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1999 Supreme(MP) 792
High Court Of Madhya Pradesh
R. S. GARG
BABBU ALIAS BABULAL - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Appeal 342 Of 1997
Decided On : 10/14/1999
Dinesh Joshi, S.K.P.Verma
The central legal point established in the judgment is the requirement for clinching, cogent, and convincing evidence to convict an accused, especially in cases where witness hostility and conflicting statements raise doubts about the prosecution's case.
Headnote:
Section 376 - Rape - Indian Penal Code - [Section 376 (2) (f)] - The court discussed the prosecution's case of rape and the evidence presented, including medical reports and witness statements. The court highlighted the importance of clinching, cogent, and convincing evidence to convict the accused, and emphasized the need to consider all evidence before reaching a decision. The principle of Criminal Jurisprudence, favoring the accused when two views are possible, was also cited.
Fact of the Case:
The appellant appealed against a conviction under Section 376 (2) (f) of the Indian Penal Code for raping a minor prosecutrix. The prosecutrix alleged that the accused caught hold of her, used abusive language, and raped her in a nearby sugar cane field. However, key prosecution witnesses, including the prosecutrix, her father, and brother, turned hostile during the trial.
Finding of the Court:
The court found that while the medical report and initial statements of the prosecutrix indicated rape, the subsequent turn of events, including witness hostility, raised doubts about the prosecution's case. The court emphasized the need for clinching, cogent, and convincing evidence to convict the accused and noted the possibility of false implication.
Issues: The key issue before the court was whether the prosecutrix's testimony could be relied upon to convict the accused, especially in light of witness hostility and conflicting statements.
Ratio Decidendi: The court emphasized the importance of considering all evidence and the need for clinching, cogent, and convincing evidence to convict the accused. The principle of Criminal Jurisprudence, favoring the accused when two views are possible, was also applied.
Final Decision: The court, bound by law, acquitted the accused due to witness hostility and the lack of clinching evidence. The appeal was allowed, and the appellant was ordered to be released from jail.
( 1 ) THE appellant, being aggrieved by the judgment dated 21-1-97, passed in Sessions Trial No. 21/96 by the learned Sessions Judge, Sehore, convicting the appellant under Section 376 (2) (f) of Indian Penal Code, sentencing him to undergo R. I. for ten years and pay fine of Rs. 2,000/- in default of payment of fine to undergo two months S. I. has filed this appeal.
( 2 ) THE prosecution case in brief is that P. W. 2 Kashibai the minor prosecutrix, when was carrying food to her father on 6-1-96 at about 4-5 p. m, the accused Babbu alias Babulal caught hold of her, used abusive language, asked her to hold her male organ and thereafter took her to the nearby sugar cane field, fell her on the ground and committed rape upon her. The girl after suffering the worst experience of her life went to her father and brothers, narrated the entire incident to them, and thereafter lodged the first information report. After receiving the report of a cognizable offence, the girl was sent for her medical examination. Dr. (Smt.) Savita Shrivastava (P. W. 1) gave her positive report. The spot memo was prepared; accused was arrested and statements of the witnesses were recorded. On completion of the investigation, challan was filed against the accused. The trial Court convicted and sentenced the accused as referred to above, being aggrieved by the said conviction and sentence, the appellant has filed this appeal.
( 3 ) SUBMISSION of learned counsel for the appellant is that as P. W. 3 Shankarlal father of the girl, P. W. the prosecutrix herself and P. W. 5 Dilipsingh brother of the prosecutrix have turned hostile, and as P. W. 2 the prosecutrix in the cross-examination did not allege that sexual assault was made upon her, the trial Court was wrong and unjustified in convicting the appellant.
( 4 ) LEARNED counsel for the State submits that statements of P. W. 2 Kashibai were recorded on 25-6-96, but her cross-examination was resumed on 14-11-96. According to him, P. W. 3 Shankarlal was examined on 26-6-96 and P. W. 5 Dilipsingh was examined on 17-9-96 and thereafter the cross-examination was resumed, therefore, the Court must presume that meanwhile some water passed under the bridge and, therefore, the prosecutrix was not supporting the case of the prosecution. I have heard the parties at length and have perused the records.
( 5 ) FROM the statements of P. W. 1 Dr. (Smt.) Savita Srivastava, it appears that on physical examination of the prosecutrix, she found a fresh tear of hymen and fresh bleeding. From her statements, it clearly appears that sexual intercourse was committed with the girl. From the statements of P. W. 4 Dr. Mahendra Jain, it appears that the girl was below 12 years of age.
( 6 ) UNFORTUNATE scenes start now. P. W. 3 Shankarlal father of the girl was examined on 26-6-96. In the examination-in-chief itself, he did not support the prosecution case. According to him, he was feeling little unwell, therefore, he was lying in his fields. His daughter came with the food, but as the witness was not ready to eat the same, the girl started playing in the fields. Thereafter his wife and the sonalso came to the fields. The girl did not tell about anything. The girl was thereafter taken to their house by his son. After he was declared hostile in the cross-examination by the public prosecutor, he admitted the fact that the girl was bleeding and on the enquiry, the girl informed him that she had suffered some injury by a spike of sugar cane. True it is that rape was committed upon the girl, but the person who was to feel aggrieved, for the reasons best known to him, did not support the prosecution. P. W. 5 Dilipsingh is the real brother of the prosecutrix. He had also turned hostile because according to him, he was only informed by the prosecutrix that the accused had given two slaps to the prosecutrix. In the cross-examination by the Public Prosecutor, he simply admitted that some report was lodged, but he was not ready and wil
