•^ C'F'0000058305 ^g swcb tUiffltt»» IN THE HIGH COURI OE JUDICASURE AT JABALPUR (M. P. ) CRIMINffl. APPEAL HO. /^^/ /1995. APPELL.WT8 Respondait; Hiralal S/o Antram Nai / aged at»ut 30 ,years, 'o Vi.I.l'age Badeghotla, Bhedwan, Police Station - Sarangarh Distc.ict. s Saigar'h (MP) ^ /VERSUS/ O'be S-ta-te of Madhya Pradesh ' 'Chrough Digtrict. fiagi s-fcrate, Rai garh (MP) APPEAL HNDER SBC'IION 37^__(2l^F3@!__CCDE CRIMINAE' PROCEDURE -*ts- knl\ iM !1^-'; ^f BIS'. <^-^^hS£^^^',,r^ ^] ''"8 S Tt-.-F-t Bl HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 113 of 1995 APPELLANT RESPONDENT VERSUS Lav Teli State of Madhya Pradesh CriminalAppeal No. 1421 of 1995 APPELLANT Hiralal RESPONDENT VERSUS State of MadhyaPradesh iiiffi '!r!!i6i ^l-. Postforpronouncementofthejudgmenton5£,.8.2010 Sd/- Pritinker Diwaker Judge li)'1!1 mT!ESS£i^iSi^S;B' -:rt^^ B ^p^ B! wm^ SiSKa "Ss. li^ K: APPELLANT RESPONDENT APPELLANT RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. h/lr. Justice Pritinker Diwaker) Criminal Appeal No. 113 of 1995 Lav Teli VERSUS State of Madhya Pradesh Criminal Appeal No. 1421 of 1995 Hiralal VERSUS State of Madhya Pradesh Shri Govind Ram Miri and Shri H.S. Patel counsel for the appellants. Shri Vivek Sharma PL for respondent/State. CRIIVIINAL APPEALS UNDER SECTIQN 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (^.08.2010) Since the aforesaid two crimina! appeals arise out of the same judgment dated 17.01.1995 passed by Special Judge, Raigarh in Special Case No. 04/1994, they are disposed ofbythis commonjudgment. 2. By the judgment impugned the appellants have been convicted under sections 376 (2) (g) IPC and 3 (1) (xi) ofthe Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short the Act of 1989) and sentenced each ofthem to undergo rigorous imprisonmentfor ten years with fine of Rs.5000 u/s 376 (2) (g)IPC and rigorous imprisonment for one year with fine of Rs. 1000 u/s 3 (1) (xi) of the Act of 1989, plus default stipulations. 3. Facts of case lying in a narrow compass are that on the basis of written report dated 10.01.1994 (Ex. P-12) FIR (Ex. P-13) was registered on the same day at about 1.15 p.m. alleging that on 08.01.1994 at about, 6.30 p.m. when the prosecutrix - a deaf and dumb married lady aged' about 24 years had gone to answer the call of nature, thf ^tei^a.l^ ^Mim •' ^' Br »1- II-:'. ]K;'.; i"3,; accused/appellants came there and committed forcible sexual intercourse wifh her. According to the prosecutrix, she was first subjected to sex by accused/appellant Hiralal and then the said act was repeated by accused/appellant Lav Teli, It is alleged that after hearing the shrieks of the prosecutrix, her father-in-law namely Shalikram (PW-2) reached there and on seeing him the accused/appellants ran away from the spot. After completion of investigation, charge sheet was filed on 22.01.1994 and tl'ien the charges were framed by the Court below on 08.02.1994 under Sections376(2)(g)IPCand3(1)(xi)oftheActof1989. 4. So as to hold the accused/appellants guilty, prosecution has examined as many as 12 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 5. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. 6. Heard counsel for the parties and perused the material available on record including the judgment impugned. 7. Counsel for the appellants submits that the prosecutrix is a deaf and dumb lady and her statement has not been recorded in accordance with law. They submit that as the prosecutrix had not taken oath before making the statement, her entire statement is liable to be discarded. He submits that father-in-law of the prosecutrix namely Shalik Ram (PW-2) being her close relative who since very beginning has been an interested witness of the prosecution should not have been made the interpreter. They submit that it is Shalik Ram (PW-2) who first reached the spot and then went to the village Patel namely Ghasiya Prasad (PW-8) therefore, in all fairness some third person should have been made interpreter in the present case. According to the counsel for the appellants, the husband of the prosecutrix kept silence and did not disclose the incident to anyone which shows that no such incident had taken place. They submit that as written report Ex. P-12 was prepared by the document writer, it creates doubt as to what in fact she wanted to say and what ultimately was written in the said written report. They submit that even the name ofthaf Iti 'r^'^ ^ la is ill lt;i. •".M •l^'i('i » a ait !Si, l;iaa iSI;';' '.lffllb;;l:1: IB61:.: IS. ^U^fF'' ss^ It^l^i' m 'HI!-;' ffffi^ •^^•M; 9S:i ais 9 IBII ^Ilt;"i1'! aigt;;,.i •iniil!' document writer has not been disclosed nor has he been examined by the prosecution in support of its case and on this count also truthfulness ofthe said written report becomes doubtful. This apart, it is submitted that the FIR was lodged more than 48 hours after the incident and this delay has not been properly explained by the prosecution. According to them, the prosecution has failed to establish the identity of the accused/appellants by leading any cogent and reliable evidence. They submit that the report was lodged at the instance of Ghasiya Prasad (PW- 8) which has been admitted by Shalik Ram (PW-2), Dwarika Bai (PW-3) and Banshidhar (PW-4). According to them, there are material contradictions and omissions in the statement of Shalik Ram (PW-2) particularly in paragraph 9 thereof. Statement of Dwarika Bai (PW-3) particularly paragraph 10 also carries several contradictions and omissions in it. According to the counsel for the appellants, Shalik Ram (PW-2) has admitted the fact that he did not understand all the signs and gestures of the prosecutrix. They submit that the prosecution has not bothered to examine any independent witness and all the witnesses yxamined by it being the family members of the prosecutrix are the interested witnesses and only on the basis of their statements the accused/appellants should not have been convicted by the Court below. They submit that the medical report of the prosecutrix also does not support the case ofthe prosecution whereas in the case of gang rape that too when it was committed in rough surface, injuries must have been caused to her. They submit that as at the time when the incident took place it was dark, it was not possible for her to identify the accused/appellants. They submit that Amritlal (DW-1) has stated in paragraph No.1 of his evidence that about one and a half years prior to the date of incident there was some dispute between Ghasiya Prasad (PW-8) and the accused/appellant Lav Teli in which he had even beaten him up and that being so the possibility of his false implication in the case in hand cannot be ruled out. Counsel for the appellants placed reliance on the decision of High Court of Calcutta in the matter of Ah Soi v. King Emperor reported in AIR 1926 Calcutta 922, decision of Punjab High Court in the matter of Nazar IVlohammad v. The State reported in AIR 1953 Punjab 227 and the decision of High Court of Lahore in Ragzan Chhodop v. Emperor reported in AIR (35) 1948 Lahore 97. i^^ f^ i®F• ••} SB;.'' ^I^L E: Bl i!!?CS5"i III1 iB".;: liil- ^ K aiii aiK" [!9S/ IIIi; IBI'iF' :Sli ^-- RS' i t;^il;:l Ki;MB' ffi :. -^ ~ 8. On the other hand counsel for the respondent/State submits that appointment of father-in-law of the prosecutrix as her interpreter would not make any difference in the case of the accused/appellant. He submits that father-in-lawof the prosecutrix namely Shalik Ram (PW-2) is the best person who could know the signs and gestures of the prosecutrix and his appointment as her interpreter would not cause any prejudice to the accused/appellant. He submits that no objection whatsoever was raised by the accused/appellants in examination-in-chief or in the cross examination of the prosecutrix through her interpreter though it was done at length and therefore, at appellate stage no such point can be raised by the accused/appellants. He submits that the delay as alleged in lodging the FIR has been sufficiently explained by the prosecution by adducing evidence that on the date of incident the husband of the prosecutrix was not at home and he came there in late night and as per the village custom matter was first reported to the villag'e Patel Ghasiya Prasad (PW-8) who had called the accused/appellants through PW-6 namely Sahnidas and when the accused/appellants could not be traced, ultimately the report was lodged. He submits that present is a case where a deaf and dumb lady belonging to scheduled caste community has been subjected to rape by two persons and therefore 48 hours delay in lodging the FIR cannot be termed as inordinate. He submits that the written report was made by the document writer because the prosecutrix was deaf and dumb and therefore the police authorities were fully justified in asking the prosecutrix and Shalik Ram (PW-2) to get the report hand written. He submits that the prosecutrix, her father-in-law Shalik Ram (PW-2) and her husband Banshidhar (PW-4) are the rustic villagers and therefore, they took the help of the document writer for drafting the report. He submits that the minor contradictions and omissions, if any, in the statements of the prosecutrix (PW-1), Shalik Ram (PW-2), Dwarika Bai (PW-3) and Banshidhar (PW-4) have to be ignored. As regards identity of the accused/appellants, counsel for the respondent/State submits that Shalik Ram (PW-2) had seen these two persons at the place of incident itself and on seeing him they started running away there-from and that the prosecutrix herself has identified them in the Court. He submits that though in the statements of the accused/appellants recorded under ^ff^."\- , iil^ IB3111: •I; II1 IBK'1 ;a* 1 "••:esm E ^te^ rt? 3M: 9KII BB^K SR<1 V IHi!:::1 ii^;'::-it B" •^' IR IKHrlsi. IB. BBl,' ^ !8K !lfi;a' EK —s~- Section 313 of the Code of Criminal Procedure, they have taken the plea offalse implication by the police but no such evidence has been adduced by them. In respect of medical report of the prosecutrix, counsel for the State submits that present is a case where the prosecutrix was not made fully naked and that the incident took place in the month of January - the season when normally the field remains wet and therefore, even if no injury was sustained by the prosecutrix, it does not falsify the case of the prosecution. He submits that FSL report Ex. P-14 clearly shows that the spermatozoa was present in the loin cloth (Langot) of the accused/appellants and vaginal slides of the prosecutrix. He submits that the torn clothes of the prosecutrix were seized by the police vide Ex. P-3. In respect of the offence under Section 3 (1) (xi) of the Act of1989 it is submitted thatcaste certificate Ex. P-17 was filed by the prosecution and the appellants were also aware that shewas a member of scheduled tribe community and therefore the judgment impugned Gonvicting and sentendng the accused/appellants is in accordance with law and needs no interference in this appeal. 9. Prosecutrix (PW-1) through interpreter Shalik Ram (PW-2) has stated that she knew both theaccused/appellants. According to her, on the date of incident the accused/appellants had caught hold of her, upturned her clothes and by felling her on the ground committed forcible sexual intercourse with her. First, accused/appellant Hiralal committed the offence and then accused/appellant LavTeli also did the same thing. The incident, according to her, had taken place at the time ofsunset. She has further stated that when she had gone to answer the call of nature, the accused/appellants committed rape on her. She has stated that while being subjected to rape she was weeping and on hearing her shrieks her father-in-law Shalik Ram had come there and on seeing him the | accused/appellants had run away. Then she had gone to the police stationalong with her father-in-law and the report was lodged. Her blouse., was torn by the accused/appellants which was later seized by the police. She hasstated that the incident had taken place in winter season and by the time the incident had taken place the darkness had prevailed. She | »• had hit both the accused/appellantswith the jyjB; held by her. She has stated that the place where the accused/appellants had felled her down BSi. ^ B^ Ri':iK.— BS; a Bi BB' ESi':1 f '^ was strewn with stones and due to which she had sustained injuries on hpr body. In cross examination this witness has stated that when she was being subjected to rape by accused Lav Teli, he did not let her get up and when she was thrown on the ground, it was not bleeding but she was feeling pain. She has stated that the incident was informed to village Patel Ghasiya Prasad (PW-8) who had also called the accused/appellants but they did not turn up. Shalik Ram (PW-2) has stated in his evidence that th>= deaf and dumb prosecutrix is his daughter-in-law who is able to understand and convey the things by sign and gestures. He has stated that on the date of incident after the dark had prevailed, the prosecutrix had gone to answer call of nature and abut half an hour thereafter on hearing her cries he went in the said direction and found the prosecutrix was weeping and her blouse and sari .had gof torn. He had also seen both the accused/appellants running away in different directions. According to him, after the prosecutrix was brought home, she told her mother-in-law that two persons - one who was barber and the other electrician had committed sexual intercourse with her. Thereafter, this witness disclosed the incident to village Patel Ghasiya Prasad (PW-8) who in turn had called the accused/appellants but they did not turn up. According tb this witness, the prosecutrix had told him that first the offence was committed by the barber and then by electrician. Thereafter, the report was got prepared through one document writer and then given to the police station. Torn sari and blouse ofthe prosecutrix wereseized by the police and she was sent for medical examination. He states that the statement of the prosecutrix was recorded by the police and at that time he acted as interpreter. According to him, the prosecutrix had informedhim through signs and gestures that the accused/appellants committed forcible sexual intercourse with her. In cross examination, this witness has admitted that when any incident took place in the village, information regarding that was first given to village Patel Ghasiya Ram (PW-8) and then the further steps were taken according to the instructions given by him. He has stated that in the present case also the incident was first informed to Ghasiya Ram and then acting upon his instructions the report was lodged in the police station. This witness has stated that no blood was coming out from the body of the prosecutrix but she was complaining pain. According to this witness, the matter was not » Sffl!^i iGa'1 R B 1 ai ;:'^1K B ,n: I!aB61 K^ •I KBil s^ 'BSjl. 1 II: !iEl flR Ul if SK !B!. IB!:; •I.- Ki;s a'lE'E" SS! ; .^•ffli M! K, II. SB' BB' B8": iil :sa ISiSI1:'1 i VS M 11^!; • is — ~7 reported to the police even on the second day of the incident as on that day he had gone to the village Patel and on the third day at about 1.30 p.m. he had gone to the police station to lodge the report. This witness has stated that he first went to the police station and on being directed by the police people; the report was given in writing. In paragraph 11 of cross examination, this witness has stated that on the second day he did not got to the police station to lodge the report. According to him, he first W(;nt to the village Patel and then on the third day he went to the Sarangarh Court, got prepared the written report from the document writer but was not aware of his name. Thereafter, he has stated that first he went to the police station and then on the instructions of the Station House Officer he got the report written by hand. He has stated that the report was got prepared by the document writer but he was not aware of his name. In paragraph 13 of his evidence he has stated that accused/appellant Lav Sahu is an electrician and when he had installed the electric meter in his house, the prosecutrix had seen him and on the basis of which she informed him through signs and gestures that it was "ihe same person who had committed sexual intercourse with her. In paragraph 14 he has stated that whenever women in the village go to attend the call of nature in the evening, they go along with some other women and on the date of incident also the other women had gone to attend the call of nature. In paragraph 16 of his evidence he has stated that when he reached the place of incident, the accused persons were not present and the prosecutrix alone was found weeping there. In paragraph 18 of his deposition, first this witness has stated that he did not understand every signs and gestures of the prosecutrix but immediately thereafter he has stated that he understood her each and every sign and gesture. He has stated that he did not understand the sings and gestures regarding sexual intercourse. Dwarika Bai (PW-3) has stated fhat the prosecutrix had informed her by way of signs and gestures fhat when she had gone to answer the call of nature, the accused/appellants had caught hold of her and committed forcible sexual intercourse with her. She has stated that the prosecutrix had informed her through gestures that accused/appellant Lav Sahu was an electrician and accused/appellant Hiralal was a barber. According to her, the prosecutrix had seen accused/appellant Lav Sahu when he had come to their house for SE IBS' B: sSKS. Bl Kl !KI ailBlr •t K&1 11: III, BIP' • iiiiii^'"' il'ilSi.- aii: as; m RUi K II li: IN BiS B 'i^1' IBEs III. 'aii11 - s- installing the electric meter. Banshidhar (PW-4) - the husband of the prosecutrix has stated in his evidence that prosecutrix is deaf and dumb and expresses the things through signs and gestures. He has stated that on the date of incident when he had come to his house in the night, the prosecutrix was weeping and on being asked the reason for that she told him that accused/appellants had committed rape on her. While describing the identity of the accused/appellants the prosecutrix had ini'ormed this witness through gestures that one accused was barber and the other was electrician. According to this witness the blouse and sari of the prosecutrix were torn and then on the second day the incident was first informed to village Patel and then the report was lodged to the police. Sahadeo Prasad (PW-5) is the Patwari who had prepared the spot map. Sahni Das (PW-6) is the village Kotwarwho has stated that on the date of incident father-in-law of the prosecutrix had come to him and informed fhat the accused/appellants had committed rape on the prosecutrix. On being asked by this witness through gestures the prosecutrix also told him in the same manner that the accused/appellants had committed rape on her. Dr. Anil Kumar Tirki (PW-7) who had medically examined the accused/appellants has stated in his evidence that they were capable of performing sexual intercourse. Ghasiya Prasad (PW-8) has stated that father-in-law of the prosecutrix had informed him that the accused/appellants had committed rape on his daughter-in-law i.e. the prosecutrix. He has stated that to confirm this fact he had sent a word calling the accused/appellants but they did not turn up. Dr. Smt. J. Tripathi (PW-10) who had medically examined the prosecutrix has stated that no injury was noticed by her on the body of the prosecutrix and that she was habitual to sexual intercourse. R. B. Singh (PW-11) is the Investigating Officer who has fully supported the case of the prosecution. S. P. Sahis (PW-12) is the witness who had given the certificate Ex. P-17 showing that the prosecutrix belonged to Scheduled Tribe community. 10. The important question to be decidied before this Court is as to whether the statement of the prosecutrix (PW-1) in the present case through interpretor Shalikram (PW-2) - the father-in-law of the prosecutrix can be believed or not. In the matter of Ah Soi v. King Emperor AIR 1 926 Calcutta 922 it has been held as under: ^ ai •Siilli ri.^t;:, 11^^'. 8SS: K;; Me i.,i- m IBII;:. Blii —^- 'We regret to have to say that the procedure which was adopted by the learned Sessions Judge has had the effect of placing the accused more or less at the mercy of the interpreter Lewis. It was a procedure which was absurd from the very outset and opposed to elementary ideas of justice. That a witness who had taken an active part during the police investigation, who had given evidence in the committing Magistrate's Court on behalfofthe prosecution, and who was found to be ready and willing to give evidence in the Sessions Court on behalf of the prosecution against a man who was charged with very serious offences under Ss. 302 and 304, I.P.C., should have been chosen tp act as an interpreter in this case, is a procedure which has only to be stated to call forth our severe condemnation. We trust that a thing like this will never happen again. We must therefore set aside the conviction of, and the sentence passed on, the accused and direct that he be rethed by the Second Additional Sessions Judge of the 24- Parganas according to law on such charges as the prosecution may be advised to bring against him. Let the record be returned as soon as possible" In the matter of Ragzan Chhodop v. Emperor AIR (35) 1948 Lahore 97 it has been held as under: "(2) Apart from the fact that in allowing Pandit Paras Nath to give his evidence and at the same time to interpret it to the petitioner, the Magistrate ignored his own order of 9 December, 1946, he set at naught the fundamental phnciples underlying criminal jurisprudence and procedure. The whole scheme of the criminal procedure, so far as it relates to the trial of cases, is based upon the salutary principle that before a person can be convicted for an offence, the evidence against him should be examined in his presence and he should be given opportunity to cross-examine the witnesses, to put forward his own version and to produce his own evidence. When an accused person does not understand the language of the Court, it is laid down that the services of an interpreter should be placed at his disposal so that he may know what the witnesses state and be in a position to suggest questions for cross-examination. By the very nature of things, the interpreter must be a person other fhan the witness whose evidence is to be interpreted, otherwise, the procedure of appointing an interpreter would be nothing but a farce. The learned Magistrate has observed that there was nothing in law to stop Pandit Paras Nath from acting as his own interpreter when he know both the languages, i.e., the language in which he was to given evidence and the language of the accused. But he did not realize that to allow Pandit Paras Nath to interpret his own evidence was to place the accused entirely at his mercy, because there could possibly be no guarantee that he would faithfully tell the accused what he would state before the Court and if the accused