HIGH COURT OF MADHYA PRADESH 1 Cr.A. No. 731/2016 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR SINGLE BENCH: HON. SHRI JUSTICE ANAND PATHAK [CASE NUMBER] [ENTITY] Versus State of Madhya Pradesh Shri Rajmani Bansal, learned counsel for the appellant. Shri [ENTITY], learned Panel Lawyer for the respondent-State.
Judgment (07/09/2019) The present criminal appeal under [SECTION] of [ACT] is being preferred against the Judgment of conviction and order of sentence dated 11/08/2016 passed in [CASE NUMBER] by Special Sessions Judge, Shivpuri whereby appellant-[ENTITY] has been convicted under [SECTION] of [ACT] and sentenced to suffer 10 years rigorous imprisonment alongwith fine of Rs.5,000/- as well as under [SECTION] of [ACT] and sentenced to suffer 10 years rigorous imprisonment alongwith fine of Rs.5,000/- with default stipulation respectively.
2. Case of the prosecution in short is that on 14/12/2015 around 2 pm prosecutrix alongwith her cousin (daughter of uncle) was present in the house of her uncle. At the time of incident, her uncle went to HIGH COURT OF MADHYA PRADESH market to get compost and her mother alongwith aunty went to field to cut the grass. Her father went to Simliyai Village for some work. The accused-appellant around 2 pm came to her uncle house by jumping the wall and held the hand of the prosecutrix forcibly and when her cousin tried to snatch her hand the applicant pushed her and brought the applicant into the room and gave 2-3 slaps which rendered her unconscious and thereafter locked the door from inside and committed the rape over the prosecutrix. Thereafter, applicant ran away from the house and at that time [ENTITY] and [ENTITY] saw present applicant running from there. In the evening when father of the prosecutrix returned home then she narrated the event to him.
3. On complaint, police lodged FIR vide [CASE NUMBER] under [SECTION] and [SECTION] of [ACT] and [SECTION] of [ACT] (hereinafter referred as "[ACT]"). Prosecutrix was referred to medical examination. Medical report of the prosecutrix is placed as Annexure P-12 and medical report of the applicant is placed as Annexure P-13. During investigation, [ENTITY] of the spot was prepared vide Ex.P-
9. To establish the age of prosecutrix, her school certificate was submitted in which her date of birth was referred as 28/03/2004. Seizure of clothes and vaginal swab of prosecutrix and applicant were referred to Forensic Science Laboratory, Gwalior, report in this regard HIGH COURT OF MADHYA PRADESH is placed vide No.2549/2015. From prosecution side total ten witnesses were examined.
4. After filing of charge-sheet, case was committed to the Court of Sessions, where the Court framed charges under [SECTION] and [SECTION] of [ACT] and [SECTION] of [ACT] against the applicant.
5. Appellant abjured his guilt. He submits that he was innocent and falsely implicated in the matter because of the previous enmity with the witnesses.
6. After considering the evidence adduced by the prosecution, learned Special Judge, Shivpuri convicted and sentenced the appellant as mentioned above.
7. The learned counsel for the appellant submitted that the appellant was falsely implicated in the matter. He referred the medical report of the prosecutrix which indicates that no internal or external injuries were found over the person of the prosecutrix. It is further referred that no sign of recent intercourse was found over the person of the prosecutrix. He also referred the statements of PW-3 and PW-5 (father and mother of the prosecutrix) wherein father of the prosecutrix referred the fact about previous enmity. Testimonies of these witnesses cannot be relied because they have stated on the basis of hearsay evidence of prosecutrix. So far as testimony of eye- witness [ENTITY] (PW-7) niece of the prosecutrix is concerned, she also did not support the story of the prosecution to the fullest and HIGH COURT OF MADHYA PRADESH ultimately declared hostile. He submits that when any of the witnesses has not supported the story of the prosecution to the fullest as well as medical report also does not corroborate commission of offence, then the trial Court erred in convicting the appellant. He prayed for setting aside of impugned judgment of conviction and order of sentence.
8. Learned counsel for the respondent-State on the basis of record available opposed the prayer and supports the impugned judgment passed by the trial Court. He submits that the case involved provisions of [ACT] therefore, it is a serious offence. He prayed for dismissal of appeal.
9. Heard the learned counsel for the parties at length and perused the record appended thereto.
10. The case is in respect of conviction and jail sentence awarded for the offence under [SECTION] of [ACT] and [SECTION] of [ACT] and sentenced to suffer 10-10 years RI alongwith fine of Rs.5,000-5,000 with default stipulation.
11. The allegation over the appellant is in respect of house trespass with intention to commit rape over the girl who happens to be aged 11-12 years.
12. In the case in hand, oral and documentary evidence have been produced by the prosecution. Those pieces of evidence have to be seen on the anvil of [SECTION] of [ACT] wherein presumption HIGH COURT OF MADHYA PRADESH as to certain offences have been raised against the accused unless the contrary is proved. Therefore, it is to be seen whether evidence was sufficient enough or whether the appellant/ accused could prove his innocence by way of appreciation of documentary and oral evidence. In support of the prosecution case, father and mother of the prosecutrix (PW-3 and PW-5) respectively were examined beside other witnesses. Father [ENTITY] (PW-3) was away from the house when the incident took place at the relevant point of time and therefore, his testimony is mainly based upon the evidence of the prosecutrix. In his examination-in-chief, he did not refer the name of appellant and by way of hearsay evidence, he explained that prosecutrix has referred the commission of offence by a person wearing black clothes and covered the face with scarf. He referred the presence of his niece [ENTITY] (PW-7), but he did not support the story of the prosecution to the fullest therefore, declared hostile and in his examination-in-chief, he admits the fact that he has settled the matter with the accused but he denies the fact that because of settlement he is making false statement. He explained the fact that his daughter has referred the fact that person who committed rape wore the scarf. Therefore, identity has not been categorically established. He does not support the story of prosecution even in cross-examination by public prosecutor as well as by defence and appears shaky.
HIGH COURT OF MADHYA PRADESH
13. So far as mother of prosecutrix Smt. [ENTITY] (PW-5) is concerned, she narrates the incident wherein she referred the presence of her niece [ENTITY] (PW-7) at the time of incident in the house but she also declared hostile by the prosecution and in her cross- examination by the prosecution to ask leading questions, she accepted the fact that they have compromised with the accused but she also narrates the story in such a fashion wherein she refers the masked man (wearing scarf) entered the house and committed offence.
14. Prosecutrix (PW-4) was also examined by the prosecution in which she narrates the incident by referring the identity of the assailant who was wearing scarf and he took her to the room of her uncle [ENTITY] and closed the door and gave 2-4 slaps which rendered her unconscious and thereafter he committed rape over her. She does not referred the name of the appellant in her examination-in- chief. Obviously, declared hostile and cross-examined by the prosecution. In her cross-examination, she gave evasive reply. Neither she identifies the identity of the appellant, nor she conclusively explained about the commission of offence. Her testimony oscillated from one end to another, rendering the evidence shaky.
15. Another eye witness (beside prosecutrix herself) produced by the prosecution was [ENTITY] (PW-7), who happens to be the cousin of prosecutrix (daughter of uncle) and in the FIR and the statement of HIGH COURT OF MADHYA PRADESH [ENTITY] (PW-5) she was present at the time of commission of offence but in her examination-in-chief, she did not refer her presence at the place of incident at the time of commission of offence and therefore, declared hostile. She did not support the story of the prosecution even in cross-examination conducted by the prosecution.
16. In absence of credible evidence led by the victim party including the prosecutrix herself the evidence of expert witness Dr. [ENTITY] (PW-9), who examined the prosecutrix immediately after commission of offence assumes importance. In her examination-in-chief, in para 3, she concluded three material conclusions which may have the important ramification in the case in hand. One is that no sign of violence was found over the person of the prosecutrix. Another is, no injuries were found over the person of the prosecutrix and third, no sign or symptoms were found suggesting physical intercourse in recent time. Much credence is to be given to this testimony because narration of the story as per the FIR, statements recorded by the police and court statements of the witnesses indicate that at the time of incident, appellant forcibly dragged her, he to the room of her uncle [ENTITY] and after closing the door from inside he committed rape. Such incident, if would have been resisted by the prosecutrix then certainly some injuries (external as well as internal) might have occurred during the process and some scratch marks or injuries over her back or private part would have HIGH COURT OF MADHYA PRADESH been noticed by the doctor but no such reference finds place in the report.
17. Submission of the counsel for the respondent-State is that FSL report indicates that clothes and vaginal swab of prosecutrix contain male sperms therefore, presumption of rape assumes significance in the light of [SECTION] of [ACT] and [SECTION] of [ACT] but attending circumstances must also exist to prove the case and/ or to substantiate the presumption to the logical end.
[SECTION] of the [ACT] clarifies the Caveat about discharging of onus by incorporating the word "Unless the Contrary is Proved" and here the contrary material like expert opinion (PW-9), witnesses including prosecution and FSL report do not lead to implication. FSL report although refers the presence of sperms in the vaginal swab and clothes of the prosecutrix but in absence of matching the said sperms with the sperms of the appellant, it could not be treated as evidence proved beyond reasonable doubt that the appellant committed rape. This report if seen in juxtaposition to the oral evidence led by the prosecution witnesses then it is clear that the report cannot be the sole ground for conviction. In this regard, reliance can be placed over the mandate of the Hon'ble Apex Court in the case of [PRECEDENT], [PRECEDENT], [PRECEDENT] as well as [ENTITY] Vs. State of M.P., 2017 (1) MPJR 260.
18. Factum regarding non-matching of sperms of appellant viz a viz sperms found over vaginal swab or clothes of the prosecutrix is to be seen in juxtaposition to evidence of Dr. [ENTITY] (PW-9) wherein she said that no sign of intercourse was found during examination of prosecutrix whereas if the rape has been committed 24 hours back as alleged in the case of prosecution then sign of intercourse would have been definitely available specially looking to the fact that girl was only 11-12 years old and in all probability might not have been used to such biological process like intercourse. Even looking to her age and the course of event as narrated, some sign of resistance over her body or over the accused or even in the room where the incident took place would have remained present to tell the truth, but no such evidence has been quoted or referred to bring the accused into the ambit of implication.
19. When the oral evidence of prosecutrix, her family members is shaky, when father of the prosecutrix (PW-3) accepts in his cross- examination in para 7 that some dispute occurred with the accused family one year before the incident and since then they were not on talking terms therefore, possibility cannot be ruled out that being driven by the enmity and the feeling generated from the said dispute, led to registration of a false case against the accused.
HIGH COURT OF MADHYA PRADESH
20. One more relevant compliance, to be performed by the prosecution which was omitted to perform was of DNA test. [SECTION] of [ACT] mandates for examination of a person accused of rape by medical practitioner and language of the provision appears to be mandatory. Even otherwise, in the better administration of investigation and the procedure for investigation, it is imperative that in the case of rape, immediate DNA examination of accused be made. Corresponding provision has been incorporated under [SECTION] of [ACT] for the prosecutrix and the same has been incorporated for laudable purpose and to make the DNA obtained from the accused for matching with the DNA obtained from the victim of rape. The said amendment in [ACT] has been incorporated by the amendment act of 2005 and is in the Statue Book w.e.f. 23/6/2006 therefore, it was the duty of the Investigating Officer to have conducted the DNA examination of the accused as well as rape victim; specially, when the matter pertains to a child under the [ACT]. These aspects have been dealt with by this Court in the case of [ENTITY] (supra) and in the said case it was expected from the state government that they will provide adequate infrastructure for establishment of Forensic Science Laboratory for DNA examination and other related examinations.
21. Although, presumption under [SECTION] of the [ACT] is raised against the accused (unless contrary is proved) and here it HIGH COURT OF MADHYA PRADESH appears that neither the witness, nor the reports have proved the case and maintained the presumption. Rather, contrary is being proved. In other words, prosecution could not prove the case beyond reasonable doubt. It is oft quoted that "Fouler the Crime Higher the Proof" and it is also settled in law that if two theories run parallel in the case then the theory which supports the accused must be accepted (See: [PRECEDENT], [PRECEDENT], [PRECEDENT]).
22. Cumulatively, in the considered opinion of this Court, prosecution could not prove the case beyond reasonable doubt. Benefit ought to go to the accused because the facts of the case itself discharge the presumption and prosecutrix could not prove the case beyond reasonable doubt as well as could not maintain the presumption as per [SECTION] of the [ACT] through the evidence led.
23. When the offence under [SECTION] of [ACT] has not been proved beyond reasonable doubt then offence under [SECTION] of [ACT] shall also have to go because event is connected and in absence of any conclusive evidence in respect of offence under [SECTION] of [ACT], offence under [SECTION] of [ACT] also appears to be imposed on false pretext.
24. The trial Court erred in convicting the appellant and passing the HIGH COURT OF MADHYA PRADESH impugned judgment. Resultantly, judgment of sentence and order of conviction dated 11/08/2016 passed by Special Sessions Judge, Shivpuri in [CASE NUMBER] is hereby set aside. Appellant-[ENTITY], who is in jail is set free. Release warrant be issued in this regard.
25. A copy of this judgment be sent to the trial Court for information and compliance.
26. Appeal stands allowed and disposed of.
([ENTITY]) Judge vc VARSHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=df59fbf0f5c7485addc8affe3edf20e67d11d 7f91045d81139f6792fbd4ae91f, CHATURVEDI 2.5.4.45=0321008AE87CF73A0689160B013BB567F [CASE NUMBER], cn=[ENTITY] Date: 2019.09.20 17:35:00 -07'00'