Ramdayal vs The State Of M.P.
2022 Latest Caselaw 6780 MP

                                    1


     IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
        BEFORE HON'BLE SHRI JUSTICE VIRENDER SINGH


                  ON THE 06th Day of May, 2022

                     Criminal Appeal No.1652/1998
Between:-

      RAMDAYAL, AGED ABOUT 26 YEARS,
      S/O HAZARI KORAK,
      R/O VILLAGE MAHUA DANA
      P.S. SEONI MALWA
      DISTRICT HOSHANGABAD (M.P.)
                                                        .... Appellant

(By-Shri Ashutosh Tiwari, Amicus Curiae)

And

      THE STATE OF MADHYA PRADESH
      THR. P.S. CITY KOTWALI P.S. CITY KOTWALI
      (MADHYA PRADESH)
                                                    .... Respondents

(By- Shri Yadvendra Dwivedi- Panel Lawyer)
 ..................................................................................

This case coming on for final hearing this day, the court passed the following:

J-U-D-G-M-E-N-T The appellant has assailed his conviction under Section 376 of IPC and sentenced to 7 years R.I. awarded vide judgment dated 30.06.1998 delivered by 1st Additional Sessions Judge, Hoshangabad, in S.T. No.257/93.

2. According to the prosecution case, on 07.07.1992 at about 1.30 P.M. the prosecutrix was going back home after delivering food to her husband. When she reached near Nalla between Mahua Dhana and Dadipada and was crossing through field of Mangu, the appellant suddenly came from her back, caught her both hands and dragged her

towards Nalla when she tried to cry, he stuffed loose end of her saree in her mouth and forcibly raped with her. She narrated the incident to her mother and neighbour Mangal and then to her husband when he came back home in the evening. Thereafter, they decided to lodge report and approached the Police Station Seoni Malwa, where on the next day she lodged FIR (Ex.P/1). The police registered Crime No.234/1992 and investigated the same. During investigation, the police sent the prosecutrix for medical examination and a report was received. The Doctor opined that there was no internal or external injury. No sign of struggle was seen and the victim was habitual of sexual intercourse.

3. The appellant was arrested and sent for medical examination. As per report Ex.P/4, he was found fit to perform sexual intercourse. The police visited the spot, prepared spot map (Ex.P/2), seized broken pieces of bangles vide Ex.P/3, recorded statement of witnesses and after completing the investigation, filed charge sheet. The appellant was charged, tried & convicted and sentenced as stated in paragraph 1 above.

4. The appellant has preferred this appeal on the ground that there is a delay in lodging the F.I.R. The incident had taken place at 13:30 hours on 07.07.1992 while the F.I.R. was lodged on the next date i.e. on 08.07.1992 at 18:10 hours in a police station situated hardly 9 kms. away. The delay has not been explained. It is stated that the husband of the victim was not at home but it is admitted that he had come back from work in the evening, but even thereafter, the victim never tried to lodge the F.I.R. Medical examination of the victim does not support the case of the prosecution. Medical examination of the appellant shows that no intercourse had taken place within last 48 hours. Independent witnesses have not supported the case of the prosecution.

There was an enmity between the appellant and brother of the victim, who was also an eyewitness in this case, on account of refusal of his demand to credit some money or grains. Babu Lal (D.W.-1) has supported this defence. The family history of the victim shows that earlier her real sister had also implicated one Laxmi Narayan for the same charges, but the charges were not found proved and Laxmi Narayan was acquitted. The appellant has also been falsely implicated. The case of the prosecution is seriously doubtful; therefore, he be also acquitted.

5. Learned Public Prosecutor has supported the impugned judgment.

6. This entire case of the prosecution is based on the statement of the prosecutrix (PW-1) and her brother Faggu (PW-2). At the time of the incident, the prosecutrix was 28 year-old & a mother of four children. She has deposed before the Court that the appellant grabbed her hands, dragged her towards Nalla and raped her. During the entire incident when she was crying, the appellant stuffed her mouth with the loose end of saree (pallu). Immediately after the incident, when she was making clamour, her brother Faggulal reached, saw the appellant, abused and chased him but seeing him, he fled away from the spot. Faggu has supported his sister, stating that after hearing cry of a woman, he reached on the spot and saw the appellant lying on his sister. He shouted and abused him and also chased him but he fled away. Both brother and sister have stated that they came back home. Leaving his sister at home, Faggu went to the market to buy cell and came back home in the evening. At home, the victim disclosed the entire incident before her mother Fudia Bai. They all waited for the husband of the victim. He came back in the night. They disclosed the

incident before him and thereafter they decided to lodge FIR and on the next day lodged the same

7. On appreciation of this entire evidence it emerges that the medical evidence does not support the case of the prosecution either on the point of "rape" or on the point of grabbing hands of the prosecutrix, dragging her upto Nalla or pinning her on the ground. Even the prosecution did not examine the Doctor who medically examined the prosecutrix. An un-exhibited report of some medical officer is available on record inter alia mentioning that the prosecutrix was habitual of intercourse and at the time of examination, no internal or external injury or no signs of struggle were seen. Pubic hairs, saree with some stains, slides of vaginal discharge were prepared and sent for forensic analysis but no forensic report was ever placed before the trial Court. This status weakens the case of the prosecution.

8. The mother and husband of the prosecutrix before whom she disclosed the incident immediately after it happened have not been examined before the trial Court. Presence of Faggu on the spot is doubtful. The prosecution has examined Mangal (PW/3) and Kallu (PW/4) claiming that immediately after the incident the prosecutrix revealed the same before them but they both have not supported the case of the prosecution. Their police statements Ex.P/4 and Ex.P/5 are available on record which show that even before the police they did not say that while narrating the incident before them, the prosecutrix stated that immediately after the incident, Faggu had reached on the spot or he had abused or chased the accused.

9. Conduct of Faggu is also abnormal as even after such a serious incident, he took his sister to home, left her and instead of calling her

husband or taking appropriate steps, left home to the market for an insignificant work to buy a cell.

10. Looking to the seriousness of the offence this conduct of the sole eye-witness makes his claim suspicious. The incident had taken place at about 1 P.M., just after sometime, the victim and her brother reached home but they did not make any effort to call the husband of the victim who was not working at very far. Instead they waited for him, This conduct is also abnormal and makes the statement of the prosecutrix and her brother doubtful.

11. The prosecutrix has claimed that the appellant dragged her towards Nalla but no signs of dragging or struggle have been mentioned in the spot map (Ex.P/2). The Investigating Officer has not been examined before the trial Court therefore, here also some doubt arises regarding the truthfulness of the statement of the victim.

12. Thus, in this case, medical or forensic evidence does not support the case of the prosecution. No internal or external injuries or no signs of struggle on the body of the victim have been found or observed by the Doctor. No such signs were found on the spot. Conduct of Faggulal and statement of independent witnesses Mangal Singh and Kammo makes the presence of Faggulal doubtful. Mother of the prosecutrix before whom she disclosed the incident has not been examined before the trial Court. Even the Investigating Officer has not been examined before the trial Court and cumulative effect of all these facts, force a man of common prudence to consider that there is some scope of doubt towards the statement of the prosecutrix who was a 28 years-old mature woman at the time of the incident. The learned trial Court has not considered all these aspects of the evidence produced by the prosecution and has erred in appreciating the evidence in right perspective. There are grounds to doubt the case of

the prosecution and certainly the appellant was entitled for benefit of such doubts. Therefore, the appeal deserves to be allowed and is allowed hereby.

13. Consequently, the impugned judgment of the trial Court dated 30.06.1998 is hereby set aside. The appellant is acquitted from the offence under Section 376 of IPC. His bail bonds stands discharged. Fine amount, if deposited, be refunded to the appellant.

14. The order of the trial Court with regard to the disposal of the property is hereby confirmed.

15. With the aforesaid, appeal stands allowed and disposed off.

(VIRENDER SINGH) JUDGE

Loretta