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Judgments of Supreme Court of India and High Courts

Pan Singh vs State Of M.P. on 2 August, 2018

-( 1 )- Criminal Appeal No.26/2006

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

SINGLE BENCH:
(Justice Vivek Agarwal)

Criminal Appeal No.26/2006

…..Appellant : Pan Singh

Versus

…..Respondent : State of M.P.

—————————————————————————————
Shri B.S.Gaur, learned counsel for the appellant, appointed from
the Legal Aid.
Shri G.S.Chauhan, learned Public Prosecutor for the
respondent/State.
—————————————————————————————

JUDGMENT

( 2/ 8/2018)

This Criminal Appeal has been filed by appellant Pansingh
son of Sunva Jatav resident of Bagedari police Station Karera,
Shivpuri, being aggrieved by judgment dated 7.12.2005 passed in
Sessions Case No.61/2005 by the Additional Sessions Judge,
Karera, Shivpuri, whereby learned Additional Sessions Judge has
convicted the appellant under the provisions of Section 450 of
IPC with 4 years of RI and fine of Rs.500/-. Appellant has been
further convicted under Section 376 of IPC with ten years of RI
and fine of Rs.500/-. In default of payment of fine, appellant is
required to undergo further RI of two months each.

2. As nobody was appearing for the appellant, this Court
appointed Shri B.S.Gaur as counsel from the Legal Aid and
requested him to prepare and argue this case.

3. The facts of the case, which are not in dispute, are that on
12.1.2005 at about 12.30 am when prosecutrix was in her room,
accused had entered her room and made himself comfortable by
the side of the prosecutrix, on her bed. Thereafter, he committed

-( 2 )- Criminal Appeal No.26/2006

rape and when prosecutrix tried to oppose, he put a piece of cloth
in her mouth, as a result she could not shout. Once the act was
over, she shouted, which was heard by her sister-in-law Suman
(PW-3) and she called Bhaggo (PW-2), mother-in-law of the
prosecutrix, and Lalu (PW-4), husband of the prosecutrix, who
was available in the house of Bhaggo at a distance of 20-25
steps. It is also the case of prosecution that at that point of time,
witness Hariram (PW-6) had arrived at the scene of crime and he
had seen the whole incident. FIR was lodged on the same day at
1.30 pm i.e. there is a gap of 13 hours between the incident and
the time when FIR was lodged.

4. It is the contention of learned counsel for the appellant that
this is a case of false accusation whereby appellant has been
falsely accused of committing rape. It is submitted that prosecutrix
(PW-1) is habitual of making false allegations and this can be
verified by the statements of Prosecutrix (PW-1), Bhaggo (PW-2)
and Suman (PW-3). It is submitted that because of rivalry over
the election to the post of Sarpanch, accused has been falsely
framed. It is further submitted that the version of the prosecution
witnesses is full of contradictions and is not reliable. He has taken
this Court through the detailed evidence of each of the
prosecution witnesses, namely prosecutrix (PW-1) who has
admitted in her cross-examination that accused had taken about
a minute’s time in committing rape and when thereafter he started
running, then her sister-in-law, who was in the neighbouring room,
called her husband and mother-in-law. She has admitted that she
had not sustained any injury during the said incident either on the
body or on her face including mouth. In para 6 of her cross-
examination, she has admitted that accused was opposing her
mother-in-law in the election. She also admitted that about 1 and
half years prior to the present incident, she had filed a case for
committing rape against Badam, Lakhan, Bhassu and Raghuvar
and all those persons have been acquitted in that case.

5. Bhaggo (PW-2), mother-in-law of the prosecutrix, has

-( 3 )- Criminal Appeal No.26/2006

mentioned that when she reached the incident, then accused was
not present there. She saw her son Lalu lying down on floor and
she offered water to him and then he informed her that accused
Pansingh had throttled his neck and ran away. In cross-
examination, Bhaggo (PW-2) has admitted that she was a
candidate for the election to the post of Sarpanch, but later on
she withdrew her candidature by supporting one Dubeyji. She
also admitted that accused Pansingh was her opponent in the
election. She has further improvised the story which has not been
mentioned by the prosecutrix to the effect that not only the
accused had tried to scuffle with her son Lalu, but also had given
two kick blows to her daughter-in-law. This portion of giving kick
blows to her daughter-in-law is not mentioned in the statement of
the prosecutrix (PW-1). She has also admitted that earlier a case
was lodged against other persons with whom matter was
compromised.

6. Suman (PW-3), sister-in-law of the prosecutrix, has
mentioned in her examination-in-chief that when she heard voice
of her sister-in-law, the prosecutrix, she opened door of her room
and came out and saw that a scuffle was going on between her
brother-in-law Lalu and accused Pansingh, then she went to call
her mother-in-law. This is another material contradiction in the
prosecution story because as per the prosecutrix it was Suman
who had gone and called both husband Lalu and mother-in-law
Bhaggo. Bhaggo (PW-2) has on the contrary submitted that when
she reached the scene of crime, her son was lying in a semi-
conscious state. Suman (PW-3) has admitted that prosecutrix had
informed her that she was insulted by Pansingh. In cross-
examination, she has admitted that in the immediate
neighbourhood there are houses of Chironji and Bindaram. She
further admitted that in the interrogation she informed the police
that her sister-in-law had informed her that she was insulted by
the accused. She further narrated that scuffle between her
brother-in-law and accused took place for about 5 minutes. She

-( 4 )- Criminal Appeal No.26/2006

admitted in para 3 that her mother-in-law was a candidate for
election to the post of Sarpanch and accused Pansingh was her
opponent.

7. Lalu (PW-4), husband of the prosecutrix, on the other hand
has narrated in his examination-in-chief that when he heard voice
of her sister-in-law, then he came running to his house from the
house of his mother where he was having dinner and he saw his
wife in a naked state when the accused was in a compromising
position and was raping her. In para 2, Lalu (PW-4) has
mentioned that they could not lodge the report in time because
they had first gone to Surendra Maharaj, Sarpanch, and then
when they tried to approach police Station, accused met them
with a Farsa and threatened them with their life, as a result of
which, he could not lodge the report. It is submitted that
prosecution has not examined Sarpanch Surendra Maharaj and
there is no such version of the prosecutrix or Bhaggo (PW-2),
who had gone to lodge the report, that since the accused was
armed with a Farsa and had threatened them, they could not
lodge the FIR during night time.

8. Learned counsel for the appellant has further pointed out
that in the cross-examination, there is material omission and
contradiction in the testimony of Lalu (PW-4) inasmuch as it is not
the case of the prosecutrix that Lalu, her husband, had seen the
accused committing rape on her. In reply to question that if he
had seen the accused committing rape on his wife, then why he
had not given such statement before the police in case diary
statement EXD/2, Lalu (PW-4) could not give any reason for such
omission. Lalu (PW-4) has further mentioned that when he had
caught hold of the accused, at that point of time, his mother had
lighted Chimni. It is submitted that this is again contradictory to
the statement of Suman (PW-3) that there was a source of light,
whereas as per the statement of Bhaggo (PW-2) when she
arrived at the scene of crime accused had already run away and
she saw her son lying in a semi-conscious state. In para 5, Lalu

-( 5 )- Criminal Appeal No.26/2006

(PW-4) submitted that there were injury marks on the body of the
prosecutrix and her blouse and petticoat were torn. It is further
pointed out that this is also contradictory to the version of the
prosecutrix (PW-1), Bhaggo (PW-2) and Suman (PW-3).

9. Dr. Aneeta Bhilwar (PW-9), who had conducted MLC on the
body of the prosecutrix, categorically reported that there was no
sign of injury on the body or private parts of the prosecutrix. There
were many spots on the petticoat of the prosecutrix which she
had sealed and given to the Woman Constable alongwith vaginal
slides. She has further deposed that no definite opinion about
rape could have been given on the basis of the evidence. In
cross-examination, she admitted that there were no sign of any
protest on the body of the prosecutrix.

10. Woman Constable Prabhawati (PW-8) has admitted
receiving sealed packet of petticoat and slides for which
Panchnama (Ex.P/4) was prepared, but IO of the case G.L.
Parihar (PW-7) has nowhere deposed that as to what report was
received in regard to such petticoat and such slides which were
received from the doctor and whether they were sent for FSL
examination or not. On such premises, learned counsel for the
appellant prays for allowing this appeal by acquitting the
appellant.

11. Learned Public Prosecutor for the State on the other hand
submits that in rural areas such minor omissions cannot be
exaggerated to record a finding of acquittal in favour of the
accused.

12. Learned Public Prosecutor further submits that in para 27
of the impugned judgment reason for delay has been dealt with
by the learned Additional Sessions Judge and it is mentioned that
there is no sufficient cross-examination either on G.L.Parihar
(PW-7) or on the prosecutrix (PW-1) who have categorically
mentioned that FIR could be lodged with delay because of night
and the fact that they were required to walk upto the police
Station. It is further submitted that in the aforesaid backdrop, it is

-( 6 )- Criminal Appeal No.26/2006

not such a case where accused be acquitted because of certain
minor omissions and contradictions in the testimony of
prosecution witnesses.

13. As far as FIR (Ex.P/1) is concerned, distance of police
Station is mentioned as 8 kms. The hypothesis put forth by Lalu
(PW-4) that they were confronted by the accused is not supported
by any other witness, even there is no mention of such threat in
the FIR as has mentioned by Lalu (PW-4). Travelling a distance
of 8 kms will not take 13 hours for the prosecutrix and her
relatives.

14. There is no independent witnesses though Suman (PW-3)
has admitted that there are two persons living in the immediate
neighbourhood. There is no testimony of Sarpanch to whom Lalu
(PW-4) says that they had visited before lodging of the FIR. Now,
in view of such facts, when there is no independent witnesses,
testimony of each of the witnesses is to be examined and
analyzed.

15. As far as Lalu (PW-4) is concerned, his testimony does not
inspire any confidence. He cannot be said to be a witness at the
time of the incident because he has given a version that he had
seen his wife naked being raped by the accused which is contrary
to the version given by the prosecutrix (PW-1), Bhaggo (PW-2)
and Suman (PW-3), who was the first to hear the cries of the
prosecutrix, therefore, evidence of Lalu (PW-4) is not of much use
to uphold the conviction of the accused, and hence, it needs to be
brushed aside.

16. As far as Bhaggo (PW-2) is concerned, there is material
contradiction in her statement. She states that when she arrived
at the scene of incident she saw her son lying in a semi conscious
state and she offered water to him and he narrated that accused
Pansingh tried to throttle him as a result of which he fell down,
whereas Lalu (PW-4) has mentioned that he had seen the
accused in the light of Chimni which was lit by his mother
Bhaggo, therefore, presence of Lalu at the place of incident at

-( 7 )- Criminal Appeal No.26/2006

that very point of time becomes doubtful. It is doubtful that he had
seen the accused as Bhaggo says that she had arrived on the
scene after accused had run away, then Lalu could not have seen
him in the light of Chimni lit by Bhaggo. Further her testimony to
the effect that earlier also certain persons were implicated in the
case of rape and matter was compromised, reveals that no
woman worth her salt will compromise her chastity and make
such accusation and compromise the matter when such serious
offence is committed not only against her body but also having
serious ramifications of psychological and social dimensions.

17. Suman (PW-3) has admitted that when she opened door of
her room on hearing cries of her sister-in-law, she saw Lalu (PW-

4) fighting with the accused Pansingh. Therefore, version of the
prosecutrix that Suman had called her husband and mother-in-
law gets diluted inasmuch as Suman has also admitted that she
had never called her brother-in-law and her brother-in-law Lalu
was already present at the scene of incident. Further, Suman has
deposed that prosecutrix had only informed that she has been
insulted. This fact has been reiterated in her cross-examination
and she had narrated the same version to the police that her
sister-in-law was insulted by accused Pansingh. There is a
difference between insult and rape and if insult would have been
committed, it would be a case under Section 294 of IPC and if it
would have been a case of physical insult, then it would be a case
under Section 323 of IPC but by no stretch of imagination it would
have been a case under Section 376 of IPC.

18. Dr. Anita Bhilwar (PW-9) has not supported the prosecution
case by giving any independent finding. Though the learned
Additional Sessions Judge has placed reliance on the judgment
of this High Court in the case of Ram Vilas vs. State of M.P. as
reported in 2004(2) M.P.H.T. 135 wherein it is held that even if a
prosecutrix, who was a major, married woman and accustomed to
sexual intercourse, dose not sustain any injury on her private part,
it cannot be said that either story of the prosecutrix is false or she

-( 8 )- Criminal Appeal No.26/2006

was a consenting party. This judgment is to be seen in the light of
the testimony of prosecution witnesses. Lalu (PW-4) has
mentioned that his wife, the prosecutrix, had sustained injuries on
face, however, the doctor does not corroborate any of the injuries
as mentioned by Lalu. It is also true that prosecutrix, who is a
grown up married woman and mother of three children, may not
have sustained any injury on the private part when she was being
raped, but at the same time, there would have been some protest
marks on the other parts of her body and the story of the
prosecution witness Lalu would have been corroborated either by
the prosecutrix or by the independent medical evidence. In
absence of there being any sign of protest, as mentioned by Dr.
Anita Bhilwar (PW-9) this judgment in the case of Ram Vilas
(supra) is distinguishable on facts and is not applicable in the
facts and circumstances of the present case.

19. In view of such analysis of the evidence, it is apparent that
it is a case of political rivalry and the accused who was a
opponent to the mother-in-law of the prosecutrix has been framed
in a case of rape by falsely accusing the appellant and also there
is no justification for not getting the FSL report on the basis of
sealed petticoat and the vaginal slides which were given by Dr.
Anita Bhilwar (PW-9) to Woman Constable Prabhawati (PW-8) for
which Panchnama Ex.P/4 was prepared. In absence of even any
independent scientific evidence to point out that any rape was
committed, which would have been the best piece of evidence for
the prosecution, but prosecution has failed to produce such
evidence, specially when there was no independent eye-witness,
the case of the prosecution does not appear to be standing on the
foundation of truth but appears to be a case of vindictive false
accusation. Thus, appellant deserves to be acquitted and is
acquitted. He will be free to claim compensation from the
prosecution as well as State for such false accusation by
undertaking independent proceedings. This appeal is accordingly
allowed with cost which is quantified at Rs.10,000/- to be borne

-( 9 )- Criminal Appeal No.26/2006

by the State and which will be payable to the appellant. The
appellant is on bail, his bail bonds shall stand discharged.

(Vivek Agarwal)
Judge
ms/-

Digitally signed by MADHU
SOODAN PRASAD
Date: 2018.08.06 16:01:56 +05’30’
-( 10 )- Criminal Appeal No.26/2006

2.8.2018
None for the appellant.

Shri G.S.Chauhan, learned Public Prosecutor, for the
respondent/State.

As nobody is appearing for the appellant and this case is
pending since 2006, Shri B.S.Gaur, Advocate is appointed as a
counsel from Legal Aid to prepare and argue the matter.

Arguments heard.

Judgment dictated and signed separately.

(Vivek Agarwal)
Judge
mani

Digitally signed by MADHU
SOODAN PRASAD
Date: 2018.08.06 15:56:56
+05’30’

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