Prayag Singh & Another vs State Of Madhya Pradesh

This criminal appeal has been filed on 10/03/1999 under Section 374 (2) of the Cr.P.C. by appellants namely Prayag Singh and Laxman Singh against the judgment dated 22/02/1999 passed by the Ist Additional Sessions Judge, Hoshangabad in Session trial No. 120/98 by which the learned Lower Court convicted the appellants for the offence under Section 376 (2) (g) of I.P.C. and sentenced them to undergo life imprisonment.

As per prosecution case, the prosecutrix was residing in her father's home (situated in village Nepaniya, Police Station Seoni Malwa, District Hoshangabad) since two years back. Before 8-9 months from the date of lodging the F.I.R. i.e. 2/03/1998, the prosecutrix had gone to ease herself at about 8 to 9 A.M. in the morning. Accused Prayag Singh reached there and catch hold the prosecutrix and committed rape with her and gave the threat to kill her. Thereafter, accused Laxman Singh came and he also committed rape with the prosecutrix. Both the accused told the prosecutrix that if she disclose the incident to anybody, then they will kill her. After 15 days, the prosecutrix had gone to her field, then accused Prayag Singh again committed rape with her. The prosecutrix became pregnant and she delivered the child after nine months. Thereafter, the prosecutrix submitted a written report dated 2/03/1998 Ex. P-1 to the Police Station Seoni Malwa. The police registered Dehati Nalishi No. 0/98 Ex. P-2 upon which the original crime no. 50/98 under Section 376 and 506-B/34 was registered at Police Station Seoni Malwa on 2/03/1998. The male child, delivered by the prosecutrix, expired after two days. In this regard, the information was given to the police by the father of the prosecutrix. The police registered merg no. 7/98 and reached on the spot, issued the notice to the witnesses and prepared the inquest Panchnama and the dead body was sent for post-mortem. The Doctor reported that cause of death is asphyxia probably injury near the scalp region. During investigation, the police recorded the statement of various witnesses and prepared the spot map. The prosecutrix was also medically examined.

After investigation, the police filed challan no. 101/98 under Sections 376 (g) and 506 (b) r/w Section 34 of the I.P.C. against both the appellants before the Court of J.M.F.C. Seoni Malwa on 8/05/1998. The Magistrate registered the criminal case no. 189/98 and committed the case to the Court of Sessions on 12/05/1998. On 18/05/1998, the Sessions Judge Hoshangabad registered S.T. No. 120/98 and made over the case to the Court of Ist A.S.J. Hoshangabad who framed the charges under Sections 376 (2) and 506 (b) of the I.P.C. , on the same day. Both the accused denied from the charges and demanded for trial. Thereafter, the prosecution examined the prosecutrix PW-1, Krishna Bai PW-2 and A.S. Narvariya PW-3. The accused persons did not examine any witness in their defence.

After concluding the trial, the trial Court passed the judgment on 22nd February, 1999 by which the appellants were acquitted from the charge under Section 506 (B) of I.P.C. but they have been convicted under Section 376 (2)(g) of I.P.C. and sentenced as stated in para 1 of this judgment.

It is submitted by learned counsel for the appellants that the trial Court committed the mistake by convicting the appellants. There was a long delay in lodging the F.I.R. and the delay was not explained. No D.N.A. test has been conducted. The evidence of the prosecutrix was not supported by any independent witness. The medical examination reports of the appellants have not been proved. The trial Court did not appreciate the evidence of the prosecutrix in a proper way. Therefore, the conviction is bad in the eyes of law and liable to be set aside.

On the other side, the State strongly opposed the appeal. It is submitted by the learned Government Advocate that the trial Court did not commit any mistake by convicting the appellants. The statement of the prosecutrix was reliable, therefore no corroboration was necessary. This appeal having no force and liable to be dismissed.

It is the settled principle of law that the delay in lodging the F.I.R. should be explained. The delay itself is not fatal for the prosecution if the prosecution is able to explain the reason behind the delay. In this case, the incident said to be happened before ten months from the F.I.R. dated 2nd March, 1998. A report has been lodged after ten months. This is a long time which should be explained by producing sufficient evidence. The prosecutrix has stated in the F.I.R. that due to fear of the accused, she did not report the matter to the police. This reason cannot be said to be a sufficient reason because the prosecutrix herself filed a written complaint just after delivering the child. If there was any threat or fear, then why she lodged a report after nine months in the same situation and the fear was not ended till the aforesaid date. Therefore, the reason of fear is not acceptable.

The mother of the prosecutrix Krishna Bai PW-2 is also examined before the Court. The mother also said in para 2 that the prosecutrix did not disclose the incident till she delivered the child. After delivering the child, the prosecutrix narrated the story to the witness that both the accused committed rape with her. She also said that she was feeling that the prosecutrix is going to be fat but when she asked the prosecutrix, she did not disclose anything. This conduct of the prosecutrix also creates some doubt. The prosecutrix may disclose the incident to her mother and father but she kept mum for a long period of ten months.

Upon the basis of the statement of the prosecutrix herself, the trial Court held that the prosecution is unable to prove the offence under Section 506 (b) of the I.P.C. This fact also creates a shadow upon the testimony of the prosecutrix because the fact of threatening is not found proved. Therefore, it was expected from the prosecutrix to disclose the incident to her mother and father immediately and it was also expected that she would lodge the report to the police immediately.

No any D.N.A. test has been conducted in this case. The medical examination report of the prosecutrix is also not proved by the prosecution. When the charge under Section 376 is framed, the prosecution is duty-bound to prove the fact that the accused is able to perform sexual intercourse, but in this case, the prosecution did not produce the Doctor in the evidence who conducted the medical examination of both the accused and gave the potency report. The prosecution examined only three witnesses and the tria l Court passed the sentence of conviction upon the testimony of aforesaid three witnesses, out of them, one is the Investigation Officer.

Therefore, it appears from the evidence that the medical report of the prosecutrix is not proved. The prosecution did not prove the fact that the accused persons are able to perform the sexual intercourse, no any independent witness was produced and no any reasonable explanation has been given for the delay in lodging the F.I.R. The F.I.R. has been lodged after ten months when the prosecutrix delivered the child.

Therefore, the trial Court committed the mistake by convicting the appellants for the offence under Section 376 (2) (g) of the I.P.C.

Hence, this appeal is allowed. Both the appellants are acquitted for the aforesaid charges. Their bail bonds are discharged.