Dhanraj Singh & Anr. vs State Of M.P. on 29 August, 2017

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Cr.A. No. 626/2003

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

SB: HON’BLE MR. JUSTICE S.A. DHARMADHIKARI

Criminal Appeal No. 626/2003

Dhanraj Singh Anr
Vs
State of M.P.
Whether reportable :- Yes /No

For appellants :Shri T.C. Bansal, learned
counsel for the appellants.
For Respondents : Mrs. Ami Prabal, Deputy Advocate
General For the respondent/State.
——————————————————————–
JUDGEMENT

(Delivered on this Day of 29th August, 2017)

1. This appeal has been filed by the appellants against the
judgment and order of conviction dated 19/09/2003 passed
by the Special Judge, Vidisha in Special Case No. 71 of 2003
by which the appellants have been convicted for the offence
under Sections 376(2) (g) IPC and sentenced them in the
following manner :-

S.N Name of the accused Convicted under Section Sentenced awarded to each
o. accused/appellant
1 Dhanraj Singh 376(2) (g) IPC RI for 10 years and fine of Rs.
1000/-each in default of payment of
fine to further undergo two months
RI
RI for 10 years and fine of Rs.
1000/-each in default of payment of
fine to further undergo two months
RI
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2 Pappu 376(2) (g) IPC RI for 10 years and fine of Rs.
1000/-each in default of payment of
fine to further undergo two months
RI

2. The facts leading to filing of this appeal are as under :
On 30/01/2003 at about 10.30 pm, Puran (P.W.5) who is
the Samdhi of Antram (P.W.4) father of the prosecturix
(P.W.3), lodged a complaint at Police Station, Ganjbasoda,
District Vidisha stating inter alia that the porseutrix has left
her home in village Sakroli without informing anybody at
about 4.00 pm on 30/01/2003. When they enquired
regarding whereabouts, it was informed that she was seen
with Pappu, appellant No.2 but the prosecutrix could not be
found. Accordingly, a report of missing person was
registered at No. 9/2003 which is marked as Ex.P.9. As per
the information received by the police on 01/02/2003, the
prosecutrix was traced from the house of Puran (P.W.5)
and Panchnama was prepared which is marked as Ex.P.5.
Accordingly the offence was registered which is marked as
Ex.P.11. On enquiry, it was found that Dhanraj had kept the
prosecutrix with her and the accused Pappu and Dhanraj
committed the offence with the prosecturix.

3. On this report (Ex.P.11), the Police registered a case
for the offence u/s 376(2) (g) IPC and Section 3(2)(5)
SC/ST (Prevention of Atrocities) Act ?

4. During investigation, the accused appellants pappu and
Dhanraj were got arrested on 03/02/2003. After usual
investigation, Challan was submitted for the offence under
Section 376 IPC and Section 3(2)(5) SC/ST Act against the
accused/appellants in the court of Magistrate and from
where, the case was committed to the Court of Special
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Judge, Vidisha.

5. The prosecutrix was sent for medical examination to
the Hospital where Dr. Hansa (P.W.2) examined. The
prosecutrix was also examined and x-ray was taken to
ascertain her age which was found to be around 18 years.
Both the accused were also sent for medical examination.

6. On 03/06/2003, the learned Special Judge, Vidisha
framed the charges against the accused appellants. The
charge were read over to the accused appellants who
pleaded not guilty and claimed trial. During trial, the
prosecution got examined as many as seven witnesses and
exhibited several documents. Thereafter, the statements of
the accused appellants under Section 313 of the Cr.P.C. were
recorded. In defence, no witnesses were produced by the
accused appellants. After conclusion of the trial, the learned
Special Judge, Vidisha vide judgment and order dated
19/09/2003 convicted the appellants for offence under
Section 376(2)(g) IPC and sentenced them in the manner as
stated above holding interalia :

(i) That, there was no reason to disbelieve the version of
the prosecutrix.

(ii) That, even though accused Dhanraj was the friend of
the prosecutrix but there was no consent on the part of the
prosecutrix, therefore, the offence stood proved.

(iii) That in view of Section 114A of the Evidence Act, the
statement of the prosecutrix (P.W.3) on the point of rape
was believed by the Trial Judge.

Aggrieved from the said judgment and order dated
19/03/2003, this appeal has been filed by the accused
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Cr.A. No. 626/2003

appellants.

7 In this appeal, the following submissions have been
made by the learned counsel appearing for the appellants :-

(i) That, the findings of conviction recorded by the learned
trial Judge against the appellants solely on the basis of
solitary statement of prosecutrix (P.W.3) are wholly
erroneous as the same is not supported by any other
evidence and furthermore, her statement does not inspire
confidence.

(ii) That, no injury on any part of the body of the
prosecutrix including the private part was found when two
persons commit rape forcibly, absence of injury on the
person of the prosecutrix including private part leads to the
conclusion that no offence was committed or if committed, it
was committed with the tacit consent of the prosecutrix.

(iii) No definite opinion of the doctor with regard to
committing rape can be seen from the medical report.

(iv) In the statement of the prosecutrix, it can be seen that
there was no resistance of any kind. The version of the
prosecutrix is also not definite and does not inspire
confidence, therefore, her statement should not have been
believed by the Trial Court.

8. On the other hand, the learned Public Prosecutor
supported the judgment and order passed by the learned
Special Court, vidisha.

9. I have heard the learned counsel for the appellants and
the learned Public Prosecutor and gone through the record
of the case.

10. Before proceeding further, first medical evidence of this
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Cr.A. No. 626/2003

case has to be seen which is found in the medical
examination report Ex.P.1. A bare perusal of the medical
report reveals that on 02/02/2003, the prosecutrix was got
medically examined by the lady doctor of the Civil Hospital,
Ganjbasoda and the concerned doctor did not find any injury
on any part of her body including private parts and gave the
opinion as under :-

(i) That, after examination, no definite opinion can be
given whether the rape was committed or not ?

(ii) That, the age of the prosecutrix is around 18 years, 6
months plus/minus.

(iii) That, had there been any resistance, then there ought
to have been marks of bodily injury.

11. Thus, from the medical examination report Ex.P.4 of
the prosecutrix, it can be easily concluded that the medical
evidence on the point of rape is not available as she was not
having any injury on any part of her body including private
parts.

12. The main evidence in all such cases is of the victim
herself. The corroboration of the testimony of the
prosecutrix in a rape case is not required as a rule of law.
The corroboration may be by facts and circumstances. The
injury on the person of the victim, especially her private
parts have corroborative value. In the present case, no
medical evidence on the point of committing offence is
available. In a rape case, the onus is always on the
prosecutrix to prove affirmatively each ingredients of the
offence, it seeks to establish and such onus never shifts.
However, great the suspicion against the accused and
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Cr.A. No. 626/2003

however strong the moral belief and conviction of the Judge,
unless the offence of the accused is established beyond
reasonable doubt, he can not be convicted for an offence.
The accused is entitled to the benefit of every reasonable
doubt.

13. If there is resistance of the prosecutrix during sexual
intercourse, she is expected to receive injuries on her
person. The absence of injuries on the body of the
prosecutrix , generally, gives rise to an inference that she
was a consenting party. Where, the prosecutrix has received
multiple injuries on the various parts of her body, it
indicates that she offered resistance when she was
subjected to sexual intercourse. The absence of injuries
either on the accused or on the prosecutrix show that the
prosecutrix did not resist. Absence of injuries is not by itself
sufficient to hold that the prosecutrix was the consenting
party.

14. In the light of the above legal position, it would be
appropriate to examine the statement of the prosecutrix and
other evidence.

15. Dr. Pradeep Kumar Sthapak (P.W.1) stated that he had
examined both the accused but did not find any bodily injury
on the private parts. Little abrasion were found on the body
of the accused Pappu which is possible while working in the
agriculture field. Dr. Hansa Shah (P.W.2) examined the
prosecutrix. In her statement, she had deposed that the
prosecutrix is aged about 18 years. No injury on the body or
the private parts have been found. No definite opinion,
regarding sexual intercourse can be arrived at. Prosecutrix
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(P.W.3) had deposed that she knows both the accused. She
was waiting for Dhanraj, when Pappu came and told her that
he would take her to Dhanraj and lured her to a hut where
he committed the offence and thereafter threatened her not
to disclose the incident to anybody. Thereafter, Dhanraj
came and committed the offence with her. In the evening,
she went to Village Biladhana where she narrated the whole
story to Puran (complainant). Antram (P.W.4) father of the
prosecutrix deposed that prosecutrix had gone to Bhopal
with Dhanraj for submitting the examination form and they
lived in Bhopal for about two months.

16. The question that arises for consideration is whether in
the above facts and circumstances, the findings of the
learned trial Judge that the appellants have committed
offence on the prosecutrix against her will, are liable to be
confirmed or not and whether the statement of the
prosecutrix is sufficient to maintain the conviction.

17. On the basis of aforesaid analysis and after perusal of
the statement of the prosecutrix and other evidence on
record, conclusion can not be drawn that the
accused/appellants had committed the offence with the
prosecutrix against her will. On the contrary, it appears to
be a case of consent for the following reasons :-

(i) The medical evidence does not corroborate the version
of the prosecutrix.

(ii) That, the prosecutrix did not receive any injury on any
part of the body including private part. Being fully aware of
the fact that absence of injury by itself is not sufficient to
hold that the prosecutrix is consenting party, in as much as,
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Cr.A. No. 626/2003

in the present case two accused committed rape on her
forcibly, then in such a situation, the prosecutrix ought to
have received some sort of injuries and thus, in absence of
the same shows that either the appellants did not resort to
sexual intercourse or it was with her tacit consent.

(iii) The statement of the prosecutrix runs contrary to the
medical evidence, no injury was found on any part of the
body including private part, while she deposed that she
received injuries on her back and blood also came out.

(iv) The learned trial Court has erred in raising presumption
under Section 114A of the Evidence Act in absence of any
resistance.

(v) The prosecutrix in her statement is silent on the aspect
of struggle to avoid sexual act of penetration.

18. In the present case, the prosecution has miserably
failed to give satisfactory evidence of the fact that sexual
intercourse is committed forcibly by two persons, the
prosecutrix would certainly receive injuries and the absence
of injuries leads to the conclusion that either no offence was
committed or if committed, it was with her tacit consent.

19. For the reasons stated above, this Court comes to the
conclusion that the statement of the prosecutrix (P.W.3)
does not appear to be trustworthy, reliable and straight
forward and does not inspire confidence. Her statement is
contrary to the medical evidence. Therefore, no conclusion
can be drawn that forcible rape was committed with her by
both the accused/appellants against her will as the same is
not corroborated with the medical and other evidence on
record.

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20. Thus, in view of the above, the findings of the learned
trial Court convicting the appellants for the offence under
Section 376(2) (g) IPC can not be sustained and the
conviction deserves to be set-aside.

21. Accordingly, this appeal filed by the appellants is
allowed and the impugned judgment and order dated
19/09/2003 passed by the Special Judge, Vidisha (M.P.) is
hereby set-aside. The appellants are acquitted of the
charges framed against them.

22. The appellant No.1 is in jail, he be released forthwith if
not required in any other offence. Appellant No.2 is already
on bail. His bail bonds stand discharged.

Appeal allowed.

(S.A. DHARMADHIKARI)
JUDGE

Prachi*

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