Ram Ratan Kewat and Another vs State of M.P.

U.C. Maheshwari, J.—The appellants/accused have directed this appeal u/s 374(2) of Cr.P.C. being aggrieved by the judgment dated 8.7.1996 passed by Sessions Judge, Sidhi in S. T. No. 63/95, convicting and sentencing to each of them u/s 450 and 376(2)(g) of IPC for RI three years and for RI ten years with fine of Rs. 1,000/-, respectively under such sections. The facts giving rise to this appeal in short are that on 23.11.1994 at about 4.00 p.m. the prosecutrix Anarkali was pestling the paddy in her home, her father was gone to Kardhua and her mother was gone to pluck leafy vegetables, at the same time the appellants by committing the criminal trespass entered in her house and out of them appellant No. 2 Ramcharan caught hold the pestle of the prosecutrix from her hand and after laying her on the flour, contrary to her will and wish committed the rape on her. At the time of such incident the appellant No. 1 Ramratan was standing on the door of such house. The aforesaid incident was reported to the police Chitrangi on 29.11.1994, on which FIR (Ex. R7) was registered against the appellants for the offence of Section 376 /34 of IPC. The cause of lodging the FIR at the belated stage was mentioned that the father of the prosecutrix was not available at home on the date of the incident. After registration of the offence, the appellants were arrested, interrogatory statements of the witnesses were recorded and the prosecutrix as well as the appellant No. 2 were medically examined. On completion of the investigation they were charge sheeted for their prosecution under the above mentioned offence. On evaluation of the papers of the charge sheet on framing the charge of section 450 and 376 /34 of IPC by the trial Court against the appellants, each of them abjured the guilt, on which the trial was held. After recording the evidence on appreciation of the same after holding guilty to the appellants under the aforesaid sections, each of them were convicted and sentenced with the above mentioned punishment. Being dissatisfied with such conviction and sentence the appellants have come to this Court.

Appellant''s counsel Shri G. S. Baghel, after taking me through the record of the trial Court along with the impugned judgment argued that on proper appreciation of evidence the appellants ought to have been acquitted by the trial Court, as such the appellants were convicted under the wrong premises on false pretext. Lodging the FIR at very belated stage itself made the case and the story of the prosecution suspicious and in such premises, the expert/FSL report of the vagina fluid and the cloths could not be considered against the appellants as the same is based on the basis of slide vagina fluid prepared near about after 6 days from the date of incident. As such fluid could not be said to be consequence of the intercourse committed by the appellant No. 2 Ramcharan. In any case, after six-seven days such fluid could not be found in the vagina. The story put forth by the prosecution regarding seized clothes of the prosecutrix as she did not wash such clothes in this period, could not be believed. FSL report in this regard could not be foundation to hold the conviction against the appellants. He further argued that in any case keeping in view the fact that the appellant and prosecutrix family since long had good relations and in that premises, the prosecutrix and appellant Ramcharan were very close and in such premises only the inference could be drawn that such alleged intercourse was committed by the appellant No. 2 Ramcharan with the consent of prosecutrix and pursuant to it, the appellant No. 2 Ramcharan, deserves to extend the benefit of acquittal, as on ossification test carried out by the radiologist, the prosecutrix was found to be major of more than 18 years of the age. He also said that in the lack of any support from the testimony of independent witnesses to the testimony of the prosecutrix mere on her deposition the appellants could not be convicted. He further argued that in case on re-appreciation of evidence if the Court comes to the conclusion that appellant No. 2 has committed the rape against her will and hold him guilty for the same, even then in view of the specific averments in the deposition of prosecutrix that appellant No. 1 Ramratan although came with the appellant No. 2 Ramcharan to her resident but he remained outside of the house and did not enter in her house. So it could not be deemed that Ramratan came with the appellant No. 2 Ramcharan with intention to commit rape on the prosecutrix or he has committed any act in furtherance of their common intention to commit rape on the prosecutrix. In such premises, the appellant No. 1 Ramratan mere on account of standing outside the house of the prosecutrix at the time of committing the alleged rape by the appellant No. 2 Ramcharan with the prosecutrix could not be convicted for the alleged offence of gang rape. He also said that as per deposition of the prosecutrix herself appellant Ramratan did not enter in the house of the prosecutrix, therefore, his conviction u/s 450 of IPC is also not sustainable. With these arguments he prayed to extend the benefit of acquittal to the appellants or in any case to extend the benefit of acquittal to appellant No. 1 Ramratan and modify the conviction and sentence of the appellant No. 2 Ramcharan from Section 376(2)(g) and 450 of IPC to Section 376(1) and 450 of IPC, by allowing this appeal.

On the other hand learned P.L. Shri Swapnil Ganguli by justifying the impugned conviction and sentence of the appellants under the aforesaid section said that the findings and the approach of the trial Court holding guilty to the appellants under the aforesaid section being based on proper appreciation of evidence and in conformity with law, did not require any interference at this stage. According to him, appellant-Ramcharan committed the alleged rape on the prosecutrix in presence and with the assistance of the Ramratan in furtherance of their common intention as Ramratan, also wish to commit rape with the prosecutrix, so he is equally responsible for the alleged offence. However, he fairly conceded that in the FIR and in the interrogatory statement, the prosecutrix has categorically stated that Ramratan was also entered in her house and thereafter while committing the rape on her by Ramcharan appellant No. 2, the appellant was stood on the door, but on recording her deposition she has not stated any thing regarding entrance of Ramratan inside of the house at any point of time either before or after committing the rape on her by Ramcharan. So in such circumstances, if any benefit of acquittal is extended to Ramratan even then the conviction and awarded sentence of the appellant No. 2 Ramcharan could not be interfered and deserves to be maintained and prayed for dismissal of this appeal.

Having heard the parties keeping in view their arguments, after perusing the record of the trial Court along with the impugned judgment, I am of the considered view that trial court has committed error in convicting both the appellants u/s 376(2)(g) and Section 450 of IPC while in the available circumstances the trial Court ought to have acquitted the appellant No. 1 Ramratan from both the aforesaid charges and appellant No. 2 Ramcharan ought to have convicted and sentenced u/s 376(1) and 450 of IPC.

True, it is that incident had taken place on 23.11.1994 and FIR was lodged by the prosecutrix Anarkali (P.W. 3) on 29.11.1994 near about after 6 days, but on perusing the FIR (Ex. P.7) as well as the deposition of prosecutrix Anarkali (P.W. 3) and investigation officer Damodar Prasad (P.W. 7), it is apparent that explanation regarding lodging the report at belated stage has been put forth and proved by the prosecution and such explanation has not been challenged by the defence in the cross-examination of any witnesses of the prosecution. Even otherwise the explanation put forth by the prosecutrix that his father was suffering from the disease of epilepsy and his uncle Bhola was not available at home and she also became ill, in the available scenario, appears to be reasonable, proper and reliable so on that count, it could not be deemed that FIR was lodged by the prosecutrix on false pretext against the appellants at belated stage. So, the arguments advanced by the appellants'' counsel in this regard are hereby failed.

As per FIR (Ex. P.7) and interrogatory statement of the prosecutrix (Ex. D.1), initially both the appellants entered in her house, but subsequently while committing the rape on her by appellant No. 2 Ramcharan, the appellant No. 1 Ramratan was standing on the door. I am of the considered view that such averments of FIR unless proved by ocular evidence neither could be treated to be sustentative evidence nor sufficient to convict the accused like appellant No. 1. The interrogatory statement of the prosecutrix or other witnesses could not be read as evidence against the accused unless such facts are proved by ocular evidence in deposition of such witnesses. Such interrogatory statements in view of provision of Section 161 and 162 of the Cr.P.C., could only be used by the defence for contradiction and omission and not for any other purpose, hence the same could not be treated to be the substantive evidence unless the same is proved by concerning witnesses.

In the case at hand, the deposition of the prosecutrix being ocular evidence could only be foundation to draw any inference against the appellant or appellants in the matter.

On perusing the deposition of prosecutrix Anarkali (P.W. 3) I have not found any where in her chief in which she stated that appellant No. 1 Ramratan entered in her house accompanied with the appellant No. 2 Ramcharan and was remained inside either at the time of committing the rape by Ramcharan or subsequent to his such act. In her further deposition she has not stated anything against the appellant No. 1 showing that he also came with the appellant No. 2 Ramcharan in furtherance of their common intention to commit rape on her. In view of such testimony of prosecutrix mere averments of FIR and her case diary statement, no inference could be drawn against the appellant No. 1 that he also came to her residence with their common intention to commit rape on her as defined and enumerated in explanation 1 of Section 376(2) of IPC. The same is read as under:

Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

In the aforesaid premises, the impugned conviction of appellant No. 1 could not be sustained.

As per prosecution case except the prosecutrix, no other eye witness of the alleged incident of rape has been examined, however, two witnesses namely Vishnu and Deolal were cited as witnesses, who saw the appellants while they were running away from the side of the house of the prosecutrix. Out of them, one Vishnu has neither been examined nor any explanation regarding his non-examination has been put forth by the prosecution on record. Deolal, on recording his deposition had categorically stated that he only saw the appellants when they were running away from the house of the prosecutrix but mere on such evidence it could not be assumed or deemed that Ramratan, had also committed any offence either of criminal trace pass by entering in the house of the prosecutrix or by committing any act along with the appellant No. 2 in furtherance of their common intention to commit rape on the prosecutrix.

It is settled law that in the lack of any positive, admissible and convening evidence on the record showing the involvement of the accused with the alleged offence mere on the basis of averments of the FIR and case diary statement of witnesses or any papers of the charge sheet, the accused like appellant No. 1 could not have been convicted by the trial Court. So in view of the aforesaid discussions, it is held that the prosecution has failed to prove the aforesaid alleged offence of Section 376(2)(g) or Section 450 of IPC. Against the appellant No. 1 Ramratan. Consequently the findings and approach of the trial Court holding him guilty for such offence deserves to be and is hereby set aside.

Coming to consider the sustainability of impugned conviction and sentence of appellant No. 2 Ramcharan is concerned, it is apparent that on lodging the FIR (Ex. P.7) the prosecutrix categorically stated that appellant No. 2 Ramcharan accompanied with the Ramratan by committing the criminal trace pass entered in her house, where appellant No. 2 committed forcefully rape on her. On recording her deposition as P.W. 3 (Anarkali) she supported the incident of alleged rape till the extent of appellant No. 2 Ramcharan. She deposed each and every act with description of such appellant No. 2 regarding rape committed by him on her. In para 2 of her deposition, she categorically stated that she was laid by Ramcharan on the flour and thereafter, he committed the rape against her will and wish and on her crying by leaving her he ran away. Such story is further supported by her uncle Bhola Singh (P.W. 4) and mother Golari (P.W. 5), and Deolal (P.W. 6), to whom she stated the scenario of the incident after happening the same. On going through the cross-examination of all these witnesses, I have not found any material substance discarding or destroying the version stated by them in their chief alleging that appellant No. 2 committed rape on the prosecutrix. So in the light of such evidence I have not found any error in the approach of the trial Court holding guilty to the appellant No. 2 Ramcharan for committing the alleged rape on the prosecutrix, thus till this extent, the findings of the trial Court with respect of appellant No. 2 Ramcharan is hereby affirmed.

The argument advanced by the appellant''s counsel with respect of FSL report regarding vagina fluid of the prosecutrix could not be connected with the appellant No. 2, as such slide was prepared after six days is concerned, true it is that such slides were prepared after six days, therefore, such report could not be deemed to be relevant or admissible to the case at hand but, in view of other available evidence mere on such ground the appellant No. 2 Ramcharan could not be acquitted.

It is settled proposition of law that whenever and wherever if there is a conflict between the medical/expert evidence and ocular evidence, then in such circumstance, the available ocular evidence if reliable shall prevail over the medical/expert evidence. Therefore, arguments of the appellants counsel relating to the FSL report regarding vagina fluid or the clothes of the prosecutrix are not helping to the appellant No. 2 Ramcharan for extending him the acquittal.

The law is also well settled on the question that in the matter of rape the independent corroboration to the testimony of prosecutrix is not necessary if in the available circumstances her testimony appears to be reliable then mere on her testimony conviction could be held against the accused like appellant, No. 2. As per aforesaid discussion the deposition of prosecutrix Anarkali (P.W. 3) does not appear to be suspicious in any manner.

Law is also well settled that in the matter of rape it is not necessary that sign of the struggle or any injury must be found on the person of the prosecutrix. So the absence of any injury on the person of the prosecutrix does not give any circumstance to extend the benefit of acquittal to the appellant No. 2 Ramcharan.

In view of the aforesaid discussion, it is held that trial Court has not committed any error in holding guilty to the appellant No. 2 for committing the alleged rape on the prosecutrix. So till this extent the findings of the impugned judgment are hereby affirmed.

After acquitting the appellant No. 1 Ramratan from both the charges as stated above the appellant No. 2 Ramcharan even after holding guilty could not be convicted u/s 376(2)(g) of IPC relating to the gang rape and it requires modification from such section to Section 376(1) of IPC. So till this extent the impugned judgment requires modification while his conviction and sentence u/s 450 of IPC do not require any interference at this stage, hence the same deserves to be affirmed.

In view of the aforesaid by allowing this appeal in part the appellant No. 1 Ramratan is acquitted from the alleged charge of Section 376(2)(g) and Section 450 of IPC. Consequently his awarded jail sentence and imposed fine is set aside. While by affirming the conviction and sentence of appellant No. 2 Ramcharan u/s 450of IPC his conviction u/s 376(2)(g) of IPC is modified from such section to Section 376(1) of IPC and pursuant to it his sentence awarded by the trial Court u/s 376(2)(g) of IPC is set aside and instead to it, he is convicted and sentenced u/s 376(1) of IPC for seven years RI with fine of Rs. 1,000/-, in default of depositing the fine amount he has to suffer further six months RI. The amount depositing by the appellant No. 2 shall be adjusted in the aforesaid imposed fine. In view of the aforesaid the bail bonds of the appellant No. 1 is hereby discharged while the bail bonds of the appellant No. 2 is hereby cancelled and he is directed to surrender himself before the trial Court on or before 15th of July, 2012 for facing the remaining part of the aforesaid awarded jail sentence. The amount of fine, if deposited by the appellant No. 1 Ramratan be refunded to him after proper verification. Till this extent the findings of the impugned judgment are hereby modified while the other findings are hereby affirmed. The appeal is allowed in part, as indicted above.