Madhya Pradesh High Court
Takhat Singh & Anr. vs The State Of M.P. on 23 April, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:18488
1 CRA-1578-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 23rd OF APRIL, 2025
CRIMINAL APPEAL No. 1578 of 1998
TAKHAT SINGH & ANR.
Versus
THE STATE OF M.P.
Appearance:
Shri Z. M. Shah and Shri Sandeep Koshta - Advocates for the appellants.
Smt. Smita Kehri - Panel Lawyer for the State.
Reserved on : 03.04.2025
Pronounced on: 23.04.2025
JUDGMENT
The present appeal has been preferred to challenge the judgment of
conviction passed and sentence imposed by the learned Sessions Judge,
Damoh vide judgment dated 13.07.1998 in Sessions Trial No.175/1997 by
which appellants Takhat Singh and Bahadur Singh were found guilty for the
offence of gang-rape punishable under Section 376(2)(g) of IPC and were
sentenced to 10 years rigorous imprisonment and fine amount of Rs.1,000/-
with a default clause to undergo one year rigorous imprisonment in case of
non-payment of fine.
2. Both the appellants were granted bail in this criminal appeal on
12.10.1998 and 6.11.1998 respectively but they failed to appear on number
of occasions, therefore, bailable warrants used to be issued against them. On
one such occasion, the bailable warrant issued against appellant Bahadur
Singh (A-2) was received back unserved with a police report that he has
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passed away. In the absence of any application for substitution of legal
representatives, this Court declared the criminal appeal as abated qua
appellant no.2 Bahadur Singh and now the appeal is being decided on merits
qua appellant no.1 Takhat Singh only.
3. The facts necessary for the decision of this appeal may be summarized
as ahead: on 28.02.1997 at around 8:00 a.m., the prosecutrix had gone to the
area of Nonpanihar for collecting the firewood where appellant Takhat Singh
and deceased-appellant Bahadur Singh arrived; appellant Takhat Singh was
carrying a gun; they both overpowered and grabbed her and threw her on the
ground; deceased-appellant Bahadur Singh was holding her hands while
appellant Takhat Singh had closed her mouth with a towel; deceased-
appellant Bahadur Singh forcibly raped her and thereafter appellant Takhat
Singh too committed forcible rape; she tried a lot to escape from their grip
but she couldn't; her clothes were torn and she sustained injuries in her
private parts; her bangles were also broken; on hearing her screams, Pappu
Gond, who was passing-by, reached there and upon seeing him appellant
Takhat Singh and deceased-appellant Bahadur Singh both ran away;
prosecutrix and her husband went to Hindoriya Thana to report the matter,
but her report was not lodged; she then approached higher police officers and
only upon their intervention FIR at Crime No.65/1997 was registered and the
matter was investigated; police filed the charge-sheet and the trial was held
in which appellant Takhat Singh and deceased-appellant Bahadur Singh were
convicted and sentenced as aforesaid.
4. Arguing this appeal on behalf of appellant Takhat Singh (A-1), it is
submitted that the learned Sessions Judge committed gross error in
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convicting the appellant for the offence of gang-rape on the sole testimony of
prosecutrix; the finding is perverse and contrary to the evidence available on
record; the learned trial Court failed to appreciate that there was a
considerable delay in lodging the report. It was ignored that at the time of
alleged commission of crime, appellant Takhat Singh (A-1) was 60 years old
and even his medical examination report has not supported the prosecution
case about possibility of commission of alleged crime; Santosh Bharti was
instrumental in getting the FIR lodged and trial Court was wrong in placing
reliance on the testimony of this interested witness. A request has, therefore,
been made to allow this appeal.
5. Learned counsel for the State, on the other hand, has opposed the appeal
by arguing that the charge was reasonably proved beyond any doubt against
appellant Takhat Singh, hence no intervention is required in the finding of
conviction and the imposition of sentence.
6. Heard learned counsel for the parties and perused the record of trial
Court.
7 . At a first glance of facts, the case appears to be of a helpless prosecutrix,
who was gang-raped by two persons and despite making request to the police
officers at different levels, the report of prosecutrix was not being lodged.
According to prosecution, the incident occurred in the morning of
28.02.1997 at around 8:00 a.m. and first ever report made of this crime to the
police is a written complaint made to Superintendent of Police, Damoh,
marked as Ex.P/1. This written complaint is dated 21.03.1997, i.e. 20 days
after the alleged incident of rape. This report claims that earlier also a written
complaint was given to the Superintendent of Police on 03.03.1997, but no
evidence has been produced to show that any such complaint was ever made
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on that date. Even the record of office of Superintendent of Police was not
called in evidence to establish the receipt of any such complaint on
03.03.1997 in the office of Superintendent of Police, Damoh. Further,
statements of prosecutrix (PW1) do not disclose that two complaints were
given in the Office of Superintendent of Police, Damoh, therefore the
complaint of Ex.P/1, dated 21.03.1997, is evidently the first ever complaint
made by prosecutrix about the offence of rape committed on her on
28.02.1997.
8. In her testimony prosecutrix (PW1) has claimed that, on the date of
incident itself, she along with her son had gone to Police Station, Hindoriya,
and reported the matter to the police officers present there; according to her,
she was assured by them that an enquiry would be held, but no one came to
conduct this enquiry; thereafter she along with her husband went again to the
same police station, but this time police did not cooperate and asked them to
leave. Incidentally, the son and the husband of prosecutrix, who had
accompanied her to Police Station, Hindoriya, were not examined by
prosecution as witnesses, therefore her oral testimony on this point has no
corroboration.
9. Ex.P/2 are the statements of prosecutrix recorded under Section 161
Cr.P.C. and they reveal that after the incident the prosecutrix didn't go to
Police Station, Hindoriya, and narrated the incident to the Sarpanch of
village, who advised her to lodge the report. These statements further reveal
that despite this advise she didn't go to Police Station, Hindoriya, but had a
written complaint prepared and submitted it in the Office of Superintendent
of Police. Although prosecutrix (PW1) has denied to have given any such
statement to the police, but evidently non-production of earlier complaint,
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allegedly given on 03.03.1997, non-disclosure of the fact in Ex.P/1 that she
had gone twice to Police Station, Hindoriya, for lodging the report with no
fruitful outcome and non-examination of son and husband, who had
allegedly accompanied the prosecutrix to Police Station, Hindoriya,
definitely have reflections on the credibility of prosecutrix.
10. The court testimony of prosecutrix (PW1) reveals that she has denied
any kind of enmity with appellant Takhat Singh or deceased-appellant
Bahadur Singh, but statements of prosecutrix recorded on 12.04.1997,
marked as Ex.P/13, and on 04.05.1997, marked as Ex.P/2, clearly establish
that there was an enmity between the two sides and even a report was lodged
prior to this incident against the son of prosecutrix at the behest of deceased-
appellant Bahadur Singh. These statements reflect that the two sides are in
relationship with each other, but it had become so strained that appellant
party did not attend the marriage of the daughter of prosecutrix and even
persuaded the other caste members not to accept her invitation. These facts
manifest animosity and, therefore, requirement of corroboration becomes
inevitable.
11. Mahipal (PW2) is claimed to be a witness who had arrived on the spot
on hearing the screams of the prosecutrix. Police statements of prosecutrix,
marked as Ex.P/2, reveal that by the time this witness Mahipal arrived on the
spot, the appellant and his companion had fled away from the scene. Even
the police statement of witness Mahipal @ Pintu, marked as Ex.P/3, suggests
that on the call of the son of prosecutrix, he came to the place of incident and
found that appellant Takhat Singh and his companion Bahadur Singh were
going towards their houses while prosecutrix was sitting under the Mahua
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tree and told them that she was raped by these persons. These police
statements reveal that witness Mahipal @ Pintu (PW2) did not see the act
being committed by the appellant nor did he see appellant Takhat Singh
present on the spot. His limited observation was that appellant Takhat Singh
was going towards his house along with Bahadur Singh and whatever
information he got about the crime was from the source of prosecutrix.
12. Strangely, in his court testimony, Mahipal @ Pintu (PW2) has denied
his status of hear-say witness and has claimed that on hearing the screams of
prosecutrix he reached on the place of incident and found that Bahadur Singh
had closed the mouth of prosecutrix and appellant Takhat Singh was lying on
her body who, upon seeing the witness, wrapped his dhoti around and fled
away along with his companion, giving life threats to the witness. He has
retracted entirely from the narration given to the police about not witnessing
the incident personally and also about getting the knowledge of incident
through prosecutrix. Speakingly, there is material contradiction in his police
statement and the Court testimony with no plausible explanation for this
contradiction.
13. Statements of Mahipal Singh @ Pintu (PW2) were recorded by police
on two occasions, first on 12.04.1997, marked as Ex.P/15, and second on
04.05.1997, marked as Ex.P/3. On both these occasions he has admitted that
he is on inimical terms with his uncle Kanhai and appellant Takhat Singh as
well as deceased-appellant Bahadur were supporting his uncle Kanhai. In
these statements he has admitted that the dispute with Kanhai was about
some property and appellant Takhat Singh along with Bahadur had visited
his land while Takhat was carrying a firearm at that time. Thus, the
relationship of this alleged independent eyewitness Mahipal @ Pintu (PW2)
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is definitely inimical with appellant and he has purposely tried to conceal
this nature of relationship during his testimony by denying every suggestion
given on the point.
14. The son of prosecutrix who too had allegedly arrived on the spot prior
to appellant and his companion had started therefrom, has not been examined
as witness in this case. There is no explanation why his name was not
included in the list of witnesses filed along with charge-sheet.
15. It is a case where the information about commission of rape was
delayed by almost 20 days. The explanation for this delay is found to be not
reliable; prosecutrix and the alleged eyewitness Mahipal were both on
inimical terms with appellant side and they both had tried to conceal the
nature of their relationship during their Court testimony. Important witnesses
on the point of commission of offence and also on the delay in lodging the
FIR have not been examined in the case. Further, the statements of
prosecutrix and alleged eyewitness Mahipal are significantly contradictory to
what they have stated to the police in their police statements. Prosecution has
relied upon the testimony of journalist Santosh Bharti (PW5), but his
testimony has no bearing on the question whether an offence of rape was
committed by appellant with the prosecutrix. He only claims that he helped
the prosecutrix in getting her report registered as FIR and he came into
picture somewhere around 27th/28th April, 1997, while the offence was
allegedly committed on 28.02.1997. Hence, the statements of Santosh Bharti
(PW5) do not require any analysis to give a finding on the commission of
offence.
16. In terms of above facts and the totality of circumstances, the Court
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holds that the prosecution has not been able to prove its case beyond
reasonable doubts and on the basis of evidence produced on record, this
appeal succeeds and is accordingly allowed .
17. Consequently, the impugned judgment of conviction and sentence
passed against appellant Takhat Singh (A-1) is accordingly set aside. The
appellant is already on bail. His bail-bonds stand discharged with immediate
effect.
18. Let a copy of this judgment be sent to the trial Court along with record
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
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