THE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
(Single Bench — Rajendra Mahajan J.)
CRIMINAL APPEAL No.712 of 2004
Shyam Lal S/o Gabdu Harijan
aged about 35 years
R/o village Andia Tehsil Gyaraspur,
under Police Station Gulabganj,
District Vidisha (M.P).
Appellant
Versus
State of Madhya Pradesh, through
Police Station Gyaraspur, District
Vidisha (M.P.)
Respondent
_
For appellant :- Shri J.P.Mishra, learned
counsel,
For respondent/State :- Shri Shiraz Quraishi, learned
Public Prosecutor.
_
JUDGMENT
(Pronounced on the 22nd day of February, 2018)
Appellant-accused Shyam Lal has filed this
appeal under Section 374 (2) of the Cr.P.C challenging
the legality and validity of the judgment and order dated
28.9.2004 passed by the learned Sessions Judge
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Vidisha in Sessions Trial No.70 of 2004, whereby the
appellant has been convicted under Section 376 (1) of
the I.P.C and sentenced thereunder to suffer RI for a
period of seven years and to pay a fine of Rs.1000/-
(one thousand), in default of which to suffer further RI
for a period of two months.
2. The facts and circumstances giving rise to this
appeal are, in brief, given below :
(2.1). On 21.11.2003 at about 4.30 p.m the
prosecutrix (PW3) made an oral FIR to Bharat Bhushan
(PW8), the Station House Officer at Police Station
Gyaraspur, stating that she is a house wife and
resident of village Dehalwada. Her husband Ramsingh
(not examined) and appellant Shyam Lal are masons
by occupation and they have been doing masonry jobs
together for the last four to five years. For this reason,
appellant Shyam Lal used to visit her residence and
therefore she knows him well. Some fifteen days
before the lodging of the FIR by her, her husband and
appellant Shyam Lal went to Bhopal for doing masonry
jobs. On 21.11.2003 at about 9 a.m, she had gone to
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her Khet (agricultural field) for cutting grass, leaving
her children in her house. At about 12 to 1 p.m, while
she was cutting grass, someone took her in the arms
from behind. She took turn and saw that it was
appellant Shyam Lal. She asked him as to why he
caught hold of her. He replied that he would have
sexual intercourse with her. Thereafter, he made
attempts to fall her down. But, she resisted his
attempts. However, he forcefully made her lie on her
back. In the course of scuffle, she cried loudly but no
one came to her rescue. Upon her outcry, appellant
Shyam Lal threatened her to kill with a knife saying if
she did not become silent. Later, he had sexual
intercourse with her against her consent and wishes.
After committing rape upon her, appellant Shyam Lal
left the place. Thereafter, she proceeded toward her
residence and she narrated the incident on the way to
her neighbour Kedar (PW7). When she reached her
residence, her nephew Ramprakash (PW6), the child
witness, told her that appellant Shyam Lal came to the
house and asked about her whereabouts. As such, he
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came to the place of occurrence taking input about her
whereabouts from him. Bharat Bhushan reduced her
oral FIR into writing being Ex.P/3, and he registered a
case at Crime No.130 of 2003 against appellant Shaym
Lal for an offence punishable under Section 376 IPC.
Thereafter, he sent the prosecutrix for medico-legal
examination to the Primary Health Centre Haiderganj.
There, Dr.(Smt) N. Ahirwar (PW1) medically examined
her and gave her report Ex.P/1. She also seized her
wearing petticoat and prepared two slides of her
vaginal swab. She handed over the said articles to
constable Kamlesh (PW2) who took the prosecutrix to
the said Primary Health Centre.
(2.2). Bharat Bhushan undertook the
investigation. In the course of investigation, on
22.11.2003 he recorded case diary statements of the
prosecutrix, Kedar and Ramprakash and also prepared
spot map Ex.P/4 of the place of occurrence. On
21.3.2004, he arrested appellant Shyamlal vide arrest
memo Ex.P/6 and sent him to Primary Health Centre,
Gyaraspur for his medico-legal examination. There, Dr.
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B.P.Sharma (PW4) medically examined him and gave
his medical report Ex.P/5 stating that he is capable of
doing sexual intercourse. Bharat Bhushan also sent the
articles collected in the course of investigation for
forensic examinations to the Regional Forensic Science
Laboratory Gwalior, and the laboratory gave its report
Ex.P/8.
(2.3). Upon completion of the investigation,
the police chargesheeted appellant Shyam Lal for an
offence punishable under Section 376 I.P.C in the
court of Chief Judicial Magistrate, Vidisha. The learned
CJM committed the case vide committal order dated
1.5.2004 to the court of Sessions Judge Vidisha. The
case came to be registered as Sessions Trial No.70 of
2004.
3. The learned Sessions Judge framed the
charge against the appellant under Section 376 (1)
I.P.C. He denied the charge and opted for trial.
4. Upon concluding of the prosecution
evidence, the learned Sessions Judge put incriminating
evidence and circumstances to appellant Shyamlal
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appearing against him in the prosecution evidence to
elicit his explanation thereto as per the provisions of
Section 313 Cr.P.C. But, he denied all of them. He took
the defence that the prosecutrix’s husband Ramsingh
owes him Rs.8000/- (eight thousand). Several times,
he demanded the money to return him. Instead of
returning the money, the prosecutrix lodged the false
report of rape against him at his behest so that he
would not ask for the return of money in future. As
such, he is falsely implicated in the case. However, he
had not adduced any oral or documentary evidence in
support of the said defence.
5. The learned Sessions Judge, after examining
the evidence on record, found appellant guilty for
committing rape upon the prosecutrix, and he
eventually convicted him under Section 376 (1) of the
IPC and sentenced thereunder as has been noted in
para 1 of this judgment. Feeling aggrieved by the
verdict handed down by the learned Sessions Judge,
appellant Shyam Lal is before this court in this appeal.
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6. Learned counsel for the appellant after
referring to the evidence extensively appearing in the
cross-examination of the prosecutrix (PW3), submitted
that there are material contradictions, omissions,
embellishments, exaggerations and improvements in
her evidence, making her evidence wholly unreliable.
He further submitted that Dr.(Smt) N.Ahirwar (PW1),
who medico-legally examined the prosecutrix, has
deposed in her evidence that she cannot give a definite
opinion whether the prosecutrix was subjected to
forcible sexual intercourse or not. He further submitted
that the said witness has only stated in her evidence
that she had found 2-3 scratches on both the hands of
the prosecutrix. They may be self-inflicted. Thus, the
medical evidence does not support the version of the
prosecutrix. He further submitted that as per the F.S.L
report Ex.P/8, spermatozoa were found on the
petticoat of the prosecutrix and her vaginal swab. As
per the evidence on record, the grouping of
spermatozoa was not done by the forensic laboratory.
As per the evidence on record, the prosecutrix is the
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married woman with four children and that Dr.(Smt)
N.Ahirwar in para 12 of her cross-examination has
admitted that she had found dry stains of semen on
the petticoat of the prosecutrix and that the finding of
stains on the petticoat of a married woman are very
common. Thus, the FSL report does not support the
version of the prosecutrix. He further submitted that
the prosecutrix in para 26 of her cross-examination
has stated that she had not disclosed her nephew
Ramprakash (PW6) that she was raped by appellant
Shyam Lal. Whereas, he has stated in para 11 of his
cross-examination that the prosecutrix has stated that
appellant committed Burakaam with her, though he
does not know the meaning of Burakaam. Thus, there
is a material contradiction between the evidence of the
prosecutrix and his evidence. He further submitted
that the prosecutrix has stated in her evidence that
she had told only Kedar (PW7) that the appellant had
committed rape upon her. Whereas, he is not her
relative, therefore, her said conduct is unusual. He
further submitted that as per the evidence of the
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prosecutrix, her other relatives are also residents of
the same village but she had not told them about the
incident. This fact also makes the version of the
prosecutrix unreliable. He further submitted that since
the evidence of the prosecutrix is fully unreliable, the
evidence of Ramprakash and Kedar cannot be relied
upon as they are hearsay witnesses. Upon these
submissions, he concluded his arguments by saying
that the learned Sessions Judge has convicted
appellant Shyam Lal upon misreading and
misappreciation of prosecution evidence. Therefore,
the impugned judgment is bad in law, and it is liable to
be set-aside by allowing this appeal with acquitting
appellant Shyam Lal of the charge of the offence under
Section 376 (1) of the Cr.P.C.
7. On the other hand, the learned Public
Prosecutor argued in support of the impugned
judgment.
8. I have given my full consideration to the
rival submissions made by the learned counsel for the
parties at the Bar and perused the impugned judgment
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and materials on record in its entirety.
9. It is well settled in law that in a case of rape
the statement of the prosecutrix alone is to be
considered and no corroboration is necessary. But the
evidence of the prosecutrix should be clear, cogent and
trustworthy and if her evidence is worthy of reliance,
then solely on the basis of her testimony the judgment
of conviction can be passed against the accused-rapist.
Keeping in view the aforesaid settled legal positions, I
would proceed to examine the evidence of the
prosecutrix and material witnesses.
10. The Prosecutrix (PW3) has deposed that her
husband Ramsingh and appellant Shyam Lal are
masons by occupation and they have been doing
masonry jobs together for so many years. For the said
reason, appellant Shyam Lal would often visit her
house. Consequently, she knows him. In the afternoon
of the day of incident, she was cutting grass on the
Maire (field ridge) of her Khet. At that time, some one
had caught hold of her all of a sudden from her
behind. Upon taking turn, she found that it was
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appellant Shyam Lal. He told her that he would have
sexual intercourse with her. Upon her refusal, he had
got into scuffle with her. He fell her down onto the
grass. Thereupon, She screamed loudly. At this, he
threatened to kill her with a knife. Upon her outcry, no
one came to her rescue. Later, appellant Shyam Lal
made her lie on her back and had forcible sexual
intercourse with her. After the incident, while
returning her house, she met Kedar (PW7) on the way.
She narrated him the incident. She also related the
incident to her nephew Ramprakash (PW6) in her
house. She has also deposed that on the same day,
she lodged the FIR Ex.P/3 against appellant Shyam Lal
at Police Station Gyaraspur and that the police got her
medico-legally examined.
11. The prosecutrix has stated in para 16 of her
cross-examination that prior to the commission of rape
by the appellant upon her, she got into arguments with
him for about an hour. During that time, she firmly
denied his solicitation to have sex with her. Thereafter,
he committed forcible sexual intercourse with her.
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Whereas, the prsosecutrix has stated in the FIR and
her evidence that appellant Shyam Lal caught hold of
her from behind and had forcible sexual intercourse
with her. In my opinion, this contradiction is material
between her evidence and the F.I.R.
12. The prosecutrix has stated in the FIR and
her evidence that at the time of incident, she
screamed but no one came to her rescue. Whereas,
she has stated in para 16 of her cross-examination
that she could not cried in alarm because appellant
Shyam Lal gagged her mouth with a piece of cloth.
This is also a material contradiction between the FIR
and her evidence.
13. The prosecutrix has stated in the FIR and in
her evidence that appellant Shyam Lal threatened to
kill her with a knife at the time of the offence.
Whereas, she has stated in para 14 of her cross-
examination that at the time of incident, appellant
Shyam Lal put on her chest a knife near about one feet
long and threatened to kill by means of it if she would
yell. In my opinion, this is an improvement in her
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court-statement.
14. The prosecutrix has stated in para 16 of her
cross-examination that appellant Shyam Lal made her
lie on her back forcibly, and in the course of it her
bangles were broken causing injuries on her hands and
blood started oozing out of them. As per the evidence
on record, Dr. (Smt) N.Ahirwar (PW1) has medico-
legally examined the prosecutrix on the date of
incident itself but she had only found some scratches
on her hands. Thus, the prosecutrix has lied in her
court-statement.
15. The prosecutrix has stated in para 16 of her
cross-examination that the police seized from the
place of occurrence her broken bangles. But her said
evidence is not corroborated by investigating officer
Bharat Bhushan (PW8). Thus, she has lied on the
point.
16. The prosecutrix has stated in para 19 of her
cross-examination that while appellant Shyam Lal was
committing rape upon her, she kicked his penis in
protest of his forcible intercourse with her. However,
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she has failed to explain why she had not mentioned
the said fact in the FIR lodged by her. Thus, it is also
an improvement in her court-statement.
17. The prosecutrix has stated in para 24 of her
cross-examination that in the course of scuffle, her
petticoat got torn. As per the evidence of Dr.(Smt).
N.Ahirwar (PW1), she seized her petticoat at the time
of her medico-legal examination. This witness has not
deposed that she had found the prosecutrix’s petticoat
torn. Thus, the prosecutrix has improved her court-
statement on that point.
18. The prosecutrix in para 22 of her cross-
examination has admitted that she has enmity with
her relatives and neighbours. Her said admission
indirectly reflects upon her relations with others.
19. From the aforesaid close analysis of
evidence of the prosecutrix, I find that her evidence is
full of material contradictions, omissions,
embellishments and improvements. Therefore, I do not
find it absolutely safe to place implicit reliance upon
her testimony.
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20. Dr. (Smt) N.Ahirwar (PW1) has deposed that
on 21.11.2003, she medico-legally examined the
prosecutrix. At that time, she has not found any signs
and marks on her body to make an unambiguous
statement that she was subjected to rape. In para 8 of
her cross-examination, she has concurred with a
suggestion of the defence lawyer that if the prosecutrix
was subjected to forcible rape, she would have
sustained injuries on her person especially over her
genitals. But she has not found any such injury on her
person. From the aforesaid evidence of this witness, I
hold that the medical evidence does not support the
version of the prosecutrix.
21. As per the FSL report Ex.P/8, in the stains of
semen being found on the petticoat of the prosecutrix
and in her vaginal swab spermatozoa of a man were
found. As per the evidence of Dr. B.P. Sharma (PW4),
who medically examined appellant Shyam Lal, had not
prepared the slides of semen of him. As per record,
the prosecutrix is a married woman having four
children. On account of non grouping of spermatozoa
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with those of appellant Shyam Lal, it cannot be said
that the spermatozoa being found on the petticoat of
the prosecutrix and her vaginal swab are of appellant
Shyam Lal. Thus, the F.S.L report does not support the
version of the prosecutrix.
22. The prosecutrix has stated in para 26 of her
cross-examination that she had not narrated her
nephew Ramprakash that she was subjected to forcible
intercourse by appellant Shyam Lal in her Khet.
Whereas, Ramprakash has stated in para 11 that the
prosecutrix had told her the incident after her reaching
their residence. Thus, there is a material contradiction
between the evidence of the prosecutrix and that of
Ramprakash. For the said reason, the testimony of
Ramprakash is not reliable.
23. Kedar (PW7) has deposed that in the noon
time of the day of incident, he was running her Atta
Chakki (grinding mill). At that time, the prosecutrix
related him that appellant Shyam Lal had raped her.
Thereupon, he told her to go to the Police Station to
lodge the report of rape. After the close scrutiny of
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evidence of the prosecutrix, I have already held that it
is absolutely unsafe to place implicit reliance upon her
testimony. Therefore, the evidence of this witness
cannot be relied upon being hearsay.
24. In the light of the aforesaid close and meticulous
analysis and scrutiny of evidence on record, I find that
the testimony of the prosecutrix is not wholly inspiring
and reliable. Moreover, there is no reliable supporting
evidence on record to lend credence to her testimony.
In the circumstances, I am of the considered opinion
that it is a fit case to extend the benefit of doubt to
appellant Shyam Lal. Consequently, I allow this appeal
and set-aside the impugned judgment of conviction and
order of sentence. Appellant Shyam Lal is acquitted of
the charge framed against him under Section 376 (1)
I.P.C giving him the benefit of doubt. His bail bonds
shall stand cancelled. Fine amount be returned to him
subject to verification of depositing it.
25. Accordingly, this appeal is finally disposed of.
(Rajendra Mahajan)
Judge
Rks.
Digitally signed by R. K. SHARMA
Date: 2018.02.27 14:37:23
+05’30’