STATE OF MADHYA PRADESHversusKESHAR SINGH

                       [2015] 6 S.C.R. 496


A                STATE OF MADHYA PRADESH
                                v.
                        KESHAR SINGH
               (Criminal Appeal No.2244 Of 2009)
B                        JULY 03, 2015
                [PINAKI CHANDRA GHOSE AND
                    UDAY UMESH LALIT, JJ.)
        Penal Code, 1860-s. 376 - Rape of minor girl of unsound
C mind- Two eye-witnesses to the incident-Acquittal by the
  courts below - On appeal, held: The prosecution case suffers
  from inherent inconsistencies and flaws - The three
  witnesses have three versions and the testimonies of the
D two eye-witnesses are irreconcilable - Medical evidence also
  does not support prosecution case - The evidence of the
  doctor as well is inconsistent - Order of acquittal upheld.

          Dismissing the appeal, the Court

E       HELD: 1. There are inherent inconsistencies in
  the case of the prosecution. The testimonies of two
  alleged eye-witnesses, PW2 & PW3, are irreconcilable.
  The statement of PW2 is incredible. The three witnesses
  viz. PW2, PW3 and PW4 have three different versions.
F 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
G prosecutrix. [Para 8) [501-C, G]

          2. The medical evidence also seems to be not
    wholly supportive to the case of the prosecution. The
    evidence of the doctor shows that, probably, the sexual
H
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   STATE OF MADHYA PRADESH v. KESHAR SINGH                  497


intercourse was done more than 24 hours back. In her A
cross-examination she 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.
There is another inconsistency to be found from the
deposition of the doctor. She said in her statement that B
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. It would be highly unlikely and C
assumptuous to say that even after conducting the whole
examination of the prosecutrix, the doctor may not have
come to know of the mental disorder of the prosecutrix.
[Para 9) [501-C,G]
                                                          D
       CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 2244 of 2009

       From the Judgment and Order dated 09.10.2006 in
Criminal Appeal No. 684 of 1992 of the High Court, of E
Judicature of Madhya Pradesh at Jabalpur

      Naveen Sharma, Mishra Saurabh, Vibha Datta
Makhija for the Appellant.

     lrshad Ahmad, Anurag Rawat, Sudhir Kumar for the         F
Respondent.

       The Judgment of the Court was delivered by

       PINAKI CHANDRA GHOSE, J. - 1. In the present G
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).                           H
498         SUPREME COURT REPORTS                    [2015] 6 S.C.R.


A            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
 B    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
C     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
D     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
E     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.

 F        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
G 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
H l.Q.
   STATE OF MADHYA PRADESH v. KESHAR SINGH                        499
          [PINAKI CHANDRA GHOSE, J.]

        4. PW1 has deposed in her categorical finding that         A
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           B
answered the preliminary questions correctly and with
understanding. She has in her examination-in-chief brought
outthe 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         C
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              D
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      E
the cross-examination, we find that the counsel for defence
has asked the child witness (PW3) many leading questions,
the implic~ion 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",             F
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           G
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 H
500      SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A 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
B 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
C 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-
D stained. He has deposed that his daughter (prosecutrix) had
  told him in i?ign 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
E 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.                 '•
F        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
G 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
H pond. Thus, the Sessions Court has rightly not considered
   STATE OF MADHYARRADESH v. KESHAR SINGH                        501
          [PINAKI CHANDRA GHOSE, J.]

the statement of the prosecutrix as she was found to be A
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.                                                     B

        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 incon.sistencies in the case of the
prosecution. The testimonies of two alleged eye witnesses, C
 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 D
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 E
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 F
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 G
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       H
inflicting knife blows in her examination in chief itself, and
502      SUPREME COURT REPORTS                 [2015] 6 S.C.R.


A 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
B no mention of his raising any alarm or running towards the
  accused to apprehend him on seeing that the accused was
  sexually assaulting th·e 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.
C 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
D 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
E 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
F 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,
G 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
H of the prosecutrix, Dr. Qureshi may not have come to know
                       '·   '
    STATE OF MADHYA PRADESH v. KESHAR SINGH                      503
           [PINAKI CHANDRA GHOSE, J.]

of the mental disorder of the prosecutrix.                        A

       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.                 B

Kalpana K. T ripathy                         Appeal dismissed.




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