Ghanshyam Vs. State of M.P. - Court Judgment

S.D. Zha, J.

1. This judgment shall also govern disposal of Criminal Revision No. 24 of 1986 (Prabhawati v. Ghanshyam) presented by complainant Prabhawati for enhancement of sentence.

2. The Convict-appellant challenges his conviction under Sections 354, 380 and 506 (B), I.P.C. and sentences of one year, one year R.I. and fine of Rs. 100/- in default one month further R. I. and six months R.I. respectively for the same awarded by Shri Section M. Naw-lakha, Additional Judge to the Court of Sessions Judge Mandsaur at Garoth, by his judgment dated 13-8-1985.

3. The challan was put up against the appellant by S.H.O. Gandhi Sagar, District Mandsaur, for offences under Sections 459, 376 read with Sections 511 and 380, I.P.C. The case of the prosecution is that in the night intervening 20th-21st June, 1984 at midnight at village Navli, Prabhawati w/o. Jagannath (P.W. 1) was sleeping alone in her house. Her husband had gone away to Kota and his elder brother's son Rajesh (P. W. 3) was sleeping near her. The appellant with some evil motive entered her house, caught hold of her breast and on her being awakened and crying pressed her throat and beat her; Rajesh (P.W. 3) being awakened, the appellant threatened him to death with the knife carried by him. Prabhawati's cries attracted the neighbours Gangabai (P.W. 2), her husband's elder brother Ramgopal (P.W. 5) to the scene. The appellant was seen by these witnesses running away from the place. While running away from the house the appellant left his knife and towel but took away torch belonging to Prabhawati.

4. F. I. R. (Ex. P/1) of the incident was lodged by Prabhawati (P.W. 1) at the Police Station Gandhi Nagar on 21-6-1984 at 12 noon. Prabhawati was sent for medical examination. Towel and knife were seized from her vide Ex. P/3, Vide Ex. P/6 torch was seized from the appellant. Challan was then put up for the offences as set out above. The Judicial Magistrate First Class Bhanpura by order dated 12-4-1985 committed the accused to the Court of Session.

5. The Additional Judge to the Court of Sessions Judge, Mandsaur, on 8-7-1985 framed charges against the appellant for offences under Sections 354, 459, 380 and 506 (B), I.P.C. The prosecution examined 10 witnesses. In his examination under Section 313, Cr.P.C. the appellant denied having gone to the house of the prosecutrix Prabhawati (P.W. 1). He denied knowledge about Rajesh (P.W. 3) having asked him to move away or that he had threatened Rajesh with knife. He also denied knowledge about his having left knife and towel at the place of the incident. He did not remember torch Article 'C having been seized from him. He claims to have been implicated due to enmity because there is some litigation pending between him and Ramgopal (P.W. 5). In his defence he pleaded alibi and submitted that on the day of the incident he was not in the village. The appellant in his defence submitted three documents to prove his enmity with Ramgopal. The Additional Judge found the offences as set out in para 1 proved against the appellant and convicted and sentenced him as stated therein.

6. At the hearing of the appeal Shri T. N. Singh, learned Counsel for the appellant urged that the evidence was discrepant and contradictory highly interested and the conviction of the appellant is illegal and unjust. Identification of the torch was illegal. He submitted that on the evidence, the appellant merited acquittal.

7. Shri G. G. Solanki, representing the State, however, submitted that in spite of the discrepancies and contradictions, the case against the appellant is amply proved.

8. Shri D. M. Kulkarni, appearing for the revision petitioner Smt. Prabhawati urged that considering the facts and circumstances of the case, the sentence awarded to the appellant was lenient and should be suitably enhanced. To this request, Shri Solanki and T. N. Singh have no particular comments to make.

9. Prabhawati (P.W. 1) has stated that at about 1 or 2 a.m. in the night Ghanshyam came and pressed her mouth and throat; he also pulled her blouse and caught her breast. On her crying Rajesh (P.W. 3) sleeping nearby was awakened and he asked the accused as to why he was beating his aunt. The accused even then did not move away and threatened Rajesh to death with knife. On her crying the accused ran away towards the door, at that time Gangabai (P.W. 4) Ramgopal (P.W. 5). Bhawarsingh and Ratanlal got on wall of Gangabai's house and shouted. She further says that had Gangabai not reached the place she could not say as to what accused would have done with her. She says that the accused tried his best to finish her. She also says that the accused had put his hand on her breast and that he tried his best to have sexual intercourse with her (khota kam) but due to her resistance he could not succeed in his effort. He dealt two or three blows on her mouth and she received nail scratches on her face. Accused had left towel and knife at the spot and took the torch lying near her pillow. When Gangabai (P.W. 4), Ramgopal (P.W. 5), and others came to her house the accused ran way.

10. Rajesh (P.W. 3) says that he was awakened by cries of his aunt Prabhawati, he saw Ghanshyam (accused) sitting on the breast of Prabhawati and pressed her throat; he pulled Ghanshyam's hands but he did not move then he shouted, ^^nkSM+ks pksj ?kql vk;k** Accused Ghanshyam then told him that if he shouted he would stab him with the knife. On his shouting Gangabai (P.W. 4) came and she got on the wall and shouted at the accused, his uncle Ramgopal (P.W. 5) and others also ran to the place; the accused then ran away scaling 'Gan Ki Chhan' and he left the towel and the knife at the place.

11. Gangabai (P.W. 4) testifies that she heard Prabhawati's shouts ^^nkSM+ks eq>s ekj jgk gSA** she got on the wall and saw Rajoo (Rajesh), Prabhawati and accused Ghanshyam. Ghanshyam scaled the 'Gay Ki Chhan' and ran away.

12. Ramgopal (P.W. 5) says that on hearing cries of Prabhawati, he ran to the place and he saw the accused jumping away from the house of Prabhawati, he got the door opened and went inside and saw Prabhawati sleeping. Prabhawati told him that accused had sat over her gave fist blows on her mouth, pressed her throat leading to oozing of blood from her teeth and from near the left eye. The witness further says that Rajesh (P.W. 3) tried to grapple with the accused but he was threatened by the accused with the knife.

13. Dr. Ajay Kumar Gulati (P.W. 2) vide Ex. P/5 on 21-6-84 at 1.45 p.m. and examined Prabhawati. He found a abrasion near left eye and her left upper molar tooth of left side partially dislocated. The injuries were of within 24 hours duration. He also opined that dislocation of tooth could be due to fist blow and abrasion under the left eye due to nail scratches.

14. Shri T. N. Singh, learned counsel for the appellant, has argued while according to Prabhawati (P. W. 1) cross-examination Para 27, she cried out that thief had entered and Rajesh (P.W. 3) (Para 2) thief had entered but according to Gangabai (P.W. 4) Prabhawati cried out ^^cqvkth nkSM+ks eq>s ekjjgk gSA** that is how she was awakened. Shri Singh argued that besides being discrepant Prabhawati did not cry that the accused was molesting her. This argument deserves to be rejected as victim crying or shouting for help at dead of night is not expected in her cries for help to give out the entire prosecution story. The anxiety of the victim is to get help. Besides if a miscreant enters a house at dead of night he would loosely be described as a thief whatever be his intention. The discrepancies and contradictions urged by Shri Singh on the point are natural and therefore inconsequential. They do not affect the prosecution case.

15. Shri Singh also argued that Prabhawati in her case diary statement (Ex. D/1) had omitted to state about the accused pulling her blouse, attempting to rape her (Khota Kam Karana); Rajesh sleeping by her; accused giving her fist blows and her tooth having got partially dislocated due to blows.

16. The relevant cross-examination are paras 42 and 43 of Statement of Prabhawati (P.W. 1); Cross-examination of Haresingh Rathore (P.W. 10) paras 23 and 24, F.I.R. (Ex. P. 1) and case diary statement is Ex. D/1. It would have been better that omissions sought to be elicited in the statement of Prabhawati (P.W. 1) with reference to F.I.R. (Ex. P-1) and case diary statement (Ext. D/1) were separately put to the witnesses and putting questions about omission with reference to two documents at the same place could lead to confusion. It is also seen that there is no compliance with the latter part of Section 145 of the Evidence Act, 1872. It was intended to contradict Smt. Prabhawati (P.W. 1), (P.W. 1) with her previous statement before writing could be proved by Haresingh Rathore (P.W. 10), it was necessary that her attention was called to those parts of two statements separately which were to be used for the purpose of contradicting her. On going through F.I.R. (Ex. P1) I find that while the witness Prabhawati omitted to state about fist blow, she has substantially given out the same story as given in the Court. On going through her case diary statement brought on record by defence to prove omission, I find that omissions do not, in fact, exist, for instance in the case diary statement there is mention of Rajesh sleeping near her though not on a cot, about accused giving her slap and fist blows. Confusion on the point could have been avoided if the contradictions or omissions with reference to the two documents were separately elicited. Be whatever it may the omissions, if any, are of a minor nature and do not affect credibility of Smt. Prabhawati (P.W. 1).

17. The medical evidence of Dr. Ajay Kumar Gulati (P.W. 2) also lends further corroboration to Prabhawati's statement.

18. I do however, find considerable force in Shri Singh's contention that identification of torch allegedly seized from the accused and said to have been taken away from Prabhawati's house is not satisfactory. Prabhawati (P. W. 1) in para 41 of her statement admitted that torch she identified bore a chit while the other torches mixed for comparison did not bear any chit. The witness, no doubt, maintained that she identified her torch but did not give any reason how she could so. It would not be safe to act on her court's identification of the torch. Offence, therefore, Of committing theft of torch must be held not made out.

19. An attempt was made by defence to establish presence of Hemlata, niece of Prabhawati, at the place of incident which Prabhawati (P.W. 1), Rajesh (P.W. 3) and Ramgopal (P.W. 5) all denied. The purpose of this cross-examination is not intelligible from the record.

20. The defence filed three documents to prove enmity with Ramgopal (P.W. 5). The trial Court has rightly observed that in the case there is evidence besides that of Ramgopal and rightly rejected that the case was falsely concocted against the appellant due to enmity.

21. The appellant was also charged under Section 459, I.P.C. causing grievous hurt while committing lurking house trespass or house breaking. The learned Additional Judge held that it is not established that the appellant had caused grievous hurt and acquitted the appellant of the charge under Section 459, I.P.C. The learned Judge had found the appellant guilty under Section 380, I.P.C as also under Section 354, I.P.C. From his judgment it also appears that he found that the appellant had committed lurking house trespass by night and that he was armed with a knife. The appellant may not have caused grievous hurt but the learned Additional Judge, should have considered whether offences under Sections 456, 457 and 458, I.P.C. were made out against the appellant even though offence under Section 459, I.P.C. was not made out. However, as State has not filed any appeal against acquittal for the offence under Section 459, I.P.C. or allied offences, referred to above, this point does not require further discussion.

22. It is in evidence that the appellant had gone during night armed with a knife and threatened Rajesh with death with knife when he tried to intervene between accused and Smt. Prabhawati (P.W.1). Offence of Criminal intimidation under Section 506(B) has rightly been held made out against the appellant.

23. As for the revision praying for enhancement of sentence, the sentence awarded to the appellant is sufficiently severe and no enhancement in the same is called for.

24. As a result of the aforesaid discussion, conviction of the appellant under Section 380, I.P.C. and sentence for the same are set aside. Conviction under Sections 354 and 506 (B), I.P.C. and sentence imposed thereunder, considering the circumstances of the case are maintained. The appeal is disposed of in the above terms and partly allowed. The appellant is on bail, he shall surrender and serve out remaining sentence. The revision is dismissed. Order regarding disposal of the property passed by the trial Court is maintained.