Madhya Pradesh High Court
Suresh Ahirwar vs The State Of M.P. on 2 January, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 2 nd OF JANUARY, 2024
CRIMINAL APPEAL No. 787 of 1998
BETWEEN:-
DHANIRAM, S/O SUKHIYAN AHIRWAR, AGED ABOUT 30
YEAR S , R/O VILLAGE PADARIA, POLICE STATION
SATAI, DISTRICT CHHATARPUR (M.P.)
.....APPELLANT
(BY SHRI B.J. CHOURASIA - ADVOCATE)
AND
THE STATE OF M.P. THROUGH S.H.O., P.S. SATAI,
DISTRICT CHHATARPUR (M.P.)
.....RESPONDENT
(BY SHRI PRASANNJEET CHATTERJEE - PANEL LAWYER)
CRIMINAL APPEAL No. 842 of 1998
BETWEEN:-
SURESH, AGED ABOUT 35 YEARS, S/O BALDUA
AHIRWAR, R/O VILLAGE PADARIYA, P.S. SATAI,
DISTRICT CHHATARPUR (M.P.)
.....APPELLANT
(BY SHRI SHARAD VERMA AND SHRI SANJAY KUSHWAHA - ADVOCATES)
AND
THE STATE OF M.P.
.....RESPONDENT
(BY SHRI PRASANNJEET CHATTERJEE - PANEL LAWYER)
Reserved on : 21.12.2023
Pronounced on : 02.01.2024
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 1/3/2024
4:47:08 PM
2
.......................................................................................................
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
These two criminal appeals have been preferred against a common
judgment delivered on 07.03.1998 by the Fourth Addl. Sessions Judge,
Chhatarpur in S.T. No.120/1996, whereby the appellants were convicted for the
offences punishable under Sections 456, 376(2)(e) and 376(2)(g) of IPC and
sentenced to undergo R.I. for 2 years with fine of Rs.500/-, R.I. for 10 years
with fine of Rs.1,000/- and R.I. for 10 years with fine of Rs.1,000/- respectively
with default stipulation as mentioned in the impugned judgment.
2. Brief facts of the prosecution case may be summarized as the prosecutrix
was sleeping inside her house in the midnight of 4th and 5th May, 1996, while
her husband was sleeping outside the house on the platform. Prosecutrix was
seven months' pregnant at that time. At around 12 p.m. both the appellants
entered into her house and threatened her of life if she screamed, first appellant
Dhaniram and then appellant Suresh committed rape upon her. In this act, her
mouth was closed and her hands were held tightly. On hearing the sound
coming from inside the room, the husband of prosectrix woke up and came
inside the house. He found the appellant Suresh in action. Both the appellants
tried to run away, the husband of prosecutrix had a scuffle with them, but they
managed to run away. Neighbour Mukundi (PW3) also saw them running
away. The matter was reported to the police and she was medically examined
on 06.05.1996. The FIR was registered on 18.05.1996 and investigation was
undertaken. Upon its completion, the charge-sheet was filed and in the ensuing
trial, the appellants were held convicted and sentenced as afore-discussed.
3. The grounds raised in these criminal appeals are that the trial Court erred in
not giving due emphasis to the fact of huge delay of 14 days in lodging the
FIR. Due emphasis was also not given on natural probabilities of the case. The
delay in lodging the FIR was not explained satisfactorily, as the explanation
given was wholly improbable. Witness Mukundi (PW3) failed to give any credit
to the prosecution story. Statements of Medical Officer and the Investigating
Officer were believed without assigning any reason. There were material
contradictions in the statements of prosecution witnesses, but they too were
ignored. Different punishments were awarded for the same act in complete
disregard of Section 71 of IPC. Appellant Suresh was falsely implicated in the
case on account of previous enmity between the parties, but this fact was
ignored. The victim in this case suffered no injury, while prosecutrix had
claimed that she was gang-raped and her husband had a scuffle with the
appellants. The presence of appellant Suresh on the spot was not proved. On
these facts, it is requested by both the appellants that their appeals be allowed
and they be acquitted.
4. Counsel for the State has opposed the present appeals by claiming that the
judgment of conviction and sentence is based on reasoned facts, hence it does
not deserve any interference.
5. Both the appellants and the State have submitted their final arguments
through their respective counsels. The record of the Court below has been
perused.
6. These appeals have been primarily argued on the ground that the report of
gang-rape case was lodged with a delay of almost 13 days. According to
prosecution, the incident occurred in the midnight of 4th and 5th of May, 1996,
while the report marked as Ex.P-7 lodged at Chowki Padariya, Police Station
Satai is dated 18.05.1996 and on the same date FIR at Crime No.23/1996 was
registered in Police Station Satai marked as Ex.P-6. Ex.D-1 is the written
complaint made by the prosecutrix to the Chwoki Prabhari Padariya and it too
is dated 18.05.1996. On the basis of these documents the defence has argued
that the matter was reported to the police with a delay of 13 days despite its
gravity, but prosecution witnesses namely prosecutrix (PW1) and her husband
(PW2) both have denied that they made any delay in reporting the matter to the
police. They both have stated on oath that on next day they first went to the
Chowki and then to Police Station Satai, but their report was not lodged.
7. Both prosecutrix and her husband despite claiming that they reported the
matter to the police very next day could not produce any document which
would suggest that they had gone to the Chowki and the Police Station on the
very next day of incident, but there are certain other evidence available on
record which would give support to their claim. These are the MLC report of
prosecutrix marked as Ex.P-3, which is dated 06.05.1996 and register
maintained in Collectorate regarding the applications received therein. The copy
of this register is marked as Ex.P-11 in evidence and it confirms that an
application was made by the prosecutrix regarding the rape committed upon
her. Ramesh Prasad Khare (PW9) was the employee posted in Complaint
Section of Collectorate and he has testified that this complaint was received at
item no.1106. Although his testimony has been challenged by the defence and
for this reliance has been placed on the statements of Mathura Prasad (PW10),
who was on the Receipt and Dispatch Desk in the office of Superintendent of
Police, Chhatarpur, wherein he has admitted that no complaint made by
prosecutrix has been received in his office from the office of Collector.
8. Taking all these facts into consideration, this is still an unexplained fact that
if the FIR was lodged on 18.05.1996 then how the medical examination of
prosecutrix at the behest of police was undertaken on 06.05.1996. The medical
form for that purpose was filled by Nagar Nirikshak, City Kotwali, Chhatarpur
and it has been mentioned therein that on the night of 04.05.1996 appellant
Dhaniram had raped the prosecutrix. This document gives support to the
narrative given by prosecutrix and her husband that they went to the Chowki
and police station the very next day however their report was not lodged. This
itself is the explanation for the delay caused in registration of FIR on 18.05.1996
and demands no further explanation.
9. Now lets come to the facts of the case. The claim of the prosecutrix and
her husband is that both the appellants had raped the prosecutrix. If that was
the case, then this fact goes unanswered that while reporting the incident to the
Medical Officer the prosecutrix made no allegations about the gang-rape and
failed to name the appellant Suresh. The report lodged by the prosecutrix on
the basis of which she was medically examined on 06.05.1996 has not been
produced in evidence. Therefore, there is only one document regarding the
complaint made by her immediately after the incident and that is the medical
examination form in which the narrative given by the prosecutrix is mentioned
and this narrative does not have any incriminating statement against appellant
Suresh.
10. Prosecutrix has been stable on her claim that she was raped by appellant
Dhaniram in the midnight of 4th and 5th May, 1996, but her statements have
been vulnerable on other aspects. She has stated that she was having 12
bangles on each of her hands and almost 5-5 of them had broken. She has
claimed that on account of broken bangles she sustained injuries in both the
hands and the blood was oozing out from many places, but strangely her MLC
report which is dated 06.05.1996 does not reveal any kind of injury or injury
mark on her person. Thus, medical examination report falsifies her claim. It is
also claimed that while trying to flee away from the spot, appellant Dhaniram
had a scuffle with the husband of prosecutrix, but no medical examination of
her husband was undertaken. The independent witness Mukundi (PW3) living
in the neighbourhood of the prosecutrix has claimed that he witnessed a scuffle
between the appellant and the husband of prosecutrix going on at the main road,
but that does not give any strength to the allegation of rape.
11 . Only the prosecutrix and her husband have given support to the
prosecution story, but their version is found to be susceptible to the falsehood
for the reason that the claim about commission of gang-rape is not established
from the document of prosecution itself. Further, the medial evidence available
on record gives no support to their theory. Thirdly, the independent witness
though was allegedly available as per the prosecution claim, failed to give
support to the prosecution story. It is also noteworthy that the written
complaint marked as Ex.D-1 was written by one Ramkripal Tiwari on behalf of
prosecutrix and on the basis of this written complaint, the FIR was registered,
but prosecutrix disowned this written complaint and according to her, the
complaint which had been given to the police was scribed by Munnaraja and
not by Ramkripal Tiwari. The written report scribed by Munnaraja is also not
available on record. This goes on to show that the FIR which is based on
written complaint Ex.D-1 has been discarded by the prosecutrix.
12. On the basis of above discussion, this Court is of the opinion that there
were many unexplained facts which had the effect of discrediting the truth of
prosecution story and they went to the root of the prosecution story. Taking
into consideration the fact that the material circumstances went unanswered and
unexplained before the trial Court, these two appeals are allowed and the
appellants are acquitted.
13. The fine amount deposited by the appellants be refunded to them. The
bail bonds of appellants stand discharged.
14. Let a copy of this judgment alongwith the record be sent to the trial
Court for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
rv
