SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Nirbhay Das vs The State Of M.P. on 19 December, 2017

1

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

SINGLE BENCH : RAJEEV KUMAR DUBEY, J

Criminal Appeal No.2687/1997
Nirbhay Das
Vs.
The State of Madhya Pradesh

For the appellant: Shri Ranjan Banerjee with Shri AK.Dubey,
Advocate.
For the respondent: Shri BN. Pandey, Government Advocate.

JUDGMENT

Reserved on 30/11/2017
Delivered on 19/12/2017

This criminal appeal has been filed u/s 374(2) of Cr.P.C.
against the judgment dated 19/12/1997 passed by Additional Sessions
Judge, Hoshangabad in ST.No.7/1996, whereby learned Additional
Sessions Judge found the appellant guilty for the offences punishable
under Section 376 of the IPC and sentenced him R.I. for seven years with
fine of Rs.5,000/- and in default of payment of fine amount further S.I. for
one year and nine months.

2. Brief facts of the case are that on 25/01/1995 at 1:00 PM the
prosecutrix (PW/1) (name and identity of the prosecutrix imposed by law
contained in Section 228A of IPC is not disclosed) who was resident of
village Sodalpur went to her field situated at village Sodalpur for giving
food to her husband Hukumchand (PW/2). At 3:00 in the afternoon when
her husband went to another farm appellant/accused came to the farm and
caught hold of her and after hurling her on the ground committed rape
2

with her. On hearing her shoutings, her husband Hukumchand (PW/2)
came there and on seeing him the applicant ran away. Hukumchand
(PW/2) chased him to catch, but the appellant fled away. Ratan Gond and
Madhu (DW/1) who were working at the field also saw the appellant
running from the spot. After the incident prosecutrix and her husband
Hukumchand (PW/2) went to the village Sarpanch and Kotwar Sukhdeo
(PW/4) and narrated the incident to them. Thereafter, they went to Police
Station Timarni and lodged the written report (Ex.P/2). On that report
N.M. Bais, the then Station House Officer, Police Station Timarni
registered the Crime No.11/1995 (Ex.P/1) for the offence punishable
under Section 376 of the IPC and investigated the matter. During
investigation he went to the spot and prepared spot map (Ex.P/3) and also
seized broken piece of bangle and one button of blouse and prepared
seizure memo (Ex.P/5). He also sent the prosecutrix for medical
examination at Civil Hospital, Harda, where Dr. Abha Jassani examined
her. She also prepared two slides of vaginal swab of the prosecutrix and
sealed it in a packet and handed it over to the concerned Constable Kalyan
Singh, who produced that packet at P.S. Timarni, which was seized by the
Head Constable Narmada Prasad and prepared seizure memo (Ex.P/6).
During investigation NM. Bais also recorded the statement of the
prosecutrix (PW/1), Hukumchand (PW/2), Sukhdeo (PW/4), Omprakash,
Ratangond, Madhu (DW/1) and Maniram (DW/2) and also arrested the
appellant and sent him for medical examination to PHC, Timarni, where
Dr. AP. Nayak (PW/6) examined the appellant and gave MLC report
(Ex.P/7). Dr. AP. Nayak (PW/6) also prepared slide of seamen of the
appellant and sealed it in a packet and sent to P.S. Harda, through
Constable Mukesh Kumar Tiwari, who produced that packet to P.S.
Timarni. NM. Bais also sent all seized articles to FSL, Gwalior for
chemical examination, from where FSL report was received. After
investigation Police filed charge-sheet against the appellant before JMFC,
Harda, who committed the case to the Court of Sessions. On that charge-

3

sheet ST.No.7/96 was registered. Learned ASJ framed charge against the
applicant punishable under Section 376 of the IPC and tried the case. The
appellant abjured his guilt and took the defence that he has falsely been
implicated in the case. He also took defence that he dug well in the field
of Hukumchand, but he did not pay money to him, due to which some
altercation occurred between them and so at the instance of Hukumchand
(PW/2), her wife (Prosecutrix) lodged false report against him. He also
produced Madhusudan (DW/1), Maniram (DW/2) and Goverdhan (DW/3)
as defence witness in his defence. However, after the trial learned A.S.J.
found the appellant guilty for the offence punishable under Section 376 of
the IPC and sentenced him R.I. for seven years with fine of Rs.5,000/- and
in default of payment of fine amount further S.I. for one year and nine
months. Being aggrieved by the impugned judgment, appellant has
preferred this appeal.

3. Learned counsel for the appellant submitted that there are
many contradictions and omissions in the statement of the prosecutrix
(PW/1). The prosecutrix who is an illiterate lady lodged the written report
against the applicant, but the prosecution did not produce any evidence
regarding the person who typed that report. The prosecutrix (PW/1) stated
that the applicant forcibly tossed her on the ground and committed rape
with her and also stated in her cross-examination that during incident she
sustained injuries in her wrist, knees, elbows and legs and her blouse got
torn in the incident, but the prosecution did not produce the Doctor who
conducted the medical examination of the prosecutrix. Even in the MLC
report of the prosecutrix filed by the prosecution alongwith the charge-
sheet it is not mentioned that the prosecutrix (PW/1) sustained injuries in
her wrist, knees, elbows and legs in the incident. On the contrary it is
mentioned in the report that no definite opinion can be given regarding
rape with the prosecutrix (PW/1). If the applicant had committed rape
with the prosecutrix on a rough field, the prosecutrix might have sustained
injuries on her body. The prosecution did not produce any independent
4

witness, who saw the applicant committing rape with the prosecutrix.
Learned trial Court without appreciating all these facts, and wrongly
taking into consideration the medical examination report of the
prosecutrix and FSL report, which were not proved by the prosecution
found the appellant guilty for the aforesaid offence.

4. On the other hand learned counsel for the State submitted that
from the statement of the prosecutrix, which is corroborated from other
evidence also the guilt of the appellant is clearly proved, so the learned
trial Court did not commit any mistake in finding the appellant guilty for
the aforesaid offence.

5. This Court has gone through the record and arguments
advanced by the learned counsel for the parties.

6. Although, prosecutrix (PW/1) deposed that on the date of
incident she went to field to give food to her husband Hukumchand
(PW/2) and after having food, her husband went to other field and she was
left alone at the field. At that time appellant came there and sat down near
her and asked her what she was doing there and then he got up on her and
committed rape with her for 3-4 minutes. In the incident she sustained
injuries on her back, west, hand and leg and her cloths were also torn. On
hearing her shoutings her husband Hukumchand (PW/2) came there. On
that applicant ran away from the spot. She narrated the incident to her
husband Hukumchand (PW/2). Then, her husband took her to home and
thereafter they went to the village Sarpanch and then she and her husband
alongwith village Kotwar Sukhdev (PW/4) went to Police Station
Timarni, where she filed the report (Ex.P/2). In this regard, her statement
is also corroborated from the statement of her husband Hukumchand
(PW/2), who also deposed that on the date of incident the prosecutrix
(PW/1) was at her field and on hearing her shoutings he went to spot. At
that time he saw the applicant running away from the field. The
prosecutrix told him that the applicant had committed rape with her. He
also saw the injuries on the body of the prosecutrix and her clothes were
5

also torn. On hearing her shouting Ratan Gond and Maniram also came on
the spot. He also narrated the incident to them. Then, he went to village
Sarpanch and narrated the incident to him and thereafter they went to
Timarni, where he got FIR typed from a shop and then lodged the report
at P.S. Timarni and the statement of Kotwar Sukhdev (PW/4) who
deposed that on the date of incident at 3:00 PM Hukumchand came to him
and told that appellant had committed rape with his wife. On that he went
to Police Station with Hukumchand and his wife.

7. But their statements regarding incident are not supported
from the statement of independent witnesses. In the FIR (Ex.P/2) lodged
by the prosecutrix regarding incident it is mentioned that at the time of
incident Ratan Gond and Madhu (DW/1) were working at the field who
also saw the appellant running from the spot. Hukumchand (PW/3)
husband of the prosecutrix also deposed that on hearing the shouting of
prosecutrix Ratan Gond and Mani Ram also came on the spot, but
prosecution did not produce these witnesses in his evidence. On the
contrary appellant produced Madhu (DW/1) and Maniram (DW/2) as
defence witness, who in their statements clearly denied from the fact that
at the time of incident they saw appellant running from the spot and also
that the prosecutrix narrated the incident to them. Although, the
conviction in a case of rape can be based solely on the testimony of the
prosecutrix, but that can be done in a case where the Court is convinced
about the truthfulness of the prosecutrix and there exist no circumstances
which cast a shadow of doubt over her veracity. While, in the instant case
there are many contradictions and omissions in the statement of
prosecutrix (PW/1) and her husband Hukamchand (PW/2). Prosecutrix
who is an illiterate lady logged written complaint (Ex.P/2) at P.S.Timarni.
Although, in the examination in chief prosecutrix deposed that she got the
report typed from Timarani and took it to the Police Station. But in her
cross-examination prosecutrix deposed that she had lodged oral complaint
at the Police Station. She spoke and the Police Inspector wrote the report.

6

Hukumchand, husband of prosecutrix deposed that when they reached the
Police Station the Station House Officer asked them to file written report,
so he went to bus stand Timarni, where he got the report typed.
Prosecution did not produce the person who typed that report and not even
the person who registered Crime No.11/1995 (Ex.P/1) on the basis of that
written report (Ex.P/2).

8. Prosecutrix deposed that as soon as her husband departed for
another farm, the accused came to the farm, while Hukamchand deposed
that after having food he went to another field and when he returned from
that field he heard the shoutings of his wife and saw appellant running.
Prosecutrix deposed that at the time of incident due to scuffle she
sustained injuries in her both wrist, elbows, knees, back and legs, her
clothes were torn and also stained with blood. But this is not mentioned in
her report (Ex.P/2). Police also did not seize her clothes. Prosecution also
did not produce the lady Doctor who examined the prosecutrix. Learned
trial Court even without getting the prosecutrix’s medical examination
report proven by the doctor who gave that report read that report in the
evidence and held that in the report it was mentioned that prosecutrix
sustained injuries in her neck and back and so her statement is also
supported by the report. This is not correct, because without getting the
report proven by the doctor who conducted the medical examination of
prosecutrix, the report cannot be read in the evidence. Even the learned
trial Court without marking exhibit on that report and without asking any
question from the appellant in his examination under Section 313 of
Cr.P.C. regarding facts mentioned in the report used that report in the
evidence against him which cannot be said correct. Even otherwise in
that report it is mentioned that no definite opinion could be given
regarding rape with prosecutrix and no external injuries were found on her
private part. Only it is mentioned that linear scratch marks were found on
left side of her neck and back, while prosecutrix deposed that in the
incident due to scuffle she had sustained injuries in both of her wrists,
7

elbows, knees, back and legs, her clothes were also torn and stained with
blood. But it is not mentioned in the report that there were injuries on her
waist, wrist, elbows and knees at the time of prosecutrix’s examination
and legs and her clothes were also stained with blood. Had appellant
committed rape with the prosecutrix who is a major lady and mother of
four children, after flinging her on the ground and she had also resisted
during incident as she had deposed then she would have sustained injuries
on her body and prosecution would have proven that fact by producing the
Doctor in the evidence. Prosecutrix deposed that soon after the incident
she went to Sarpanch and Sukhram and with Sukhram went to Police
Station, while Sukhram clearly denied from the fact that at the time when
prosecutrix came to him, her clothes were torn or he saw injury on her
body.

9. Learned trial Court also took the FSL report into
consideration against appellant, in which it is mentioned that in the slide
of vaginal swab of prosecutrix and on the petticoat of prosecutrix semen
and human sperm were found. But prosecution did not produce the lady
Doctor who examined the prosecutrix and allegedly prepared the slide of
her vaginal swab and seized her petticoat. Neither the prosecution produce
the investigation officer who allegedly sent that slide and petticoat to FSL
for chemical analysis nor the draft along with which the said articles were
sent to FSL. In the absence of these evidence that report can not be read
against appellant assuming that the said report was of the vaginal swab
and the petticoat of prosecutrix, learned trial Court used that report against
appellant without even putting questions from appellant in his
examination under Section 313 of Cr.P.C. regarding facts mentioned in
that report, which cannot be said to be correct. In the absence of evidence
that the doctor prepared the slide of vaginal swab of prosecutrix only and
also seized her petticoat and the same were sent to the Police and then by
the Police to the FSL for chemical analysis, the FSL report cannot be read
against appellant assuming that the said report is of the slide of vaginal
8

swab of prosecutrix and the petticoat belongs to her, which she had wore
at the time of incident. Even otherwise prosecutrix is a married lady who
admitted in her cross-examination that after lodging report she came back
to her house alongwith her husband and went for medical examination on
the next day and after lodging the report, her husband and she were
together till the medical examination. So, otherwise also this report can
not be relied upon.

10. Although Sukhdev (PW/4) also deposed that Police went to
spot and seized broken pieces of Bangles and one button and prepared
seizure memo (Ex.P/5). But prosecution did not produce any evidence
which shows that the broken pieces of Bangle seized from spot were
pieces of Bangle which the prosecutrix had worn at the time of incident.
Even the prosecutrix did not depose that in the incident her bangles were
broken. Likewise, there is no evidence on record that the seized button is
of the clothes which were worn by the prosecutrix or appellant at the time
of incident. So that seizure also has no value.

11. So looking to the facts and circumstances that Prosecutrix
who is an illiterate lady logged a written complaint (Ex.P/2) at
P.S.Timarni, while in her statement she deposed that she had logged oral
report in the Police Station, but prosecution neither produced the person
who had typed the report nor the Police officer who registered crime on
that report. Prosecution did not even produce investigation officer in the
evidence. In the FIR (Ex.P/2) lodged by the prosecutrix regarding incident
it is mentioned that at the time of incident Ratan Gond and Madhu
(DW/1) were working at the field who also saw the applicant running
from the spot. Hukumchand (PW/3) husband of the prosecutrix also
deposed that on hearing the shoutings of prosecutrix, Ratan Gond and
Mani Ram also came on the spot, but prosecution did not produce these
witnesses in his evidence. Prosecutrix deposed that at the time of incident
due to scuffle she had sustained injuries in her both wrist, elbows, knees,
back and legs, her clothes were torn and also stained with blood, but this
9

is not mentioned in her report (Ex.P/2). Police also did not seize her
cloths. Prosecution also did not produced the lady Doctor who examined
the prosecutrix in this regard. Even in the medical examination report of
the prosecutrix it is not mentioned that injuries were found on her waist,
wrist, elbows, knees and legs at the time of examination of prosecutrix
and that her clothes were stained with blood. The statement of prosecutrix
cannot be believed beyond reasonable doubt.

12. In the facts and circumstances of the case in the considered
opinion of this Court learned trial Court committed mistake in finding the
appellant guilty for the offence punishable under section 376 of the IPC.

13. In the result, this appeal is accordingly allowed. The
impugned judgment and order of conviction and sentence of the appellant
for the offence punishable under Section 376 IPC is set aside and the
appellant stands acquitted of the charge. Appellant is on bail, so his bail
bond is discharged.

Certified copy as per rules.

(Rajeev Kumar Dubey)
JUDGE
as/

Digitally signed by
ANURAG SONI
Date: 2017.12.20 10:16:47
+05’30’

Leave a Reply

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

Copyright © 2018 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 to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh