Madhya Pradesh High Court
Ramji vs The State Of Madhya Pradesh on 15 January, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2025:MPHC-JBP:1685
1 CRA-886-1999
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 15th OF JANUARY, 2025
CRIMINAL APPEAL No. 886 of 1999
RAMJI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri S.K. Dixit - Amicus Curiae for the appellant.
Shri Y.D. Yadav - Government Advocate for the respondent - State.
ORDER
This appeal has been filed by the appellant under Section 374 (2) of
the Cr.P.C. being aggrieved by judgment of conviction and order of sentence
dated 12.03.1999 passed by III Additional Sessions Judge, Chhindwara
District Chhindwara in S.T. No.255/1997 whereby the appellant has been
convicted under Section 376 of IPC and sentenced him to undergo R.I. for 5
years with fine of Rs.1000/-with default stipulation.
2. As per the facts of the case, the present appellant on the date of
incident i.e. 19.03.1992 made an attempt to outrage the modesty of the
complainant, however, as there were statements of the witnesses that apart
from the molestation, the present appellant had committed an offence of rape
also, accordingly, the charge under Section 376 of IPC was framed against
the appellant. The present appellant was subjected to trial and at the
conclusion of trial, the trial Court convicted the appellant under Section 376
of IPC by the impugned judgment dated 12.03.1999.
NEUTRAL CITATION NO. 2025:MPHC-JBP:1685
2 CRA-886-1999
3. It is contended by the amicus counsel that the trial Court has
convicted the appellant under Section 376 of IPC but there is complete
failure on the part of the trial Court to justify the judgment of conviction
inasmuch as, none of the doctors entered into the witness box to support the
prosecution version that the complainant had sustained injury at the time of
commission of offence, while restraining the undue force by the present
appellant. It is contended by the counsel that there was a report by the doctor
which suggested that there were certain abrasion on the person of the
complainant and such abrasion could not have been taken into consideration
by the trial Court in absence of the doctor's testimony. Neither doctor entered
into witness box nor the said report of the doctor was exhibited and such
uncorroborated report could not have been relied upon by the trial Court
while convicting the appellant. Thus, counsel submits that the findings
arrived at in paragraph 18 of the impugned judgment, are unsustainable and
accordingly, the judgment of the trial Court deserves to be set aside.
4. Per contra, learned counsel for the respondent/State has opposed the
prayer and submitted that the appellant has been rightly convicted by the trial
Court on the basis of proper appreciation of oral as well as documentary
evidence. Thus, counsel submits that no interference is warranted in the
present case.
5. No other point is pressed or argued by both the parties.
6. Heard the rival submissions of both the parties and perused the
record.
7. Having heard the submissions advanced on behalf of the parties and
NEUTRAL CITATION NO. 2025:MPHC-JBP:1685
3 CRA-886-1999
on perusal of the impugned judgment and other material on record reflects
that though the First Information Report initially was lodged under Section
354 of IPC against the appellant and later on, in view of the statements of the
complainant as well as other witnesses, charge was framed under Section 376
of IPC. In support of the said charge, the complainant, Parvati Bai (PW-2)
and one Bishram Singh (PW-3) entered into witness box, however there was
complete failure on the part of the prosecution to produce the Doctor as
witness who had examined the complainant after commission of aforesaid
offence. There was a report by doctor which reflected that there were certain
abrasion sustained by the complainant, however, the doctor was not brought
to the witness box by the prosecution nor his report could be exhibited, yet,
the trial Court in absence of the admissibility of the report, proceeded to
convict the appellant.
8. In the considered view of this Court, the trial Court grossly erred in
convicting the present appellant under the aforesaid offence in absence of
doctor's testimony and medical report and judgment has been delivered in
complete oblivion of the fact that the doctor who had examined the
complainant, had not been examined by the prosecution. Therefore, in view
of the aforesaid, the report of the doctor could not be relied upon by the trial
Court to convict the appellant.
9. The Apex Court in the case of Rajesh Patel vs. State of Jharkhand
reported in (2013) 3 SCC 791 in paragraphs 18 and 23 have held as under:-
"18. Further, neither the doctor nor the IO has been examined
before the trial court to prove the prosecution case. The appellant
NEUTRAL CITATION NO. 2025:MPHC-JBP:1685
4 CRA-886-1999
was right in bringing to the notice of the trial court as well as the
High Court that the non-examination of the aforesaid two
important witnesses in the case has prejudiced the case of the
appellant for the reason that if the doctor would have been
examined he could have elicited evidence about any injury
sustained by the prosecutrix on her private part or any other part of
her body and also the nature of hymen layer, etc. so as to
corroborate the story of the prosecution that the prosecutrix
suffered unbearable pain while the appellant committed rape on
her. The non-examination of the doctor who had examined her
after 12 days of the occurrence has not prejudiced the case of the
defence for the reason that the prosecutrix was examined after 12
days of the offence alleged to have been committed by the
appellant because by that time the sign of rape must have
disappeared. Even if it was presumed that the hymen of the victim
was found ruptured and no injury was found on her private part or
any other part of her body, finding of such rupture of hymen may
be for several reasons in the present age when the prosecutrix was
a working girl and that she was not leading an idle life inside the
four walls of her home. The said reasoning assigned by the High
Court is totally erroneous in law.
* * *
23. The trial court as well as the High Court should have
appreciated the evidence on record with regard to delay and not
giving proper explanation regarding delay of 11 days in filing FIR
by the prosecutrix and non-examination of the complainant
witnesses viz. the doctor and the IO which has not only caused
prejudice to the case of the appellant but also the case of
prosecution has created reasonable doubt in the mind of this
Court. Therefore, the benefit of doubt must enure to the appellant.
As we have stated above, the testimony of the prosecutrix is most
unnatural and improbable to believe and therefore it does not
inspire confidence for acceptance of the same for sustaining the
conviction and sentence. Therefore, we are of the view that the
impugned judgment [ Criminal Appeal No. 58 of 1999, decided on
14-11-2006 (Jhar)] requires to be interfered with by this Court in
exercise of its jurisdiction. Accordingly, we allow the appeal and
set aside the impugned judgment [ Criminal Appeal No. 58 of
1999, decided on 14-11-2006 (Jhar)] . If the appellant has
executed bail bonds, the same may be discharged.."
10. The Apex Court in the case of Kapildeo Sinha vs. Kirandeo Prasad
NEUTRAL CITATION NO. 2025:MPHC-JBP:1685
5 CRA-886-1999
and another reported in (2008) 14 SCC 658 in paragraph 10 has held as
under:-
"10. In the instant case it is noticed that neither the IO nor the
doctor have been examined. No reason has been indicated as to
why they were not examined. Added to that, the evidence of PW 1
assumes significance. He has clearly stated that the Respondent 1-
accused was not there when the alleged incident took place.
Further, as rightly noted by the High Court, PWs 5, 6 and 7 stated
that because of the sad demise of the deceased they were not
celebrating Holi and were not singing Holi songs from the
morning. The prosecution version itself is that the attacks took
place in the evening and, therefore, the family members could not
have anticipated that in the evening there will be an attack and loss
of life and therefore they would not celebrate Holi. These factors
have not been taken note of by the High Court to direct the
acquittal. We find no infirmity in the conclusions arrived at by the
High Court to warrant interference."
11. The High Court of Karnataka in the case of The State of Karnataka
vs. Peddahanomappa and Others reported in 2004 Cri.LJ 2255 in paragraph
4 has held as under:-
"4. Another serious fault that has been committed during the
present trial is the fact that doctor who conducted the post mortem
has not been examined. It is very important particularly in cases of
the present type that the prosecution has to establish beyond doubt
that the death was homicidal and for this purpose, the evidence of
the doctor cannot either be diluted or done away with. The
aggravating circumstance comes in from the fact that even the post
mortem report was not tendered and under these circumstances it
would be impossible to hold that the death was homicidal.
Secondly, the non-examination of the doctor would give rise to
serious infirmities insofar as the Court is required to categorise
how serious the injury is, the nature of the injury and above all, the
consequences of those injuries, whether the injuries were simple,
whether they were life threatening or whether they have resulted
in the death; these are different facets of the law which can only
NEUTRAL CITATION NO. 2025:MPHC-JBP:1685
6 CRA-886-1999
be established through the medical evidence and where the
requisite doctor has not been examined, in our considered view, it
would be impossible to sustain a conviction. Having regard to this
position, despite all that has been submitted by the learned
Government Pleader on merits, we find it impossible to record the
finding that interference is competent and that the appeal requires
a reconsideration. In view of the above position, the appeal falls
on merits and stands dismissed. Ball bonds of the accused, if
executed, to stand cancelled."
12. Resultantly, the present appeal so filed by the present appellant
stands allowed. The conviction of the appellant under Sections 376 of IPC so
far as it relates to the present appellant stands quashed. The present appellant
is acquitted from the charge under Section 376 of IPC.
13. The appellant is on bail, his bail bonds and surety bonds stands
discharged.
14. It is directed that the fine amount if deposited by the appellant be
refunded to him within a period of 30 days from the date of production of
certified copy of the order passed today.
15. Record of the trial Court be sent back immediately along with a
copy of this judgment for information and necessary action.
(MANINDER S. BHATTI)
JUDGE
sp
