Kachrulal vs The State Of Madhya Pradesh
2021 Latest Caselaw 1288 MP

                                             1                 CRA. No.83/2016

   HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
 SINGLE BENCH: HON'BLE MR. JUSTICE SHAILENDRA SHUKLA

                  CRIMINAL APPEAL NO.83 OF 2016
                       KACHRULAL S/O RATANLAL
                                        Versus
                  THE STATE OF MADHYA PRADESH
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        Mr. Virendra Sharma, learned counsel for the appellant.
        Mr. Sachin Jaiswal, learned counsel for the
respondent/State of Madhya Pradesh.
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                              JUDGMENT

(Delivered on 06th day of April 2021)

The present appeal has been filed under Section 374 of Code of Criminal Procedure, 1973 seeking to set-aside the judgment dated 22.12.2015 pronounced in Special Session Trial No.160/2014 by Special Judge, SC/ST (PA) Act, 1989, Ujjain (MP) whereby the appellant has been convicted and sentenced as under:-

                   Conviction                               Sentence
       Section & Act        Imprisonment         Fine Amount       Imprisonment
                                                                    in lieu of fine
         456 of IPC          02 years RI          Rs.2,000/-         01 Month
                                                                    Additional RI
        376(1) of IPC        10 years RI          Rs.2,000/-         01 Month
                                                                    Additional RI

2. The prosecution story in short was that on 04.11.2014 an FIR was lodged by the prosecutrix in Police-Station-Jharda, District-Ujjain (MP) in which it was alleged that on the previous night, the prosecutrix had gone to sleep at about 8:00 pm after taking dinner and her husband Shankarlal at that time had gone to irrigate the agricultural field and when he came back, he saw that the prosecutrix was still sleeping and thereafter he

slept with her and established physical relations with her. The prosecutrix (PW/1) again went to sleep and her husband went to the agricultural field and while she was asleep at that point of time, the appellant Kachrulal came inside the room and climber over the prosecutrix. The prosecutrix woke up and shouted but the appellant closed her mouth with his hands and threatened her and committed rape upon her. On hearing her shouts, her father-in-law Tolaram (PW/2) came to the spot and a physical altercation occurred between the appellant and Tolaram, however, the appellant pushed him aside and fled from the spot. Thereafter the prosecutrix narrated the incident to her husband the next morning when he came back from the agricultural field. Subsequently an FIR was lodged thereafter in the Police-Station-Jharda, Ujjain and the same was registered under the provisions of Sections 376, 456 and 506 of Indian Penal Code, 1860 and Sections 3(2)(V), 3(1)(12) and 3(W)(1) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST (PA) Act').

3. The Sub-Divisional Officer, Police (SDOP) Mr. Ram Kumar Rai (PW/7) who was posted at Mahidpur had carried out the investigation along with Pratap Singh Rajawat (PW/9) and after investigation, chargesheet was filed under the same provisions under which FIR had been lodged.

4. The trial Court in its judgment dated 22.12.2015 acquitted the appellant Kachrulal from charges framed under Section 506(Part-II) of IPC and Sections 3(2)(V) and 3(1)(12) of SC/ST (PA) Act, but convicted him under the provisions of Sections 456 and 376(1) of IPC and sentenced him, as already described aforesaid.

5. In the appeal filed by the appellant, it has been stated

that the evidence of prosecutrix does not evoke confidence and is not credible. She has stated that her three children were sleeping besides her when the incident occurred and none of them woke up even though she was shouting. This in itself is unnatural as per learned counsel for the appellant. It has also been submitted in the appeal that the prosecutrix in her 164 Cr.PC statement has not clearly stated that the appellant had committed rape upon her, that the prosecutrix has stated that after the incident she had gone off to sleep again and intimated her husband only on the next morning which is also a unnatural conduct, that no injury was found on the person of prosecutrix despite her stating that she suffered injuries on her waist.

6. Learned counsel for the appellant made oral submission bolstering the same with Apex Court Judgment and submits that the incident was a result of consensual act on the part of prosecutrix.

7. The question before this Court is whether in view of the grounds contained in the appeal memo as also oral submissions, the appellant ought to have been acquitted by the Trial Court and whether this appeal deserves to be allowed or not ?

8. The evidence available on record was perused.

9. The prosecutrix (PW/1) has stated that on the night of incident, her husband had gone to the agricultural field for irrigating the same and she was sleeping at that point of time. The front door of the house had not been locked and was merely shut closed by the husband. As per the prosecutrix (PW/1), the appellant came inside the house and committed rape with her and as she shouted, her father-in-law Tolaram (PW/2) sleeping in the same house came over and thereafter

altercation ensued between the appellant and her father-in-law and then appellant fled from the spot leaving behind his slippers and shirt. The said incident was narrated by the prosecutrix to her husband the next morning when he came from the agricultural field and subsequently an FIR was lodged thereafter.

10. The prosecutrix (PW/1) has thus stated that her father-in- law Tolaram was sleeping in the same house when the incident took place but Tolaram (PW/2) has stated in evidence that after the incident he went back to his house and had slept thereafter.

11. The spot-map Ex.P/2 prepared by SDOP, Pratap Singh (PW/9) Mahidpur shows that the house of Tolaram is situated at quite a distant from the house of prosecutrix, whereas adjacent to the house of prosecutrix, houses of Chander, Kaluram and Govardhan are situated. The prosecutrix has stated that on her shouting, none of these neighbours came to her house for rescue, and that Chander who is her brother-in- law had gone to the agricultural field for irrigating the land. Tolaram (PW/2) also states that all the neighbours of prosecutrix had gone for irrigating their agricultural lands. It appears to be a strange that all the neighbours of prosecutrix had gone to their agricultural fields at 11:30 pm in the night.

The husband Shankarlal (PW/3) states that he has a mobile but immediately thereafter states that he had not taken the mobile to the agricultural field on the fateful night. However, prosecutrix (PW/1) does not state that her husband had left the mobile behind. She has been asked as to whether she intimated her husband on mobile after the incident or not to which she denies to have made any mobile call to husband.

12. The prosecutrix (PW/1) has stated that when she was being raped she shouted loudly but none of her children got up. She states that her eldest child studies in Class-5. There is substance in the submission of learned counsel for the appellant that it is quite unnatural that none of her children would get up when the prosecutrix was shouting due to onslaught of such dastardly act committed by the appellant. Tolaram (PW/2) on the other hand states that children of prosecutrix had woken up and that they had even seen the appellant inside the house. Thus, there is mutual contradictions between the statements of prosecutrix (PW/1) and her father- in-law Tolaram (PW/2).

13. The prosecutrix states in para 3 that she can approach her husband to agricultural field within half an hour but states that after the incident she went on to sleep which again is quite strange and unnatural conduct on the part of prosecutrix. She specifically states that she did not go to her husband and informed him immediately after the incident. The father-in-law Tolaram (PW/2) also states that after the incident he went back to his house and slept. This again is unnatural conduct on his part. The Investigating Officer (IO) has not recorded the statements of any of the children of prosecutrix.

14. The prosecutrix (PW/1) states that as a result of the act of appellant, she had suffered injury on her waist, but Dr. Mamta Singh (PW/5) has found no injury on the person of prosecutrix.

15. The prosecutrix has been asked as to whether she had physically resisted the act of appellant by biting him or clawing his face or not. The prosecutrix responds in negative and has stated that the appellant continued to rape her for five minutes.

Her shouts not being heard by her children sleeping besides her and the prosecutrix herself not trying to physically resist the appellant and bearing the onslaught for five minutes raises a question mark on the credibility of prosecutrix. Moreover in her 164 Cr.PC statement, the prosecutrix has not stated that the appellant had committed rape upon her. It has only been stated that the appellant started indulging in inappropriate activities.

16. With a view to bring out previous familiarity between prosecutrix and appellant, a question has been raised as to whether the appellant took the prosecutrix to a hospital on her falling sick or not ? The prosecutrix (PW/1) replies in negative. However, father-in-law Tolaram (PW/2) admits in para 3 that appellant had taken the prosecutrix to the hospital when she had taken ill. Thus appellant has been able to show previous familiarity between himself and prosecurtrix.

17. Although, Tolaram (PW/2) states that in the altercation with appellant Kachrulal, the shirt worn by appellant came in his hand and thereafter the appellant fled from the spot leaving behind his slippers as well. However, the prosecutrix herself has not made such mention in her FIR Ex.P/1. If the shirt of appellant had been grabbed by Tolaram (PW/2), then he should have taken the same to the police station along with the prosecutrix. However, the shirt and slippers were seized from the house of prosecutrix by Investigating Officer (IO) Pratap Singh (PW/9). This witness does not state that the shirt of appellant came in the hands of her father-in-law Tolaram (PW/2) during physical altercation with the appellant. He admits that there is no mention of shirt and slippers in the FIR.

18. Thus, one can see that there are number of inconsistencies in the statements of prosecutrix, that there are

mutual consistencies between the statements of prosecutrix and her father-in-law Tolaram (PW/2). Apart from the inconsistencies, the conduct of prosecutrix is also unnatural which dents her credibility.

19. Learned counsel for the appellant has referred to a citation of Apex Court in the case of Amar Bahadur Singh vs State of Uttar Pradesh reported in AIR 2011 SC 1352 in which it has been laid down that it is difficult to believe that the offence of rape could have been committed in a small house, wherein children of prosecutrix also used to reside and allegations of rape were found to be cooked up by the prosecutrix.

20. Although Section 114-A of Indian Evidence Act, 1872 provides for a presumption in favour of the prosecutrix in the sense that if it is proved that sexual intercourse has taken place and if the prosecutrix has stated that she had not consented for the same, then the Court shall presume that she did not consent, but the aforesaid presumption is rebuttable and in the present case, in view of the contradictions, inconsistencies and unnatural conduct of the prosecutrix, the aforesaid presumption has been adequately been rebutted by the appellant.

21. The trial Court in the impugned judgment dated 22.12.2015 has not pondered over the aforesaid lacunae and inconsistencies in the statements of prosecutrix herself vis-a- vis other witnesses. Hence the conclusion which has been ultimately been drawn is not liable to be affirmed.

22. After due consideration, the evidence of prosecutrix has been found to be such that the presumption drawn in her favour under Section 114-A of Evidence Act has adequately

been rebutted. Consequently, the appeal filed by the appellant Kachrulal is allowed and his conviction under Sections 450 and 376(1) of IPC is set-aside. Any fine amount which he may have been deposited be returned to him immediately and if the appellant is in jail, he be set at liberty forthwith.

23. The order of trial Court pertaining to disposal of property is affirmed.

24. Let a copy of this judgment along with original record be sent to the trial Court for compliance.

25. Certified copy as per Rules.

(SHAILENDRA SHUKLA) JUDGE

Arun/-

Digitally signed by ARUN NAIR Date: 2021.04.06 18:03:24 +05'30'