Madhya Pradesh High Court
None Singh vs The State Of M.P. on 9 December, 2021
Author: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH: HON.SHRI RAJEEV KUMAR DUBEY, J.
Cr.Appeal No.1773/1998
None Singh
Versus
The State of M.P.
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Shri Satish Chaturvedi, Advocate for the appellant.
Shri Devendra Shukla, Panel Lawyer for the respondent/State.
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JUDGMENT
(Reserved on 25/11/2021)
(Delivered on 09/12/2021)
This appeal has been filed under Section 374 (4) of the Cr.P.C. against
the judgment dated 11/7/1998 passed by Sessions Judge, Raisen, in S.T.
No.87/1996, whereby learned Sessions Judge found appellant guilty for the
offence punishable under Section 456 of IPC and sentenced him to undergo
1 year R.I. with fine of Rs.500/- in default one month S.I.
2. Brief facts of the case are that on 1/3/1996, prosecutrix (PW1) (name
and identity of the prosecutrix imposed by law contained in section 228A of
IPC is not disclosed) lodged a wrriten report (Ex.P-1) at P.S. Raisen,
averring that on 29/02/1996 at night, she was sleeping in her house located
at village Banchhod. Her sister-in-law Jamuna Bai and her daughter Preeti
were also sleeping nearby. At around 3:00 am, appellant None Singh entered
her house and grabbed her hand with a bad intention and also pressed her
chest. Due to which she woke up and screamed. Then None Singh ran away
from the house, she and her sister-in-law (Nanad) Jamna Bai chased him but
he escaped. She also narrated the incident to Kubja Bai (PW3) and her
brother Balveer. On that report, Sub Inspector police D.N.Guru registered
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Crime No.157/1996 for the offence punishable under Sections 456 and 354
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of the IPC and investigated the matter. During the investigation, on
02/03/1996 police prepared a spot map (Ex.P-2). On 8/3/1996 prosecutrix
again lodged a written report stating that at the time of incident, appellant
also committed rape with her. So, police also added Section 376 of the IPC.
Further investigation of the crime was conducted by Daulat Singh (PW11),
SHO Kotwali Raisen. He sent the prosecutrix for medical examination at
District Hospital, Raisen, where Dr. Nalini Gond (PW6) examined her and
gave the MLC report (Ex.P-8). She also seized her petticoat which was worn
by the prosecutrix at the time of examination and also prepared two slides of
vaginal swab of the prosecutrix and sealed it in a packet and handed it over
to the concerned Constable Suman Lal, who produced that packet at P.S.
Raisen. During investigation, Daulat Singh (PW11) also recorded the case
diary statements of Prosecutrix (PW1), Pyare Lal (PW2), Kubja Bai (PW3),
Mullo Bai (PW4), Moti Shah (PW5), Baliram (PW8), Jamna Bai (PW9) and
Baijnath (PW10), he also arrested the appellant and prepared arrest memo
(Ex.P-10) and sent him for medical examination to District Hospital, Raisen,
where, Dr. Srikant Sharma (PW7) examined the appellant and gave a report
(Ex.P-9). Dr. Srikant Sharma (PW7) also prepared a slide of semen of the
appellant and sealed it in a packet and sent it to P.S. Raisen. Daulat Singh
(PW11) sent all the seized articles to FSL Sagar through S.P. Raisen for
chemical examination along with draft (Ex.P-11) from where report (Ex.P-
12) was received and after investigation, police filed the charge sheet against
the appellant before CJM, Raisen. On that charge sheet, Criminal Case
no.410/1996 was registered. CJM, Raisen committed the case to the court of
Sessions. On that charge-sheet ST no.87/1996 was registered.
3. Learned Sessions Judge framed the charge against the appellant for
the offences punishable under Sections 376 and 456 of the IPC and tried the
case. The appellant abjured his guilt and took the defence that due to
animosity, he is being falsely implicated in the case. However, after trial,
learned Sessions Judge acquitted the appellant from the charge under
Section 376 of the IPC, he found appellant guilty for the offence under
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Section 456 of IPC and sentenced him for 1 year R.I. and Rs.500/- fine in
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default 1 month S.I. Being aggrieved by the impugned judgment, appellant
has prefered this criminal appeal.
4. Learned counsel for the appellant submitted that the prosecutrix, who
is an illiterate lady, lodged two written reports against the appellant, but the
prosecution did not produce any evidence regarding the person, who typed
those reports. According to the prosecution story, except the prosecutrix
there is no other eyewitness of the incident and there are many
contradictions and omissions in the statement of the prosecutrix (PW1)
regarding the incident. Prosecutrix admitted in her court statement that there
is animosity between her husband and the appellant. Her statement is not
corroborated by the statements of independent witnesses namely Pyare Lal
(PW2), Kubja Bai (PW3) and Mullo Bai (PW4). Prosecutrix in her Court
statement deposed that at the time of incident, the appellant committed rape
with her, while on that point, learned trial Court did not find her statement
trustworthy and acquitted the appeallant for the offence punishable under
Section 376 of IPC. In these circumstances, on the point that on the date of
the incident, the appellant entered into the house of the prosecutrix, her
statement cannot be believed. Learned trial Court without appreciating all
these facts, wrongly found the appellant guilty for the aforesaid offence.
5. On the other hand, learned counsel for the State submitted that from
the statement of the prosecutrix, which is corroborated from other evidence
also, the guilt of the appellant is clearly proved, so the learned trial Court did
not commit any mistake in finding the appellant guilty for the aforesaid
offence.
6. Point of determination in this appeal is whether the conviction and
sentence awarded by the trial Court to appellant None Singh for the offence
punishable under Section 456 of IPC is liable to be set aside for the reasons
stated in the memo of appeal and argued before this Court.
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7. However, prosecutrix (PW1) deposed that on the date of the incident,
on 29/02/1996 at night she was sleeping in her house along with sister-in-
law Jamuna Bai and her daughter Preeti sleeping nearby, at around 3:00
a.m., appellant None Singh entered her house and grabbed her mouth, she
started screaming, the accused threatened to kill her if she shouted, then the
appellant raped her and after committing rape, when the appellant started
leaving, he said that his wife is the Sarpanch, no one can harm him. She and
her sister-in-law (Nanad) Jamna Bai chased him but he escaped. On hearing
her shout, Kubja Bai (PW3) and her brother Balveer (PW4) came and she
also narrated the incident to them. In the morning, she along with her brother
Balveer went to Police Station Raisen, where she filed the report (Ex.P-1).
On the date of the incident, her husband was not at home. He had gone to
another village in the marriage of Patel's daughter. When he returned home,
she also narrated the incident to him. But the statement of the prosecutrix
does not corroborate with the statement of independent witness Pyare Lal
(PW2), Kubja Bai (PW3) and Mullo Bai (PW4) to whom the prosecutrix
allegedly narrated the incident soon after it happened which creates doubt on
the statement of the prosecutrix.
8. Although, the conviction can be based solely on the testimony of the
prosecutrix, that can be done in a case where the court is convinced about
the truthfulness of the prosecutrix and there exist no circumstances which
cast a shadow of doubt over her veracity. While in the instant case there are
many contradictions and omissions in the statement of prosecutrix (PW1).
She admitted in her cross examination that she had rivalry with the accused
before the incident. Prosecutrix who is an illiterate lady lodged written
complaints (Ex.P-1 and Ex.P-4) at P.S.Raisen. While she in her cross
examination deposed that she did not file any written FIR at the Police
Station. Police officer wrote the FIR in the police station and she had lodged
a second FIR (Ex.P-4) orally in the police station. She spoke and the police
Inspector wrote the report. But Daulat Singh (PW11) has categorically
denied from the fact that the report (Ex.P-4) was typed at the police station
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and deposed that on 08/03/1996 Prosecutrix came to the police station and
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presented the typed report (Ex.P-4). Prosecution did not produce the person
who wrote both the reports (Ex.P-1 and Ex.P-4) and not even the person,
who registered Crime No.157/1996 (Ex.P/3) on the basis of the first written
report (Ex.P/1).
9. Prosecutrix deposed in her cross examination that on the date of
incident she slept after closing the door of her house from inside, she is not
aware of who opened the door of her house for the appellant. How could the
accused enter inside her house when she had slept after locking the door of
her house from inside? Earlier on 1/3/1996, prosecutrix (PW1) lodged the
report (Ex.P-1) averring that at night the appellant entered her house and
grabbed her hand and pressed her breasts. Seven days later, on 8/3/1996,
prosecutrix again lodged the report averring that at the time of incident,
appellant also committed rape with her. While in this regard, the learned trial
Court did not find the statement of the prosecutrix trustworthy and acquitted
the appellant from the charge for the offence punishable under Section 376
of the IPC. The prosecution has not filed any appeal against that acquittal.
Otherwise also, in the light of facts and circumstances of the case that
finding of the trial Court appears to be correct. Which clearly shows that the
prosecutrix again lodged a false report against the appellant that at the time
of the incident, the appellant also committed rape with her to implicate the
appellant in a graver offence. So, her statement became doubtful which can
not be believed.
10. Though, Baliram (PW8), husband of the prosecutrix deposed that 3-4
days after the incident, when he came to the house, prosecutrix narrated the
incident to him and Baijnath (PW10) father-in-law of the prosecutrix also
deposed that 10-12 days after the incident, when he came to village
Banchhor, prosecutrix narrated the incident to him. But these witnesses are
the relatives of the prosecutrix and she narrated the incident to them long
after the incident. So their statements have no corroborative value. Moti
Shah (PW5) also deposed that at the date of the incident the prosecutrix
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informed him that the appellant had entered into her house but in the FIR
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(Ex.P-1), it is not mentioned that at the date of the incident, the prosecutrix
narrated the incident to Moti Shah (PW5) also. His case diary statement was
recorded by the police on 12/3/1996, twelve days after the incident. So his
statement also becomes doubtful, which can not be believed. Even
otherwise, Baliram (PW8), Baijnath (PW10) and Moti Shah (PW5) are not
the eyewitnesses of the incident. They have given the statement about the
incident as narrated to them by the prosecutrix, whereas regarding the
incident the statement of the prosecutrix herself is doubtful so their
statements also have no significance.
11. Jamna Bai (PW9) sister-in-law of the prosecutrix also deposed that at
the time of the incident, she was sleeping near the prosecutrix and the
prosecutrix informed her that the appellant entered into the house and
pressed her breasts, she did not depose that she also saw the appellant in the
house or she saw him running from the house. She only deposed what the
prosecutrix informed her, while the statement of the prosecutrix is not
trustworthy in this regard. So even her statement can not be believed in this
regard.
12. So, in the considered opinion of this Court, learned trial Court
committed a mistake in relying on the statement of the prosecutrix, on the
point that at the date of the incident at about 3.00 am, appellant None Singh
entered the house of the prosecutrix. Hence, the appeal is allowed and
conviction of the appellant None Singh under Section 456 of IPC is hereby
set aside and the appellant is acquitted from the charge under section 456 of
IPC. His bail bond is discharged.
(Rajeev Kumar Dubey)
Judge
m/-
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