BHAIYAMIYAN @ JARDAR KHAN Vs STATE OF MADHYA PRADESH
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-000802-000802 / 2004
Diary number: 12456 / 2004
Advocates: ASHOK MATHUR Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 802 OF 2004
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
-2-
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
-3-
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
-4-
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.
-5-
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.