THE STATE OF MADHYA PRADESH versus RAJARAM @ RAJA

THE STATE OF MADHYA PRADESH

RAJARAM @ RAJA

(Criminal Appeal No. 637 of 2016)

BOCTOBER 24, 2018

[N. V. RAMANA AND

MOHAN M. SHANTANAGOUDAR, JJ.]

Appeal: Appeal against acquittal – Scope of interference –CProsecution case was that the respondent committed rape on thevictim-deceased due to which she was under depression andcommitted suicide by consuming poison – Conviction of respondentunder ss.376(1) and 306 IPC – High Court allowed the appealfiled by respondent and set aside his conviction – Appeal by Statechallenging acquittal relying on the evidence of 12 year old sisterDof the deceased and her father – Held: PW-4, sister of the deceasedwho is 12 years of age, categorically stated in her cross-examinationthat she was threatened by the police and due to that, she had madea statement in support of the prosecution case – The uncorroboratedevidence of 12 year old girl is likely to have been tutored or underEinfluence while giving her testimony and, therefore, cannot be reliedupon – The evidence of PW-3-father of deceased is also not credible– PW-3 who lodged Merg intimation on the day of incident hadstated therein that he had scolded her daughter i.e. the deceasedand resultantly she took poisonous substance – There was nomention in the Merg Intimation that the deceased told her fatherFabout the commission of rape by respondent and that as resultdeceased committed suicide due to depression or self-torment – Nocase made out for interference with the order of High Court – PenalCode, 1860 – ss.376(1) and 306.

Dismissing the appeal, the CourtG

HELD: 1. PW-4, sister of the deceased who is stated to be12 years of age, categorically stated in her cross-examinationthat on the next day of incident, when the police came, she didnot tell anything about the incident to the police. Subsequently,after week, police came again and at the instance of police, she

made statement. She also admitted that she was threatened bythe police and due to that, she has made statement in supportof the prosecution case. [Para 10][297-E]

2. Another evidence relied upon by the appellant was thatPW-3, father of the deceased who lodged Merg intimation on thesame day of incident in which inter alia he stated that he scoldedher daughter i.e. the deceased and resultantly she took poisonoussubstance. There is no mention in the Merg Intimation that thedeceased told PW-3 about commission of rape by respondent andas result deceased committed suicide due to depression or self-torment, after being raped by respondent. In view of this theevidence of PW-3 is not reliable at all. In the instant case, exceptthe evidence of PW-3 and PW-4, there was no other material ormedical evidence to support or substantiate the case ofprosecution. In case of acquittal by the High Court, the Statehas to make out strong case to interfere with the impugnedorder. Until and unless, there is some perversity or non-consideration of the material facts, it is not proper to interferewith the order of acquittal passed by the High Court.[Paras 11, 12][297-G-H; 298-A-B]

Bhagwan Singh and Others v. State of M.P. (2003)3 SCC 21 : [2003] 1 SCR 506 ; State of Kerala & Anr.v. C.P. Rao (2011) 6 SCC 450 : [2011] 6 SCR 864 ;State of U.P. v. Punni & Ors. (2008) 11 SCC 153 : [2008]1 SCR 85 ; State of Punjab v. Ajaib Singh (1995) 2SCC 486 : [1995] 1 SCR 496 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 637 of 2016.

From the Judgment and Order dated 12.01.2009 of the High Courtof Madhya Pradesh at Jabalpur in Criminal Appeal No. 923 of 2005.

AMs. Swarupama Chaturvedi, B. N. Dubey, Mukesh, Advs. forthe Appellant.

Ms. Nidhi, Adv. for the Respondent.

The Judgment of the Court was delivered by

BN. V. RAMANA, J.

1. This criminal appeal is preferred by the Appellant-State ofMadhya Pradesh by special leave against the impugned order dated12.01.2009 passed by the High Court of Madhya Pradesh, Bench atJabalpur in Criminal Appeal No. 923 of 2005, wherein, High Court allowedCthe appeal preferred by respondent herein and set aside the order ofconviction & sentence passed by the trial court on 05.04.2005 underSections 376(1) and 306 of the Indian Penal Code.

2. The factual matrix as advanced by the prosecution, necessaryfor disposal of this case is that on 13.04.2004, at around 6.00 P.M.,DRinky @ Inky (hereinafter referred as ‘deceased’) started vomiting.The deceased was taken to Dr. Tripathi’s dispensary, but he was notavailable therein. Therefore, deceased was taken to the quarter of Dr.Tripathi. After being examined by Dr. Tripathi, deceased was declareddead.

3. On the basis of Merg intimation/information of death of theEdeceased (Ex. P/3) by Dinesh Prasad Kushwaha (PW-3), father of thedeceased, Merg No. 25/04 was registered by J.B. Singh Chandel (PW-9). The post mortem of deceased was conducted by Dr. S.D. Kanwar(PW-6).

4. Thereafter, on Merg Inquiry, it was found that respondent hereinFcommitted rape on the deceased, who under depression, committedsuicide by consuming poisonous substance. On this basis, K.N. Banjare(PW-7) registered Crime No. 181/04 for the offence punishable underSections 376 and 305 of IPC at Police Station, Jaisingh Nagar and thecase was investigated. Respondent was apprehended in the crime andGhe was arrested accordingly. Thereafter, medical examinations wereconducted by Dr. Piyush Nigam (PW-1) and other investigations by K.N.Banjare (PW-7) took place. On completion of investigation, charge sheetwas filed against the respondent and the case was committed to SessionsCourt for trial.

5. Learned Additional Sessions Judge, in Sessions Trial No. 173of 2004, vide order dated 05.04.2005, convicted the respondent underSections 376(1) and 306 of I.P.C. and sentenced him to undergo 10 yearRigorous Imprisonment and imposed fine of Rs. 500/-, and in default,three months Simple Imprisonment in both the counts. Further, each ofthe sentence(s) was ordered to run concurrently.

6. Being aggrieved by the order of conviction and sentence,respondent approached the High Court in appeal and the High Courtvide impugned order dated 12.01.2009, allowed the appeal and set asidethe conviction and sentence imposed on respondent by the Trial Court.

7. Heard Ms. Swarupama Chaturvedi, learned counsel for theappellant and Ms. Nidhi, learned counsel for the respondent.

8. Learned counsel for appellant i.e. State of Madhya Pradeshmainly relied upon the evidence of Anju Kumari (PW-4), sister of thedeceased and Dinesh Prasad Kushwaha (PW-3), father of the deceased.

9. We have thoroughly examined the evidence of abovementionedwitnesses and also the evidence of Dr. Piyush Nigam (PW-1) and Dr.S.D. Kanwar (PW-6).

10. Anju Kumari (PW-4), who is stated to be 12 years of age,categorically stated in Para 12 of her cross-examination that on the nextday of incident, when the police came, she did not tell anything about theincident to the police. Subsequently, after week, police came again andat the instance of police, she made statement. She also admitted thatshe was threatened by the police and due to that, she has made astatement in support of the prosecution case. It has been held inBhagwan Singh and Others vs. State of M.P. (2003) 3 SCC 21, that‘if the case is based on evidence of child witness, court should seekcorroboration from other evidence’. Further, it was also held that ‘ifpossibility of tutoring the child witness appears to the court, it shouldbe careful in accepting the evidence’. Therefore, it is difficult for thiscourt to rely on uncorroborated testimony/evidence of 12 year old girl,who is very likely to have been tutored or under influence while givingher testimony.

11. Another evidence relied upon by the appellant is that of DineshPrasad Kushwaha (PW-3), who lodged Merg intimation (Ex. P/3) onthe same day of incident i.e. 13.04.2004 at about 4.00 P.M., in whichinter alia he stated that he scolded her daughter i.e. the deceased and

Aresultantly she took poisonous substance. It is also worthwhile to notehere that there is no mention in the Merg Intimation that the deceasedtold PW-3 about commission of rape by respondent and as resultdeceased committed suicide due to depression or self-torment, after beingraped by respondent. In view of the above, we are of the consideredopinion that the evidence of PW-3 is not reliable at all.B

12. In the instant case, except the evidence of PW-3 and PW-4,there is no other material or medical evidence to support or substantiatethe case of prosecution. In case of acquittal by the High Court, theState has to make out strong case to interfere with the impugnedorder. Until and unless, there is some perversity or non-consideration ofCthe material facts, it is not proper to interfere with the order of acquittalpassed by the High Court. Similar view was taken by this Court in thecase of State of Kerala & Anr. vs. C.P. Rao (2011) 6 SCC 450.

13. Similarly, in the case of ‘State of U.P. vs. Punni & Ors.’(2008) 11 SCC 153, it was held that-

“11. In any view of the matter, we are of the view that this Court,while dealing with the order of acquittal of the High Court,would not ordinarily interfere with the findings of the HighCourt unless it is satisfied that such finding is vitiated bysome glaring infirmity in the appraisement of evidence orE”such finding was perverse or arbitrary.

(emphasis supplied)

14. In State of Punjab vs. Ajaib Singh (1995) 2 SCC 486, thisCourt, on the same lines, held that “if the order of acquittal was notperverse or palpably erroneous, this Court would not interfere withFsuch finding of the High Court acquitting the accused/respondentsfrom the offences charged against them”.

15. In the light of above-stated findings, reasons and discussions,we find no merits in this appeal to interfere with the impugned orderpassed by the High Court. Accordingly, the instant appeal is dismissedGbeing devoid of merits.

Devika Gujral

Appeal dismissed.