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MADHYA PRADESH HIGH COURT
Smt. S.R. Waghmare, J.
Gopal v. State of M.P.
Criminal Appeal No.363 of 1997 (Indore) : against the judgment of Additional Sessions Judge, Shajapur, passed in S.T. No.180 of 1997; Decided on 16.9.2014.
Firstly the fact that she was raped by accused Gopal in a culvert, which is a common way used by the whole villagers. Secondly the prosecutrix has stated that she was subjected to rape at 10 a.m. in the morning, which is the time of busy activities in a village. And thirdly more important that even in the medical evidence available on record indicates that she did not have a single abrasion on her body and since she was subjected to rape in the culvert, which is full of stones and other material, it must have caused damage to the skin of her body and more so she was seven months pregnant as evident from the doctor’s report at Ex.P-2A.
Held : The unnatural conduct of the prosecutrix, the delay in filing of the FIR Ex.P-3 and the fact that the time that she was subjected to rape at 10 a.m. in the morning are all instances which lead to the inevitable conclusion that the testimony of the prosecutrix is wholly unreliable. And to base the conviction on such scanty evidence would result in miscarriage of justice since it would be based on conjecture and surmise and in view of the glaring infirmities in the prosecution case and hence the conviction cannot be sustained. AIR 2009 SC 858 and AIR 2013 SC 2207 followed.
(2) Practice -- presumption of innocence of accused primarily important -- mere suspicion however strong or probable cannot take place of proof. (2002)7 SCC 317 followed. [Para 6
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1. By this criminal appeal under section 374 of the CrPC appellant Gopal has challenged the judgment dated 11.4.1997 passed by the Additional Sessions Judge, Shajapur in S.T. No.180/1997 whereby the appellant has been convicted for offence under sections 376(1), 341 and506 Part II of the IPC and sentenced to undergo 10 years of RI with fine of Rs.1,000/-, 1 month’s of RI and one year’s RI with fine of Rs.500/- respectively. In case of failure to pay the fine, the accused was to undergo an additional sentence of six months’ and three months’ RI respectively. The sentences were directed to run concurrently.
2. Brief facts of the prosecution case are that the prosecutrix on 4.5.1995 at 10 a.m. in the morning was returning after giving water to the cattle, when she reached near a culvert (nallah) she saw the accused Gopal Harijan and Kamal Baba. Accused Gopal caught hold of her hand and stopped her and asked Kamal to keep watch and then accused Gopal tried to molest her. She tried to shout, but he threatened to kill her and thereafter he raped her. She shouted for help, but nobody had come. Thereafter the accused ran away from the spot along with accused Kamal. On returning home she narrated the incident to the lady members of the house. The male members of the house had gone to another village for performing some custom. Upon returning the male members of the house in the evening, she narrated the story to her husband Murlidhar Patidar and her brother in-law Durgashankar. On 4.5.1995 i.e. on the same day at 11 p.m. in the night the incident was reported at police station Moman Badodiya and case was registered for offence under sections 341, 376 and 506/34 of the IPC at Crime No.46/95. The spot map was prepared at Ex.P-5. The prosecutrix was sent to the District hospital, Shajapur for her medical examination and she has been examined by Dr. (Smt.) Asha Pandit. The medical report is Ex.P-2A and the accused were duly arrested vide arrest memo Ex.P-6 and P-7. Accused Gopal was also examined. The underskirt of the prosecutrix and two slides of her vaginal discharge were collected and sent to the laboratory for the FSL in Indore. The report is Ex.P-10. The prosecution was launched. The accused were duly committed to their trial.
3. The accused abjured their guilt and stated that they have been falsely implicated in the matter. However, they did not examine anybody in their defence. On considering the evidence, the trial Court has acquitted coaccused Kamal Baba from the offences, but accused Gopal has been convicted and sentenced as hereinabove indicated. Hence the present appeal.
4. Counsel for the appellant has vehemently urged the fact that it was a case of false implication. Counsel also vehemently urged the fact that the FIR Ex.P-3 was delayed by 14 hours and since the police station is 10 minutes away from the victim and counsel submitted that it was filed only after deliberation by family members at 11 p.m. in the night. Judgment of the conviction is also challenged by counsel since it was based on the sole testimony of the prosecutrix; whereas she has changed her version several times. In impugned para 12 of the judgment the prosecutrix has stated that accused Gopal did not utter a single word then how can this be treated as evidence of threat. Similarly the prosecutrix has stated that the rape has been committed at the culvert at 10:30 a.m. in the morning when there is a lot of hustle and bustle around. Similarly she has stated that there was a scuffle between her and the accused and she had shouted yet he had thrown her on the floor. It was also unbelievable because her statement is not supported by the medical report available on record. PW2 Dr. (Smt.) Asha Pandit examined the prosecutrix and she has stated in the medical report that the prosecutrix was 32 years of age and there were no external injuries found on the body of the prosecutrix. She was habituated to sex as her hymen was ruptured and wide enough to easily al
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