Toran Singh vs The State Of M.P. on 23 November, 2017

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

Case No. Cr.A. 1052/1997
Parties Name Toran Singh
Vs.
State of Madhya Pradesh
Date of Judgment 22/11/17
Bench Constituted Single Bench
Judgment delivered by Hon’ble Shri Justice Sushil Kumar Palo
Whether approved for reporting Yes/No.
Name of counsels for parties Appellant: Shri Ramakant Chouksey,
counsel for the appellant.

Respondent: Mr. C.K. Mishra, G.A for

the respondent/State.

Law laid down
Significant paragraph numbers

(Judgment)

The appellant- Toran Singh has preferred this appeal under
Section 374 sub Section (2) of Cr.P.C, challenging the judgment dated
08.05.1997, passed by Sessions Judge, Bhopal in S.T. No. 219/1995, wherein
the appellant has been convicted for offence under Sections 376 and 450 of
the I.P.C and sentenced to rigorous imprisonment for seven years with fine of
Rs.5,000/- and rigorous imprisonment for three years with fine of Rs.1,000/-
respectively with stipulated default.

2. The prosecution story in brief is that the prosecutrix is the wife of
Balaram, a resident of village Khajuri Kala, Bhopal. They lived in the house
of Gyan Singh Chouhan. On 16.03.1995 at about 9-10 pm, the prosecutrix and
her husband- Balaram were having their dinner. The appellant- Toran Singh
reached there. He asked Balaram to accompany him for “Bhajia” is being
prepared at his house. Balaram (PW 4) accompanied him. They went to the
field of Gyan Singh. After some time, they consumed liquor from there the

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Cr.A. No. 1052 of 1997

appellant took Balaram to the house in the field with the pretext that he has
forgotten the keys. The appellant asked Balaram to go to the field and came
back to the house of the prosecutrix. He knocked at the door and said that he
and Balaram have returned from the field. However, when the prosecutrix
opened the door, the appellant alone was there. He entered into the house
quickly and shut the door. He also switched off the light and holding the
prosecutrix onto the ground, committed sexual intercourse forcibly without
her will. On the shout of the prosecutrix, none came to her rescue. The
appellant after commission of the crime was leaving the house, the husband of
the prosecutrix Balaram came in and saw the accused leaving the house. The
prosecutrix narrated the whole incident to the Balaram her husband. On the
following day i.e. on 17.03.1995, the prosecutrix along with her husband went
to Police Station Bilkhiriya, Bhopal and lodged the report Ex. P/3. Police sent
the prosecutrix for medical examination. Spot map Ex. P/5 prepared at the
instance of Balaram. The broken bangle has been seized.

3. After due investigation, charge sheet has been filed for offence
under Sections 376 and 450 of the I.P.C.

4. After committal of the case, learned Sessions Judge, Bhopal
framed charge under Sections 376 and 450 of the I.P.C. The appellant abjured
guilt. He has examined Ram Singh (DW- 1) and Jhanak Singh (DW-2) in the
support of his defence. According to the defence version, the prosecutrix has
lodged the false complaint against him. Kamal Singh was a candidate for the
Nagar Nigam Election. The appellant is the supporter of rival party. He
supported Ghishilal in the election who was fighting against Kamal Singh.
Therefore, Kamal Singh had political rivalry, hence, used the prosecutrix by
influencing her husband- Balaram. Therefore, the false report was lodged.

5. Learned Sessions Judge, Bhopal after adducing evidence
convicted the appellant for the offence under Sections 376 (1) and 450 of the
I.P.C and sentenced as mentioned above.

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Cr.A. No. 1052 of 1997

6. On behalf of the appellant, it is pleaded that the learned trial Court
erred in holding the appellant liable and convicted the appellant for the
offences mentioned, the conviction is bad in the eyes of law whereas the
prosecution failed to prove the necessary ingredients of the offence. The
statement of the prosecution has not been corroborated nor supported by any
medical evidence. It appears that the prosecutrix is a consenting party but
when her husband saw the appellant coming from his house, under the
pressure as well as to save her chastity, the prosecutrix has spoken against the
appellant. The prosecution has alleged that the appellant committed sexual
assault single handedly, which is unlikely for the prosecutrix is a grownup
married woman from agricultural and labour community. Had there been any
resistance, the same could not have been possible. There is delay in lodging
the F.I.R and the extension for the delay is not plausible. Therefore, the
learned trial Court has not appreciated the evidence in its proper perspective,
hence, the judgment impugned is liable to be set aside.

7. Perused the record.

8. In a case of sexual intercourse, the evidence of the prosecutrix is
very important. In the present case, the prosecutrix is a married lady. The
statement of victims of rape are normally accepted, since they would not tell a
lie at their own cost and they would give out the fact for punishment of the
real culprit. Taking circumstances of rape into consideration, at times,
uncorroborated testimony of a victim of rape is accepted to convict the
accused. But the evidence or circumstances must lend assurance to accept her
version.

9. In the present case, the prosecutrix is a married lady and in the
medical evidence, there is no signs of sexual intercourse. Existence of semen
in the cloth of the accused or victim lady by itself would not be a
circumstances to lend assurance. Other evidence has to be looked into.

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Cr.A. No. 1052 of 1997

10. In the present case, the prosecutrix allegedly was ravished by the
appellant/accused in her house. According to her, she opened the door when it
was knocked by the appellant. The appellant immediately came into the room,
shut the door and committed the offence with her. The electric bulb was on.
The appellant switched it off and committed rape with her. He shut her mouth
with one hand. Despite her protest and shouts, no body came to save her.
When the appellant committed the crime and left the house, husband of the
prosecutrix Balaraam (PW 4) saw him leaving the house. Report was lodged
on the following day i.e. on 17.03.1995. at about 07.45 pm. The incident took
place allegedly on 16.03.1995 at about 12 in the midnight. No explanation has
been offered by the prosecutrix or her husband- Balaram (PW 4) about the
delay in lodging the report.

11. Jaynarayan, A.S.I (PW 6) was the police officer posted at Police
Station Bilkhiriya on 17.03.1995. On the oral report of the prosecutrix, he
scribed the F.I.R (Ex. P/3). He sent the prosecutrix for medical examination.
He also seized the pieces of bangles from the spot and a plain bangle from the
prosecutrix by preparing Ex. P/4 seizure memo. Dr. Nazma Jaidi (PW 7) was
the medical officer of Sultaniya Women Hospital, Bhopal. She examined the
prosecutrix on 18.03.1995 and has drawn the report Ex. P/7. According to her,
there was neither external nor internal injury found on the body of the
prosecutrix, nor on her private parts. She has not given a definite opinion of
commission of any recent sexual intercourse. She prepared two vaginal slides
and handed over it to the police for examination.

12. The constable- Satyanarayan (PW 1) received the slides on
17.03.1995 from the hospital and handed over the same to A.S.I, Police
Station Bilkhiriya. The seizure memo is Ex. P/1. According to Jaynarayan
(PW 6) the slide was seized vide seizure memo P/1. However, whether the
same was sent for chemical examination and whether the chemical
examination report has been received or what was the outcome of this
chemical examination has not been stated by the prosecution. Therefore, there
can be adverse inference against the prosecution.

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Cr.A. No. 1052 of 1997

13. Balaram (PW 4) has admitted that he saw the appellant running
away from his house. There is no DNA test nor the medical evidence supports
the prosecutrix version. When the statement of the prosecutrix does not suffer
from any basic infirmity and probability factor, support the allegation of rape
then only the statement of the prosecutrix can be based for conviction.

14. In the present case, the statement of the prosecutrix suffers from being
numerous infirmities and does not corroborate the medical evidence. There is
no corroboration against the appellant, which alleged to have been seen by the
husband of the prosecutrix- Balaram (PW 4). The prosecutrix is a major
married woman, it does not find any corroboration from any corner to level
the charge as alleged by her. The ratio of Bharwada Bhoginbhai Hirjibhai
Vs. State of Gujarat, AIR 1983 SC 753 does not apply. In the case of
Bharwada Bhoginbhai (supra) the Supreme Court observed that “if the
evidence of the victim does not suffer from any basic infirmity, and the
probabilities factor does not render it unworthy of credence, as general rule,
there is no reason to insist on corroboration except from the medical
evidence.”

15. Total absence of injury on the body of the prosecutrix prima facie
militates against her being raped. The doctor did not find recent injury on her
private parts or on the body. The prosecutrix has stated that she resisted and
her blouse was torn. She scratched the accused and the accused also
manhandled her. During the incident she sustained injury on her hand and
back. But no such injury was found. According to her, she scratched the
accused but the examination of accused by the medical officer Dr. Ashok
Sharma (PW 2) on 23.03.1995 drawing Ex. P/2 has not found any scratches on
the body of the appellant.

16. The defence witnesses have also stated that there was an enmity
and a possibility of false implication. There is a reasonable and probable doubt
in the prosecution story. This doubt definitely goes to the accused/appellant.

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Cr.A. No. 1052 of 1997

17. Because of the forgoing reasons, the charge against the appellant
is held to be not proved. The appeal is, therefore, allowed. The appellant is
acquitted of offence under Sections 376 and 450 of the I.P.C. The appellant is
on bail. His bail bonds are discharged.

(Sushil Kumar Palo)
Judge
awinash/

Digitally signed by AWINASH CHANDRA
Date: 2017.11.23 14:22:15 +05’30’

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