STATE OF M.P. Vs KESHAR SINGH
Bench: PINAKI CHANDRA GHOSE,UDAY UMESH LALIT
Case number: Crl.A. No.-002244-002244 / 2009
Diary number: 3906 / 2008
Advocates: Vs
IRSHAD AHMAD
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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)