Santosh @ Jarha Baildar vs The State Of Madhya Pradesh on 8 December, 2017

1 Cr.A. No.29/2007

HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 29/2007

APPELLANT : Santosh @ Jarha Baildar, S/o
Naiya Baildar

Vs.

Respondent : State of Madhya Pradesh

For the appellant : Ms. Savita Choudhary and Shri
S.D. Mishra, Advocates as
Amicus Curiae

For the respondent : Shri Ajay Shukla, Govt. Advocate

PRESENT : Hon’ble Shri Justice R.S. Jha
Hon’ble Smt. Justice Nandita Dubey

Arguments heard on : 30.11.2017
Judgment delivered on : 08.12.2017

Whether approved for reporting : Yes/No
Law laid down
Significant paragraph numbers :

JUDGMENT

As per Nandita Dubey, J.:

This appeal has been filed by the appellant,

being aggrieved by the judgment dated 31.10.2006,

passed by Special Judge, Shahdol in Special Case

No.58/2004, whereby the appellant has been found

guilty for the offence under Sections 396, 366, 376,
2 Cr.A. No.29/2007

366-A of the Indian Penal Code and has been

sentenced to life imprisonment and fine of Rs.500/-

under Section 396 of the I.P.C., rigorous imprisonment

for 5 years and fine of Rs.500/- under Section 366 of

the I.P.C., rigorous imprisonment for ten years and fine

of Rs.500/- under Section 376 of the I.P.C. and rigorous

imprisonment for 5 years and fine of Rs. 500/- under

Section 366-A of the I.P.C.

2. The prosecution case, in brief, is that, on

18.04.2004, at around 1.30 A.M. in the night, appellant

Santosh alongwith Shanker and 4-5 other persons

entered the house of P.W.16 Duasiyabai, assaulted and

killed her husband Buddhu Baiga, looted cash, silver

and gold articles and kidnapped her 15 years old

daughter Sarita and raped her.

3. The incident said to have taken place at

1.30 A.M. in the night of 18.04.2004. P.W.-16

Duasiyabai lodged the report (Ex. P-13) at police

Station Naurozabad, at about 4.30 A.M. in the morning,

on the basis of which a formal FIR (Ex.P-29) was drawn

up. In her report to the police, P.W.-16 Duasiyabai has

stated that on the fateful night, she was sleeping in

the courtyard, while her children (four daughters and
3 Cr.A. No.29/2007

two sons) were sleeping on the terrace. At 1.30 A.M. in

the night, appellant Santosh forcibly entered her house

with 4-5 other persons and forced her to give the

almirah’s key. At that time, her husband Buddhu Baiga

came back from his duty and confronted them.

Appellant Santosh dealt a blow with sword on the back

of deceased Buddhu and stabbed his chest and neck

with knife. As a result of the injuries, deceased fell

down and died. Thereafter, appellant looted the cash

and the silver and gold articles kept in the almirah.

She has further stated that appellant kidnapped her

daughter Sarita (P.W.-17) and threatened them not to

make any noise. When the accused persons had gone,

she went to lodge the report alongwith her elder

daughter Sushila.

4. On the basis of FIR (Ex. P-29), the criminal

law was set into motion. Spot map was prepared and

the body of the deceased was sent for postmortem.

5. P.W.-6 Dr. K.L. Baghel, who conducted the

autopsy at 1.50 P.M. on 18.04.2004 opined that cause

of death was haemorrhage and shock due to the

injuries to the lungs and cut wound on trachea.
4 Cr.A. No.29/2007

6. After investigation, the charge sheet was

submitted against the accused persons and they were

put for trial.

7. In order to further prove its case, the

prosecution examined 28 witnesses, whereas the

accused persons, pleaded innocence and false

implication.

8. The trial Court believed the statement of

the prosecutrix P.W.-17 Sarita, P.W.-18 Anita and of

P.W.-16 Duasiyabai and recorded a finding of guilt

against the appellant and convicted him under

Sections 396, 376, 366 and 366A of the I.P.C., while

acquitting him from the charge under Section 376(2)

(g) of the I.P.C. The charges against co-accused Zilla

@ Sukkhu were not found proved and he was acquitted

from the charges under Sections 396, 376(2)(g), 366

and 366-A of the I.P.C.

9. Learned counsel for the parties have taken

this Court extensively through the oral and the

documentary evidence on record.

10. Having heard the learned counsel for the
5 Cr.A. No.29/2007

parties at length and having perused the record, it is

observed that the case of prosecution rests mainly on

the testimony of P.W.-16 Duasiyabai, prosecutrixes

P.W.17 Sarita and P.W.-18 Anita, who are also the

witnesses to the incident.

11. In a catena of decisions, the Supreme Court

has held that conviction can be based on the sole

testimony of the prosecutrix, provided it is natural,

trustworthy and worth being relied upon.

12. In the case of Mukesh Vs. State (NCT of

Delhi) (2017) 6 SCC 1 the Supreme Court has held :

“There is no quarrel over the
proposition that the evidence of the
prosecutrix is to be believed by

examining the broader probabilities of a
case. But where there are serious
infirmities and inherent inconsistencies
in evidence; the proseuctrix making
deliberate improvement on material
point with a view to rule out consent on
her part, no reliance can be placed
upon the testimony of the prosecutrix.
In Tameezuddin Vs. State (NCT of
Delhi) (2009) 15 SCC 566, it was held
as under :

“9. It is true that in a case of rape
the evidence of the prosecutrix
must be given predominant
consideration, but to hold that this
evidence has to be accepted even
6 Cr.A. No.29/2007

if the story is improbable and
belies logic, would be doing
violence to the very principles
which govern the appreciation of
evidence in a criminal matter. We
are of the opinion that the story is
indeed improbable.”

13. In the instant case, prosecutrixes Sarita

(P.W.-17) and Anita (P.W.-18) got examined by P.W.-24

Dr. Rashmi Dhanajay on 29.04.2004. A perusal of her

reports (Ex. P-19-A P-20-A) show that there were no

injury on any part of the body. There was no injury or

tenderness on genital area. Hymen was ruptured

previously and both the prosecutrixes P.W.-17 Sarita as

well as Anita (P.W.-18) were found habitual to

intercourse. In her opinion, rape may be possible with

P.W.-17 Sarita and P.W.-18 Anita.

14. It is clear from the medical evidence on

record that no definite opinion could be formed by Dr.

Rashmi Dhanajay (P.W.-24) to prove that P.W.-17 Sarita

and P.W.-18 Anita were subjected to gang rape,

particularly in view of the fact that both the

prosecutrixes were habitual to intercourse and were

examined 11 days after the incident.

7 Cr.A. No.29/2007

15. The evidence of P.W.-16 Duasiyabai was

recorded one year after the occurrence. According to

P.W.-16 Duasiyabai, about a year ago, while she was

sleeping in her courtyard and her 4 daughters and 2

sons were sleeping on the terrace, appellant Santosh

entered her house at around 1.30 in the night, with 4-5

other persons and asked for the almirah’s keys. At

that time, her husband, who was on duty till 12

O’clock, also returned home. Appellant stabbed him

with sword and knife in the neck and chest, as a result

of which he fell down and died on the spot. His men

threatened the children with the katta. Appellant then

looted Rs.35,000/-, silver and gold articles kept in the

almirah and forcibly carried her daughter P.W.-17 Sarita

on his shoulder and thereafter all of them went away.

She went to Police Station Naurozabad to report the

incident with her elder daughter Sushila. She has

further stated that after lodging the report, when she

reached her house, Anita (P.W.-18) told her that she

was raped by Shanker and Amit near the nala and

thereafter, the accused persons left her and Santosh

took Sarita (P.W.-17) with her.

16. According to P.W.-16 Duasiyabai, twice the

police has recorded her statement but the same are
8 Cr.A. No.29/2007

not available on record. She has admitted that all the

accused persons were wearing black clothes and

gloves and had their faces covered, only their eyes

were visible, but she recognized appellant Santosh

from his voice. She has admitted that it was election

time and the then Chief Minister Uma Bharti came to

her house, after 2-3 days of the incident and thereafter

her statements were recorded.

17. Prosecutrix Anita (P.W.-18) has deposed that

on 18.04.2004, she alongwith her brothers and sisters

was sleeping on the terrace, while her mother was

sleeping in the courtyard. On hearing the hue and cry

of the mother, all of them came down and saw 8-9

persons wearing black clothes and gloves. Their faces

were totally covered and only the eyes were visible.

One of the masked person asked for keys from her

mother and she recognized him as appellant Santosh

from his voice. At that time, her father returned from

his duty and appellant Santosh assaulted him with

sword, who as a result, fell down and died. Thereafter

the accused persons looted cash and jewelleries from

the almirah and forcibly took her to nala, where

accused Amit and Pradeep committed rape on her.

Thereafter, accused persons saw her face in torch light
9 Cr.A. No.29/2007

and said this girl is married, get the unmarried one and

went away. He returned after 10-15 minutes with P.W.-

17 Sarita and all of them then went away leaving her

there. Thereafter she returned to her house crying,

where she found that her mother had gone to lodge

the report. According to her, Sarita came back at

12.00 O’Clock in the afternoon. She has admitted that

she has never met appellant Santosh nor gone to his

house or even talked to him, nor there was any

correspondence between them but she recognized him

from his voice. She has further admitted that the then

Chief Minister Uma Bharti came to their house and

twice her statements were recorded by the police.

18. Prosecutrix Sarita (P.W.-17) has deposed

that she was sleeping with her siblings on the terrace.

They all woke up hearing the shouts of their mother.

She has stated that when she came downstairs with

her sister, her father was already dead and they did

not see anybody assaulting her father. She saw

appellant took the cash and jewellery from the almirah

and forcibly took Anita (P.W.-18) with them. She has

further deposed that appellant left Anita (P.W.-18) with

Amit and came back to the house and forcibly carried

her towards Devgara village, where he threatened her
10 Cr.A. No.29/2007

with knife and committed rape on her. Appellant kept

the prosecutrix with him during the day. She got an

opportunity to run away when an altercation ensued

between the gang members, and came back to her

house.

19. According to Sarita (P.W.-17), the accused

persons had their faces covered and only their eyes

were visible. She has admitted that at the time of

incident, she, her sister and her mother did not know

the accused persons. She has stated that after the

incident, police could not find the accused. After 2-3

days of the incident, then Chief Minister Uma Bharti

visited their house. Thereafter, police caught hold of

the accused persons and disclosed their names to

prosecutrix and her family members stating that these

persons had committed the crime.

20. Yunus Ali (P.W.-11) an independent witness

in para 6 of his deposition has also stated that after 4-

5 days of the incident, then Chief Minister Uma Bharti

visited the house of Buddhu Baiga and till that time, no

body knew, who committed that crime. He has further

stated that he had signed on the seizure memo

(Ex.P-17) without reading it. He had stated that the
11 Cr.A. No.29/2007

seized articles were not sealed before him. At the time

of identification only two open kade were kept and

Duasiyabai (P.W.-16) had identified them. This witness

has not been declared hostile hence his evidence is

binding on the prosecution.

21. In the instant case, the statement of both

Duasiyabai (P.W.-16) and Anita (P.W.-18) that they

recognized the appellant from his voice is very

unconvincing, doubtful and cannot be accepted

especially in view of their statements that the accused

persons had their face covered and despite the fact

that they had never met or talked with the appellant

and had no contact with him prior to the date of

incident, they recognized him from his voice. Their

story is further demolished by proseuctrix Sarita (P.W.-

17), wherein para 7 of her cross-examination, she has

admitted that all three of them did not know the

accused persons or who had committed the crime and

took their name only after police informed them.

22. As regard the recovery of articles from the

appellant and their identification, the same is also

doubtful. It is reflected from the record that the ‘kade’

recovered from appellant were not sealed. P.W.-16
12 Cr.A. No.29/2007

Duasiyabai has stated that she identified the ‘kade’ in

the house of Sarpanch. According to her, the Sarpanch

was male. However, P.W.-10 Indravati, Sarpanch of

village had denied any such identification in her house

or presence.

23. The facts on record indicate that the

witnesses did not know the accused/dacoits. Only due

to the media and political pressure, as the then Chief

Minister Uma Bharti visited the house of Buddha Baiga

and the public hue and cry, the appellant was arrested

and the witnesses were told his name and asked to

identify him. This fact is also clear from the statement

of P.W.-27 Sitaram Satya (SDOP), who formally arrested

the appellant on 24.04.2004 from Katni jail. P.W.-27

Sitaram Satya has admitted that he met appellant for

first time in Katni Jail. It is clear that there are serious

infirmities and inconsistencies in the evidence of

Duasiyabai (P.W.-16) and the prosecutrixes Sarita (P.W.-

17) and Anita (P.W.-18), hence no relevance can be

placed on their testimony.

24. In view of the aforesaid analysis, we are of

the considered opinion that the finding of guilt and the

consequential conviction of appellant for an offence
13 Cr.A. No.29/2007

punishable under Sections 396, 366, 376, 366-A of the

I.P.C. does not find any support from the oral and

documentary evidence on record and deserves to be

set aside.

25. Accordingly, the criminal appeal filed by

appellant Santosh @ Jarha Baildar is hereby allowed

and his conviction under Sections 396, 366, 376, 366-A

of the I.P.C. is hereby set aside. The appellant is

directed to be released forthwith, if not required in any

other case.

(R.S.Jha) (Nandita Dubey)
JUDGE JUDGE
08/12/2017 08/12/2017

gn
Digitally signed by GEETHA NAIR
Date: 2017.12.11 14:18:18 +05’30’

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