,

On going through the evidence of the prosecutrix, it is gathered that appellant torned her blouse and petticoat but these torned clothes were also not seized. According to the prosecution, the incident took place on 7-7-99 and the prosecutrix was sent for medical examination on the next day. On going through the evidence of the prosecutrix, it transpires that she sustained injuries by the nails of the accused on her neck and she also sustained injury on her hands by the glass of broken bangles. According to her, blood came out from her hands and she also sustained injury on her waist and the blood was squeezing from the waist. I have seen the medical report of the prosecutrix, though it has not been exhibited, but no where in the report of the doctor any injury is found on the person of the prosecutrix and perhaps for this reason the prosecution has not examined the lady doctor. The evidence of the prosecutrix does not inspire any confidence and therefore, according to me, the conviction of the appellant can not be sustained.

14-A. In the result, the appeal succeeds and is hereby allowed. The conviction of the appellant under Sections 376(1) 341 and 506 Later Part, IPC is hereby set aside. It has been contended by Shri Anoop Nigam, learned Counsel for the appellant that though by order dated 20-3-2003 the application for suspension of sentence of appellant was allowed, but as he did not furnish the bail bonds he is in jail. As the appellant is in jail, he be set at liberty forthwith, if not required in any other offence.