Full Judgment
1 Cr.A.No.335/2007 HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH: HON’BLE SHRI JUSTICE SUBHASH KAKADE CRIMINAL APPEAL NO.335 ”
0. 0 7 APPELLANT : Prakash S/o Amar Singh Rajpoot, aged about 32 years, R/o Village-Bhavras, P.S. Timarni, Harda, District Harda (M.P.) Versus RESPONDENT : The State of Madhya Pradesh, Through - P.S. Timarni, District Harda (M.P.) ----------------------------------------------------------------------------------- Shri A.D. Mishra, Advocate for the appellant. Smt. Nirmala Nayak, Government Advocate for the respondent /State ----------------------------------------------------------------------------------- Judgment reserved on :
14. 05.2013 Judgment delivered on :
26. 07.2013 (
JUDGMENT
) Appellant Prakash has filed this appeal under Section 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 03.02.2007 passed by the Sessions Judge, Harda in Session Trial No.30 /2006 (State of M.P. Through P.S. Timarani vs. Prakash), whereby the appellant was convicted under Section 354 of IPC and awarded a punishment of rigorous imprisonment of two years and fine of Rs.2,000 / - , in default of payment of fine, further to suffer two months' rigorous imprisonment.
02. In brief, the case of prosecution is that on dated 03.03.2006 prosecutrix was going on her way to agricultural fields. At that time 2 Cr.A.No.335/2007 residence of village Bhavras accused /appellant Prakash Rajpoot told her sister come here so she went and asked what is the matter?. At once appellant caught her both hands and dropped her in field and tried to unrobe her lower garments to commit rape but, any how she managed to save herself. Hearing her hue and cry Ramdayal Rajpoot, Mukesh Rajpoot both resident of Bhavras come over there. Before running appellant threatened her if she will narrate incident in the village to anybody, he will cut her in pieces. Prosecutrix narrated incident to both of them and right from the spot rushed to the Police Station Timarni for lodging First Information Report with Ramdayal. Statements of prosecutrix recorded and sent her for the medical examination. During further investigation statements of other witnesses recorded, spot map were prepared, broken and unbroken pieces of bangle seized and after arresting appellant filed challan.
03. The learned trial Court on the basis of evidence available on record framed charge against the appellant punishable under Section 506, 376 / 511 of Indian Penal Code and Section 3(i)(ii) of SC & ST (Scheduled Castes and Scheduled Tribes) Act, who abjured his guilt, therefore, he was put to trial. The prosecution examined seven witnesses and produced documents Ex.P-1 to Ex.P-6. During statement under Section 313 of Cr.P.C., the appellant denied all the evidence put forth against him and pleaded his innocence on the ground that he was falsely implicated with conspiracy of Mukesh and his 3-4 colleagues. Three witnesses were examined to prove defense.
04. The learned trial Court after appreciating the evidence available on record held the appellant guilty under Section 354 of 3 Cr.A.No.335/2007 Indian Penal Code and convicted and sentenced him as mentioned hereinabove, against which, this appeal. Though, the learned trial Court acquitted the appellant from the charges punishable under Section 506, 376 / 511 of Indian Penal Code and Section 3(i)(ii) of SC & ST (Scheduled Castes and Scheduled Tribes) Act, against which respondent /State does not prefer an appeal.
05. Shri A.D. Mishra, learned counsel for the appellant has submitted that the appellant is falsely implicated due to enmity. He has submitted that oral version of the prosecutrix and other witnesses are seriously contradictory, and several omissions, exaggerations are present in their evidence. He also submitted that the learned trial Court relied upon the testimony of Mukesh (PW/2) and Ramdayal (PW/3) who are not genuine witness as they have not seen the incident. One Makhan resident of village Bhavras is sheet anchor on whose instant prosecutrix lodged false report against the appellant with conspiracy with Mukesh, Ramdayal and Satyanarayan. He further submitted that the learned trial Court did not look into the fact that oral version of the prosecutrix is also not corroborated by the medical evidence. Thus, the appeal deserves to be allowed.
06. Per contra, Smt. Nirmala Nayak, Government Advocate for the respondent has submitted that after due appreciation of prosecution evidence, the learned trial Court has found the offence proved against the appellant, which requires no interference. 4 Cr.A.No.335/2007
07. Considered the rival submissions made by learned counsel for the parties at length and perused the impugned judgment and entire record carefully.
08. After close scrutiny of evidence of prosecutrix (PW/1), Mukesh (PW/2), Ramdayal (PW/3) as well as defence witnesses Dev Narayan (DW /1), Kamta Prasad (DW /2) and Shreeram (DW /3) following facts are helpful for disposal of the appeal:- (i) Prosecutrix (PW/1), Kamta Prasad (DW /2) and Shreeram (DW /3) are resident of village Billod. (ii) Imrat brother of Kamta Prasad (DW /1) is also resident of Billod and both are relatives of prosecutrix. (iii) Accused, defence witness Dev Narayan (DW /1) and prosecution witnesses Mukesh (PW/2), Ramdayal (PW/3) are resident of village Bhavras. (iv) Satyanarayan and Makhan were also resident of village Bhavras. (v) Village Billod and village Bhavras are situated near to each other and small river bifurcates boundaries of these villlages. (vi) Prosecutrix lodged report against one Jagdish Gond of village Billod regarding Section 376 of Indian Penal Code. (vii) There was dispute between prosecutrix and Imrat that she was threatening Imrat that she will lodge report against him for rape, but, the matter was settled by the community members and Imrat were paid 25,000 / - to the prosecutrix which she denied but, these suggestions also otherwise proved by the 5 Cr.A.No.335/2007 evidence of witnesses Dev Narayan (DW /1), Kamta Prasad (DW /2) and Shreeram (DW /3). (viii) Though prosecutrix denied these suggestions that earlier Makhan was also resident of village Billod but, looking to his relationship with her, father of Makhan sold out his agricultural land situated in village Billod and shifted another village Shamshabad to save her son Makhan from the clutches of prosecutrix, but, suggestions found force by the evidence of defence witnesses Dev Narayan (DW /1), Kamta Prasad (DW /2) and Shreeram (DW /3). (ix) Prosecutrix also denied illegal relationship with Satya Narayan but, Dev Narayan (DW /1), Kamta Prasad (DW /2) and Shreeram (DW /3) categorically supported this fact. (x) Mukesh (PW/2) faced a criminal case on report of one Kusum Bai in which appellant was witness and in that case Mukesh (PW/2) was convicted, sentenced and fined also.
09. A few fact stated in the First Information Report Ex.P-2, which was deviated from her deposition may be noticed. In the First Information Report Ex.P-2, prosecutrix had stated that place of occurrence was the field of appellant. Shri Thakur (PW/7) also admitted true that in the First Information Report Ex.P-2 that place of occurrence is mentioned field of appellant.
10. Mukesh (PW/2) categorically stated that the incident was happened in the field of Mahesh only.
11. During cross-examination, prosecutrix repeatedly stated that place of occurrence was the field of Mahesh, which is adjacent to the field of appellant. not this, she also disclosed distance between 6 Cr.A.No.335/2007 these two fields that it is about 100 feets. In this sequence, she further stated that she is not able to say whether the incident was happened in the field of appellant or in the field of Mahesh?. because both the fields are adjacent. Lastly, she admits that if the police had written that incident was happened in the filed of Mahesh, then it is rightly written.
12. Shri Thakur (PW/7) also admits this fact that during investigation he prepared the spot map Ex.P-3, as per information of the prosecutrix in which place of occurrence was mentioned the field of Mahesh.
13. Despite of above facts, Ramdayal (PW/3) tried to satisfied both the situations, firstly by saying that he heard female voice from the fields of appellant and Mahesh. Thereafter, he admitted that the incident was happened in the two fields and lastly he admitted that incident was happened about 30 - 40 meters away from the field of appellant.
14. In the light of the above discussed evidence of main witnesses, totally confused situation emerges that whether, incident took place in the field of Mahesh or in the field of appellant?. Apart from this, averments of First Information Report, Ex.P-2 is altogether contradictory from the contents of spot map Ex.P-3. On this sole ground appellant is entitled for acquittal.
15. During examination- in- chief, prosecutrix stated that she narrated whole incident to Mukesh and Ramdayal. This statement of prosecutrix goes to show that Mukesh and Ramdayal are not eye witnesses of the incident. Mukesh (PW/2) also frankly admitted this fact that he did not see any dispute on the spot between prosecutrix and appellant, therefore, he also admitted that why this 7 Cr.A.No.335/2007 portion is mentioned in his police statement Ex.D- 1, he cannot say anything.
16. Another significant fact is that prosecutrix had not mentioned any fact about breaking of her bangles or blouse tearing in First Information Report Ex.P-1. Shri Thakur (PW/7) also admitted that the prosecutrix did not mention in the First Information Report Ex.P-2, that her blouse was tear, that's why, he did not seized her blouse. Whereas, Ramdayal (PW/3) exaggerated that when he saw to prosecutrix on the spot her blouse was teared.
17. Prosecutrix also admitted that her matrimonial village was Barbai, Police Station Khetegaon where she resides about two years after marriage, then she came to village Billod with her husband and residing with parents since last 20 years.
18. It is pertinent to mention here that prosecutrix not conveyed anything about this important incident to her husband Harishankar not her parents not she uttered a single word during her court evidence that she given any information of this important incident which is against her womanhood, to her husband or parents, which were available in village.
19. Ramdayal (PW/3) also admitted this fact that when they were going to police station to report the matter this fact not informed to the parents of the prosecutrix.
20. First Information Report Ex.P-2 reveals this fact that prosecutrix was accompanied with Ramdayal (PW/3) only. Mukesh (PW/2) also stated that he was not accompanied the prosecutrix for police station. Mukesh (PW/2) rightly opined that prosecutrix must have gone with her husband for report. During examination- in- chief 8 Cr.A.No.335/2007 prosecutrix claimed that she explained whole incident to Ramdayal and Mukesh, then, both came with her to police station, Timarnee.
21. Ramdayal (PW/3) first time explained this fact that when he was going to report the matter with prosecutrix, her husband was not at his residence. Suggestions were given to this witness that when prosecutrix told her husband to accompany her for report, but Harishankar refused to come with her for false report, then prosecutrix abused him though, Ramdayal (PW/3) specifically denied.
22. In the light of the above disputed evidence, it was rightly questioned to Shri Thakur (PW/7) that why he should not be recorded the statements of husband of the prosecutrix?. Shri Thakur (PW/7) replied that he tried to contact Harishankar, but, he was not available, but, he also admitted that this material fact is not mentioned in the case diary. In this sequence, the admission of Shri Thakur (PW/7) that he knows Satyanarayan is also important fact, which favouring appellant's defense. And this question is remained unanswered that why prosecutrix did not narrate this important incident to her husband or parents?.
23. Prosecutrix claims that during self defense her bangles were broken so she got scratches on the hands, blood also oozing out, and also claims that she got injuries on back. She further stated that when she went to the medical examination she narrated, explained and shown all injuries to the Doctor which were caused during the incident on her person.
24. It is pertinent to mention here that whenever in criminal cases complainant or prosecutrix sent for the medical examination, Doctor invariably enquires from him / her how 9 Cr.A.No.335/2007 incident happened, how injuries are present on his / her person and also mentions this information in the MLC report.
25. But, it is surprising to note that Dr. Umesh Khale (PW/6) during his cross examination admitted this fact that prosecutrix did not narrate the history of the incident, and also stated that vide his report (Ex.P-5) except complaint of pain in right shoulder, he did not found any external injury on the person of the prosecutrix.
26. It is pertinent to mention here that prosecutrix categorically stated she got contract for agricultural work in the fields of Shri Dubey resident of Harda from his Varsudiya i.e. servant. Shri Thakur (PW/7) also admits that these persons were important independent witnesses but, he did not recorded their statements during the investigation, which is an fatal lacuna.
27. Shri Ahirwal (PW/4) registered the FIR (Ex.P-1) and sent the matter to the AJAK Police Station because, case was related with the Section 3(i)(ii) of the SC & ST Act. Shri Dinesh Kumar Baghare (PW/5), Reader to the SDM Timarni issued the caste certificate Ex.D- 1 related with prosecutrix.
28. It is no doubt true, that conviction can be based solely on testimony of the prosecutrix, but that can be done in a case where the Court convinced about the truthfulness of the prosecutrix and there exist no circumstances which caste a shadow of doubt over her veracity. If the evidence of prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the light of the above discussed facts specially pointed out in above para 8, the evidence of prosecutrix is not trustworthy, she has deviated from the case narrated in the 10 Cr.A.No.335/2007 First Information Report Ex.P-1 and other documents, specially spot map Ex.P-3.
29. Evidence of witnesses Mukesh (PW/2) and Ramdayal (PW/3) when critically scrutinized in light of facts discussed in above para 8, it does not appear that the evidence of these witnesses can be relied upon, because they have deviated from their police statements, their evidence is also contradictory to each other, that too, no corroborating the evidence of prosecutrix.
30. Having carefully scrutinize the evidence of prosecutrix (PW/1), Mukesh (PW/2) and Ramdayal (PW/3), the prosecution did not satisfy that it has proved its case beyond reasonable doubt. Evidence produced by the prosecution left that a strong suspicion that the case put forward by the prosecution may not be true. In other word, the appellant is entitled to the benefit of doubt.
31. For the reasons aforesaid, I do not agree with the finding recorded by the learned trial Court that the charge against the appellant is proved. The appeal is, therefore, allowed. Conviction of appellant Prakash and sentence awarded to him by learned trial Court is hereby set aside. The appellant Prakash is acquitted from the charge under Section 354 of IPC leveled against him.
32. The appellant Prakash is on bail, his bail bond stands discharged. Appeal allowed. (SUBHASH KAKADE) JUDGE AK/