Cr.A.No.2078/2006

IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.2078/2006
Ram Kripal @ Kripal Jhariya S/o
Shri Dungru lal Jhariya, aged about 50 years
R/o Village-Bhua Bichhiya,
District-Mandla, (M.P.)

Appellant
-V/S-
The State of Madhya Pradesh
through P.S. Bichhiya,
Dist. Mandla (M.P.)

Respondent
………………………………………………………………………………………………..
Present:- Hon’ble Shri Justice C.V. Sirpurkar
…………………………………………………………………………………………………
Shri Manish Datt, senior counsel with Shri Yogesh
Soni, counsel for the appellant.
Shri Vivek Lakhera, Government Advocate for the
respondent State.
…………………………………………………………………………………………………
JUDGMENT

(05-04-2018)

1. This criminal appeal under Section 374 (2) of the Cr.P.C.
against conviction filed on behalf of appellant/accused Ram
Kripal is directed against the judgment dated 26.10.2006
passed by the Court of Sessions Judge, Mandla in S.T.
No.29/2006, whereby the appellant/accused Ram Kripal was
convicted of Section 376 (1) of the IPC and had been
sentenced to undergo rigorous imprisonment for a period of 7
years and was directed to pay a fine in the sum of Rs.15,000/.
In default of payment of fine, he was directed to undergo
further rigorous imprisonment for a period of 6 months.

Cr.A.No.2078/2006

2. The prosecution case before the trial Court may be
summarized as hereunder: The prosecutrix was a 35 years old
married lady with 15 and 10 years old sons and a married
daughter. She lived at Village-Kutarwani. Her husband had
gone to Raipur in pursuit of his livelihood. On 10.10.2005, the
prosecutrix had gone to Village-Manjhipur to visit her
daughter Mamta’s matrimonial home for the purpose of
watching Durga Pooja programme held at nearby Village-
Bichhiya. She used to watch aforesaid programmes with her
sons Omprakash and Rajendra at night and would, thereafter,
return to Manjhipur.

3. On 12.10.2005, the prosecutrix was harvesting paddy in
the field of Mamta’s mother-in-law Ansuiya Bai nearby. In the
afternoon, accused Ram Kripal visited Ansuiya Bai’s house.
Earlier, Ansuiya Bai used to supply milk to appellant Ram
Kripal’s house. Ram Kripal called Ansuiya Bai, Mamta and
prosecutrix to Anusuiya Bai’s house. They laid a cot for Ram
Kripal offered him a glass of water. Thereafter, Mamta and
Ansuiya Bai returned to the field and the prosecutrix started
having her meals. Appellant Ram Kripal gave Rajendra, son-
in-law of the prosecutrix, Rs.10/- for fetching a herb from the
jungle. At that time, the prosecutrix was alone in the house.
Her sons Rajendra and Omprakash were playing outside. At
that time, appellant Ramkripal shut the door of the verandah
from inside and entered the kitchen, where the prosecutrix was
taking meals. He threw her on the ground, clamped her mouth
shut with his hand and started to rape her. Somehow, the
prosecutrix managed to push his hand aside and shouted;
whereon, Mamta and Ansuiya Bai rushed to the spot. Rajendra
and Omprakash, who were playing outside, also came. They
Cr.A.No.2078/2006

knocked on the door; whereon, Ram Kripal left the prosecutrix
alone. She opened the door weeping and disclosed the incident
to Ansuiya Bai. All of them scolded appellant Ram Kripal and
chased him away. Next day, the prosecutrix returned to
Kutarwani with her sons; however, due to fear of society and
her husband, she did not lodge the report immediately. On
21.10.2005, her husband returned from Raipur. She disclosed
the matter to him, who got annoyed. Thereafter, consultations
were held and the first information report of the incident was
lodged on 26.10.2005. After due investigation, charge-sheet
was filed.

4. The trial Court framed the charge against the appellant/
accused Ram Kripal under Section 376 (1) of the IPC. The
accused abjured the guilt and claimed to be tried. In
examination under Section 313 of the Cr.P.C., he stated that he
had been falsely implicated in the case. In fact, Ansuiya Bai
had taken a loan from him and in order to avoid repaying the
loan, she had falsely implicated the accused in the case.

5. After the trial, the trial Court held that the prosecution
had succeeded in proving beyond reasonable doubt that the
appellant/accused Ram Kripal had sexual intercourse with the
prosecutrix against her will; therefore, he was convicted and
sentenced as stated above.

6. Learned counsel for the appellant has challenged the
conviction and sentence mainly on the ground that the first
information report was lodged after a delay of about 14 days
and no cogent reason has been given for the delay by the
prosecution. The place of incident is surrounded by other
houses and son’s, daughter and daughter’s mother-in-law of
the prosecutrix were present within the ear short at the time of
Cr.A.No.2078/2006

the incident; therefore, it is highly improbable that anyone
would attempt an offence like rape at such a place. The
prosecutrix was a mature, married woman without any
disability; as such, it would not have been possible for the
appellant, who was a 50 years old man, to single handedly
rape her. The medical evidence does not support the
prosecution case. There are glaring discrepancies between the
Court statements of the prosecution witnesses and their
statements before the police, which make the Court statements
of prosecution witnesses unworthy of credit. Inspite of
aforesaid circumstance, the trial Court grievously erred in
convicting the appellant/accused Ram Kripal under Section
376 (1) of the IPC; therefore, it has been prayed that the
appellant be acquitted, granting him benefit of doubt.

7. Learned Government Advocate for the respondent State
on the other hand has supported the conviction of the appellant
arguing that even uncorroborated testimony of the prosecutrix
is sufficient to convict an accused for the offence of rape. In
the present case, her statements are corroborated by her
daughter’s mother-in-law Ansuiya Bai and her daughter
Mamta. It has also been submitted that the appellant was
unable to substantiate the defence that he was falsely
implicated in the case so that Ansuiya Bai would be able to
avoid repaying the loan taken by her from the appellant.

8. On perusal of the record and due consideration of the
rival contentions, this Court is of the view that this criminal
appeal must succeeds for the reasons hereinafter stated:

9. A perusal of the record reveals that the prosecution has
examined the prosecutrix (PW-4) and her daughter Mamta
(PW-7) and Mamta’s mother-in-law Ansuiya Bai (PW-2), who
Cr.A.No.2078/2006

are said to have reached the spot on hearing the alarm raised
by the prosecutrix during the course of the incident. The
prosecution has also examined Roopdas (PW-5), husband of
the prosecutrix, in order to explain the delay in lodging the
first information report and Rajendra Das (PW-8), son-in-law
of the prosecutrix. No witnesses have been examined in
defence.

10. The gist of the prosecution evidence based upon the
testimony of the aforesaid witnesses is that at the time of
Dusserah festival, prosecutrix had visited her daughter Mamta
at Manjhipur for watching exhibition of Durga Puja idols. At
that time, harvesting of paddy was going on; therefore, her
daughter had detained her at Manjhipur. Mamta had gone
behind her house along with her mother-in-law Ansuiya Bai
for harvesting paddy. The prosecutrix had gone to take bath.
At that time, appellant Ram Kripal arrived and asked for a
glass of water from Rajendra Das (PW-8), who gave him water
and offered a cot for him to sit. After taking bath, prosecutrix
was taking her meals. The appellant gave Rs. 10/- to Rajendra
Das (PW-8) and sent him to jungle for bringing a herb called
Babalati. At that time, appellant Ram Kripal shut the door of
the house from inside and was also about to close the door of
the kitchen; whereon, the prosecutrix protested asking him as
to why he was shutting the doors. She told him that she was
taking meals and if he shut the doors, it would be dark;
however, the appellant suddenly caught hold of the prosecutrix
and threw her on the kitchen floor. He did not let her shout by
clamping her mouth shut. Thereafter, the appellant raped the
prosecutrix. When the prosecutrix shouted, Ansuiya Bai and
Mamta arrived and her two sons Omprakash and Rajendra,
Cr.A.No.2078/2006

who were 15 and10 years old respectively, also arrived. They
got the door opened; whereon, the appellant Ram Kripal ran
away. At that time, Roopdas, husband of the prosecutrix had
gone out for work. When he returned, the first information
report was lodged.

11. The main thrust of appellant’s arguments is that there
was inordinate delay in lodging the first information report.
The incident is said to have taken place on 12.10.2005;
whereas, the first information report was lodged on
26.10.2005. A perusal of the first information report (Ex.P/6)
reveals that the reason for the delay has been recorded as
“because the husband was outside, after his return and
consultation”. Same reason has been given by the prosecutrix
in her examination-in-chief; however, she has admitted in
paragraph no.8 of her cross-examination that her husband had
returned after about 4-5 days. Upon his return, she had
disclosed the incident to her husband and thereafter, they had
gone to P.S.-Bichhiya for lodging the report; however, their
report was not written. They had gone to police station again
the next day; whereon, their report was written. She has denied
the suggestion that the report was lodged after a delay of 13-
14 days. In this regard, Roopdas (PW-5), who is the husband
of the prosecutrix has stated that he learnt at Raipur that there
was a quarrel in the village and he was required at home;
therefore, he had returned to his village. When the prosecutrix
disclosed the incident to him, he was annoyed with his wife
and had told her that when such serious incident had taken
place, why did she not lodge the report? whereon, his wife told
him that the appellant had threatened her that if she disclosed
the matter to anyone, he would set her house on fire. Due to
Cr.A.No.2078/2006

aforesaid fear, she had refrained from going to police station
to lodge the report. However, the prosecutrix did not depose
that she had received any such threat from the appellant.

12. Roopdas (PW-5) has further explained in this regard that
they had gone to lodge the report for 6 days in succession.
When he had gone for the first time to police station to lodge
the report, the police had called the appellant and had locked
him up; however, on the next day, a former Havaldar, who was
also named Jhariya and was a relative of the appellant, had
managed to extricate him. On the third day also, his report was
not written. On that day, the appellant had offered Rs.10,000/-
and had asked them to enter into compromise; however, they
had protested that since they had lost their honour, they did
not want any money. On fourth day, the SHO had gone to
Mandla. On fifth day, ASI, Singh told them that the report
would only be written by SHO because he had papers. On
sixth day, SHO, Chhote Singh had written the report at about
04:00 p.m. Ansuiya Bai (PW-2) has also stated that she had
accompanied the prosecutrix to the police station. The police
personnel were asking the prosecutrix not to report the matter
and receive compensation from the appellant. She also stated
that they had gone to the police station twice or thrice and
only after that, the report was lodged. After the report was
lodged on the sixth day and after the police had released the
appellant, he had given a complaint to the Superintendent of
Police. After giving the report to police, he had learnt that the
appellant had already been released on anticipatory bail. He
also admitted that he had narrated the entire sequence of
events to the police in his statements under Section 161 of the
Cr.P.C. (Ex.D/3); however, none of it finds place in his police
Cr.A.No.2078/2006

statements. Investigating Officer, Virendra Singh (PW-9) has
stated that Roopdas had not narrated any such thing to him. On
the contrary, he had told the police under Section 161 of the
Cr.P.C. that he had gone to lodge the report for the fear of the
society and Panchas. Though, in his statements before the
Court, he had stated that he had not given any such statements
to the police.

13. Due to aforesaid contradictory statements of the
witnesses and discrepancies, in the opinion of this Court, the
inordinate delay of 14 days in lodging the first information
report has not been properly explained. The benefit whereof
must go to the appellant.

14. That apart, Ansuiya Bai (PW-2) has stated in paragraph
No.8 of her deposition that Manjhipur consist of about 100
odd houses and it has a Mukaddam and a Kotwar; however,
they did not disclose the matter either to Kotwar or to the
Mukaddam of the village. Ansuiya Bai had explained that
Shanti Bai was stating that she would be defamed; therefore,
she would lodge report. Ansuiya Bai further admitted that the
house of Bulludas is situated near her house and Chamradas
lives some distance away. Dushrath’s house is behind
Chamradas’s house and her brother-in-law (Jeth) Kunwardas
had house on one side but they did not disclose the matter to
anyone of them. On the contrary, prosecutrix (PW-4) has
stated in paragraph No.20 that when she had raised an alarm,
several persons from nearby had gathered on the spot;
however, she does not know the name of anyone. She did not
disclose the matter to them; because she had cried; therefore,
they must have heard. She has further stated in paragraph
No.26 of her evidence that after her return to Kuterwani from
Cr.A.No.2078/2006

Manjhipur, her husband had returned after 4-5 days. During
that period, she did not disclose the matter to anyone because
she was afraid of defamation. Thus, it is clear that not only the
first information report was not lodged for a period of about
14 days after the incident but the matter was not disclosed to
anyone outside the house hold either.

15. Patwari Askar Samad (PW-3) had stated that he was
directed by Tehsildar, Bichchiya to prepare the spot map of the
place of incident. Accordingly, he had prepared spot map
(Ex.P-3). He has stated in his cross-examination that
Aghnudas’s house is situated 16 meters away from Ansuiya
Bai’s house. Likewise, Chaturiya Bai’s house is situated at a
distance of about 39 meters. The spot map prepared by the
Investigating Officer reveals that apart from aforesaid houses,
house of Bulludas, Dashratdas, Chamradas and Kriparam are
located around the house of Ansuiya Bai. The small field
(Bari) in which Ansuiya Bai, and Mamta Bai were working, is
situated right behind the house of the Ansuiya Bai. Rajendra
and Omprakash, teenaged sons of the prosecutrix, were
playing nearby. In these circumstances, it appears highly
unlikely that anyone would attempt rape upon a mature,
married woman, who did not suffer from any disability, in
broad day light.

16. Since, the first information report was lodged after a
delay of 14 days, the negative medical report and FSL report
have been rendered useless, for which the appellant cannot be
held responsible. Even in that regard, Roopdas (PW-5), the
husband of the prosecutrix has stated that the prosecutrix had
told him that she had bitten the accused on hand and only
thereafter, the accused had removed his hand from her mouth
Cr.A.No.2078/2006

but prosecutrix (PW-4) has stated in paragraph No.25 of her
cross-examination that the accused had pinned her down;
therefore, she could neither byte nor claw the appellant. She
was also not able to offer any resistance and did not sustain
any injury to hips and waist etc. when she was thrown on the
floor by the appellant.

17. Moreover, the prosecution story as reflected in the first
information report is that prosecutrix, Ansuiya Bai and Mamta
Bai were harvesting paddy in the field adjacent to Ansuiya
Bai’s house. Appellant Ramkripal came and called them;
whereon, they returned to Ansuiya Bai’s house. They laid a cot
for appellant Ramkripal and provided him a glass of water and
thereafter, Mamta Bai and Ansuiya Bai returned to the field
and the prosecutrix started to take lunch in the kitchen.
Thereafter, the appellant shut the door of the verandah from
inside and raped the prosecutrix. When the prosecutrix
shouted, Mamta, Ansuiya Bai, Rajendra and Omprakash rushed
to the spot and knocked on the door of the Verandah; whereon,
the prosecutrix opened the door weeping and disclosed the
matter to Mamta Bai and Ansuiya Bai, who scolded and chased
the appellant away; whereas, aforesaid three witnesses namely
prosecutrix, Mamta and Ansuiya have deposed in the Court
that the Mamta Bai and Ansuiya Bai had gone to the field. The
prosecutrix had gone to take bath inside the house. At that
time, the appellant came and on his own, lay in the Verandah
and when she was taking her meals after taking bath, the
appellant shut the door of the Verandah and Kitchen from
inside and raped the prosecutrix. They have stated that they
were not aware as to when the appellant had arrived at
Ansuiya Bai’s house; whereas, Rajendradas (PW-8) son-in-law
Cr.A.No.2078/2006

of the prosecutrix, have stated that on the date of the incident
he had received the appellant at his house, offered him cot to
sit on and gave him water. Thereafter, at the instance of the
appellant, he had left his house for jungle. Rajendradas (PW-8)
had also admitted in paragraph No.8 that when he had
returned from jungle, his mother Ansuiya Bai was scolding
Shanti Bai as to why she had come to Ansuiya Bai’s house to
create a scene. He has stated in paragraph No.10 that about 8
or 10 days after the date of incident, his mother-in-law
(prosecutrix), father-in-law Roopdas had gone to his house and
were telling him that they have been badly defamed on
account of the incident; therefore, they would have to lodge
report in the police.

18. It is true that the victim of rape being not an accomplice,
does not require any independent corroboration and conviction
can very well be based upon the uncorroborated testimony of
the victim. However, where there are compelling reasons
which necessitate looking for corroboration, the Court, while
appreciating the evidence of the prosecutrix, may look for
some assurance to satisfy its judicial conscious. After all the
prosecutrix is a witness who is interested in the outcome of the
charge leveled by her.

19. The Supreme Court in the case of Rajoo Vs. State of
M.P. AIR 2009 SC 858 has held that the evidence of the
prosecutrix must be examined as that of an injured witness,
whose presence at the spot is probable but it can never be
presumed that her statement should, without exception, be
taken as gospel truth. Her statement can, at best, be adjudged
on the principal that ordinarily no injured witness would tell a
lie or implicate a person falsely. It cannot be lost sight of that
Cr.A.No.2078/2006

rape causes greatest distress and humiliation to the victim but
at the same time, a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well. The
accused must also be protected against possibility of false
implication.

20. In the opinion of this Court, an inordinate and
unexplained delay in lodging FIR, the nature of the place of
incident, presence of other people around, age and marital
status of the prosecutrix, lack of corroborative medical and
forensic evidence and discrepancies between the prosecution
version as narrated in the FIR and as given before the Court,
are some of the circumstances which created a reasonable
doubt in the mind of the Court as to the truthfulness of the
prosecution version. In this case, the possibility of false
implication or even consent in some form or other, can also
not be ruled out. The appellant deserves the benefit of such
doubt.

21. On the basis of foregoing discussion this Court is of the
view that the trial Court erred in convicting the accused under
Section 376 (1) of the I.P.C.; therefore, the conviction in this
case cannot be sustained and deserves to be set-aside.

22. Consequently, this criminal appeal succeeds. The
conviction of appellant Ram Kripal @ Kripal Jhariya for
offence under Section 376 (1) of the I.P.C. is set aside and he
is acquitted of the charge.

(C.V. Sirpurkar)
Judge

sh/ahd

Digitally signed by MOHD AHMAD
Date: 2018.04.06 04:54:12 -07’00’
Cr.A.No.2078/2006

HIGH COURT OF MADHYA PRADESH : AT JABALPUR

Criminal Appeal No.2078/2006

Ram Kripal @ Kripal Jhariya
Vs.

State of Madhya Pradesh

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JUDGMENT

Post for:- 05/04/2018

{C.V. Sirpurkar}
Judge