Bhaiyamiyan @ Jardar Khan & Anr vs State Of Madhya Pradesh

BHAIYAMIYAN @ JARDAR KHAN & ANR. .. APPELLANT(S)

vs.

STATE OF MADHYA PRADESH .. RESPONDENT(S)

O R D E R

This appeal arises out of the following facts:

At about 10.00 a.m. on the 30th August 1984 the

prosecutrix (PW.1) had gone to relieve herself and as she

was returning home, she was waylaid by the appellants who

carried her to a nearby field and thereafter raped her and

while leaving threatened her with dire consequences if she

revealed what had happened to anyone. She however returned

home and told her parents about the rape. Accompanied by

her parents she then went to the police outpost at Pathriya

to lodge a report but no police official was found present

therein. A report was then lodged the next day at about

12.15 p.m. by PW.1 at Sironj Police Station about 22 k.m.

away from the place of incident though the police station

of village Kasbatal was Unarasital only 7 k.m. away.. The

prosecutrix was accordingly sent for her medical

examination to the hospital at Vasoda. Information was

also sent to police Station Unarasital along with the

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medical examination report Ex.P.A. and the subsequent

investigation was conducted by the police of police

station Unarasital who seized the petticoat of the

prosecutrix and sent it for examination.

On the completion of the investigation the accused

were charged under Sec.376 (2)(g) of the IPC for having

committed gang rape on PW.1. The Trial Court, vide its

judgment dated the 6th January, 1992 observed that in the

light of the fact that the FIR had been lodged after a

delay of about 60 hours and that the statement of the

prosecutrix was full of contradictions and as the

statements of her father and mother (PW2 and PW.3) were

based on the information given by her to them, no reliance

could be placed on their evidence as well. The Court also

found that in the light of the fact that the prosecutrix

had declined to be medically examined at Sironj, where the

First Information Report had been lodged, and had insisted

that she be examined at Vasoda which was 55 k.ms. away,

cast a doubt on the prosecution story. The court further

observed that as per the medical evidence no injury had

been found on her person though she had been raped by two

persons and as such there was no evidence to suggest that

rape had been committed. On a cumulative assessment of the

prosecution evidence the Trial Court acquitted the accused.

An appeal was thereafter filed by the State before

the High Court. The High Court has given a finding that

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the decision of the Trial Court was perverse and called for

interference. The High Court has relied on the evidence of

PW.1 and her parents as also on some part of the evidence

of Dr. Mamta Sthapak-PW.7 who had medically examined the

prosecutrix after about 24 hours. The High Court has

accordingly allowed the appeal and sentenced the accused

to 10 years R.I. with a fine of Rs.25,000/- under Section

376(2)(g) of the IPC, and in default of payment of fine, RI

for two years.

The matter is before us in the above background.

At the very outset we must remark that the High

Court's interference in an appeal against acquittal is

somewhat circumscribed and if the view taken by the Trial

Court was possible on the evidence, the High Court should

stay its hands and not interfere in the matter in the

belief that if it had been in Trial Court, it might have

taken a different view. In other words, if two views are

possible and the Trial Court has taken one, the High Court

should not interfere in the judgment of the Trial Court.

We have examined the evidence in the light of the

above principle. We first see that the First Information

Report had been lodged after about 60 hours of the

incident. The prosecution case is that PW.1 accompanied by

her parents had gone to police post Patharia attached to

Police Station Unarasital immediately after the incident

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but had found no police official present therein and had

then gone to police station Sironj and lodged a report

at 12 noon the next day. We find that the explanation for

this delay is somewhat difficult to believe. A police post

may have a few police officials posted in it, but police

station Unarasital was a full fledged police station which

would invariably be manned. Moreover, even if no one was

found in the police post on the first day, at that

particular point of time the effort of the prosecutrix

ought to have been to lodge a report later at Police

Station Unarasital, but she chose to go to police Station

Sironj and recorded her statement and the investigation was

thereafter referred to police station Unarasital. We are

also indeed surprised that the High Court has made light of

the fact that the prosecutrix had declined to undergo her

medical examination at Sironj and had insisted for her

medical examination at Vasoda, 55 k.m. away. The

prosecution has not been able to furnish any explanation as

to why the prosecutrix had insisted on being examined at

Vasoda.

We have also examined the medical report. Dr. Mamta

Sthapak-PW.7 found no injury on her genetalia and deposed

that there was no evidence to show that she had been raped

as the tear in her hymen was an old one. The prosecutrix

also stated that at the time of her medical examination at

Vasoda her vagina had been stitched. The doctor found no

stitch on her person.

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We are therefore of the opinion that on a cumulative

assessment of the evidence, as given above, the finding of

the Trial Court could have been given under the

circumstances and the High Court's interference was,

therefore, not called for. The appeal is accordingly

allowed, the conviction of the appellants is set aside and

they are acquitted.

The appellants are on bail; their bail bonds shall

stand discharged.

.................J. (HARJIT SINGH BEDI)

....................J. (CHANDRAMAULI KR. PRASAD)

New Delhi, May 3, 2011.