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,
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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
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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
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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
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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’