Rajoo & Ors vs State Of M.P

2. On 28th December 1986, the prosecutrix PW9 along with her mother, Dukhni Bai PW8 were on their way to the bazaar for purchasing households items. While on the way, they met four of the accused Pyaru, Nandoo, Rajoo and Pentoo, who addressed the prosecutrix as a prostitute and then asked her to go with them to a hotel some distance away. The prosecutrix, however, refused to accept this order on which 2 Nandoo and Pyaru put a towel on her face and after slapping her several times, made her sit on a scooter with Nandoo in front and Pyaru at the rear and the prosecuritx in the middle. The two accused then took the prosecutrix near the newly constructed quarters where the other accused were already present. It is the case of the prosecution that all the accused, first Nandoo, and thereafter the others turn by turn committed rape on her, and after having satisfied their lust, she was dropped by some of them near the peepal tree in the bazaar. She then reported the matter to the police at about 10 p.m. the same evening in which she named Nandoo and Bindu as the two accused who had taken her on the Luna but also stated that as all the other accused were from Ruabandha, she would be able to recognize them. A case under sections 366 and 376 of the IPC was accordingly registered by Sub-Inspector P.N. Shukla PW10. The Police Officer also seized a saree and a petticoat which the prosecutrix had been wearing at the time of the commission of rape and also produced her before PW1 Dr. Smt. Christian for her medical examination. The Doctor observed no marks of 3 injury visible on any part of her body other than a swelling on the lower jaw but opined that as she was habituated to sexual intercourse, she (the Doctor) was unable to give any opinion about the intercourse having been committed recently, though a foul smell was emanating from the vagina and slides were taken therefrom. Some of the accused were arrested on 29th December 1986 whereas the others were arrested on 2nd January 1987 and the underwear they were allegedly wearing at the time of incident were seized and thereafter sent to the laboratory and were subsequently found to be stained with semen. The accused were also produced before PW2 Dr. S.S. Dhillon and PW3 Dr. P. Srivastava, who opined that all the accused were capable of performing sexual intercourse. On 13th December 1986, 9 of the 13 accused were intermingled with 27 other persons and were subjected to an identification parade under the supervision of Sakharam Mahilong, Naib Tehsildar (PW5). As per the evidence of this officer, all the accused were duly identified by the prosecutrix by putting her hand over the head of each accused.

3. On the completion of the investigation, all 13 accused were charged for offences punishable under Sections 366/376 of the IPC and as they pleaded not guilty, they were brought to trial. The trial court in its judgment dated May 26, 1989 relying on the evidence of the prosecutrix, as corroborated by the statement of her mother PW8, and further relying on the fact that 9 of the accused had been identified in the test identification parade and that the medical evidence showed the presence of semen in her vagina, found the case against all the accused as partly proved, and while acquitting them of the offence under section 366 of the IPC convicted them for the offence under section 376 (2)(g) with a sentence of RI for 10 years and a fine of Rs.200/- and in default of fine to undergo RI for 6 months. Several appeals were thereafter filed by the accused in the High Court which observed that two of the accused appellants i.e. Ramaiya and Krishna had not been identified in the identification parade and were, thus, liable to acquittal. The other appeals were, however, dismissed with the modification in the sentence from 10 years to 8 years RI with an increase in the fine of Rs.200/- to 5 Rs.5000/- to be made payable within 6 months failing which they would undergo RI for 10 years. The present appeals have been filed by 10 of the accused as Raju son of Billya chose not to file an appeal. It is in these circumstances that the matter is before us for final hearing.

10. Undoubtedly, the charge under section 366 of the IPC has not been made out as per the findings of the courts below. We, however, find that the evidence of rape is distinct from the other charge and the matter should be examined in that background. We are, accordingly, of the opinion that merely because the accused have been acquitted for the offence punishable under Section 366 of the IPC is ipso-facto no reason to disbelieve the entire prosecution story on this solitary ground.

We are of the opinion that in the light of the categorical statements of the two main prosecution witnesses, the identification of the accused is extremely doubtful.

15. On an examination of the entire evidence, we are of the opinion that it would be difficult to conclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth and falsehood are so inextricably 20 intertwined, that it is impossible to discern where one ends and the other begins.