STATE OF M.P. Vs. KESHAR SINGH

INDIAN PENAL CODE, 1860

Section 376 - Punishment for rape

Tags Rape

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2244 of 2009, Judgment Date: Jul 03, 2015

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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