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Shyamlal vs State Of M.P. on 22 February, 2018

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
11
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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.
12

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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
13
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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’

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