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MUNNALAL & ANOTHER V/S STATE OF MADHYA PRADESH, decided on Monday, June 25, 2012.
[ In the High Court of Madhya Pradesh, Criminal Appeal No.2593 of 2008 & 2674 of 2008. ] 25/06/2012
Judge(s) : N.K. GUPTA
Advocate(s) : Manish Datt, Senior with Nishant Datt, Tunda alias Bharat Singh. Ajay Tamrakar, Panel Lawyer.
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  "2012 CrLJ 539 (NOC)"  

        1. Both the appeals are directed against a common judgment therefore both the appeals are decided by a common judgment.2. The appellants have preferred these appeals against the judgment dated 29.11.2008 passed by the Special Judge under the SC/ST (Prevention of Atrocities) Act Tikamgarh in Special Sessions Trial No.14 of 2007 by which the appellants were convicted for offence punishable under Section 376(2) (g) of I.P.C and sentenced for 10 years rigorous imprisonment. In addition the appellant Tunda @ Bharat Singh was imposed upon a fine of Rs.1000/- with a six months additional R.I in default of payment of fine whereas a fine of Rs.10000/- was imposed upon the appellant Munnalal and he was to undergo two years additional R.I in lieu of default of payment of fine.3. Prosecution's case in short is that the prosecutrix (P.W.1) is a mentally retarded insane woman. Her marriage was performed by her parents but looking to her mental condition she was left by her husband. In the month of February or March 2006 the prosecutrix went to the field of her parents to provide lunch to her father. In the field of Munnalal Ahirwar the appellants held her and committed rape upon her turn by turn and thereafter she was threatened that she should not say anything to anyone. Being a mentally derailed person the prosecutrix did not inform anyone. On 9.7.2006 when her mother Phoolwati (P.W.2) suspected that prosecutrix was pregnant she was interrogated by Phoolwati with the help of Munni Bai sister-in-law of the prosecutrix then she told the entire story to them. Phoolwati lodged an FIR Ex.P/1 on 9.7.2006 at Police Station Niwadi. The prosecutrix was directed for her medico legal examination. The appellant Tunda @ Bharat Singh was also arrested and sent for his medical examination whereas appellant Munnalal was found absconding. After due investigation Police had filed a charge sheet before the concerned Magistrate Tikamgarh. Before filing of the charge sheet the appellant Munnalal was also arrested. Case was duly committed to the Special Court under SC/ST (Prevention of Atrocities) Act Tikamgarh for trial.4. The appellants abjured their guilt. They took the defence that they were falsely implicated due to groupism. However no defence evidence was adduced by the appellants. After due consideration of evidence adduced by the prosecution the learned Sessions Judge convicted and sentenced the appellants as mentioned above.5. I have heard the learned counsel for both the parties at length.6. Learned Senior Advocate Shri Manish Datt has submitted that there is no iota of evidence against the appellant-accused Tunda alias Bharat Singh. All the witnesses turned hostile in respect of the appellant Tunda alias Bharat Singh. Prosecutrix has stated that appellant Tunda was standing at the time of incident and therefore he was also convicted otherwise initially there was an allegation against the appellant Tunda alias Bharat Singh that he committed rape upon the prosecutrix and it was a case of gang rape. Under such circumstances appellant Tunda alias Bharat Singh may be acquitted.7. Learned counsel for the appellant Munnalal has submitted that the prosecutrix was a mentally retarded woman aged 19 years. After four months of the incident she was found pregnant. She did not tell anything to her parents for four months. Thereafter it is claimed by her parents that she gave the names of accused persons and therefore FIR was lodged. In FIR it was clearly mentioned that gang rape was committed by the accused Tunda @ Bharat Singh and Munnalal. However the prosecutrix as well as her parents took a somersault before the trial Court and nothing has been alleged against Tunda @ Bharat Singh in the Court. In such circumstances evidence of the prosecutrix and her parents cannot be believed. When they could lodge a false report against the co-accused Tunda alias Bharat Singh then they could lodge a false report against Munnalal also.8. After considering the submissions made by learned counsel for the parties when it is apparent that the prosecutrix was above 16 years of age only three points remained to be decided in the present appeal. Firstly that whether any intercourse was done by the appellants with the prosecutrix. Secondly that whether any rape or gang rape was committed and thirdly that whether sentence inflicted by the trial Court can be reduced.9. The entire case depends upon the testimony of parents of the prosecutrix. It is informed that prosecutrix was a mentally retarded person whose marriage took place at some place and thereafter she was left by her husband because of her mental condition. Evidence given by the prosecutrix (P.W.1) indicates that she could be tutored by anyone. Initially when she was asked about the incident then she told that the appellant Munnalal assaulted her by a gun. Munnalal held her and the appellant Tunda was standing there. Thereafter permission for leading questions was sought by the prosecution and thereafter she told that Munnalal had done indecent work with her due to that she became pregnant. She refused to say anything against the appellant Tunda. In the cross examination she has accepted that her mother told her about the facts which are to be told before the Court. Phoolwati (P.W.2) mother of the prosecutrix and Ramole (P.W.3) father of the prosectrix have given the same type of evidence. They said that on the date of the incident Ramole went to the field for irrigating the crops and the prosecutrix went to the field to provide lunch to her father. Near the field of the appellant Munnalal Munnalal held the prosecutrix and committed rape with her. Part of the evidence given by the prosecutrix and her parents was duly confirmed by the medical evidence that Dr. Shalu Johri (P.W.9) found the pregnancy of 24 weeks to the prosecutrix at the time of examination and on the basis of that period date of incident was assessed. By evidence of Dr. Johri it is apparent that someone has done intercourse with the prosecutrix and therefore she was pregnant but by such medical evidence it cannot be said that such incident was caused by the appellant Munnalal or Tunda.10. FIR was lodged after four months of the incident when it was found that the prosecutrix was pregnant. Version of the prosecutrix and her parents could be accepted as such if they were coming before the Court with clean hands. Initially in FIR Ex.P/1 it was mentioned that both the appellants committed rape with the prosecutrix turn by turn but in the statements before the Court the prosecutrix as well as her parents left the appellant Tunda. No allegation was made that Tunda had committed any rape upon the prosecutrix on that day. There is no allegation that Tunda was even present at the spot. The parents of the prosecutrix did not accept that any compromise took place between them and the appellant Tunda then it is immaterial to know that what was the reason by which these witnesses have saved the appellant Tunda from the allegation of rape but by taking such a somersault the testimony of the prosecutrix and her parents comes in the clouds of doubt.11. Prosecutrix is a mentally derailed person. Mother of the prosecutrix Phoolwati has accepted that the prosecutrix could not tell each and everything in a proper manner. Secondly some times parents could not understand about the version given by the prosecutrix. In this connection FIR Ex.P/1 may be perused in which it is mentioned that Phoolwati could not understand the answers of the prosecutrix and therefore she called her daughter-in-law Munni to understand the version of the prosecutrix and thereafter the FIR was lodged against both the appellants. Alleged interpreter Munni was not examined by the prosecution before the trial Court. When the parents and the prosecutrix have not given any explanation as to why the name of accused Tunda was mentioned in the FIR as a culprit then an inference is to be drawn that it was misunderstood by Munni that Tunda had also committed rape on the prosecutrix. If Munni could misunderstand appellant Tunda as an accused then she could also misunderstand about the accused Munnalal. Looking to the evidence given by the prosecutrix it would be apparent that her version could not be accepted beyond doubt. She told before the trial Court that Munnalal had a gun and he gave a threat with the help of gun. Phoolwati mother of the prosecutrix who was present in the Court at the time of examination of the prosecutrix confirmed that the statement of the prosecutrix in her own statement and she said before the trial Court that the appellant Munnalal had shown a gun to the prosecutrix and therefore being threatened she could not tell anything to her mother whereas there is no story of gun narrated in the FIR. No gun has been seized from the appellant Munnalal. Munnalal is an agriculturist and in general it cannot be said that he had any gun to show the prosecutrix. Under such circumstances a doubt is created that either the prosecutrix could not tell about the entire incident and name of the actual culprit or her parents could not understand her version. It is alleged by Phoolwati and her husband Ramole that a Panchayat took place and nothing was decided by the Panchayat and therefore Phoolwati lodged an FIR accordingly. No person was examined by the prosecution who attended that Panchayat and therefore it cannot be said that any of the appellants has admitted his guilt in the Panchayat. On the contrary it appears that Panchayat was not in a position to decide anything and therefore no decision could be taken in the Panchayat.12. Under these circumstances when the prosecutrix and her parents took a somersault in favour of the appellant Tunda then their testimony goes in the clouds of doubt. It cannot be said beyond doubt that the appellant Munnalal had committed any intercourse with the prosecutrix whereas there is no substantial evidence to say that appellant Tunda had done any intercourse with the prosecutrix.13. In the aforesaid discussion the appellant Tunda was given an advantage of variance between F.I.R and the evidence given by the prosecutrix and her parents. However F.I.R in the case is not only delayed but also appears to be doubtful. In the F.I.R period of incident is shown to be 4 to 5 months prior to its registration. Hence Phoolwati mother of the prosecutrix has stated that it was the hindi month of Phagun and the prosecutrix went to deliver the lunch to her father. But Dr. Shalu Johri who examined the prosecutrix on 9.7.1996 and found her pregnant with pregnancy of 24 weeks then date of incident comes to be in the month of January 1996 and at that time it was possible that father of prosecutrix was not required to go and do any work in his field and also the prosecutrix was not at all required to go there to provide him lunch. Under such circumstances it appears that a story suitable for month of Phagun was prepared. Under such circumstance this possibility can not be ruled out that the F.I.R lodged by Phoolwati was not the version of the prosecutrix but it could be a version of Phoolwati herself on the basis of suspicion. Sympathy for the retarded prosecutrix is one thing but to pin point the real culprit in the absence of the ocular evidence the line of the alleged facts should be straight so as not to create doubts.14. Under such circumstance when period of incident shown in F.I.R does not tally with actual period of incidence the possibility can not be ruled out that on the basis of suspicion the F.I.R was lodged by the mother of the prosecutrix. Also it is pertinent to note that the prosecutrix is a scheduled caste woman and therefore it was possible for the parents of the prosecutrix to choose a culprit who does not belong to either SC or ST so that some compensation may also be obtained from the Government. Under such circumstances F.I.R appears to be lodged after due consultation with friends and relatives and hence it is a highly doubtful document from which no corroboration may be taken.15. It is established by Dr. Shalu Johri (P.W.9) that the prosecutrix was a mentally retarded person. On examination of the prosecutrix before the Court this fact was very well established. Therefore looking to the mental condition of the prosecutrix her consent could not be obtained by anyone. She was unable to understand the act of that crime so that she could give her consent for that act and therefore if it is established that any intercourse was done with the prosecutrix by any of the appellant then certainly it is a case of rape. However it could not be established beyond doubt that any of the appellants had committed rape upon the prosecutrix. Learned Additional Special Judge in his judgment convicted the appellant Tunda without any basis. The prosecutrix told in her evidence in para 2 that Tunda was standing at that time but that fact was not corroborated by her parents and still learned Special Judge found the common intention of the accused Tunda without any basis. Suppose the evidence given by the prosecutrix is accepted as such then if Tunda was standing at that time then without his overt act how his common intention could be presumed. Conviction drawn about gang rape and to conclude that Tunda had the common intention for that offence is of no basis. Conviction is to be drawn on the basis of substantial evidence. If some fact is narrated in FIR and no substantial evidence has been given to that fact then by FIR which is not substantial evidence that fact cannot be accepted to be proved and no conviction can be directed on the basis of the FIR. When the prosecutrix and her parents took a somersault and they did not allege about gang rape then without any substantial evidence no one could be convicted for gang rape. Conviction drawn against the accused Tunda was baseless. He cannot be convicted either for offence of gang rape or for the offence of rape. Under such circumstances conviction directed against the appellant Tunda cannot be sustained.16. Similarly it is held that testimony of the prosecutrix and her parents is doubtful and looking to their evidence contrary to the FIR Ex.P/1 it cannot be said beyond doubt that the appellant Munnalal had committed intercourse with the prosecutrix. There is a lot of possibility that offence would have been committed by anyone else. Under such circumstances appellant Munnalal shall also get the benefit of the doubt. When it is not proved beyond doubt that Munnalal had committed intercourse with the prosecutrix then neither he can be convicted for offence punishable under section 376(1) of I.P.C nor for offence of gang rape i.e under section 376(2) (g) of I.P.C.17. On the basis of the aforesaid discussion neither of the appellants can be convicted for offence punishable under Section 376(2) (g) of I.P.C or for lesser offence of same nature. Therefore conviction directed by the trial Court cannot be sustained. Since conviction is not maintainable it is not necessary to discuss about the sentence awarded by the trial Court at present.18. Under such circumstances appeals filed by both the appellants are hereby allowed. Conviction and sentence directed by the trial Court against the appellants Munnalal and Tunda @ Bharat Singh are hereby set aside. Both the appellants are acquitted from the charges appended by the trial Court in the case. The appellants shall be entitled to get the fine amount back from the trial Court if it was deposited.19. Appellant Munnalal is in custody and therefore a release warrant be issued forthwith for his release. The appellant Tunda @ Bharat Singh is on bail. His further appearance is no more required in the Court and therefore it is directed that his bail bonds shall stand discharged.20. Copy of the judgment be sent to the trial Court with its case file for information and compliance.