Achhelal, and ors. Vs. State of Madhya Pradesh. - Court Judgment

Excerpt:
[mohit s. shah; s.j. vazifdar, jj.] - the respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. the respondents claim to be the assignees of this mark. the mark was assigned from time to time. ultimately by a deed of assignment dated 14.9.2004, the registered trade mark label 555 was assigned to the respondents. the application for renewal of the mark is pending. the respondents have used the trade mark label 555 in conjunction with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an.....1. appellants have preferred this appeal challenging their conviction and order of sentence passed by first additional sessions judge, teekamgarh in s.t. no.74/94, decided on 15.5.95.2. appellant achhelal has been convicted under section 376, 342 of ipc, while appellant amanchain has been convicted under section 376/34, 342/34 of ipc and each of them sentenced to rigorous imprisonment for four years and three months for the respective offences by the impugned judgment. both the sentences were directed to run concurrently.3. according to prosecution, on 15.6.94 about 6 'o'clock in the evening at village minoura appellant amanchain came to the house of the prosecutrix in presence of her mother-in-law and sister-in-law and called her to his house for certain talks. prosecutrix asked her.....

Judgment:
1. Appellants have preferred this appeal challenging their conviction and order of sentence passed by First Additional Sessions Judge, Teekamgarh in S.T. No.74/94, decided on 15.5.95.

2. Appellant Achhelal has been convicted under Section 376, 342 of IPC, while appellant Amanchain has been convicted under Section 376/34, 342/34 of IPC and each of them sentenced to rigorous imprisonment for four years and three months for the respective offences by the impugned judgment. Both the sentences were directed to run concurrently.

3. According to prosecution, on 15.6.94 about 6 'O'clock in the evening at village Minoura appellant Amanchain came to the house of the prosecutrix in presence of her mother-in-law and sister-in-law and called her to his house for certain talks. Prosecutrix asked her mother-in-law and then went alongwith appellant Amanchain to the nearby house of appellant Achhelal, where his mother Jankiya and two sisters were also present; her sister-in-law Karodibai also fallowed her. On reaching the house of appellant Achhelal, appellant Amanchain called appellant Achhelal and asked him to do whatever he liked to do with the prosecutrix. When Jankiya, the mother of appellant Achhelal tried to forbid him, appellant Achhelal ran to beat her by breaking a bottle of glass and forcibly took away the prosecutrix into his room. Prosecutrix screamed, but appellant Amanchain bolted the doors of the room; appellant Achhelal then took her inside the room, fell her on the ground and committed forcible sexual intercourse with her. Prosecutrix somehow came out in the middle room, then appellant Amanchain opened the doors and the prosecutrix went back to her house and narrated the whole incident to her husband, mother-in-law and the village people and thereafter went to Police Post Khiriya to lodge the FIR. On the basis of her report, an offence was registered against the appellants at Police Station Kotwali, Teekamgarh and was investigated. Prosecutrix was sent for medical examination. The spot map was drawn and broken bangles were seized from the spot. On being arrested, appellant Achhelal was also sent for medical examination. The vaginal slide of the prosecutrix and her petticoat collected during her medical examination were seized by the Police and sent for chemical analysis. After due investigation, appellants were prosecuted under Section 376, 342/34 of IPC and were put to trial.

4. Appellants Achhelal and Amanchain denied the charges framed against them under Section 342, 376 and Section 342/34, 376/34 of IPC respectively. They pleaded false implication due to enmity.

5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellants guilty, convicted and sentenced them as aforesaid, by the impugned judgment, which has been challenged in this appeal.

6. Learned counsel for the appellants submitted that the trial court gravely erred in convicting the appellants on the basis of unreliable and unnatural evidence of the prosecutrix and the related witnesses without any independent corroboration and despite negative medical evidence and it failed to consider that appellants were falsely implicated due to enmity.

7. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellants.

8. Perused the evidence on record. Prosecutrix (P.W-8) deposed in her evidence that at the relevant time about 6 'O'clock in the evening when she was at her home alongwith her mother-in-law Ramkunwar and sister-in-law Kashibai, appellant Amanchain abused her from his roof and called her to have some talks. When she asked her mother-in-law, she did not permit her to go out, then appellant Amanchain came in her courtyard and forced her to come alongwith him. According to prosecutrix (P.W-8), she then stood at the doors alongwith her sister-in-law Kashibai and saw appellant Achhelal on his roof, his sisters and mother were also there in the house; appellant Amanchain asked appellant Achhelal to fulfill his vow, appellant Achhelal then came down, his mother tried to forbid him, but appellant Achhelal intimidated her and forcibly dragged the prosecutrix inside his room, and appellant Amanchain bolted the doors from outside and kept standing at the doors. Prosecutrix (P.W-8) further deposed that appellant Achhelal took her into the room, fell her on the ground and committed forcible sexual intercourse with her, on her screaming, appellant Amanchain standing with axe at the doors intimidated her to kill her by axe; after completing sexual act, appellant Achhelal fled away, prosecutrix then came out and narrated the whole incident to her husband and mother-in-law and reported the matter at Police Post Khiriya, vide FIR (Ex.P-6).

9. The husband of the prosecutrix, namely, Arjun (P.W-7) and her mother-in-law Ramkunwar (P.W-2) also tried to support the aforesaid version given by the prosecutrix. According to Ramkunwar (P.W-2), appellant Amanchain, who is her brother-in-law, had come to her house and called her daughter-in-law (prosecutrix) to his house and then appellant Achhelal came from the roof and dragged her inside his house, while appellant Amanchain kept standing at the doors with an axe and thereafter her daughter-in-law, (the prosecutrix) came weeping and complained of rape by appellant Achhelal. As per deposition of Arjun (P.W-7), when he was on the roof of his house, appellant Amanchain had come to his house and called his wife (prosecutrix) to have some talks and on her reaching there, appellant Achhelal came there, dragged prosecutrix inside the room, while appellant Amanchain bolted the doors, after sometime, prosecutrix came out weeping and told his mother that she was ravished by appellant Achhelal. According to Arjun (P.W-7), he had asked appellant Amanchain to open the doors, but he declined saying that appellant Achhelal was talking inside, then he peeped from the roof and found that appellant Amanchain was standing on the doors with an axe and his wife was inside the room with appellant Achhelal.

10. The aforesaid witnesses were cross-examined at length. The main submission of the learned counsel for the appellants has been that the evidence of the prosecutrix (P.W-8) and that of her husband Arjun (P.W-7) and mother-in-law Ramkunwar (P.W-2) is inter se contradictory, unnatural, unbelievable and not supported even by medical evidence. According to learned counsel for the appellants, the alleged story of appellant Achhelal dragging the prosecutrix into his room in presence of inmates of his house and commission of rape by him is per se unnatural and lacks credence and cannot be relied upon.

11. Upon close scrutiny of the entire evidence on record, it is revealed that the evidence of the prosecutrix (P.W-8), who is an adult married woman, and the alleged story of rape by appellant Achhelal, as narrated by her, does not find corroboration from the medical evidence and the other evidence on record. According to prosecutrix (P.W-8), appellant Achhelal had dragged her inside the room and fell her on the ground and she also sustained abrasion in her legs and injuries in her hands due to breaking of the bangles, but Dr. Usha Jain (P.W-9), who examined the prosecutrix very next day, did not find any external injuries or marks of struggle on her body. Dr. Usha Jain (P.W-9) also did not find any injury on her genitals or any matting of her pubic hair or stains over her private parts or inner aspect of the thigh, although as per statement of prosecutrix (P.W-8), she remained at Police Post Khiriya for the whole night after lodging of the report and was medically examined very next day at Teekamgarh and did not go back to her house in the meantime. Her vaginal slide and petticoat collected by the doctor were also sent for chemical analysis vide memo Ex.P-12, as deposed by A.S.I. Keshav Prasad (P.W-10), but there is no chemical report on record to indicate that any sperm or seminal stains were found on the petticoat or vaginal slide of the prosecutrix so as to substantiate her version of rape.

12. According to prosecutrix (P.W-8), at the time of alleged rape by appellant Achhelal, Pappu had opened the doors and had seen appellant Achhelal committing rape with her, but Pappu @ Ghanshyam (P.W-12) has not supported this version and he simply testified about some quarrel between Arjun (P.W-7) and the mother of appellant Achhelal. The other independent witness Mulu (P.W-13) also did not support the version of the prosecutrix and merely deposed about some quarrel among ladies. Prosecutrix's husband Arjun (P.W-7) and her mother-in-law Ramkunwar (P.W-2) also deposed about some quarrel at the house of appellant Achhelal situated in the same compound.

13. Although Pappu @ Ghanshyam (P.W-12) and Mulu (P.W-13) have been declared hostile to prosecution, but the evidence of prosecutrix (P.W-8), her husband Arjun (P.W-7) and mother-in-law Ramkunwar (P.W-2) itself is not found to be of sterling quality. According to prosecutrix (P.W-8), as deposed by her in para 4 of her evidence, the mother of appellant Achhelal and his two sisters were present at the time of alleged incident and her sister-in-law Kashibai was also with her, when she came out Pappu Yadav, her mother-in- law and other villagers had also come there. Thus, the alleged story of rape with the prosecutrix by appellant Achhelal in connivance with appellant Amanchain in presence of the inmates of their house and number of other persons, appears to be quite unnatural and unbelievable and does not inspire confidence. Certain improvements and exaggerations in the version given by the prosecutrix, particularly during her cross-examination, are also clearly noticeable rendering her testimony infirm and suspicious.

14. The husband of the prosecutrix, namely, Arjun (P.W-7) has also tried to pose as an eyewitness to the incident, but he did not come to the rescue of his wife. According to Arjun (P.W-7), on seeing appellant Achhelal dragging his wife (prosecutrix) inside his room he came down from the roof and asked appellant Amanchain to open the doors, but on his declining he went back to the roof and peeped from there, but he did not himself desist the act of the appellants and did not try to save his wife, which appears to be an unnatural conduct of a husband. His presence on the roof was also not known to the prosecutrix (P.W-8), as deposed by her, though she had seen appellant Achhelal there on the roof. As per the evidence of Arjun (P.W-7) and his mother Ramkunwar (P.W-2), prior to the incident there was some quarrel between two appellants on their roof, and soon thereafter the happening of the alleged incident with the prosecutrix (P.W-8) gives rise to a suspicion that some distorted version has been given by these witnesses. Needless to point out that Ramkunwar Bai (P.W-2) has admitted that she had strained relations with the family of the appellants, though they were related to her.

15. It is also significant to note that Gyan @ Karodi Bai (P.W-1), the sister-in-law of the prosecutrix also did not support the version of the prosecutrix earlier and was treated hostile to the prosecution and it was only on suggestions made by the Public Prosecutor during her cross-examination that she deposed certain facts against the appellants, though ultimately she did not remain firm in her cross-examination by the defence. It is also noticeable that Chowkidar of the village, namely, Pyarelal Khangar (P.W-4), who went with the prosecutrix to lodge the report, did not disclose that prosecutrix ever complained to him about the alleged commission of rape by appellant Achhelal in connivance with appellant Amanchain.

16. The role attributed to appellant Amanchain by the prosecutrix and the various witnesses that he stood at the doors with an axe is inter se contradictory and full of exaggeration and not free from suspicion.

17. In fact, on careful scanning of the entire evidence of prosecutrix (P.W-8), her husband Arjun (P.W-7) and mother-in-law Ramkunwar Bai (P.W-2), the same is not found to be cogent, natural and trustworthy and the evidence of the prosecutrix (P.W-8), in particular, about commission of rape with her, does not inspire confidence. Needless to add that it remains uncorroborated from the medical evidence and the other evidence.

18. No doubt, in a rape case the sole testimony of the prosecutrix can be the basis of the conviction if it inspires confidence. But, if the evidence of the prosecutrix seems to be doubtful and lacks credence, it cannot be acted upon. It would be profitable to refer to the following observation made by the Apex Court in the case of Sadashiv Ramrao Hadbe v. State of Maharashtra and another reported in (2006) 10 SCC page 92 :-

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."

19. In view of the foregoing discussion and in the wake of infirmities noted in the evidence of the prosecutrix (P.W-8) and the other related witnesses, rendering their testimony doubtful and unreliable, the evidence placed on record did not establish the guilt of the appellants beyond periphery of doubt. Thus, the conviction of appellants Achhelal and Amanchain, as recorded by the trial court under Section 376, 342 and 376/34, 342/34 of IPC respectively cannot be safely maintained.

20. Appeal is, therefore, allowed. The conviction of appellants Achhelal and Amanchain and the sentences awarded to them under Section 376, 342 and 376/34, 342/34 of IPC respectively are hereby set aside and they are acquitted of the aforesaid charges.

21. Appellants are on bail. Their bail bonds shall stand discharged.