Sakir and Irfan vs State of Madhya Pradesh

Hon. Shri Justice A.K. Sharma

Appellants have filed this appeal u/s 374 of Cr.P.C. challenging the judgment dated 09/08/2011 passed in S.T. No. 71/2009 by Sessions Judge, Sheopur whereby appellant Sakir has been convicted for the offence punishable under Sections 376, 450 and 506B of IPC whereas appellant Irfan has been convicted for the offence punishable u/s 376/ 34, 450 and 506B of IPC and both the appellants have been sentenced to undergo RI for 10 years with fine of Rs. 1,000/- each, RI for 2 years with fine of Rs. 500/- each and six months RI respectively with default stipulations. The brief facts of the case are that in the intervening night of 23-24/09/2009, prosecutrix (name of prosecutrix is not mentioned to hide her identity) was sleeping in her house at village Baghwaj. Her husband has gone to bring milk from Khirkai. At about 12.00 am, appellants entered in her house after opening the door and caught hold of her on bed and thereafter, appellant Irfan after pressing her mouth caught hold of her hand and appellant Sakir committed rape with her. Thereafter, both the accused left the house after threating her that if she informed the incident to anybody she will be killed. In the morning, at about 7.00 am when her husband came, she narrated whole the incident to her husband and mother-in-law Wilkis and thereafter, she lodged the report at police station Sheopur. After investigation, police has filed challan against the appellants and learned trial Court after trial of the appellants convicted and sentenced them as mentioned in para 1 of the judgment.

Being aggrieved by the impugned judgment, appellants have preferred this appeal on the ground that learned trial Court is not justified in convicting the appellants on the basis of unreliable testimony of prosecutrix and other witnesses. Further learned trial Court has overlooked the fact that appellants have been falsely implicated due to enmity between the family of appellants and complainant.

The main question for consideration in this appeal is whether learned trial Court is justified in convicting the appellants by impugned judgment or not ?

Learned trial Court has convicted the appellants by relying on the evidence of prosecutrix and report of Forensic Science Laborator (Ex. P/11) showing presence of spermatozoa on Salwar, slide and swab and on the under garment of accused Sakir.

Learned counsel for the appellants has submitted that prosecutrix (PW/5) has not shouted at the time of incident and even after the incident she has not shouted or called her mother-in-law. He has drawn attention of this Court towards the statement of prosecutrix (PW/5) in which she has admitted that at the time of incident her son was also on the bed and her son did not wake up. Learned counsel for the appellants submitted that the bed on which prosecutrix was lying both the accused were also on the bed and her son was also lying on the bed and did not wake up, it is an unnatural fact. Learned counsel for the appellants has further submitted that prosecutrix (PW/5) has admitted in para 36 of her evidence that the intervening night of the incident was a dark night and it was impossible to identify any person and she has not identify the accused from sound but she has seen the accused. But she has not told that how she has identified the appellants in the darkness of the night. She has also not stated that what source of light was available in the house. Learned counsel for the appellants has further submitted that prosecutrix has stated that her hands were pressed by one of the accused by his legs, but no injury on the hands of prosecutrix has been found.

Learned counsel for the appellants has further drawn attention of this Court towards the statement of prosecutrix (PW/5) who in para 29 of her cross-examination has stated that after accused left her house, she cried by taking name of her mother-in-law. She has further stated that after the incident she closed the door from the inside and she went to the house of her mother-in-law in the morning at the time of Namaj. Learned counsel for the appellants has further submitted that prosecutrix in para 24 of her evidence has admitted that she brought her son in the night from the house of her mother-in-law but she has not went to her mother-in-law''s house immediately after so called rape with her and she waited till morning when her husband came and thereafter she went to the house of her mother-in-law and told the incident to her. It is further stated by her that after she narrated the incident to her mother-in-law and husband, her husband went to his father for consultation and came back after half an hour and thereafter, they went to lodge the report.

Learned counsel for the appellants has further submitted that report has been lodged at about 8 am but the prosecutrix has been medically examined at 4.10 pm and there is no evidence that where prosecutrix remain during this period. No injury on the private part of the prosecutrix has been found by the doctor an Dr. Rekha Jain (PW/4) has admitted that she has not mentioned the duration of external injuries sustained by prosecutrix.

Learned counsel for the appellants has also drawn attention of this Court towards the admissions of prosecutrix (PW/5) that Sakir is the son of Allahanoor and there is a Bada of her father-in-law and his two brothers. She has further admitted that her father-in-law was to give share from the Bada to Amanat and Jumma only and Allahanoor and Nuruddin are having good relations. Learned counsel for the appellants has further submitted that prosecutrix in para 13 of her evidence has admitted that her mother-in-law wanted to marry Afsar with Pappu. But She has denied that Sakir and Irfan told that Pappu is a vagrant boy and therefore they have opposed the marry of Afsar with Pappu.

Learned counsel for the appellants has further submitted that prosecutrix has admitted in para 14 that shop of Aslam is adjacent to her house and a Mosque is also situated in front of her house. Even then the prosecutrix has not tried to shout after the incident. Further she has admitted that at about 4-4.30 am Namaz was performed in the mosque and people started coming to the mosque.

Learned counsel for the appellants has submitted that considering the enmity between the families of prosecutrix and appellants who are close relatives regarding property and dispute regarding marriage of Afsar with Pappu coupled with the fact of unnatural behaviour of prosecutrix after the incident regarding keeping mum till morning and not telling about the incident to anybody and further considering the fact that report has been lodged after consultation of father-in-law and there is nothing on record that where was the prosecutrix after lodging of report at 8 am till 4 pm when she medically examined, the testimony of prosecutrix cannot be believed. It is further submitted by learned counsel for the appellants that learned trial Court overlooked the above mentioned facts and convicted the appellants on the basis of chemical examination report overlooking the fact that prosecutrix herself is a married lady and accused is also a married man and presence of spermatozoa on their clothes is not a conclusive proof of commission of rape by appellant Sakir with prosecutrix.

Learned counsel for the appellants has submitted that where the prosecutrix and accused both are married, presence of spermatozoa on their garments does not indicate that rape has been committed. In support of his arguments he has cited the judgment of Hon. Apex Court in the matter of Rahim Beg and Another Vs. State of U.P., and judgments of this Court in the matter of Shyamlal Mathuralal Vs. State of M. P., and Mangusingh Vs. State of M.P., 2001 (1) MPWN 169 in which it has been held that presence of semen stain on the langot of a young man can be exists because of variety of reasons and would not necessarily connect him with the offence of rape. In the present case, it is important to note that prosecutrix has remained silent after the incident and there is no evidence that where she remain after lodging of the report at 8 am till she medically examined at 4 pm. It is further important to note that from the morning to evening till she medically examined she remained with her husband throughout, therefore, considering the fact that she has not been immediately medically examined after lodging of report, appellant Sakir cannot be connected with the offence of rape with prosecutrix on the basis of presence of semen stains and spermatozoa on the clothes and private parts of prosecutrix and clothes of accused himself.

Considering the above facts, learned trial Court is not justified in convicting the appellants only on the basis of chemical examination report overlooking the fact that report has been lodged after long delay that to after consultation with father-in-law of prosecutrix and prosecutrix keep mum throughout after incident till morning for more than 6 hours and it is an admitted fact that there is a dispute regarding property between family of prosecutrix and appellants who are close relatives and are members of common family. Thus, the appellants should have been given benefit of doubt as prosecutrix has admitted that in the intervening night there was no visibility and she has not identified the appellants on the basis of sound. Further there is nothing on record how the appellants were identified by the prosecutrix, therefore, the evidence of prosecutrix is not reliable for convicting the appellants. In the result, appeal is allowed. The impugned judgment convicting and sentencing the appellants as mentioned in para 1 of the judgment is set aside. Appellants are in jail, they are directed to be released forthwith. Fine if, if any, deposited by the appellants be refunded to them.