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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

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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)

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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

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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

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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

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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

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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

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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

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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.

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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.

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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)