Vijay Kumar And Another v. The State Of M.P.

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IN THE HIO-I COURT OF JUDICATURE AT JABALPUR

Cr.A.NO.

€T^ of 1999 CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE,1973 Appellants:

1. Vijay Kumar^aged 23 years^ Accused son o£ Dulakhandas Gendrej ^-x.

..-/^<1< A. ^^i^ c 2e Jalesh Kumar »aged 23 years \ son of Sanat Kixmar Satnamij ^/YLc..l.-'-"r'"

^C"-'Z^U^^I ^"^"".........^ ^^::--- cf 3o Pyarelal^aged 28 years^ son of Bhikodas Grende;

All R/o Bhalu Choona»P,S»Kawardha, 'fc.^ Dlstrict Rajnandgaon^M^P, 1»*11_ versus Respondent:

The State o£ Madhya Pradesh f"

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HIGH COURT OF CHHATTISGARH. BILASPUR CRA No. 655 of 1999 Vijay Kumar & Another -- Appellants

Versus

The State of Madhya Pradesh (now C.G.) -- Respondent For appellants- Shri Arun Kochar, Advocate.

For State - Shri Sangarsh Pandey, Dy.G.A.

Hon'ble Shri Justice Goutam Bhaduri Order 24/08/2017 1.

During pendency of the appeal, appellant No.2 Jalesh Kumar died in the year 2009. Therefore, appeal stands abated in respect of appellant No.2 Jalesh Kumar as per order dated 13/01/2015 and now the case is heard on behalf of appellant No.l Vijay Kumar and appellant No.3 Pyarelal.

2.

This instant appeal is against the order dated 24/02/1999 passed by the Additional Sessions Judge, Khairagarh whereby the appellants have been convicted under Section 366 of IPC and have been sentenced to Rl for 7 years and to pay fine of Rs.1000/-, in default of payment of fine, to undergo additional Rl for 6 months, under Section 376(2)(g) of IPC appellants have been sentenced to Rl for 10 years and to pay fine of Rs.1000/-, in default of payment of fine, to undergo additional Rl for 6 months and under section 506-B of IPC, appellants have been sentenced to Rl for 5 years and to pay fine of Rs.1000/-, in default of payment of fine, to undergo additional Rl for 6 months.

disclosed the incident to Ramnath Sahu and Kotwar of the village. lnv FIR she further discloses that thereafter her family members came and the incident was disclosed to Kartik Das her father, Kamla Bai mother, Prabhati Lal brother-in-law and Bedu uncle.

7.

Statement of the prosecutrix under Section Cr.P.C.

is marked as Ex.D-1 and she was examined as PW-11 before the court. In Ex.D-1 it is stated that while she was coming back after answering call of nature alongwith one Sunta Bai, at that time all the appellants met there and Vijay Satnami asked Pyarelal and Jalesh to make her sit in the motorcycle, at that time Pyarelal and Jalesh forced her to sit in the Luna motorcycle. Further Vijay Satnami extended threat that if she raises alarm and try to flee away she would be killed, therefore she kept silent.

Thereafter, Vijay forcefully took her away and the prosecutrix told the other accused that they would be witness.

Subsequently, she was taken to a place known as Kodarkhar and in the field forceful rape was committed by Vijay. She further stated that when she tried to make alarm by shouting she was threatened that if she raises her voice, she would be killed and out of fear she could not shout. She further stated that she requested Vijay to leave her in the place where dance programme was going on but she was left there alone. Subsequently, she met Dayal Sahu and when the said person asked her where she was going alone the incident was disclosed. Thereafter, she was taken to the house of Shobaram Sarpanch. Thereafter, father of the victim came it was disclosed to him as also to the Kotwar of the village Chikli and the report was made. 8.

Before the court she has narrated entirely different story that all

^^ ^ the three accused took her to Kodarkhar and one by one she was subjected to rape.

First by Vijay subsequently by Pyarelal and thereafter Jalesh committed rape. It is further contended that one of the accused caught hold of her hand while other used to caught hold of the legs and the other remaining one used to commit rape. It is further stated that during such activity piece of cloth was put into her mouth, as such shecould not raise voice. In the statement further she stated that after committing rape at Kodarkhar, she was taken by all the three accused to Bhoramdeo forest and near Chapri named Harmokhar she was left and all of the three accused fled away. Thereafter, she met Dayal Sahu and disclosed the incident to him. In the cross examination she stated that Jalesh was driving the motorcycle, she was sitting behind him and thereafter two accused were sitting after her in the motorcycle. Jalesh started the motorcycle by kick and when she was caughtshe stated that she would make noise, at that time pieces of clothes (chindi) was placed in her mouth as such she could not raise her voice.

9.

Witness was confronted with her statement made to the police under section 161 of Cr.P.C. Statement recorded by the police. In such statement omission part was marked that before the police she has not made allegation on three accused that they have committed rape and only allegation was attributed to one. The statement made to the police is marked as Ex. D-1 and was affirmed by PW-13 the 1.0. R.L. Sahu who recorded the statement and stated according to the statement given by the prosecutrix it was recorded. With respect to the specific question as to why only allegation was attributed to one appellant Vijay she denied to have given such statement.

10.

Therefore, if the FIR which was lodged by the prosecutrix marked as Ex. P-5 read with the statement of the prosecutrix under section 161 Cr.P.C. which is marked as Ex.D-1 as also statement before the court major omission and contradiction appears as before the police prosecutrix stated that only Vijay committed rape whereas in FIR allegation of rape was on the three accused. Statement before the police was recorded on 16/05/97 which is marked as Ex.D-1 i.e. after a day of the FIR. Consequently, if such omission exist in the statement before the police and then reading it with the statement given before the court would take it within the ambit of omission consequently would amount to material contradiction. As has been held in case of Shri Gopal and Anr. Vs.

Subhash and others reported in AIR 2004 SC 4900 omission to state a fact would amount to contradiction. The omission in this case appears to be significant and relevant having regard to the context in which such omission occurs. Therefore, taking into question of fact that when statement under section 161 of Cr.P.C. given to the police when only allegation is attributed to one of the accused whereas later on before the court allegation has been clamped on three it would be an omission and as such a contradiction of theown statement of the victim.

11.

Further the prosecutrix stated that after the incident she met Dayal and disclosed the entire incident to Dayal. The witness Dayal has not been examined by the prosecution. As per the FIR she went to the house of Ramnath Sahu wherein Kotwar was also called of village Chikli. Ramnath is examined as PW-5. In his statement he has stated that he saw the girl was sitting in the house when he came back from his field. Thereafter, he talked to her and name of the father was

SSS^S;

^ ^^ enquired which was told to be Kartik. Subsequent to it Kotwar asked to inform mother and father of the victim and when they came she left alongwith them. He stated that he has not asked anything to the girl and nothing was disclosed to him by the girl. Siyaram PW-4 only stated that at the request of Dayal he had left the girl in a house. He has also not disclosed anything that the victim had disclosed said witness. PW-3 Beduram has not supported the case of the prosecution. Further in the cross examination he has stated that he has escorted the girl in his cycle to Kawardha and before him no incident was disclosed to him by girl. Likewise PW-9 Sobharam stated that he had went to village Chikli after receiving news that the victim is in the house of one Sahu wherein victim at the presence of his father has not disclosed anything.

He has also notsupported the case ofthe prosecution. PW-2 Prabhati Lal also not supported the case of the prosecution and stated that when the father of the victim had disclosed that his daughter is in village Chikli and asked for help, therefore he accompanied them to Chikli and went to the house of one Sahu wherein prosecutrix and other villagers were also present, however the girl did not disclose anything. Witness stated that at the time Kotwar was having written paper in his hand and he disclosed that the victim had come alongwith other boys of the village however victim had not disclosed anything.

12.

The father of the victim Kartik Ram PW-1 has also not supported the case of the prosecution, importantly in the cross examination he stated that when he went to Chikli to bring his daughter on asking also she did not disclose anything.

Subsequently, mother of the girl informed him that few of the boys had committed rape. In statement of the Kartik Ram he admits this fact that commission of rape was

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^4 i .^ f .^ disclosed by the daughter to her mother which in turn was disclosed to ^ him was not narrated to the police in his police statement and for the first time it was stated before the court. Witness father further admitted the fact that he wanted his daughter to wear chudi from Vijay accused (A-l) so that she may remain in the village but on the advise of Jalesh and Pyarelal, Vijay did not accept her and did not gave chudi to her daughter. He further stated that villagers of Chikli made a report and after report his daughter wanted to wear chudi from Vijay and he also tried for it and at that time one of the accused stated that if the daughter accepts truth before panch then only he will accept and keep the prosecutrix as his wife.

The father further stated that subsequently, prosecutrix admitted before the panch that accused have not committed any rape and she had made false report. He further admitted the fact before panch everything was written in writing and the panch as also victim had placed their signature and thumb mark and the father had also placed his thumb mark on such paper. He also admits the fact that daughter had told since Vijay had refused to give her chudi and he was in tension as such she herself fled away from the place of programme where dance programme was organised and went to Chikli. It is further stated that the daughter/victim has not stated that accused have committed rape.

13.

At this juncture, considering the admission of certain facts the document Ex. D-2 which is scribed as Ikrarnama would be of much relevance. Ikrarnama reads that victim had accepted one accused Vijay (A-l) as her husband and stated that on the advise of other persons she had made report under section 376 which may be accepted to be false as cancelled. It further records that such report of

rape was fraud and therefore agreement was executed.

Said agreement contains signature of 12 villagers. Statement of DW-2 Goutam Prasad would show that he was also signatory to such agreement and proved that agreement. He stated that a meeting was convened at the request of father of the victim i.e. PW-1 Kartik Ram. On asking the reasons witness states that Kartik Ram disclosed that his son-in-law Baldev told that he was going out side of village to earn his livelihood and do notwant to take her daughter and requested that the wife (victim) should get married to someone by way of chudi marriage. After some day one of the accused Vijay accepted to offer chudi to the victim but subsequentlyrefused, therefore report was made against all the accused. He further stated that in such meeting the victim accepted that she wanted to wear chudi from Vijay and since Vijay had refused as such report was made by her, however no rape hN^.1 was committed and at her request it was written in the writing and she had put her signature.

14.

In the facts of this case, statement of the prosecutrix would show that she kept on changing her version at different point of time. Initially in the FIR place of incident was shown to be Bhoramdeo forest and it was stated that her eyes were blind folded and hands were tied and rape was committed on the point of knife by three persons.

Subsequently, in statement before the police under Section 161 of Cr.P.C. commission of rape is attributed to only one of the accused.In statement to the police she stated that two of the accused made her to set in the motor cycle, thereafter Vijaytook her away and thereafter he committed rape whereas in statement before the court such version was changed and the allegation of rape was attributed to all the three

i accused. The fact that she stated that it was disclosed to her father PW-1, mother and other witness Siyaram PW-4, Ramnath PW-5 in whose house she went at Chikli they have not supported the prosecution story. On the alternate father has accepted the fact that he wanted to get her married for the second time to Vijay as his first sonin-law never wanted to take her daughter (victim) with him when he was going out of the village to earn his livelihood, at that juncture initially Vijay accepted to offer bangles to accept prosecutrix as his wife but subsequently refused to make such offer at the instance of other two accused. Thereafter report of rape was made. 15.

Thereafter, again meeting was convened and Vijay accepted that he would accept the prosecutrix to be his wife provided victim comes out with truth. According to Ex.D-2 existence of those facts which finds place at Ikrarnama has been fortified by father of prosecutrix. Further the way the offence is said to have happened as narrated by the prosecutrix also do not inspire confidence. It is stated that she was taken by putting the piece of cloth into her mouth also do not appear to be logical. The facts suggest in a crowded place of programme she did not shout for help while she was being taken in the motorcycle at the alleged time of incident. Place of rape has also been kept on changing intermittently.

Further the evidence of doctor PW-10 also do nct show that the prosecutrix though was ravished thrice by the adult persons no injury was found as per PW-10 and Ex. P-8. Further the statement of the prosecutrix made to the police under section 161 Cr.P.C. discloses that she was taken alone by the appellant No.l Vijay. Therefore in totality it will lead to show that she herself had went alongwith the appellant without much resistance.

ffi.

^.A ^ ^ down in case of Hem Raj Vs. State of Haryana reported in 2014 SAR •^^ •^^'rr j'i.^ (Criminal) 247 finds supports for doubt. It would show that prosecutrix changed her version at different stage and it will be extremely difficult and dangerous to rely on such statement and evidence of the prosecutrix cannot be accepted as gospel truth though it may be at par with the injured witness but at the same time accused must also be protected against possibility of false implication. 16.

In view of this, taking into totality of the facts, 1 am of the view that benefit of doubt leans in favour of the accused/appellants.

Consequently, it is difficult to accept version of the prosecutrix at its face value coupled with fact other evidences and witnesses do not support her testimony and is inconsistent with the statement of the other witness. Taking into totality of facts, 1 am inclined to allow the appeal.

17.

In the result, appeal is allowed and the conviction & sentence imposed on appellant No.l Vijay Kumar and appellant No.3 Pyarelal is set aside. They are acquitted of the charges. Appellant No.l Vijay Kumar and appellant No.3 Pyarelal are on bail. Their bail bonds shall continue for a period of 6 months in view of provision contained under Section 437-Aof Cr.P.C.

Sd/- Goutam Bhaduri Judge goun