Dinesh Jaiswal Vs. State of M.P. - Court Judgment

Excerpt:
- transfer of property act, 1882 [c.a. no. 4/1882]. section 122; [s.b. sinha & h.s. bedi, jj] gift proof of acceptance held, gifts do not contemplate payment of any consideration or compensation. it is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. t.p. act does not prescribed any particular mode of acceptance. it is the circumstances attending to the transaction which may be relevant for determining the question. there may be various means to prove acceptance of a gift. the document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. the fact that possession had been given to the donee also raises a presumption of acceptance. concept of payment of consideration in whatever form is unknown in the case of a gift. it should be a voluntary one. it should not be subjected to any undue influence. while determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. it is not a case that the appellant was not aware of the recitals contained in deeds of gift. the very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. even a silence may sometime indicate acceptance. zit is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift. the evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. there may be cases where slightest evidence of such acceptance would be sufficient. there may be still cases where the circumstances themselves eloquently speak to such acceptance. normally when a person gifts properties to another and it is not an onerous gift, one may expect he other to accept such a gift when once it comes to his knowledge, since normally, any person would be only too willing to promote his own interest. may be in particular cases there may be peculiar circumstances which may show that the donee would not have accepted the gift. one would have to look into the circumstances of the case in order to see whether acceptance could be read. mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. essentially, this is a question of fact to be considered on the background of circumstances of each case. it is no doubt true that delivery of possession of gifted properties is n essential condition of the validity of the gift and its operative nature under the muslim law and it would be for the donee to establish it. when a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. when such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. when such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. once a gift is complete, the same cannot be rescinded. for any reason whatsoever the subsequent conduct of a donee cannot be a ground for recession of a valid gift. indian evidence act,1872[c.a.no.1/1872] section 91: [s.b. sinha & h.s. bedi, jj] gift presumption held, where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. it is an admission binding on the donor and those claiming under him. such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. section 91 of the evidence act covers both contract as also grant and other types of disposal of property. a distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deed of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life. - 11) 20. it has also been submitted that the evidence clearly showed that the appellant had been arrested from the house of the prosecutrix which proved the factum of rape. as per the prosecutrix she had caused these injuries to the appellant during the time of rape and thereafter that the accused had caused her three minor injuries as well whereas the case of the appellant is that he had gone to her house to recover his cow and in a quarrel that followed both had received injuries. singh has however placed reliance on moti lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. 8. we are of the opinion that the present matter is indeed an exceptional one.order1. the facts leading to the appeal are as under:at about 4.00 p.m. on 8th july, 1987 the prosecutrix (pw-1) was alone in her house situated in village magrohar, police station rampur naiken. the appellant, who was known to her, entered the house and after having inflicted three tangi blows on her head and hands, raped her. the prosecutrix also, in defence, snatched the tangi from the appellant and caused several injuries on his head while he was leaving the room. as a result of the injuries suffered, both became unconscious. in the meanwhile, sampat the husband of the prosecutrix, arrived at the scene and she told him about what had happened. she also called babulal (pw-2) her son and shivbalak (pw-3) a distant relative, and they along with several other persons reached the spot. the prosecutrix thereafter accompanied by her husband sampat, babulal and the others afore referred lodged the first information report (exhibit p-1) at police chowki khaddi on the same day at about 7.30 p.m. the prosecutrix was also sent for a medical examination which was carried out the next day by dr. kalpana ravi (pw-5), who found three injuries on her and further recorded that as she was a married woman of 42 years, it had not been possible to give a categoric opinion about any recent sexual encounter. the appellant was also examined by dr. s.b. khare (pw-6) and his report ex. p-6/a revealed six injuries, several of them on the head including injury no. 6, which was grievous as his teeth had been knocked out. on the completion of the investigation a charge for offences punishable under sections 376, 323 and 506 of the indian penal code was framed. the appellant denied the charge and was brought to trial. during the course of the trial, pws 2 and 3, babulal and shivbalak the son and relative of the prosecutrix who had reached the place of incident, soon after the alleged rape, were declared hostile and they gave a version contrary to what had been deposed to by the prosecutrix. the trial court also found, endorsing the view of dr. kalpana ravi (pw-5), that as the prosecutrix was a married woman, it was impossible to give a categoric opinion about any recent sexual intercourse but relying on the sole testimony, of the prosecutrix, sentenced the appellant to undergo rigorous imprisonment for 10 years under section 376 of indian penal code and to other terms of imprisonment for the other offences. the high court dismissed the appeal and confirmed the sentence. the matter is before us after the grant of special leave. 2. the learned counsel for the appellant has raised three arguments during the course of hearing. he has first pointed out that the two primary witnesses, both relatives of the prosecutrix, including babulal her son had been declared hostile and had not supported the prosecutrix's case and as the story preferred by her was far fetched, it could not be believed. it has also been submitted that the medical evidence which could be a corroborating factor, too was uncertain, as dr. kalpana ravi had stated that the factum of rape could not be ascertained. the learned counsel has finally emphasised that the defence version that the appellant had reached the house of the prosecutrix to recover his cow and in a quarrel between them that followed/ both had suffered injuries and that he had thereafter been falsely implicated in a case of rape. to highlight this argument, the learned counsel has referred us to the medical evidence of dr. s.b. khare (pw-6).3. mr. cd. singh, the learned counsel for the respondent state has however submitted that the prosecutrix case was liable to be believed and has relied upon the judgment of this court in [motilal v. state of madhya pradesh] : 2008 scc (vol. 11) 20. it has also been submitted that the evidence clearly showed that the appellant had been arrested from the house of the prosecutrix which proved the factum of rape.4. we have heard the learned counsel for the parties at length. we find that this case is rather an unusual one. the fact that the appellant was in the house of the prosecutrix is admitted on both sides. the prosecution story that the appellant a young man of 31 years had been overpowered by a much older woman is rather difficult to believe. the injuries received by the appellant are given below:1. parted wound, whose shape is 1.5 cm. x 1/5 cm. on the right side of the hand.2. swelled injury, whose shape is 1.5 cm. x 1 inch, which is on the upper side of the right hand.3. swelled injury, whose shape is 1/2' x 1/2', which is on the elbow of the left hand.5. the injury of accused are given below:1. parted wound, whose shape is 1 1/2 inch x 1/2 cm. x 1 cm. on the middle of the head.2. parted wound, whose shape is 1' x 1/2 cm. x 3 m.m. on the front side of the head.3. parted wound, whose shape is 1/2' x 1/2' cm. x 3 m.m. on the right of the head.4. swelled injury, whose shape is 1/2' x 1/2'.5. swelled injury, whose shape is 1' x 1/2' on the chin.6. two central incisers tooth and right canine tooth of upper jaw were broken and the enamles were swelled.6. injury no. 6 is a grievous one. as per the prosecutrix she had caused these injuries to the appellant during the time of rape and thereafter that the accused had caused her three minor injuries as well whereas the case of the appellant is that he had gone to her house to recover his cow and in a quarrel that followed both had received injuries. in any case as the investigating officer had not verified the statement of the appellant some corroboration for the prosecutrix's story was required. as already mentioned, her son babulal and shivbalak, a relative, who had reached the place of incident, were both declared hostile and did not support the prosecutrix. we find that even her husband sampat who had accompanied her to the police station to lodge the report did not come into the witness box and the doctor was also unable to confirm the factum of rape.7. mr. c.d. singh has however placed reliance on moti lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. there can be no quarrel with this proposition (and it has been so emphasised by this court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. the test always is as to whether the given story prima facie inspires confidence.8. we are of the opinion that the present matter is indeed an exceptional one.9. as already mentioned above, in our opinion, the story given by the prosecutrix does not inspire confidence. we thus allow this appeal, set aside the impugned judgments and direct that the appellant be acquitted.

Judgment:
ORDER

1. The facts leading to the appeal are as under:

At about 4.00 P.M. on 8th July, 1987 the prosecutrix (PW-1) was alone in her house situated in Village Magrohar, Police Station Rampur Naiken. The appellant, who was known to her, entered the house and after having inflicted three tangi blows on her head and hands, raped her. The prosecutrix also, in defence, snatched the tangi from the appellant and caused several injuries on his head while he was leaving the room. As a result of the injuries suffered, both became unconscious. In the meanwhile, Sampat the husband of the prosecutrix, arrived at the scene and she told him about what had happened. She also called Babulal (PW-2) her son and Shivbalak (PW-3) a distant relative, and they along with several other persons reached the spot. The prosecutrix thereafter accompanied by her husband Sampat, Babulal and the others afore referred lodged the First Information Report (Exhibit P-1) at Police Chowki Khaddi on the same day at about 7.30 p.m. The prosecutrix was also sent for a medical examination which was carried out the next day by Dr. Kalpana Ravi (PW-5), who found three injuries on her and further recorded that as she was a married woman of 42 years, it had not been possible to give a categoric opinion about any recent sexual encounter. The appellant was also examined by Dr. S.B. Khare (PW-6) and his report Ex. P-6/A revealed six injuries, several of them on the head including Injury No. 6, which was grievous as his teeth had been knocked out. On the completion of the investigation a charge for offences punishable under Sections 376, 323 and 506 of the Indian Penal Code was framed. The appellant denied the charge and was brought to trial. During the course of the trial, PWs 2 and 3, Babulal and Shivbalak the son and relative of the prosecutrix who had reached the place of incident, soon after the alleged rape, were declared hostile and they gave a version contrary to what had been deposed to by the prosecutrix. The trial court also found, endorsing the view of Dr. Kalpana Ravi (PW-5), that as the prosecutrix was a married woman, it was impossible to give a categoric opinion about any recent sexual intercourse but relying on the sole testimony, of the prosecutrix, sentenced the appellant to undergo rigorous imprisonment for 10 years under Section 376 of Indian Penal Code and to other terms of imprisonment for the other offences. The High Court dismissed the appeal and confirmed the sentence. The matter is before us after the grant of special leave.

2. The learned Counsel for the appellant has raised three arguments during the course of hearing. He has first pointed out that the two primary witnesses, both relatives of the prosecutrix, including Babulal her son had been declared hostile and had not supported the prosecutrix's case and as the story preferred by her was far fetched, it could not be believed. It has also been submitted that the medical evidence which could be a corroborating factor, too was uncertain, as Dr. Kalpana Ravi had stated that the factum of rape could not be ascertained. The learned Counsel has finally emphasised that the defence version that the appellant had reached the house of the prosecutrix to recover his cow and in a quarrel between them that followed/ both had suffered injuries and that he had thereafter been falsely implicated in a case of rape. To highlight this argument, the learned Counsel has referred us to the medical evidence of Dr. S.B. Khare (PW-6).

3. Mr. CD. Singh, the learned Counsel for the respondent State has however submitted that the prosecutrix case was liable to be believed and has relied upon the judgment of this Court in [Motilal v. State of Madhya Pradesh] : 2008 SCC (Vol. 11) 20. It has also been submitted that the evidence clearly showed that the appellant had been arrested from the house of the prosecutrix which proved the factum of rape.

4. We have heard the learned Counsel for the parties at length. We find that this case is rather an unusual one. The fact that the appellant was in the house of the prosecutrix is admitted on both sides. The prosecution story that the appellant a young man of 31 years had been overpowered by a much older woman is rather difficult to believe. The injuries received by the appellant are given below:

1. Parted wound, whose shape is 1.5 cm. X 1/5 cm. on the right side of the hand.

2. Swelled injury, whose shape is 1.5 cm. X 1 inch, which is on the upper side of the right hand.

3. Swelled injury, whose shape is 1/2' X 1/2', which is on the elbow of the left hand.

5. The injury of accused are given below:

1. Parted wound, whose shape is 1 1/2 inch X 1/2 cm. X 1 cm. on the middle of the head.

2. Parted wound, whose shape is 1' X 1/2 cm. X 3 m.m. on the front side of the head.

3. Parted wound, whose shape is 1/2' X 1/2' cm. X 3 m.m. on the right of the head.

4. Swelled injury, whose shape is 1/2' X 1/2'.

5. Swelled injury, whose shape is 1' X 1/2' on the chin.

6. Two central incisers tooth and right canine tooth of upper jaw were broken and the enamles were swelled.

6. Injury No. 6 is a grievous one. As per the prosecutrix she had caused these injuries to the appellant during the time of rape and thereafter that the accused had caused her three minor injuries as well whereas the case of the appellant is that he had gone to her house to recover his cow and in a quarrel that followed both had received injuries. In any case as the investigating officer had not verified the statement of the appellant some corroboration for the prosecutrix's story was required. As already mentioned, her son Babulal and Shivbalak, a relative, who had reached the place of incident, were both declared hostile and did not support the prosecutrix. We find that even her husband Sampat who had accompanied her to the police station to lodge the report did not come into the witness box and the doctor was also unable to confirm the factum of rape.

7. Mr. C.D. Singh has however placed reliance on Moti Lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence.

8. We are of the opinion that the present matter is indeed an exceptional one.

9. As already mentioned above, in our opinion, the story given by the prosecutrix does not inspire confidence. We thus allow this appeal, set aside the impugned judgments and direct that the appellant be acquitted.