SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Balbeer Singh vs The State Of M.P. on 14 March, 2018

1 CRA No.249/2005

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON’BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.249/2005
………Appellant: Balbeer Singh
Versus
…….Respondent : State of M.P.
———————————————————————-
Shri Sushil Goswami, Counsel for the appellant.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondent/State.
———————————————————————-
Date of hearing : 08/03/2018
Date of Judgment : 14/03/2018
Whether approved for reporting : No
JUDGMENT

(14/03/2018)
This Criminal Appeal under Section 374 (2) of Cr.P.C. has
been filed against the judgment dated 30.3.2005 passed by
Shri S.B. Verma, Additional Sessions Judge, Lahar, District
Bhind in S.T.No.113/2004 by which the appellant has been
convicted under Sections 376 and 506 Part-II of IPC and has
been directed to undergo the rigorous imprisonment of 10
years and a fine of Rs.1700/- and rigorous imprisonment of 01
year and a fine of Rs.300/- with default imprisonment
respectively.

2. The necessary facts for the disposal of the present appeal
in short are that the complainant as well as the appellant are
the residents of Village Rahawali, Uwari and belongs to the
same caste. On 30.4.2004, at about 12:00 PM, the prosecutrix
had gone near the canal for grazing her cattles where the
appellant met with her. The appellant called her and when the
2 CRA No.249/2005

prosecutrix refused to go, then she was forcibly taken by the
appellant below the culvert and tied the hands and mouth of
the prosecutrix and after taking out of her clothes committed
rape on her. As the place of incident was an isolated area,
therefore, the shouts of the prosecutrix were not heard by
anybody. After committing rape, the appellant went away by
extending the threat that in case if she narrates the incident to
anybody, then she would be killed. Because of the rape, the
blood was oozing out from the private part of the prosecutrix.
However as the prosecutrix was afraid, therefore she did not
narrate the incident to her mother. Her father came back from
the work in the evening of 2.5.2004 and then she narrated the
entire incident to her father. Thereafter her father along with
the prosecutrix went to the police Station on 3.5.2004 and
lodged the FIR. The prosecutrix was sent for medical
examination and the x-ray was done for ascertaining her age.
The spot map was prepared. The appellant was got medically
examined. The statements of the witnesses were recorded. The
sealed clothes which were received from the District Hospital
were seized. The appellant was arrested and after completing
the investigation the charge sheet was filed for an offence
punishable under Sections 376, 506 Part-II of IPC.

3. The Trial Court by order dated 15.7.2004 framed charges
under Sections 376, 506 Part-II of IPC. The appellant abjured
his guilt and pleaded not guilty.

4. The prosecution in order to prove its case examined
Mahaveer Singh (PW-1), Ram Avtar Singh Bhadoriya (PW-2),
Dr. S.K. Singh Niranjan (PW-3), Baijnath (PW-4), Devka (PW-

5), prosecutrix (PW-6), Harbaksh Singh (PW-7), Laxmi
Narayan (PW-8), Dr. Smt. Renu Sharma (PW-9), B.P. Dwivedi
(PW-10), Umesh Singh (PW-11), Dr. R.K. Agrawal (PW-12),
Santosh Kumar Budholiya (PW-13) and Dr. S.C. Gupta (PW-

14). The appellant did not examine anybody in his defence.

3 CRA No.249/2005

5. The Trial Court after hearing both the parties, convicted
the appellant for the offence punishable under Sections 376,
506 Part-II of IPC and sentenced him to undergo the rigorous
imprisonment of 10 years and a fine of Rs.1700/- and rigorous
imprisonment of 01 year and a fine of Rs.300/- with default
imprisonment respectively.

6. Baijnath (PW-4) is the father of the prosecutrix whereas
Devka (PW-5) is the mother of the prosecutrix.

7. Prosecutrix (PW-6) has stated that she knows the
appellant and the incident took place about four months back
and it was afternoon. She had gone for grazing her cattles.
When she was standing there, the appellant came there and
tried to forcibly took her under the bridge. He tied her hands,
took out her clothes and committed rape on her. Blood started
oozing out from her private part. She was having stomach
ache. She came back to her house, she narrated the incident to
her father after he came back and thereafter she informed her
mother about the incident. Her father had come back on the
next day of incident. As the appellant had extended a threat
that he would kill her, therefore, she was frightened and did
not inform the incident to her mother. Thereafter they went to
the police outpost for lodging the report. On the same day,
they went to the police Station Lahar where the report was
registered. The police recorded her statement. The prosecutrix
(PW-6) further stated that the FIR Ex.P/3 was lodged by her.
The spot map Ex.P/4 was prepared. She was medically
examined. She has further stated that earlier she was studying
but now she has left the school. In cross-examination, she has
stated that the appellant had caught hold of her hands and
took her under the bridge with ease. She further admitted that
after three fields from the bridge, temple of Mata is situated,
however the Pujari was not there. She has further stated that
the appellant immediately after catching hold of her, gagged
4 CRA No.249/2005

her mouth and thereafter tied her hands. She tried to run away
but could not succeed. She has further stated that her
underwear and Salvar got stained with blood. Till her father did
not come back, the blood continued to ooze out from her
private part. When she was medically examined on that day
also, there was bleeding. She has further stated that her
mother had taken her to the Doctor and who had also seen her
blood stained Salvar. The Doctor had also informed that the
menses had not started. She further stated that she had
informed the doctor that the appellant had committed rape on
her and at that time her mother was also along with her and
her father came back on the same day when she had gone to
the doctor for treatment. She has further stated that on the
date of incident, her father had stayed at the place of his work.
The police outpost is situated about 15 to 20 houses after the
house of the prosecutrix. She had gone to the police outpost on
the next day of incident. Till the FIR was lodged, she had not
taken the bath. Her underwear was stained with white liquid.
She had not suffered any external injury. She has further
stated that her mother had washed her Salvar and underwear.
She had further stated that she had handed over the Salvar to
the police but had not handed over her underwear to the police
as the police did not ask her to bring the underwear. The
menses have not started. The statement of prosecutrix and her
parents were recorded at police outpost. She denied that the
enmity is going on between her father and the father of the
appellant.

8. Baijnath (PW-4) has stated that the incident had taken
place on 30th and he had left the house at 6:00 in the morning
for doing work in the house of one Pahalwan Singh Rajput at
Malpura and he came back on the second of the next month.
He came back at about 8:00 PM and at that time the
prosecutrix informed him about the incident. The mother of the
5 CRA No.249/2005

prosecutrix was also standing nearby when the prosecutrix was
narrating the incident on 2nd. They went to the police outpost
along with the prosecutrix and lodged the report in the police
outpost and on the next day they went to the police station
Lahar. The prosecutrix was sent to Lahar Hospital for medical
examination from where she was referred to Bhind. Thereafter
they came to Bhind and came back on the next day i.e. 4 th. In
cross-examination, this witness has stated that Malpura is
situated at a distance of 1.25 Km. from his house. He has
further stated that sometimes he stays back at the place of his
work. On the first day, he had taken one Sonpal with him as a
laborer. However, on the second day, one Vinod was taken by
him from his village i.e. Rahawali. He had taken Vinod from
Rahawali at 8:00 in the morning. He had taken Vinod with him
on 1st. This witness has further stated that he went along with
Vinod to the place of work on 1st at about 6:30 in the morning.
He further stated that on 2nd he started from Malpura for
coming back to his house and reached to his house within half
an hour. The prosecutrix on her own started narrating the
incident. He has further denied the suggestion of enmity.

9. Devka (PW-5) has stated that on 30 th June her husband
had left for his work and the prosecutrix had gone towards the
canal for grazing her cattles. She came back at around 1:30-
2:00 PM but did not inform about the incident. On the third
day, her husband came back at around 6:00-7:00 PM and then
the prosecutrix informed the incident to her father. When the
prosecutrix had come back, she was stained with blood. She
has further stated that since the prosecutrix was having
stomach ache, therefore, she had taken her to the doctor for
treatment. At the time of the treatment she had seen the
bleeding. She had taken the prosecutrix to the doctor on the
date of incident itself and she had also seen that her Salvar
had stained with blood. However, inspite of the enquiry, the
6 CRA No.249/2005

prosecutrix did not inform about the incident. The doctor had
also not enquired from the prosecutrix as to how the bleeding
is going on. Although the bleeding was going on from the
private part of the prosecutrix but she did not inform the
incident. She further stated that the prosecutrix had taken out
of her Salvar which was washed by this witness. The
prosecutrix had not taken bath for two days. However, she had
not washed her underwear. She further admitted that the
prosecutrix was continuously wearing that underwear for next
two days. She further stated that till her husband came back to
the house, the prosecutrix had severe stomach ache. She has
further stated that a temple is situated near the place of
incident.

10. Dr. Smt. Renu Sharma (PW-9) had medically examined
the prosecutrix and had found that at vagina admits one finger
easily and margins of hymen were old healed and no fresh
injury and bleeding was found. No external injury was found
and it was opined that definite opinion about rape can be given
only after chemical examination. The MLC report of the
prosecutrix is Ex.P/6. The Vaginal slide, pubic hair, swab and
Salvar were sent for chemical examination and as per the FSL
report, the semen and human sperm were found on the Salvar
whereas no semen and no human sperm was found on vaginal
slide, public hair and swab. Although the Trial Court has not
exhibited the FSL report but in view of Section 293 of Cr.P.C.
the FSL report is admissible. The original copy of the FSL report
is available on record. In the light of provisions of Section 293
of Cr.P.C. the report can be read in evidence. Even otherwise it
is well settled principle of law that any document which had
remained unexhibited can be read if it is in favour of the
accused.

11. Challenging the conviction and sentence passed by the
Trial Court, it is submitted by the counsel for the appellant that
7 CRA No.249/2005

the appellant has been falsely implicated merely because of old
enmity between the families of the prosecutrix as well as the
appellant.

12. Per contra, it was submitted by the State Counsel that the
evidence of the prosecutrix is trustworthy and the Trial Court
has rightly convicted the appellant.

13. Heard the learned counsel for the parties.

14. Baijnath (PW-4) has stated that he left the house at 6:00
in the morning of 30th of April, 2004 and the incident took place
on the same day at about 12:00 PM whereas the FIR was
lodged on 3.5.2004. Although Baijnath (PW-4) has stated that
he came back in the evening of 2 nd (2.5.2004) and went to the
police outpost Rahawali and lodged the FIR and they went to
the police station Lahar on the next day and lodged the FIR but
there is nothing on record to show that any report was lodged
by Baijnath or the prosecutrix at police outpost Rahawali.

15. To buttress his contentions, the counsel for the appellant
has referred the statement of Umesh Singh (PW-11) who was
working as Head Constable and was posted at Police outpost
Rahawali. In cross-examination, this witness has specifically
stated that Baijnath had not come to police outpost Rahawali in
between 30.4.2004 to 3.5.2004. Umesh Singh (PW-11) is the
Investigating Officer. The FIR was lodged by B.P. Dwivedi (PW-

10) which is Ex.P/3 and thereafter the matter was handed over
to Umesh Singh (PW-11) Head Constable for investigation.
Thus, it is submitted that Baijnath (PW-4) has given a false
explanation that he had informed the police outpost in the
evening of 2.5.2004. Furthermore, inviting the attention of the
Court to the cross-examination of Baijnath (PW-4), it is
submitted by the counsel for the appellant that Baijnath (PW-

4) has stated in paragraph 7 of his cross-examination that on
1st (1.5.2004) he had taken one Vinod with him as the laborer
and had left his house at about 6:30 in the morning of
8 CRA No.249/2005

1.5.2004. It is further submitted that Baijnath (PW-4) has
admitted in paragraph 6 of his cross-examination that Malpura
where he was working is situated at a distance of 1.25 Kms.
Thus it is submitted that the contention of Baijnath (PW-4) that
he had stayed back at his place of working for two days and
came back in the evening of 2.5.2004 is false in view of his
admission that he had taken Vinod with him in the morning on
1.5.2004. As the Malpura where Baijnath (PW-4) was working
is hardly situated at a distance of 1.25 Kms. only, therefore,
there was no reason for Baijnath (PW-4) to stay back in
Malpura for two days continuously. The admission of Baijnath
(PW-4) in paragraph 7 of his cross-examination that he had
taken Vinod with him on 1.5.2004 is further corroborated by
the evidence of the prosecutrix (PW-6) who has stated that on
the next date of incident she had narrated the incident to her
father. Thus from the conjoint reading of the evidence of
Baijnath (PW-4) and prosecutrix (PW-6), it is clear that the
Prosecutrix (PW-6) had already told the incident to her father
on the next day of incident but still the FIR was lodged on
3.5.2004 . Thus explanation given by the prosecution for delay
in lodging the FIR is not supported by their evidence. It is
further pointed out by the counsel for the appellant that as per
the MLC of the prosecutrix (PW-6), no external injury was
found on the body of the prosecutrix. The hymen was found old
healed and Dr. Smt. Renu Sharma (PW-9) has admitted in
paragraph 5 of her cross-examination that in case of an injury
on hymen, it takes about a week for healing, therefore, the old
healed injury on hymen was older than one week. She has
further stated that no bleeding was found and if she had found
any blood stained pad, then she would have certainly sealed
the same. Thus, it is submitted by the counsel for the appellant
that the evidence of the prosecutrix is not supported by her
medical evidence. From the evidence of Devka (PW-5) and
9 CRA No.249/2005

prosecutrix (PW-6), it is clear that on the date of incident when
the prosecutrix came back to her house, her mother had
noticed that her Salvar had stained with blood and there was
bleeding from her private part. Devka (PW-5) had taken the
prosecutrix (PW-6) to the doctor for getting her treated for
stomach ache but did not consult the doctor with regard to the
bleeding because menses had not started by that time. It is
further submitted that the conduct of the prosecutrix in not
narrating the incident to her mother inspite of continuous
bleeding does not appear to be correct and on the contrary it is
not natural because a girl would certainly inform her mother
about her sexual violation.

16. There is one more surprising aspect in the matter.
Although the FSL report has not been marked as an exhibit but
in the light of Section 293 of Cr.P.C., it can be read in
evidence. The vaginal slide, pubic hairs as well as the vaginal
swab did not contain any semen or human sperm whereas the
Salvar which according to Devka (PW-5) and prosecutrix (PW-

6), was washed by Devka (PW-5) was found containing semen
and sperm. The underwear which the prosecutrix was wearing
was not seized by the police. Under these circumstances, the
presence of human semen and sperm on the Salvar of the
prosecutrix appears to be doubtful and appears to be a creation
of an evidence.

17. The Supreme Court in the case of Aman Kumar and
Anr. Vs. State of Haryana reported in (2004) 4 SCC 379
has held as under:-

“5. It is well settled that a prosecutrix
complaining of having been a victim of the
offence of rape is not an accomplice after
the crime. There is no rule of law that her
testimony cannot be acted upon without
corroboration in material particulars. She
stands on a higher pedestal than an
injured witness. In the latter case, there is
10 CRA No.249/2005

injury on the physical form, while in the
former it is both physical as well as
psychological and emotional. However, if
the court of facts finds it difficult to accept
the version of the prosecutrix on its face
value, it may search for evidence, direct or
circumstantial, which would lend assurance
to her testimony. Assurance, short of
corroboration as understood in the context
of an accomplice, would suffice.”

18. If the evidence of the prosecutrix is considered in the light
of the judgment passed by the Supreme Court in the case of
Aman Kumar (supra), then it is clear that the evidence of the
prosecutrix appears to be doubtful because of her own un-
natural conduct after the incident. When she came back to her
house and she was continuously bleeding from her private part,
her clothes were stained with blood, then it was expected that
she would narrate the incident to her mother. Even her mother
Devka (PW-5) after noticing that her daughter, to whom the
menses have not started, is bleeding from her private part did
not take it seriously and did not enquire from the prosecutrix
as to why she is bleeding from her private part. On the
contrary, she washed the Salvar of the prosecutrix although
Devka (PW-5) and the prosecutrix (PW-6) have stated that
prior to informing the incident to Baijnath (PW-4) they had
gone to the doctor for treatment of stomach ache and the
doctor had also noticed bleeding from her private part and had
also noticed that her Salvar was stained with blood but still no
treatment was taken by them for bleeding. Under these
circumstances, it is necessary to look for the corroboration. In
the present case, the FIR was lodged on 3.5.2004 whereas the
incident took place on 30.4.2004. The explanation given by the
prosecution for delay in lodging the FIR is that Baijnath (PW-4)
had gone to Malpura and came back in the evening on
2.5.2004 and in the evening itself they went to the police
11 CRA No.249/2005

outpost Rahawali and lodged the FIR and thereafter went to
police Station Lahar on the next day and lodged the FIR
Ex.P/3. As already held in the previous paragraphs that in fact
Baijnath (PW-4) was in his house on 1.5.2004 as he had taken
Vinod with him as a laborer to his place of working at 6:30 in
the morning. The prosecutrix (PW-6) has also stated that she
had informed her father on the next day of incident. Thus it is
clear that Baijnath (PW-4) was already informed about the
incident on 1.5.2004. Thus there is no explanation as to why
no FIR was lodged on 1.5.2004 or 2.5.2004. When a father is
informed that his daughter has been sexually violated, then
nobody would go to his place of working, and would certainly
go to the police station. The conduct of Baijnath (PW-4) of
going to his place of work along with Vinod appears to be
unnatural and hence the explanation given by the prosecution
that Baijnath (PW-4) was not in his house and came back only
in the evening of 2.5.2004 cannot be accepted. Further, Umesh
Singh (PW-11) who was posted at Police outpost Rahawali has
admitted that he was on his duty from 30.4.2004 to 3.5.2004
and was not on leave and the prosecutrix (PW-6) or Baijnath
(PW-4) or anybody had never came to the police outpost
Rahawali for lodging any report. He further specifically denied
that on 2.5.2004 the prosecutrix or her parents had ever come
to police outpost Rahawali for lodging the report. He has
further stated that prior to getting the investigation, neither
the prosecutrix nor her family members had come to him for
lodging the report. He has specifically stated that even in the
morning of 3.4.2004 none had come to the police outpost for
lodging the report. Thus it appears that the prosecutrix along
with her parents directly went to the police Station Lahar
District Bhind and lodged the FIR at 12:30 in the afternoon.
Under these circumstances, this Court is of the considered
opinion that the prosecutrix has failed to satisfactorily explain
12 CRA No.249/2005

the delay in lodging the FIR which was in fact lodged after
around 72 hours of the incident. The Co-ordinate Bench of this
Court in the case of Ghansu Vs. State of M.P. reported in
1997 (II) Short Note 73 has held that where the FIR is
lodged belatedly and the witnesses are not reliable and the
medical evidence does not corroborate the evidence of the
prosecutrix, then the prosecution case becomes doubtful. In
the case of Samlu vs. State of M.P. reported in 1995 (I)
MPWN 138, it is held by Co-ordinate Bench of this Court that
where the medical and chemical examination does not support
the prosecution case and the evidence of the witnesses is
contradictory to each other, then it cannot be said that the
offence has been proved beyond reasonable doubt. In the case
of Bhujwal vs. State of M.P. reported in 1996 (II) MPWN
39 it has been held that the presumption as to commission of
rape on the basis of prosecutrix statement cannot be drawn
when such statement does not inspire confidence.

19. Considering the totality of the facts and circumstances of
the case, this Court is of the considered opinion that the
evidence of the prosecutrix is not of worth credence.
Accordingly, the appellant is acquitted of all the charges.

20. The judgment and sentence dated 30.3.2005 passed by
Shri S.B. Verma, Additional Sessions Judge, Lahar, District
Bhind in S.T.No.113/2004 is hereby set aside. The appellant is
on bail. His bail bond and surety bond are discharged.

21. The appeal succeeds and is hereby allowed.

(G.S. AHLUWALIA)
Judge
(alok) 14/03/2018

Digitally signed by ALOK KUMAR
Date: 2018.03.14 17:17:13 +05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation