[2011] 5 S.C.R. 1044 A BHAIYAMIYAN @ JARDAR KHAN & ANR. v. STATE OF MADHYA PRADESH {Criminal Appeal No. 802 of 2004) MAY 3, 2011 B [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.] Penal Code, 1860: s.376(2)(g) - Gang rape -A/legation C of - FIR lodged 60 hours after the incident at a police station about 22 km away from place of incident though police station of the village where incident took place was only 7 km away - Medical examination conducted in hospital 55 kms away on insistence of the prosecutrix who refused to be medically D examined at place where FIR was lodged - As per medical evidence, no injury was found on person and there was no evidence of rape - Trial court found that prosecution case was doubtful and ordered acquittal - High Court held that order of trial court was perverse and convicted the accused ul E s.376(2)(g) - On appeal, held: Explanation for delay in lodging FIR was unbelievable - Prosecution could not explain why prosecutrix insisted in medical examination at hospital 55 kms away - As per medical report, there was no injury on her genital and no evidence to show that she had been raped F - Cumulative effect of evidence showed that view of trial court was possible - High Court ought not to have interfered with the decision of trial court - Conviction set aside - Appeal against acquittal. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal G No. 802 of 2004.

From the Judgment & Order dated 22.4.2004 of the High Court of Madhya Pradesh at Jabalpur Bench at Gwalior in Criminal Appeal No. 111 of 1992. H 1044 BHAIYAMIYAN@ JARDAR KHAN & ANR. v. STATE 1045 OF MADHYA PRADESH Ashok Mathur for the Appellants. A Vibha ·oattaa Makhija for the Respondent. The following Order of the Court was delivered ORDER B 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 C returning home, she was waylaid by the appellants who carried her to a nearby field and thereafter raped her ~nd 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 D police official was found pr.esent 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 E medical examination to the hospital at Vasoda. Information was also sent to police Station Unarasital along with the 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 F 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 G 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 H 1046 SUPREME COURT REPORTS [2011] 5 S.C.R. A 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 B 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.

c An appeal was thereafter filed by the State before the High Court. The High Court has given a finding that 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-D 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. E 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 F 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. G 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 H police poi;t Patharia attached to Police Station Unarasital BHAIYAMIYAN@ JARDAR KHAN & ANR. v. STATE 1047

OF MADHYA PRADESH

immediately after the incident but had found no police official A 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 B 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 c 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 Sironjand had insisted for her medical examination at Vasoda, 55 k.m. away. The D prosecution has not been able to furnish any explanation as to why the prosecutrix had insisted on being examined at Vasoda. We have also exa.mined 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 E 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. F

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 G is set aside and they are acquitted. · · , .. The appellants are on bail; their bail bonds shail stand discharged. · · ' ·· " ·· ... D.G. Appeal allowed.

[2011] 5 S.C.R. 1044 A BHAIYAMIYAN @ JARDAR KHAN & ANR. v. STATE OF MADHYA PRADESH {Criminal Appeal No. 802 of 2004) MAY 3, 2011 B [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.] Penal Code, 1860: s.376(2)(g) - Gang rape -A/legation C of - FIR lodged 60 hours after the incident at a police station about 22 km away from place of incident though police station of the village where incident took place was only 7 km away - Medical examination conducted in hospital 55 kms away on insistence of the prosecutrix who refused to be medically D examined at place where FIR was lodged - As per medical evidence, no injury was found on person and there was no evidence of rape - Trial court found that prosecution case was doubtful and ordered acquittal - High Court held that order of trial court was perverse and convicted the accused ul E s.376(2)(g) - On appeal, held: Explanation for delay in lodging FIR was unbelievable - Prosecution could not explain why prosecutrix insisted in medical examination at hospital 55 kms away - As per medical report, there was no injury on her genital and no evidence to show that she had been raped F - Cumulative effect of evidence showed that view of trial court was possible - High Court ought not to have interfered with the decision of trial court - Conviction set aside - Appeal against acquittal. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal G No. 802 of 2004.

From the Judgment & Order dated 22.4.2004 of the High Court of Madhya Pradesh at Jabalpur Bench at Gwalior in Criminal Appeal No. 111 of 1992. H 1044 BHAIYAMIYAN@ JARDAR KHAN & ANR. v. STATE 1045 OF MADHYA PRADESH Ashok Mathur for the Appellants. A Vibha ·oattaa Makhija for the Respondent. The following Order of the Court was delivered ORDER B 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 C returning home, she was waylaid by the appellants who carried her to a nearby field and thereafter raped her ~nd 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 D police official was found pr.esent 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 E medical examination to the hospital at Vasoda. Information was also sent to police Station Unarasital along with the 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 F 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 G 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 H 1046 SUPREME COURT REPORTS [2011] 5 S.C.R. A 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 B 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.

c An appeal was thereafter filed by the State before the High Court. The High Court has given a finding that 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-D 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. E 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 F 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. G 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 H police poi;t Patharia attached to Police Station Unarasital BHAIYAMIYAN@ JARDAR KHAN & ANR. v. STATE 1047

OF MADHYA PRADESH

immediately after the incident but had found no police official A 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 B 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 c 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 Sironjand had insisted for her medical examination at Vasoda, 55 k.m. away. The D prosecution has not been able to furnish any explanation as to why the prosecutrix had insisted on being examined at Vasoda. We have also exa.mined 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 E 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. F

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 G is set aside and they are acquitted. · · , .. The appellants are on bail; their bail bonds shail stand discharged. · · ' ·· " ·· ... D.G. Appeal allowed.