Full Judgment
B.D. Rathi, J.
1. This is an appeal against the judgment and order dated 26th June, 2004, passed by Third Additional Sessions Judge, Vidisha (M.P.) in S.T. No. 19/2004, whereby present appellant Balveer s/o Rajaram Dangi has been convicted of the offence under Sections 450 and 376 of I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years with a fine of Rs. 1,000/- and again for a period of seven years with a fine of Rs. 2,000/- and in default to suffer additional simple imprisonment of one on each count.
2. By the same impugned judgment and on the same set of evidence and findings, other accused Ravindra has been acquitted of the alleged charges.
3. The facts in short relevant for the decision of this appeal are that on dated 24/10/2003, at 6 p.m. prosecutrix, wife of Vishan Singh Dangi, having age of 25 years, went to the house meant in Khaliyan, situated at the agricultural field for collecting straw (Bhusa). When she was coming out of the room, Balveer Dangi (present appellant) and Ravindra of the same village reached over there. Balveer was armed with an Axe. It is alleged that thereafter, accused Balveer dragged the prosecutrix into the room of Khaliyan and pulled her down. He committed rape with her and on raising cry, Balveer pressed her mouth with the hands. At that juncture, Somat Singh, brother-in-law (Jeth) came over there and after his appearance, the accused fled away from the spot. On next day, the FIR was lodged at about 11-30 a.m. at police station Kurwai, district Vidisha on the basis of which Crime No.309/03 was registered against the appellant and co-accused Ravindra for commission of offence under Sections 376/34 and 452 of I.P.C. The prosecutrix was medically examined by the doctor. After investigation, the charge sheet was filed before the Criminal Court. On committal, charges for the alleged offences were framed against both the accused.
4. In order to bring home the aforesaid charges, the prosecution examined as many as eleven witnesses, namely, Dr. (Smt) Manju Kethoriya (PW-1), I.C. Mal, Head Constable (PW-2), Daulat Singh (PW-3), Raghuvir Singh (PW-4), prosecutrix (PW-5), Vishan Singh (PW-6), husband of the prosecutrix, Sunil Shrivastava (PW-7), Patwari, Madan Singh (PW-8), O.N.Katriyar (PW-9), Alok Shrivastava (PW-10) and Somat Singh (PW-11).
5. After taking into consideration the entire evidence adduced by the prosecution as well as defence, the learned trial court convicted and sentenced the present accused for the commission of the alleged offences, hence, this appeal.
6. The contention of the accused appearing for the accused is that the evidence on record was misread by the trial court and the approach to convict the accused/appellant is bad in law and against the factual aspects. It is submitted that the medical evidence does not corroborate the prosecution case and the evidence of the prosecutrix was found with full contradictions, omissions and exaggerations. The FIR is delayed by one day for which there is no plausible explanation offered by the prosecution. That apart, the FIR lacks with material particulars. Despite all these factors, the findings of guilt have been recorded against the appellant whereas on the same set of evidence, other co-accused Ravindra has been acquitted of the alleged charges. It is accordingly prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellant may be acquitted of the alleged offences.
7. Per contra, the learned Panel Lawyer appearing on behalf of the respondent/State contended that the prosecution succeeded to prove the guilt against accused/appellant by adducing evidence and there is no infirmity or illegality committed so as to warrant interference in the impugned judgment. Hence, it is prayed that by dismissing the appeal, the judgment of the trial court may be maintained.
8. Having regard to the arguments advanced by the learned counsel for the parties and in order to see whether the conclusions arrived at in convicting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality, entire record and evidence have been perused by this court.
9. The prosecutrix (PW-5) stated in para 2 of her evidence that she was forcibly dragged into the house of Khaliyan where she was pulled down. She stated that at that time, co-accused Ravindra was standing out of the room but in the FIR (Ex.P/4), it was mentioned that coaccused Ravindra also entered into the house. Again, she stated that her mouth was pressed with hands by accused Balveer Singh and when Somat Singh reached over there, he (Balveer) fled away leaving an Axe on the spot. Next day, FIR (Ex.P/4) was lodged by the prosecutrix about the incident.
10. The statement of the prosecutrix was not corroborated medically by Dr.(Smt) Manju Kethoriya (PW-1) as it was deposed by the doctor that during the course of examination, no internal or external injury was found present over the body of the prosecutrix.
11. The prosecutrix (PW-5) in para 12 further stated that during the course of incident, she received contusions and abrasions on various parts of the body but this sort of evidence is not found worthy of credence by the medical evidence. In para 13 she stated that at the time of commission of rape both hands of the appellant were on her chest but even then she could not raise any hue or cry, this is very unnatural on her part and raises doubt on the entire prosecution case. Even if for the sake of arguments, the story put forth by the prosecution is accepted as true, even then it is very unnatural that no single injury or any kind of struggling marks were either received on the person of the prosecutrix.
12. It was further stated by the prosecutrix (PW-5) and mentioned so in the FIR (Ex.P/4) that appellant Balveer was armed with an Axe and same was left over the spot by the accused Balveer when Somat Singh (PW-11) reached over there. It is strange to note that no such weapon was seized from the spot by the Investigating Officer and further there is no explanation offered from the side of the prosecution for committing this glaring lapse. The evidence of Alok Shrivastava (PW-10) was also silent on this point. This is one of the important factors which the prosecution failed to establish by placing reliable evidence on record.
13. Another glaring fact in this case is that the incident occurred on 24/10/2003 at 6 p.m in the evening but the FIR (Ex.P/4) was lodged on next day on 27/10/2003 at 11-30 a.m. The delay in lodging the FIR has not been explained by the prosecutrix in her statement. In para 17, she stated that the FIR was lodged by Somat Singh, her elder brother-in-law and she has simply put her thumb impression over it, though at subsequent stage of her evidence, it was admitted by her that the FIR was reduced in writing by the police officer at her instructions and at that time of lodging of the FIR, her elder brother-in-law (Somat Singh) was standing outside the room of the police station.
14. In the context of the prosecution case, if the evidence of Vishan Singh (PW-6), husband of the prosecutrix and Somat Singh (PW-11), her elder brotherin- law is tested, it is found that Vishan Singh (PW-6) admitted that the prosecutrix is not his legally wedded wife. He stated that the prosecutrix has been living in relationship with him since last 10 years. He further stated in para 8 that no money was received by his elder brother Somat Singh for performing my marriage from Rajaram, who is father of present appellant. But, when same defence was put up that because of money transactions, the appellant has been falsely implicated, Somat Singh (PW-11) stated in para 11 that he has received loan amount from Rajaram and in lieu thereof 12 Bighas of agricultural land was handed over to Rajaram. It was also admitted by this witness in this very para that same kind of FIR was also lodged by the prosecutrix. On perusal of the statements of both these witnesses, it seems that there is enmity between the parties over the agricultural field.
15. So, the cumulative effect of the evidence of all these witnesses discussed above, raises various doubts in regard to the appellant. It cannot be lost sight off the fact that on the same set of evidence, which is discussed above, other co-accused Ravinda has already been acquitted by the trial court. Therefore, such evidence cannot be relied upon for basing conviction, in the absence of other corroborative witnesses or medical evidence on record. In the facts and circumstances of the case, therefore, the prosecution has utterly failed to prove beyond reasonable doubt that the appellant has committed the crime in question. Even other wise, it well settled in law that when two views are possible, the view in favour of the accused should be adopted.
16. For the reasons recorded above, the impugned judgment and order dated 26th June, 2004, passed by Third Additional Sessions Judge, Vidisha (M.P.) in S.T. No. 19/2004, is set aside. The accused-appellant is acquitted of the offence under Sections 450 and 376 of I.P.C. The appellant is on bail. He needs not surrender. His bail bond and surety bond are discharged.
17. The appeal stands allowed in the manner aforesaid.