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IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Hemant Gupta, CJ and Atul Sreedharan, J.
State of M. P. v. Mohammad Shahid and another
Criminal Appeal No. 541 of 2000 (Jabalpur);
against the judgment passed by the VI Additional Sessions Judge,
Bhopal in Sessions Trial No. 357 of 1998;
Decided on 1.11.2018
(2) Evidence Act, 1872 -- S.157 -- statement of deceased to her brother that she was forcibly taken by accused and that constables took her to police station -- statement of deceased soon after incident to constable that she was sexually assaulted -- statement of victim recorded by investigating officer -- are relevant to corroborate other evidence on record. AIR (39) 1952 SC 54, AIR 1983 SC 911, (1998)2 SCC 372 and (2000)5 SCC 30 followed. [Paras 39, 40 & 45
(3) Penal Code, 1860 -- S.376 (2) (g) -- Evidence Act, 1872 -- S.60 -- Criminal P. C., 1973 -- S.313 -- victim habitual to sexual intercourse -- does not allow accused to violate her -- evidence of witnesses and statement of accused under section 313 of CrPC does not show that accused knew victim and she voluntarily submitted -- no explanation in S.313 statement as to why prosecution witnesses deposed against them -- material witnesses except brother of victim are independent witnesses -- medical evidence corroborates other evidence -- granting benefit of doubt to accused is clearly perverse, untenable and defeats cause of justice. 2013(3) JLJ 249 = (2013)7 SCC 278 Ganga Singh, (2012)7 SCC 171, (2004)1 SCC 421, (2000)5 SCC 30, (2008)9 SCC 390 and Criminal Appeal No. 913 of 2016 decided on 28.9.2018 (SC) followed. [Paras 46, 47, 53, 56 & 60
¼1½ naM lafgrk 1860 && /kkjk 376¼2½¼N½ && lk{; vf/kfu;e] 1872 && /kkjk 32 && ?kVuk ds pkj fnu i'pkr~ vkRegR;k && vkRegR;k i= ls Li"V fd e`rdk ls gB laHkksx fd;k x;k vkSj og dyad;qDr thou ugha thuk pkgrh && izdV fd;k fd vfHk;qDrx.k Hkw[ks Fks vkSj og mudk Hkkstu cu xbZ && e`R;qdkfyd dFku ds laiw.kZ iBu ls vfHk;qDrx.k eqfDr ugha ikrs] Hkys gh e`rdk us dgk fd mUgsa nafMr ugha fd;k tk, && ihfM+rk dh gLrfyfi esa vkRegR;k i= dk dFku && e`R;qdkfyd dFku gS D;ksafd mldh e`R;q mlh fnu gqbZ && e`R;q ds dkj.k ds laca/k esa gh ugha] vfirq ml laO;ogkj dh ifjfLFkfr;ksa ds laca/k esa Hkh xzkgk gS tks e`R;q esa ifj.kr gqvk && vfHk;qDrx.k ukfer ugha && egRoghu gS D;kasfd ?kVukLFky ij vfHk;qDrx.k ds lkFk ihfM+rk dh mifLFkfr lkfcr && lexz :i esa i<+k tkuk gksxk rFkk lanHkZ ds ckgj ,d Hkh okD; pquk ugha tk ldrkA ¼2000½6 ,l lh lh 671 izHksfnrA , vkb vkj 1928 iVuk 162] , vkb vkj 1939 ih lh 47] , vkb vkj 1958 ,l lh 22] ¼1984½4 ,l lh lh 116 rFkk ¼2015½8 ,l lh lh 494 vuqlfjrA¼iSjk 29 ,oa 37 ¼2½ lk{; vf/kfu;e] 1872 && /kkjk 157 && e`rdk dk vius HkkbZ dks dFku fd mls vfHk;qDrx.k cyiwoZd ys x, rFkk vkj{kd mls iqfyl Fkkus ys x, && ?kVuk ds rqjar i'pkr~ e`rdk dk vkj{kd dks dFku fd ml ij ySafxd geyk fd;k x;k && vUos"k.k vf/kdkjh }kjk vfHkfyf[kr ihfM+rk dk dFku && vfHkys[kxr vU; lk{; dh laiqf"V ds fy, lqlaxr gSaA , vkb vkj ¼39½ 1952 ,l lh 54] , vkb vkj 1983 ,l lh 911] ¼1998½2 ,l lh lh 372 rFkk ¼2000½5 ,l lh lh 30 vuqlfjrA ¼iSjk 39] 40 ,oa 45 ¼3½ naM lafgrk] 1860 && /kkjk 376¼2½¼N½ && lk{; vf/kfu;e] 1872 && /kkjk 60 && naM izfØ;k lafgrk] 1973 && /kkjk 313 && ihfM+rk eSFkqu dh vH;Lr && bl dkj.k vfHk;qDrx.k dks mlls gB laHkksx djus dh vuqKk ugha fey tkrh && lk{khx.k ds lk{; rFkk naM+ izfØ;k lafgrk dh /kkjk 313 ds v/khu vfHk;qDrx.k ds dFku ls nf'kZr ugha fd vfHk;qDrx.k ihfM+rk dks tkurs Fks rFkk mlus LosPNk ls leiZ.k fd;k && /kkjk 313 ds dFku esa bldk Li"Vhdj.k ugha fd vfHk;kstu lk{khx.k us muds fo#) vfHklk{; D;ksa fd;k && ihfM+rk ds HkkbZ ds vykok lHkh rkfRod lk{kh Lora= && fpfdRlh; lk{; ls vU; lk{; laiq"V && vfHk;qDrx.k dks lansg dk Qk;nk nsuk Li"Vr% foi;ZLr] vekU; gS vkSj U;k; ds mnns'; dks foQy djrk gSA 2013¼3½ ts ,y ts 249] ¼2012½7 ,l lh lh 171] ¼2004½1 ,l lh lh 421] ¼2000½5 ,l lh lh 30] ¼2008½9 ,l lh lh 390 rFkk nkafMd vihy Ø 913 lu~ 2016 fu.khZr fnukad 28&9&2018 ¼mPpre U;k&½ vuqlfjrA ¼iSjk 46] 47] 53] 56 ,oa 60
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Gupta, C.J. --1. The present appeal by the State is against an order passed by the learned Sixth Additional Sessions Judge, Bhopal in Sessions Trial No. 357/1998 acquitting the respondents for the offences under sections 366, 376(2)(g) of the Indian Penal Code, 1860.
2. The learned trial Court returned a finding that there is no reliable evidence on record regarding kidnapping of the prosecutrix and forcible intercourse with her. The learned trial Court further found that the only evidence which is available on record is that the prosecutrix was found with the accused and even if the accused have committed intercourse, it is with her consent, as she was more than 18 years of age. The prosecutrix was taken in a car but the fact that she has not objected to go with the accused in car shows her consent in having relationship with the accused.
3. The prosecution was initiated on the basis of the statement of the prosecutrix “M”, aged about 18 years given to PW14 SHO- Manoj Sharma at 0.10 a.m. on 18.10.1998 on the basis of which an FIR (Ex.P-23) was lodged for the offence punishable under sections 366 and 376(2)(g) of the IPC. The statement is that on 17.10.1998, at about 6.00 p.m. she has gone with her brother to Vegetable Market. Her brother is working in the tea-shop of Manoj Kushwaha. After meeting her brother, she was standing at bus stand at about 7.00 p.m. to take Mini-bus to reach her house. At that time, two boys alighted from a blue-colour Maruti car, who gave their names as Mohammad Shahid and Mohammad Shamim and said that they know her brother. They disclosed the name of her brother as well and said that they will drop her home. Believing their statement, she sat in their car. When the car crossed Patra bridge then these people sped away the car. She objected, but they closed the glass window panes. They threatened her and told her to keep quiet. They kept moving in the city for some time. After some time, they went to Raisen Road and took a road, which was going towards an agricultural land. Under threat, Shahid and Shamim, in turn, raped her in the car. On way back, their car got stuck on the Kaccha path. They threatened her not to raise any noise and tried to seek help to take out the car from the soft ground. They stopped a Mini bus. Some people from the bus and the policemen came to the spot. She told them entire story and was brought to the police station. She disclosed the car number as MP09-HB-1927.
4. On the same day, at about 5 a.m. she was medico-legally examined by Dr. Sushma Nigam (PW11). The report is Ex.P-20. There was oldruptured hymen and that she was habitual to sexual intercourse as per the said report. The vaginal slides were prepared. The accused were arrested on 18.10.1998 at 1.55 am vide arrest memo (Ex.P-14). Accused Mohammad Shamim suffered a disclosure statement (Ex. P-15) at 00.40 am on 18.10.1998 that he can get his underwear recovered which is kept near the rear seat of car number MP09-HB-1927, which is standing on Raisen road on the Kaccha portion of the road. Ex. P-17 is the recovery memo of the underwear of the accused Shamim taken out by him from the rear seat of the car. Accused Mohammad Shamim in Ex. P-8 addressed to Medical Officer, Central Jail Hospital, Bhopal, inter alia, stated that an unknown girl aged about 18-19 years asked for lift from them. She stated that if Rs.1000/- are not paid, she will raise hue and cry. When they turned car back, the car got stuck in the agricultural field. In the meantime, 3-4 constables alighted from a passenger bus and took them to police station. They denied doing anything wrong with the girl and that they have not taken bath and nor changed the clothes.
5. Accused Mohammad Shahid suffered a disclosure statement (Ex. P-16) at 00.35 am on 18.10.1998 that he can get the documents of his car bearing registration No. MP09-HB-1927 recovered from the glove box of the car which is standing on Raisen road on the Kaccha portion of the road. Ex.
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