Lalliram & Anr vs State Of M.P

punishable under Sections 376, 392, 342 and 506 of the

Indian Penal Code, 1860 (in short the `IPC'). The trial Court

directed acquittal of all the three accused persons. In appeal

filed by the State under Section 378 of the Code of Criminal

Procedure, 1973 (in short the `Code') the order of acquittal was

set aside and accused persons were found guilty of offence

punishable under Sections 342 and 376 of IPC. But it upheld

the acquittal for offence relatable to Section 392 and 506 (II)

IPC. The appellants were sentenced to undergo seven years

and six months custodial sentence and fine with default

stipulation for offences relatable to Sections 376 and 342 IPC.

2. Prosecution version which led to the trial of the accused

persons is as follows:

On 23.9.1985 in the evening prosecutrix alongwith her

husband Dayaram went to Khajuria. On the way near the field

of Mangal, appellants met them and started to abuse

prosecutrix. Appellants also started beating husband of

2 prosecutrix and took the prosecutrix near the well of Kamal

Singh where accused Pooran Singh and Lalliram talked to

Chaturbhuj. Dayaram was locked in a room. Then appellants

took away the prosecutrix to the upper room of the house and

committed rape repeatedly in the night. In the next morning

they released prosecutrix and warned her not to report to

anybody. Then she brought Dayaram from the room and at

that time Latura, Gyarasa, Bharo Singh, Kamal Singh and

Harihar reached there. They were informed about the incident.

Appellants also snatched a bag from the prosecutrix

containing Rs.25/- and identity card of Dayaram. Prosecutrix

lodged the report in Police Station Madhogarh out post which

is Ex.P1. Investigation was undertaken. Spot map was

prepared which is Ex.P2. Prosecutrix was sent for medical

examination vide Ex.P6 and she was examined by the lady

doctor, Smt. C.P. Jain (PW-11) twice, first time on 25.9.1985

and then on 5.10.1985. Ex.P6 is the report pertaining to

medical examination dated 25.9.1985. As per report Ex.P6 she

gave opinion that no definite opinion can be given about rape.

In the report it was stated that no external injuries were found

3 on her body. The trial Court found that the evidence of Latura

(PW-3) who is father of PW-2, Bharosa (PW-4) and Puliabai

(PW-5) was inconsistent and the defence witness Maya

probabilised the defence taken by the trial Court. Doctor also

categorically stated that she was not pregnant on the alleged

date of occurrence.

3. The High Court referred to the evidence of PWs. 1 and 2

i.e. the prosecutrix and Dayaram respectively and observed

that the version of the prosecutrix was sufficient to fasten the

guilt on the accused. Circumstances highlighted by the trial

Court were not sufficient to warrant acquittal. Though the

version as indicated in the First Information Report (in short

the `FIR') and the evidence in court were discrepant in certain

aspects, it was held to be of no consequence.

4. Stand of the State before the High Court was that the

evidence of prosecutrix and her husband was cogent and

there was no scope for directing acquittal.

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5. It is to be noted that the trial Court had found the

discrepancy in the version of the witnesses.

6. In support of the appeal learned counsel for the

appellants submitted that the High Court relied on several

decisions without indicating as to how the trial Court's view

was not justified. It is in essence submitted that the

parameters relating to appeal against acquittal have not been

kept in view. It is stated that the High Court relied on

decisions in a mechanical manner overlooking the

improvements made by the prosecutrix and the contradictory

statements made by her which as rightly observed by the trial

Court corroded the credibility of the prosecution version.

7. Learned counsel for the State on the other hand

submitted that the judgment of the High Court does not suffer

from any infirmity to warrant interference.

8. The trial Court noted that though the prosecutrix

claimed that she was raped by several persons at several

5 times there was no injury noticed and doctor has categorically

stated that there was no sign of rape and in fact there was no

injury.

9. It is true that injury is not a sine qua non for deciding

whether rape has been committed. But it has to be decided on

the factual matrix of each case. As was observed by this Court

in Pratap Misra and Ors. v. State of Orissa (1977 (3) SCC 41)

where allegation is of rape by many persons and several times

but no injury is noticed that certainly is an important factor if

the prosecutrix's version is credible, then no corroboration is

necessary. But if the prosecutrix's version is not credible then

there would be need for corroboration. (See Aman Kumar &

Ors. v. State of Haryana (2004 (4) SCC 379).

10. As rightly contended by learned counsel for the

appellants a decision has to be considered in the background

of the factual scenario. In criminal cases the question of a

precedent particularly relating to appreciation of evidence is

really of no consequence. In Aman Kumar's case (supra) it was

6 observed that a prosecutrix complaining of having been a

victim of the offence of rape is not an accomplice. There is no

rule of law that her testimony cannot be acted upon without

corroboration in material particulars. She stands on a higher

pedestal then the injured witness. In the latter case there is

injury in the physical form while in the former both physical

as well as psychological and emotional. However, if the court

finds it difficult to accept the version of a prosecutrix on the

face value it may search for evidence direct or circumstantial.

11. So far as testimony of the victim is concerned the High

Court has found that PW-2 stated about injuries on the cheek

and back of the prosecutrix. But no such injury was found in

the first medical examination. PW-2 had stated that she had

suffered injuries on her legs. But such injuries were also not

noticed.

12. In the cross-examination, the prosecutrix stated that it

was Lalliram who committed the rape first. But in her earlier

statement she had stated that it was accused Pooran who first

7 committed the rape on her. Interestingly, she had also

deposed differently as to the place of rape. This aspect was

noticed by the trial Court. Another significant factor which

was noticed by the trial Court but not by the High Court was

that PW-1 stated that there was miscarriage. PW-1 stated that

she was 4 months pregnant at the time of occurrence. But the

doctor stated that she was actually on menstruation period.

13. Another interesting statement of the prosecutrix was that

accused Lalliram had dragged her by catching her bunch of

hair for a considerable distance. The trial Court noticed that if

that was so there would have been injuries and interestingly

she had not stated about this part in the FIR. As noted above,

she had spoken about scratches on her back due to dragging

and other parts of the body and that blood had also oozed out.

But the medical evidence is clearly to the contrary. In her

statement she had deposed that her husband Daya Ram was

also dragged by Pooran and Lalliram and he had also suffered

several injuries. This part is also belied by the medical

evidence. In cross-examination PW-1 admitted that accused

8 persons harassed her and tried to kill her. She had admitted

that she was assaulted by her husband. Those are relatable to

the injuries which were fresh at the time of examination by the

doctor on 5.10.1985.

14. It is to be noted that Smt. C.P. Jain (PW-11) examined

her twice i.e. first on 25.9.1985 and then on 5.10.1985. At

the time of first examination, no injury was found on her body.

It is also to be noted that PW-3 stated that after PW-1

regained consciousness she told about the incident. This is

contrary to what PW-2 stated. He has stated that he was tied

by the accused persons and in the morning he was untied by

PW-1. By that time obviously PW-3 and PW-4 had not arrived.

In fact PW-4 says that when he and PW-3 went to the place of

occurrence the victim was lying unconscious.

15. In view of the aforesaid factual position the trial Court

was justified in directing acquittal and the High Court's

judgment upsetting the acquittal is clearly unsustainable.

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16. The appeal is allowed. The conviction recorded by the

High Court is set aside. The accused persons who are in

custody shall be released forthwith unless required to be in

custody in connection with any other case.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, September 15, 2008

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