Lalliram and Anr. v. State of M.P.

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 791 of 2006 From the Judgment dated 23.3.2006 of the High Court of Madhya Pradesh, Jabalpur Bench at Gwalior in Crl. Appeal No. 81 of 1990 Rajesh R. Dubey, Pawan Upadhyay, Anisha Upadhyay, Santosh Mishra and Sharmila Upadhyay forthe Appellants. Vikas Upadhyay and B.S. Banthia for the Respondent. The Judgment of the Court was delivered by . Dr. ARIJIT PASAYAT, J.

1Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Gwalior Bench, upsetting the acquittal as recorded by G learned Additional Sessions Judge, Ashok Nagar, in Sessions Trial No.12/86. Three accused persons namely the present · appellants and one Chaturbhuj faced trial for alleged commission of offence punishable under Sections 376, 392, 342 and 506 of the Indian Penal Code, 1860 (in short the 'IPC'). The trial A Court directed acquittal of all the three accused persons. In appeal filed by the State under Section 378 of the Code of Criminal Procedure, 1973 (in short the 'Code') the order of acquittal was set aside and accused persons were found guilty of offence punishable under Sections 342 and 376 of IPC. But it B upheld the acquittal for offence relatable to Section 392 and 506 (II) IPC. The appellants were sentenced to undergo seven years and six months custodial sentence and fine with default stipulation for offences relatable to Sections 376 and 342 IPC.

2Prosecution version which led to the trial of the accused c persons is as follows: On 23.9.1985 in the evening prosecutrix alongwith her husband Dayaram went to Khajuria. On the way necr the field of Mangal, appellants met them and started to abuse prosecutrix. Appellants also started beating husband of prosecutrix and took D the prosecutrix near the well of Kamal Singh where accused Pooran Singh and Lalliram talked to Chaturbhuj. Dayaram was locked in a room. Then appellants took away the prosecutrix to the upper room of the house and committed rape repeatedly in the night. In the next morning they released prosecutrix and E warned her not to report to anybody. Then she brought Dayaram from the room and at that time Latura, Gyarasa, Bharo Singh, Kamal Singh and Harihar reached there. They were informed about the incident. Appellants also snatched a bag from the prosecutrix containing Rs.25/- and identity card of Dayaram.

Prosecutrix lodged the report in Police Station Madhogarh out post which is Ex.P1. Investigation was undertaken. Spot map was prepared which is Ex.P2. Prosecutrix was sent for medical examination vide Ex.P6 and she was examined by the lady doctor, Smt. C.P. Jain (PW-11) twice, first time on 25.9.1985 and then on 5.10.1985. Ex.P6 is the report pertaining to medical examination dated 25.9.1985. As per report Ex.P6 she gave opinion that no definite opinion can be given about rape. In the report it was stated that no external injuries were found on her body. The trial Court found that the evidence of Latura (PW-3) who is father of · PW-2, Bharosa (PW-4) and Puliabai (PW-5) was inconsistent and the defence witness Maya probabilised the defence taken [DR. ARIJIT PASAYAT, J.] by the trial Court. Doctor also categorically stated that she was A not pregnant on the alleged date of occurrence.

3The High Court referred to the evidence of PWs. 1 and 2 i.e. the prosecutrix and Dayaram respectively and observed that the version of the prosecutrix was sufficient to fasten the B guilt on the accused. Circumstances highlighted by the trial Court were not sufficient to warrant acquittal. Though the version as indicated in the First Information Report (in short the 'FIR') and the evidence in court were discrepant in certain aspects, it was held to be of no consequence ..

4Stand of the State before the High Court was .that· the evidence of prosecutrix and her husband was cogent and there was no scope for directing acquittal.·

5It is to be noted that the trial Court had found the discrepancy in the version of the witnesses. t

6In support of the appeal learned counsel for the appellants submitted that the High Court relied on several decisions without indicating as to how the trial Court's view was not justified. It is in essence submitted that the parameters relating to appeal against acquittal have not been kept in view. It is stated that the High Court relied on decisions in a mechanical manner overlooking the improvements made by the prosecutrix and the contradictory statements made by her which as rightly observed by the trial Court corroded the credibility of the prosecution version.

7Learned counsel for the State on the other hand submit- · ted that the judgment of the High Court does not suffer from any infirmity to warrant interference.

8The trial Court noted that though the prosecutrix claimed that she was raped by several persons at several times there G was no injury noticed and doctor has categorically stated that there was no sign of rape and in fact there was 'no injury.

9It is true that injury is not a sine qua non for deciding whether rape has been committe.d. But it h.as to be decided on A the factual matrix of each case. As was observed by this Court in Pratap Misra and Ors. v. State of Orissa (1977 (3) SCC 41) where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is nec- B essary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar & Ors. v. State of Haryana (2004 (4) SCC 379).

10As rightly contended by learned counsel for the appellants a decision has to be.{;onsidered in the background of the C factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar's case (supra) it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law D that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal then the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to ac- E cept the version of a prosecutrix on the face value it may search for evidence direct or circumstantial.

11So far as testimony of the victim is concerned the High Court has found that PW-2 stated about injuries on the cheek and back of the prosecutrix. But no such injury was found in the F first medical examination. PW-2 had stated that she had suffered injuries on her legs. But such injuries were also not noticed.

12In the cross-examination, the prosecutrix stated that it was Lalliram who committed the rape first. But in her earlier statement she had stated that it was accused Pooran who first G committed the rape on her. Interestingly, she had also deposed differently as to the place of rape. This aspect was noticed by the trial Court. Another significant factor which was noticed by the trial Court but not by the High Court was that PW-1 stated that there was miscarriage. PW-1 stated that she was 4 months [DR. ARIJIT PASAYAT, J.} pregnant at the time of occurrence. But the doctor stated that A she was actually on menstruation period.

13Another interesting statement of the prosecutrix was that accused Lalliram had dragged her by catching her bunch of hair for a considerable distance. The trial Court noticed that if that was so there would have been injuries and interestingly she had not stated about this part in the FIR. As noted above, she had spoken about scratches on her back due to dragging and other parts·& the body and that blood had also oozed out. But the medical evidence is clearly to the contrary. In her statement she had deposed that her husband Daya Ram was also dragged by C Pooran and Lalliram and he had also suffered several injuries. This part is also belied by the medical evidence. In cross-examination PW-1 admitted that accused persons harassed her and tried to kill her. She had admitted that she was assaulted by her husband. Those are relatable to the injuries which were fresh at o the time of examination by the doctor on 5.10.1985.

14It is to be noted that Smt. C.P. Jain (PW-11) examined her twice i.e. first on 25.9.1985 and then on 5.10.1985. At the time of first examination, no injury was found on her body. It is also to be noted that PW-3 stated that after PW-1 regained consciousness she told about the incident. This is contrary to what PW-2 stated. He has stated that he was tied by the accused persons and in the morning he was untied by PW~1. By that time obviously PW-3 and PW-4 had not arrived. In fact PW- 4 says that when he and PW-3 went to the place of occurrence the victim was lying unconscious.

15In vi1:::w of the aforesaid factual position the trial Court was justified in directing acquittal and the High Court's judgment upsetting the acquittal is clearly unsustainable.

16The appeal is allowed. The conviction recorded by the G High Court is set aside. The accused persons who are in custody shall be released forthwith unless required to be in custody in connection with any other case. R.P. Appeal allowed. H