Ramvilash vs State Of M.P.
2023 Latest Caselaw 10687 MP

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                ON THE 12 th OF JULY, 2023
                                           CRIMINAL APPEAL No. 172 of 2006

                          BETWEEN:-
                          1.    RAMVILASH S/O S/O BHANGARI DHAKAD , AGED
                                ABOUT 38 YEARS, OCCUPATION: R/O GRAM
                                BRAJGADI,THANA     CHINNONI,DISTT. MORENA
                                (MADHYA PRADESH)

                          2.    RAMDULARE @ DULARE S/O S/O DAYARAM
                                DHAKAD , AGED ABOUT 29 YEARS, OCCUPATION:
                                R/O GRAM BRIJGARI, THANA CHINNONI
                                DISTT.MORENA (MADHYA PRADESH)

                          3.    MAHESH SINGH S/O S/O DAYARAM DHAKAD ,
                                AGED ABOUT 35 YEARS, OCCUPATION: R/O GRAM
                                BRIJ GARI, THANA CHINONI DISTT.MORENA
                                (MADHYA PRADESH)

                                                                                     .....APPELLANTS
                          (SHRI AYUSH SAXENA, LEARNED COUNSEL FOR THE APPELLANTS)

                          AND
                          STATE OF M.P. THROUGH POLICE STATION CHINNONI,
                          DISTRICT MORNEA (MADHYA PRADESH)

                                                                                    .....RESPONDENT
                          (SHRI NIRMAL SHARMA- LEARNED COUNSEL FOR THE RESPONDENT-
                          STATE)

                                Th is appeal coming on for hearing this day, t h e court passed the
                          following:
                                                           ORDER

The present criminal appeal under Section 374 of CrPC has been filed by appellants against the judgment of conviction and order of sentence dated 18-02-2006 passed by Special Judge (Atrocities), Morena in Special Sessions Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

Trial No. 248 of 2003, whereby appellant no.1 Ramvilas has been convicted under Section 376 of IPC and sentenced to undergo ten years RI with fine of Rs.1,000/- with default stipulation and further sentenced to undergo one month RI under Section 341 of IPC and six months RI under Section 506 of IPC whereas appellant no.2 Ramdulare alias Dulare and appellant no.3 Mahesh Singh have been convicted under Section 376 read with Section 34 of IPC and sentenced to undergo ten years RI with fine of Rs. 1,000/- and further one month RI under Section 341 of IPC and six months RI under Section 506 of IPC respectively.

In brief, prosecution case is that on 29-05-2002 at around 12:30 in the

night prosecutrix (PW2), a married lady aged about 40 years, lodged a report at Police Station Chinnoni, District Morena which is four kilometers away from her village Tindokhar, alleging therein that she had taken mentor near village Brijgadi to take care of (Rakhbali) a mango tree. From her village by a bus in the morning she had gone for guarding the aforesaid mango tree and was returning to her village on foot in the evening. At around 08:30 in the night, as soon as she reached near the Peepal tree at Narua between Brijgadi- Gunapura, accused Ramvilas, Ramdulare alias Dulare and Mahesh were seen sitting under the tree. Mahesh told her where are you going ? On that, she said that she is a Mehatrani and she is going to her house. Thereafter, Mahesh caught hold of her and then, Dulare caught hold of her. Both of them put up her on mustard stems lying nearby field. Then, Ramvilas took off her petticoat and put his private part in the way of her private part. Dulare at that time had closed her mouth due to which she did not cry. Thereafter, all of thee threatened her if she tells about the incident to anybody, then she will be killed. She screamed too, but no one came for her rescue. Thereafter, all three of them left her. It is alleged that during the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

incident, she got injuries on her right thigh. By slowly walking she reached police station. It is further alleged by her that before three-four days, accused Ramvilas had told her not to take care of (Rakhbali) aforesaid mango tree. On the basis of such report, police registered an FIR vide Crime No.38 of 2002 for offences punishable under Sections 376, 341, 34, 506 of IPC and under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against appellants accused. Prosecutrix was medically examined and after completion of investigation, charge sheet was presented before the competent Court from where the case was committed to the Special Court for its trial. Accused being read over and explained details of allegation. They denied the entire allegations and in their statements recorded under Section 313 of CrPC, they pleaded that they have been falsely implicated due to previous enmity on panchayat election and in their defence, Phulla, Maniram, Ramgopal, Kelluram and Vakil Singh were examined as DW1 to DW5. Prosecution, in order to prove its case, examined four witnesses including prosecutrix (PW2). After conclusion of trial, the learned trial Court convicted and sentenced the appellants for the offences, as mentioned above.

Challenging the impugned judgment, it is contended by learned counsel for appellants that prosecutrix (PW2) in para 11 of her statement deposed that after the incident she went to her village, stayed there for 20-25 minutes, then

went to police station and she did not tell about the incident to anybody in her village and even in para 10 of her statement she admitted that she did not inform either Patel or Sarpanch or Chowkidar of her village about the incident which shows his conduct suspicious and doubtful. Prosecutrix in para 12 of her statement deposed that she reached Police Station at 10:00 o'clock in the night

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

and at that time, the Darogaji (Inspector) was not in Police Station and he was in his home at Colony. The prosecutrix he went with a constable to the residence of Darogaji and at night itself when she informed about the incident to him, the Darogaji said that her report will be written in morning and thereafter, at whole night she stayed in the colony with Darogaji. At about 06:00-07:00 in the morning the prosecutrix came to Police Station and the Darogaji came Police Station after half an hour and thereafter, got the medical of prosecutrix done after writing report. PW4 - Santosh Kumar Mishra who is the Investigating Officer of the case in his statement refuted the statement of complainant in para 5 and stated that prosecutrix did not stay at his residence at night and FIR was written at 12:30 in the night while as per Court statement of prosecutrix, FIR was written at 6 O'clock, the next day. Therefore, there are major contradictions between these two accounts as to when FIR was written. It is further contended that prosecutrix in her report Ex.P2 stated that she had sustained injury on her right thigh but as per evidence of Dr.Chandra Jatav (PW1) there was neither any external nor internal injury found on the body of prosecutrix and the doctor has also opined that no definite opinion regarding rape can be given. Thus, it is clear that the evidence of prosecutrix is not corroborated by medical evidence. It is further contended that the trial Court in para 17 of its judgment has held that prosecutrix had written the report in the morning is not credible. It is further contended that at the time of so-called incident a major married lady used to come back to her village at around 08:30 in the night is unnatural. Prosecutrix has utterly failed to establish appellants guilty of aforesaid offence. The trial Court has committed an error in convicting and sentencing present appellants for alleged offence. Hence, they deserve to be acquitted and the impugned judgment of conviction and order of sentence Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

deserves to be set aside.

On the other hand, learned Counsel for the State supported the impugned judgment and submitted that there is a prompt FIR against the present appellants that they had committed a gang rape with the prosecutrix. There being no infirmity in the impugned judgment of conviction and sentence and the findings arrived at by the Trial Court do not require any interference by this Court. Hence, prayed for dismissal of this appeal.

Heard the learned counsel for the parties and perused the record as well as impugned judgment.

For determination of present appeal, first this Court thinks apposite to go through testimony of sole witness, i.e. prosecutrix (PW2).

Prosecutrix (PW2) in para 1 of her examination-in-chief deposed that two years back she had taken care of (Rakhbali) a mango tree of Pandit Raghunath of Village Brijgadi near about a distance of 1 km from her village. On the date of incident in the morning, she had gone from her village by a bus to village Brijgadi for taking care of (Rakhbali) a mango tree. At about 08:30 in the night she was returning to her village and when she reached near the peepal tree at Narua, she met accused persons who were standing at there. In para 3 of her statement, she deposed that accused Ramvilas said her where are you going. On that, she told that she is a Mehatrani and she is going to her house. First of all, accused Dulare caught hold of her, then accused Ramvilas lifted her petticoat and committed sexual intercourse with her and this bad thing was done under the peepal tree where mustard stems were lying. Accused Ramvilas picked up her petticoat and put his private part in her urinating place. She tried to resist but could not succeed. This witness further deposed that accused

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

Mahesh was standing at there and told her if she tried to stand, then he will kill her. She came back from the place of incident to her village from where she went to police station and her report was not written at that time, the report was written in the morning and she had stayed in the colony with Thanedar (Inspector) vernight. First Information Report is Ex.P2. Thereafter, she was sent for medical examination and the police prepared spot map.

On going through the report Ex.P2 (FIR) lodged by prosecutrix (PW2), it is evident that in her report she has mentioned that accused Mahesh told her where are you going but in para 3 of her examination-in-chief, she deposed that accused Ramvilas enquired from her who are you. Further, in her report Ex.P2, she has stated that accused Mahesh first caught hold of her but in para 3 of her examination-in-chief she deposed that accused Dulare first of all caught hold of her. Prosecutrix in her examination-in-chief also deposed that accused Mahesh was standing and giving a threat her with dire consequences.

As per the contents of FIR Ex.P2, prosecutrix had directly gone to

Police Station and her report was lodged at 12:30 in the night but in para 3 of her examination-in-chief she deposed that in the night she had stayed with Thanedar (Inspector) in the Colony. Besides this, the prosecutrix in her report Ex.P2 stated that both accused Mahesh and Dulare put up her on the mustard stems due to which she got injuries on her right thigh but in examination-in-chief she has not mentioned regarding the injuries sustained by her. Besides this, Dr. (Smt.) Chandra Jatav (PW1) who medically examined prosecutrix in her examination-in-chief deposed that she did not find any external or internal injury on the body of prosecutrix and this witness further deposed that the hymen of prosecutrix were raptured and she cannot give any definite opinion as to whether rape was committed with prosecutrix or not ? Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

Prosecutrix (PW2) in para 12 of her cross-examination deposed that when he reached police station, the Thanedar (Inspector) was not at police station, he was in his residence at colony. When she reached police station, there was a constable/ diwan. When she request him to write her report, on that the constable told her that Thanedar (Inspector) will write her report. This witness further deposed that she reached the police station at 10:00 O'clock in the night and it would have taken her about an hour to reach police station from her village. No one else had gone with her to police station She was brought to the colony by a constable and she do not know the name of that constable. Within five minutes she met Thanedar (Inspector) at his residence and told him about the incident at night itself so the Thanedar said that her report will be written in the morning. This witness further deposed that she stayed in the colony with the Thanedar. When she told incident to the Thanedar, he said that he would make a nice case. At around 06:00-07:00 in the morning, she reached police station from said colony and lodged report.

It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. The Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. (See Sadashiv Ramrao Hadbe vs. State of Maharashtra, (2006) 10 SCC 92) It is also well-settled principle of law that on the basis of testimony of

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

sole witness accused can be convicted but to test quality of such witness, truthfulness of statement made by such witness is material and it is the relevant factor that what would be consistency of statements given by such witness from very beginning i.e. lodging the report till end of Court statement.

In the present case, there are major inconsistencies in the report Ex.P2 as well as in Court statement of prosecutrix and there is no medical evidence on record which may support the version of the prosecutrix that she was raped by the accused. Therefore, in the lack of any other evidence, it is unsafe to convict the present appellants on the basis of sole testimony of prosecutrix. In such a situation, there is a serious doubt as well as suspicious regarding sexual intercourse allegegdly committed by present appellants on the prosecutrix and her conduct that she was returning to her village alone in the night at around 08:30 on the alleged date of incident appears to be unnatural.Thus, the prosecution has utterly failed to establish the appellants guilty of alleged offence and, therefore, they are entitled to benefit of doubt.

On going through the entire facts and circumstances of the case, in the considered opinion of this Court, the learned trial Court committed a mistake in relying upon sole testimony of prosecutrix (PW2) and in convicting and sentencing present appellants for alleged offence. Accordingly, the impugned judgment passed by the trial Court deserves to be and is hereby set aside.

This criminal appeal succeeds and is hereby allowed. The appellants are acquitted of all charges levelled against them. The appellants are on bail, their bail bonds and surety bonds stand discharged. Fine amount, if any, deposited by appellants be refunded to them.

A copy of this judgment along with record be sent to the trial Court for information and compliance.

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/14/2023 6:42:39 PM