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Thursday, July 9, 2015

We have heard the learned counsel for both the sides and also analysed the evidence in this case. We find that there are inherent inconsistencies in the case of the prosecution. The testimonies of two alleged eye witnesses, PW2 & PW3, are irreconcilable. PW2, the uncle of the prosecutrix says that he saw the accused sitting over the prosecutrix with his private part inside the private part of the prosecutrix when he was 25 feet away. We find this statement incredible for the reason that he could not have made such detailed observation from such a distance. Also, according to PW2, he had left the prosecutrix and PW3 on the road when he had gone to call PW4, while PW3 has completely contrary version where she states that she had gone to call PW4 leaving the prosecutrix with PW2. This creates a serious doubt as to who out of PW2 or PW3 stayed with the prosecutrix and who went to call PW4. Also PW2 stated that when he came with PW4, they found prosecutrix and PW3 on the road where PW2 had left them. However, PW4 states that it was PW3 who had come to inform him and he came with her to find the prosecutrix sitting alone near a tree next to the pond. In this way the three witnesses have three different versions. Moreover, both PW2 and PW3 have said that they saw accused inflicting knife blows at the prosecutrix on her thigh and blood oozed out on that account. This is completely unsupported by the medical evidence; no such injury by knife was found on the thigh of the prosecutrix. 9. We may note that PW3 had told about the accused inflicting knife blows in her examination in chief itself, and therefore, one cannot say she said so because of being misled by the cross-examiner. This is a major inconsistency in the testimony of both PW2 and PW3 which makes their statement unworthy of credit. Furthermore, the conduct of PW2 seems to be uncharacteristic of an uncle as he makes no mention of his raising any alarm or running towards the accused to apprehend him on seeing that the accused was sexually assaulting the prosecutrix. Also the medical evidence of Dr. Mrs. F.A. Qureshi on analysis seems to be not wholly supportive to the case of the prosecution. Dr. Quershi has accepted that if the sexual intercourse has happened in last 24 hours, then on touching the hymen fresh blood must necessarily ooze out. In saying so, she has approved what is written in the Modi's book on Medical Jurisprudence. However, she testifies that when she touched the hymen of the prosecutrix, no fresh blood oozed out. This may be contrasted to the fact that allegedly, the medical examination of the prosecutrix was conducted within 12 hours of the alleged incident of rape. Had that been so, the prosecutrix must have bleeded fresh during the medical examination, but that did not happen. This shows that, probably, the sexual intercourse was done more than 24 hours back. In fact, Dr. Qureshi in her cross-examination has said that rupture of hymen was at the most 2-3 days prior to the medical examination. If this be so, the entire story of the prosecution would go out of the window. Further, there is another inconsistency to be found from the deposition of Dr. Qureshi. She has said in her statement that the girl she had examined was a healthy and 'normal' one. However, there is no dispute that the prosecutrix was far from normal as she was suffering from some mental disorder. Even when she was examined in Court, she was found to be of unsound mind. It would be highly unlikely and assumptuous on our part to say that even after conducting the whole examination of the prosecutrix, Dr. Qureshi may not have come to know of the mental disorder of the prosecutrix. 10. In view of the above reasoning, we are of the opinion that the case of the prosecution suffers from inherent inconsistencies and flaws. We do not find any merit in this appeal. Accordingly, this appeal is dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2244  OF 2009

STATE OF MADHYA PRADESH                ...APPELLANT
                                  :Versus:
KESHAR SINGH                                 ...RESPONDENT





                               J U D G M E N T

Pinaki Chandra Ghose, J.

1.    In the present case, there is concurrent decision of acquittal of  the
accused by the Sessions Court as well as the High Court of  Madhya  Pradesh.
The offence alleged to have been committed in this case is rape,  punishable
under Section 376 of Indian Penal Code, 1860 (“IPC”, for short).

2.    The story of the prosecution is that the prosecutrix  is  a  minor  of
unsound mind. On 09-11-1990 at around 8:30 a.m.  when  prosecutrix  and  her
younger sister Nirmala (PW3) were going to their field with food  for  their
father, the accused came and caught hold of the prosecutrix. He took her  to
some distance near a pond and committed rape on her.  Prosecutrix's  private
parts had bled and the petticoat was  blood-stained.  On  seeing  this,  PW3
Nirmala rushed to her father Gopal (PW4) and informed him of  the  incident.
Then PW4 came to the  prosecutrix  who  told  him  with  the  help  of  sign
language (since she cannot speak properly) that the accused  committed  rape
on her. He noticed that there were blood stains on her  petticoat  near  the
private parts. Thereafter, PW4 took the prosecutrix to  police  station  and
lodged an FIR at 11:30 a.m. on the same  day.  Medical  examination  of  the
prosecutrix was conducted which revealed that the  hymen  was  ruptured  and
the examining doctor Dr. (Mrs.) F.A. Qureshi  opined  that  the  prosecutrix
was subjected to sexual intercourse. During investigation  the  accused  was
arrested on 21-11-1990 and was  medically  examined.  He  was  found  to  be
capable of performing sexual  intercourse.  The  police  filed  charge-sheet
against the accused with the charge of rape under Section 376 of IPC.

3.    The prosecution produced PW1 Dr. Smt. F.A. Qureshi, PW2 Manohar  Singh
(uncle  of  the  prosecutrix),  PW3   Nirmala   (younger   sister   of   the
prosecutrix), PW4 Gopal (father of the  prosecutrix)  and  PW5  R.K.  Mishra
(Investigating Officer).  Other  witnesses  were  formal  witnesses.  It  is
important to note that the prosecutrix  was  also  produced  as  a  witness,
being PW6, but it was found that she was not capable of  understanding  what
was asked and made irrelevant answers. In the  medical  examination  of  the
prosecutrix also, she is found to be 12-16 years old with low I.Q.

4.    PW1 has deposed in her categorical finding that the private  parts  of
the prosecutrix were injured, her  hymen  was  ruptured  and  that  she  was
subjected to sexual intercourse. The major eye witness in the  present  case
is PW3 who is also a minor girl of 10 years.  However,  in  her  examination
she was found to be  competent  witness  as  she  answered  the  preliminary
questions correctly and with understanding. She has in  her  examination-in-
chief brought out the story that the accused, whom  she  knows,  had  caught
her sister and taken her near the pond.  According  to  her,  he  threw  the
prosecutrix on the ground, opened his pyjama and sat on  her  and  gave  the
prosecutrix some money, which was thrown away by her.  The  witness  further
stated in  her  deposition   that  the  accused  filled  the  mouth  of  the
prosecutrix  with  lungi,   raised  her  petticoat  and   committed   sexual
intercourse and that the private part of  the  prosecutrix  bled.  She  also
stated that her uncle Manohar Lal arrived there on whose asking she went  to
her father in a car and told him about the incident.  She  has  also  stated
that the accused had inflicted knife blows on the thigh of the  prosecutrix.
In the cross-examination, we find that the counsel  for  defence  has  asked
the child witness (PW3) many leading questions,  the  implication  of  which
the child witness would never be able  to  understand.  Therefore,  she  has
answered most of the questions with a  mechanical  one  word  answer  “Yes”,
without any elaboration. In this way, the defence elicited  from  the  child
witness the statements to the effect that the accused had given knife  blows
on the face, neck and thigh of the prosecutrix and that  it  was  all  these
parts of the prosecutrix from where blood oozed out. In  the  same  way  she
admitted the suggestion that she was read out a statement by police  outside
the Court and that she has made the same statement in the Court.

5.    PW2 Manohar Lal (uncle of the prosecutrix)  has  also  stated  in  his
deposition that he saw the accused sitting over the prosecutrix  and  having
his private part inserted in the private parts of the prosecutrix.  He  says
on his coming to the place, the accused fled away. He  further  states  that
he had seen the accused giving knife blows to the prosecutrix  as  a  result
of which the thigh of the prosecutrix started  bleeding.  However,  he  also
states that private  parts  of  the  prosecutrix  were  also  bleeding.   He
further states that while leaving the two sisters on the road,  he  went  to
call the father of the prosecutrix (PW4) and when he came  back  along  with
PW4, he found them sitting where he had left them.

6.    PW5 has corroborated the version of PW3 and said that he was  informed
of the incident by PW3 and he went to the prosecutrix  where  he  found  her
petticoat blood-stained. He has deposed that his daughter (prosecutrix)  had
told him in sign language that the accused Keshar Singh had  committed  rape
on her. According to this witness when he reached  the  place  of  incident,
he found the prosecutrix sitting alone near a khankri tree and  not  on  the
road. He has further stated that he did not see  the  blood  oozing  out  of
thigh or private parts of the prosecutrix as, being  her  father,  he  could
not examine her private parts but he confirms that the petticoat  was  blood
stained.

7.    In view of the above evidence, both the Sessions Court  and  the  High
Court found inherent inconsistencies in the statements  of  the  prosecution
witnesses. While PW2 and PW3 speak about  knife  blows  being  inflicted  on
thighs and blood oozing from there, the medical evidence  does  not  support
this theory. Further, PW3 said that she went to call her father  PW4,  while
PW2 has said he had gone to call PW4. PW2 has  also  stated  that  when  PW4
came along with him, they found the prosecutrix on the road, while  PW4  has
stated that he found the prosecutrix near khankri tree near  a  pond.  Thus,
the  Sessions  Court  has  rightly  not  considered  the  statement  of  the
prosecutrix as she was found to be incompetent to understand the  questions.
In view of the above-mentioned inconsistencies,  the  Sessions  Court  found
that although it is proved that rape was  committed  with  the  prosecutrix,
but that it was done by the accused was not proved.

8.    We have heard the  learned  counsel   for  both  the  sides  and  also
analysed the evidence  in  this  case.  We  find  that  there  are  inherent
inconsistencies in the case of  the  prosecution.  The  testimonies  of  two
alleged eye witnesses, PW2 & PW3, are irreconcilable. PW2, the uncle of  the
prosecutrix says that he saw the accused sitting over the  prosecutrix  with
his private part inside the private part of the prosecutrix when he  was  25
feet away. We find this statement incredible for the reason  that  he  could
not have  made  such  detailed  observation  from  such  a  distance.  Also,
according to PW2, he had left the prosecutrix and PW3 on the  road  when  he
had gone  to call PW4, while PW3 has completely contrary version  where  she
states that she had gone to call PW4 leaving the prosecutrix with PW2.  This
creates a serious doubt as to  who  out  of  PW2  or  PW3  stayed  with  the
prosecutrix and who went to call PW4. Also PW2  stated  that  when  he  came
with PW4, they found prosecutrix and PW3 on the  road  where  PW2  had  left
them. However, PW4 states that it was PW3 who had come to inform him and  he
came with her to find the prosecutrix sitting alone near a tree next to  the
pond.  In this way  the  three  witnesses  have  three  different  versions.
Moreover, both PW2 and PW3 have said that they saw accused inflicting  knife
blows at the prosecutrix on her thigh and blood oozed out on  that  account.
This is completely unsupported by the medical evidence; no  such  injury  by
knife was found on the thigh of the prosecutrix.

9.    We may note that PW3 had  told  about  the  accused  inflicting  knife
blows in her examination in chief itself, and therefore, one cannot say  she
said so because of being misled by  the  cross-examiner.  This  is  a  major
inconsistency in the testimony  of  both  PW2  and  PW3  which  makes  their
statement unworthy of credit. Furthermore, the conduct of PW2  seems  to  be
uncharacteristic of an uncle as he makes  no  mention  of  his  raising  any
alarm or running towards the accused to apprehend him  on  seeing  that  the
accused was sexually assaulting the prosecutrix. Also the  medical  evidence
of Dr. Mrs. F.A. Qureshi on analysis seems to be not  wholly  supportive  to
the case of the prosecution. Dr. Quershi has accepted  that  if  the  sexual
intercourse has happened in last 24 hours, then on touching the hymen  fresh
blood must necessarily ooze out.  In saying so, she  has  approved  what  is
written in the Modi's book on Medical Jurisprudence. However, she  testifies
that when she touched the hymen of the prosecutrix,  no  fresh  blood  oozed
out. This may  be  contrasted  to  the  fact  that  allegedly,  the  medical
examination of the prosecutrix was conducted within 12 hours of the  alleged
incident of rape. Had that been so, the prosecutrix must have bleeded  fresh
during the medical examination, but that did not happen.  This  shows  that,
probably, the sexual intercourse was done   more  than  24  hours  back.  In
fact, Dr. Qureshi in her cross-examination has said that  rupture  of  hymen
was at the most 2-3 days prior to the medical examination. If  this  be  so,
the entire story of the prosecution would go out  of  the  window.  Further,
there is another inconsistency to  be  found  from  the  deposition  of  Dr.
Qureshi. She has said in her statement that the girl she had examined was  a
healthy and 'normal' one. However, there is no dispute that the  prosecutrix
was far from normal as she was suffering from  some  mental  disorder.  Even
when she was examined in Court, she was found to be  of  unsound  mind.   It
would be highly unlikely and assumptuous on our part to say that even  after
conducting the whole examination of the prosecutrix,  Dr.  Qureshi  may  not
have come to know of the mental disorder of the prosecutrix.


10.   In view of the above reasoning, we are of the opinion  that  the  case
of the prosecution suffers from inherent inconsistencies and flaws.   We  do
not find any merit in this appeal. Accordingly, this appeal is dismissed.

                                                              ……………………………..J
                           (Pinaki Chandra Ghose)




                                                              ……………………………..J
                                 (Uday Umesh Lalit)
New Delhi;
July 03, 2015.
ITEM NO.1B               COURT NO.11               SECTION IIA
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                     Criminal Appeal  No(s).  2244/2009

STATE OF M.P.                                      Appellant(s)

                                VERSUS

KESHAR SINGH                                       Respondent(s)


Date : 03/07/2015      This appeal was called on for pronouncement of
            judgment today.


For Appellant(s)       Ms. Vibha Datta Makhija, AOR (NP)


For Respondent(s)      Mr. Irshad Ahmad, AOR


      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  Uday
Umesh Lalit.
      The appeal is dismissed in terms of the signed reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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