Shyam Singh. Vs. the State of Madhya Pradesh. - Court Judgment

Excerpt:
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. this is the reasons why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the act would always remain first charge and shall be paid first out of the assets of the establishment notwithstanding anything contained in any other law for the time being in force. it is, therefore, reasonable to take the view that the statutory first charge created on the assets of the establishment by sub-section (2) of section 11 and priority given to the payment of any amount due from an employer will operate against all types of debts.in the instant case the sugar mill had pledged sugar bags with bank as security for repayment of loan. the attachment and sale of these sugar bags for realisation of p.f dues was challenged by the bank on ground that by virtue of the deeds of pledge executed by the sugar mills, the bank had become owner of the sugar bags and the same could not have been attached and sold for realisation of the amount due under the act.held, in the contract of pawn or pledges the pawnee/pledge has only a special property in the pledge but the general property remains with the pawner/pledgor and wholly reverts to him on discharge of debts. the right to property vests in the pledge only so far as necessary to secure his debt. therefore, the deeds of pledge executed by the management of the sugar mills as security for repayment of loan etc., did not have the effect of transferring of the ownership of the sugar bags to the bank and the recovery officer did not commit any illegality by attaching the same and the high courts was fully justified in directing payment of a portion of the sale price to the assistant commissioner for being appropriated towards the provident fund dues of the workers. section 11(2), 7-q & 14-b: provident fund dues priority in payment over all other debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of existing section 11 priority has been given to the amount due from an employer in relation to an establishment to which any scheme or fund is applicable including damages recoverable under section 14-b and accumulations required to be transferred under section 15 (2). the legislature was also aware that in case of delay the employer is statutorily responsible to pay interest in terms of section 17, therefore, there is no plausible reasons to give a restricted meaning to the expression any amount due form the employer and confine it to the amount determined under section 7-a or the contribution payable under section 8. if interest payable by the employer under section 7-q and damages leviable under section 14 are excluded from the ambit of expression any amount due from an employer, every employer will conveniently refrain from paying contribution to the fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in section 11 (2). it cannot be said that the amount of interest payable under section 7-q and damages leviable under section 14-b do not form part of the amount due from an employer for the purpose of section 11(2) of the act, and cannot, therefore, be treated as first charge on the assets of the establishment payable in priority to all other debts within the meaning of section 11 (2). 1. appellant has preferred this appeal challenging his conviction and order of sentence passed by sessions judge, seoni in s.t. no.12/94, decided on 9.11.95.2. appellant has been convicted under section 376 of ipc for committing rape on a minor girl aged about sixteen years and sentenced to rigorous imprisonment for seven years with fine of rs.200/-, in default further rigorous imprisonment for two months, by the impugned judgment.3. according to prosecution, on 08.10.93 about 11 'o'clock in the noon at village poniya, when prosecutrix aged about sixteen years was going to the field of chintaman to cut the crop alongwith kiran bai, raghan bai, kanta and others, appellant met her on the way; appellant was loading bundles of grass on his bicycle. as soon as he saw the prosecutrix, he left his cycle and the bundle of grass, came to her, caught hold of her hand and began abusing and dragging her. prosecutrix shouted for help, then appellant intimidated her and slapped her. when her companions tried to object, appellant threatened them also and asked them to run away, else he would kill them. when the prosecutrix was left alone, appellant gaged her mouth, intimidated her and dragged her to the field of sawan mahajan, undressed her amidst the standing crop and committed forcible sexual intercourse with her. by that time, the mother of the prosecutrix and other villagers came there, appellant then fled away. the fir of the incident was lodged by the prosecutrix at police station barghat, district seoni, on the basis of which an offence was registered against the appellant and was investigated. prosecutrix was sent for medical examination. her school certificate was also seized by the police regarding confirmation of her age. on being arrested, appellant was also sent for medical examination. the slides and underwear of the prosecutrix and the appellant collected during their medical examination were sent for forensic examination. after due investigation, appellant was prosecuted under section 366 and 376 of ipc and was put to trial.4. appellant denied the charge levelled against him under section 376 of ipc and pleaded false implication due to village rivalry. according to appellant, the parents of the prosecutrix wanted to marry her with the appellant, but on denial of the proposal by his parents, he was falsely implicated.5. learned sessions judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for committing offence under section 376 of ipc, convicted and sentenced him as aforesaid, by the impugned judgment, which has been challenged in this appeal.6. learned counsel for the appellant submitted that the trial court gravely erred in convicting the appellant on the basis of unnatural and unreliable testimony of the prosecutrix despite negative medical evidence and delayed fir. learned counsel for the appellant further submitted that though the trial court recorded a finding that the prosecutrix was over sixteen years of age, yet it failed to consider that the episode as narrated by her virtually indicated that she was a consenting party and that appellant was falsely implicated.7. learned counsel for the state, on the other hand, justified and supported the impugned judgment.8. perused the evidence on record. the date of birth recorded in the school certificate (ex.p-5) of the prosecutrix seized from her vide seizure memo (ex.p-4) indicated that the prosecutrix was over sixteen years of age on the date of alleged incident. prosecutrix (p.w-2) herself testified her date of birth to be 20.9.77 and also affirmed the seizure of the school certificate (ex.p-5), which also mentioned her date of birth as 20.9.77, while the alleged incident occurred on 8.10.93. the mother and father of the prosecutrix have not come forward to give evidence that the prosecutrix was under sixteen years of age or the date of birth recorded in her school certificate (ex.p-5) was incorrect. in absence of any other contrary evidence, the finding recorded by the trial court on the basis of school certificate (ex.p-5) that the prosecutrix was over sixteen years of age at the time of alleged incident, does not suffer from any infirmity.9. as regards the incident, prosecutrix (p.w-2) deposed in her evidence that when she was going to cut the crop in the field alongwith kiran, kanta and sundar bai, appellant was loading grass on his bicycle on the way, he began hurling abuses. according to prosecutrix (p.w-2), appellant had pulled her by hand, when she shouted and kanta intervened, appellant asked her to be silent, then prosecutrix told her mates to go and inform her mother. thereafter appellant dragged her, pulled her hair, slapped her and took her to the field of sawan mahajan and committed forcible sexual intercourse with her. as per statement of the prosecutrix (p.w-2), when her mother and aunt came there screaming, she pushed the appellant and fled away and narrated the whole incident to her mother.10. although kanta bai (p.w-3), who was accompanying the prosecutrix, deposed that the appellant had pulled the hand of the prosecutrix, but according to her, on being intimidated by him she and her other mates had gone away and she did not know what happened thereafter. thus, the evidence of kanta bai (p.w-3) does not indicate that the prosecutrix was subjected to rape by the appellant.11. medical evidence on record also does not lend corroboration to the version made by the prosecutrix (p.w-2). dr. vidya jatar (p.w-1), who medically examined the prosecutrix on 9.10.93, did not find any external or internal injury over the body of the prosecutrix, except one small abrasion of 2 mm x 2 mm on her right wrist. as per the evidence of dr. vidya jatar (p.w-1), there was no matting of the hair, no discharge from the introitus, hymen showed multiple old healed tears, vagina admitted two fingers easily and no internal injury felt. according to dr. vidya jatar (p.w-1), prosecutrix was found accustomed to sexual intercourse and no definite opinion of rape with her could be given.12. learned counsel for the appellant strenuously urged that the story of rape, as narrated by the prosecutrix, was quite unnatural and unreliable that she would be subjected to rape in broad daylight in the field and that too by pulling her from the company of her three mates. when the entire evidence of the prosecutrix (p.w-2) is closely and minutely examined, the submission made by learned counsel for the appellant appears to have some force. prosecutrix (p.w-2) was admittedly moving alongwith her three mates about 11 'o'clock and one of them was also holding sickle, yet the prosecutrix was allegedly pulled from their company and dragged to a distance of one and half furlong, which appears to be quite unnatural. according to prosecutrix (p.w-2), she had asked her mates to inform her mother, but she did not ask them to rescue her, though one of them was also having sickle. it also appears pretty unnatural that her mates despite having sickle for cutting the crop would not come to her rescue and would simply walk away on oral intimidation by the appellant.13. according to the version given by the prosecutrix (p.w-2), in para 14 of her deposition, appellant fell her on the ground and pressed her, also scratched over her body and committed forcible sexual intercourse with her nearly for half an hour, yet she did not sustain any scratch mark or external injury over her body except one very small abrasion over her wrist as per medical evidence of dr. vidya jatar (p.w-1). the statement of the prosecutrix (p.w-2) in para 16 of her deposition that on hearing the voice of her mother, she readily put on her clothes, also indicates her suspicious and consensual conduct.14. according to prosecutrix (p.w-2), she had bleeding from her vagina and she had also complained of pain to the doctor, but dr. vidya jatar (p.w-1), on internal examination of the prosecutrix, did not find any blood stain or any internal injury on her private part, nor any complaint of pain or tenderness in her vagina was found by the doctor (p.w-1), which creates suspicion as to the truthfulness of the version of rape given by the prosecutrix.15. dr. vidya jatar (p.w-1) had also prepared the vaginal slides of the prosecutrix and also collected her underwear, but there was no chemical report on record to indicate that any seminal stains or sperms were found on her slides or underwear.16. in fact, the allegation of rape against the appellant as narrated by the prosecutrix (p.w-2) in her evidence, does not inspire confidence. her statement that appellant dragged her on the way and committed forcible sexual intercourse with her by pulling her away from the company of her three-four mates, without their coming to her rescue and without the prosecutrix herself offering any active resistance while being dragged for one and half furlong and being allegedly subjected to rape for nearly half an hour without any hue and cry and without attracting any crowed, appears to be quite unnatural, unreliable and suspicious. the suspicion as to the veracity of the testimony of the prosecutrix becomes stronger when it does not find corroboration from the medical evidence and surrounding circumstances. even the parents of the prosecutrix have not come forward to depose against the appellant or to lend corroboration to the testimony of the prosecutrix, which probablise the defence plea of false implication taken by the appellant.17. 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."18. in view of the foregoing discussion, when the evidence of the prosecutrix (p.w-2) herself is not inspiring confidence and appears to be unnatural and lacks credence, it cannot be accepted beyond periphery of doubt, particularly when it remains uncorroborated from the medical evidence and other evidence.19. thus the evidence on record does not establish beyond reasonable doubt that the appellant committed forcible sexual intercourse with the prosecutrix against her will and without her consent. the conviction of the appellant under section 376 of ipc, therefore, cannot be safely maintained.20. appeal is, therefore, allowed. the conviction of the appellant and sentence awarded to him under section 376 of ipc are hereby set aside. appellant is acquitted of the charge. appellant is on bail. his bail bonds shall stand discharged.

Judgment:
1. Appellant has preferred this appeal challenging his conviction and order of sentence passed by Sessions Judge, Seoni in S.T. No.12/94, decided on 9.11.95.

2. Appellant has been convicted under Section 376 of IPC for committing rape on a minor girl aged about sixteen years and sentenced to rigorous imprisonment for seven years with fine of Rs.200/-, in default further rigorous imprisonment for two months, by the impugned judgment.

3. According to prosecution, on 08.10.93 about 11 'O'clock in the noon at village Poniya, when prosecutrix aged about sixteen years was going to the field of Chintaman to cut the crop alongwith Kiran Bai, Raghan Bai, Kanta and others, appellant met her on the way; appellant was loading bundles of grass on his bicycle. As soon as he saw the prosecutrix, he left his cycle and the bundle of grass, came to her, caught hold of her hand and began abusing and dragging her. Prosecutrix shouted for help, then appellant intimidated her and slapped her. When her companions tried to object, appellant threatened them also and asked them to run away, else he would kill them. When the prosecutrix was left alone, appellant gaged her mouth, intimidated her and dragged her to the field of Sawan Mahajan, undressed her amidst the standing crop and committed forcible sexual intercourse with her. By that time, the mother of the prosecutrix and other villagers came there, appellant then fled away. The FIR of the incident was lodged by the prosecutrix at Police Station Barghat, District Seoni, on the basis of which an offence was registered against the appellant and was investigated. Prosecutrix was sent for medical examination. Her school certificate was also seized by the Police regarding confirmation of her age. On being arrested, appellant was also sent for medical examination. The slides and underwear of the prosecutrix and the appellant collected during their medical examination were sent for forensic examination. After due investigation, appellant was prosecuted under Section 366 and 376 of IPC and was put to trial.

4. Appellant denied the charge levelled against him under Section 376 of IPC and pleaded false implication due to village rivalry. According to appellant, the parents of the prosecutrix wanted to marry her with the appellant, but on denial of the proposal by his parents, he was falsely implicated.

5. Learned Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for committing offence under Section 376 of IPC, convicted and sentenced him as aforesaid, by the impugned judgment, which has been challenged in this appeal.

6. Learned counsel for the appellant submitted that the trial court gravely erred in convicting the appellant on the basis of unnatural and unreliable testimony of the prosecutrix despite negative medical evidence and delayed FIR. Learned counsel for the appellant further submitted that though the trial court recorded a finding that the prosecutrix was over sixteen years of age, yet it failed to consider that the episode as narrated by her virtually indicated that she was a consenting party and that appellant was falsely implicated.

7. Learned counsel for the State, on the other hand, justified and supported the impugned judgment.

8. Perused the evidence on record. The date of birth recorded in the school certificate (Ex.P-5) of the prosecutrix seized from her vide seizure memo (Ex.P-4) indicated that the prosecutrix was over sixteen years of age on the date of alleged incident. Prosecutrix (P.W-2) herself testified her date of birth to be 20.9.77 and also affirmed the seizure of the school certificate (Ex.P-5), which also mentioned her date of birth as 20.9.77, while the alleged incident occurred on 8.10.93. The mother and father of the prosecutrix have not come forward to give evidence that the prosecutrix was under sixteen years of age or the date of birth recorded in her school certificate (Ex.P-5) was incorrect. In absence of any other contrary evidence, the finding recorded by the trial court on the basis of school certificate (Ex.P-5) that the prosecutrix was over sixteen years of age at the time of alleged incident, does not suffer from any infirmity.

9. As regards the incident, prosecutrix (P.W-2) deposed in her evidence that when she was going to cut the crop in the field alongwith Kiran, Kanta and Sundar Bai, appellant was loading grass on his bicycle on the way, he began hurling abuses. According to prosecutrix (P.W-2), appellant had pulled her by hand, when she shouted and Kanta intervened, appellant asked her to be silent, then prosecutrix told her mates to go and inform her mother. Thereafter appellant dragged her, pulled her hair, slapped her and took her to the field of Sawan Mahajan and committed forcible sexual intercourse with her. As per statement of the prosecutrix (P.W-2), when her mother and aunt came there screaming, she pushed the appellant and fled away and narrated the whole incident to her mother.

10. Although Kanta Bai (P.W-3), who was accompanying the prosecutrix, deposed that the appellant had pulled the hand of the prosecutrix, but according to her, on being intimidated by him she and her other mates had gone away and she did not know what happened thereafter. Thus, the evidence of Kanta Bai (P.W-3) does not indicate that the prosecutrix was subjected to rape by the appellant.

11. Medical evidence on record also does not lend corroboration to the version made by the prosecutrix (P.W-2). Dr. Vidya Jatar (P.W-1), who medically examined the prosecutrix on 9.10.93, did not find any external or internal injury over the body of the prosecutrix, except one small abrasion of 2 mm x 2 mm on her right wrist. As per the evidence of Dr. Vidya Jatar (P.W-1), there was no matting of the hair, no discharge from the introitus, hymen showed multiple old healed tears, vagina admitted two fingers easily and no internal injury felt. According to Dr. Vidya Jatar (P.W-1), prosecutrix was found accustomed to sexual intercourse and no definite opinion of rape with her could be given.

12. Learned counsel for the appellant strenuously urged that the story of rape, as narrated by the prosecutrix, was quite unnatural and unreliable that she would be subjected to rape in broad daylight in the field and that too by pulling her from the company of her three mates. When the entire evidence of the prosecutrix (P.W-2) is closely and minutely examined, the submission made by learned counsel for the appellant appears to have some force. Prosecutrix (P.W-2) was admittedly moving alongwith her three mates about 11 'O'clock and one of them was also holding sickle, yet the prosecutrix was allegedly pulled from their company and dragged to a distance of one and half furlong, which appears to be quite unnatural. According to prosecutrix (P.W-2), she had asked her mates to inform her mother, but she did not ask them to rescue her, though one of them was also having sickle. It also appears pretty unnatural that her mates despite having sickle for cutting the crop would not come to her rescue and would simply walk away on oral intimidation by the appellant.

13. According to the version given by the prosecutrix (P.W-2), in para 14 of her deposition, appellant fell her on the ground and pressed her, also scratched over her body and committed forcible sexual intercourse with her nearly for half an hour, yet she did not sustain any scratch mark or external injury over her body except one very small abrasion over her wrist as per medical evidence of Dr. Vidya Jatar (P.W-1). The statement of the prosecutrix (P.W-2) in para 16 of her deposition that on hearing the voice of her mother, she readily put on her clothes, also indicates her suspicious and consensual conduct.

14. According to prosecutrix (P.W-2), she had bleeding from her vagina and she had also complained of pain to the doctor, but Dr. Vidya Jatar (P.W-1), on internal examination of the prosecutrix, did not find any blood stain or any internal injury on her private part, nor any complaint of pain or tenderness in her vagina was found by the doctor (P.W-1), which creates suspicion as to the truthfulness of the version of rape given by the prosecutrix.

15. Dr. Vidya Jatar (P.W-1) had also prepared the vaginal slides of the prosecutrix and also collected her underwear, but there was no chemical report on record to indicate that any seminal stains or sperms were found on her slides or underwear.

16. In fact, the allegation of rape against the appellant as narrated by the prosecutrix (P.W-2) in her evidence, does not inspire confidence. Her statement that appellant dragged her on the way and committed forcible sexual intercourse with her by pulling her away from the company of her three-four mates, without their coming to her rescue and without the prosecutrix herself offering any active resistance while being dragged for one and half furlong and being allegedly subjected to rape for nearly half an hour without any hue and cry and without attracting any crowed, appears to be quite unnatural, unreliable and suspicious. The suspicion as to the veracity of the testimony of the prosecutrix becomes stronger when it does not find corroboration from the medical evidence and surrounding circumstances. Even the parents of the prosecutrix have not come forward to depose against the appellant or to lend corroboration to the testimony of the prosecutrix, which probablise the defence plea of false implication taken by the appellant.

17. 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."

18. In view of the foregoing discussion, when the evidence of the prosecutrix (P.W-2) herself is not inspiring confidence and appears to be unnatural and lacks credence, it cannot be accepted beyond periphery of doubt, particularly when it remains uncorroborated from the medical evidence and other evidence.

19. Thus the evidence on record does not establish beyond reasonable doubt that the appellant committed forcible sexual intercourse with the prosecutrix against her will and without her consent. The conviction of the appellant under Section 376 of IPC, therefore, cannot be safely maintained.

20. Appeal is, therefore, allowed. The conviction of the appellant and sentence awarded to him under Section 376 of IPC are hereby set aside. Appellant is acquitted of the charge. Appellant is on bail. His bail bonds shall stand discharged.