Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 512 (MP)

Banesingh v. State of M. P.

2001-07-17

N.K.JAIN

body2001
JUDGMENT This appeal under section 374(2) of the Code of Criminal Procedure is filed by accused Banesingh s/o Parvatsingh and Banesingh s/o Nagusingh who have been convicted u/s 376 and 376/114 of the Indian Penal Code and sentenced to 10 years RI with fine Rs. 500/- and 5 years RI with fine Rs. 500/-, respectively, by and Addl. Sessions Judge, Ujjain, vide his judgment dated 18.5.1990 in Sessions Trial No. 232/1987. The prosecution case against the appellants in the trial Court was that on 3.9.1987, around 60' clock in the evening, in the fields of village Dhanodia, Smt. Anokhibai (PW 5), a married woman aged about 30 years, and her sister-in-law (husband's brother's wife) Pyaribai (PW 6) aged about 45 years, were returning home when in the way, accused persons intercepted them. Accused Banesingh s/o Parvatsingh carried knife while Banesingh s/o Nagusingh was armed with lathi. In the first instance, both the ladies managed to escape. However, at some distance, they were again stopped by the accused persons, accused Banesingh s/o Parvatsingh caught hold of Anokhibai, fell her on the ground and had his way with her notwithstanding the resistance and cries raised by the lady. In the scuffle, the prosecutrix received injury on her left thumb caused by knife carried by the accused. During all this period, co-accused Banesingh s/o Nagusingh kept watch on Pyaribai and did not allow her to leave the scene of occurrence. Anokhibai, on her return to home, related the incident to her husband Mansingh (PW 7). A report of the incident vide Ex. P-5 was lodged by Anokhibai the next day (i.e., on 3.9.1987) at 6.30 p.m. at P.S. Raghvi, 11 kms. away from the place of occurrence. The Police registered a crime and the investigation followed. Prosecutrix was got examined medically, both the accused were arrested, accused Banesingh s/o Parvatsingh was also got examined medically. A knife was seized from him and after other due investigation they both were put to trial which ended in their conviction and sentence as aforesaid. I have heard Shri N.P. Sharma, learned counsel for appellants and Shli Mayank Upadhyaya, learned Public Prosecutor for the respondent State. The allegation of commission of rape is on accused appellant Banesingh s/o Parvatsingh while the other accused Banesingh s/o Nagusingh is charged with the abetment of the commission of the said offence by the former. I have heard Shri N.P. Sharma, learned counsel for appellants and Shli Mayank Upadhyaya, learned Public Prosecutor for the respondent State. The allegation of commission of rape is on accused appellant Banesingh s/o Parvatsingh while the other accused Banesingh s/o Nagusingh is charged with the abetment of the commission of the said offence by the former. It is, therefore, to be seen whether these charges are brought home to the appellants. Anokhibai (PW 5) and Pyaribai (PW 6) were examined to depose of the incident. While Anokhibai narrated the story already stated hereinabove, Pyaribai did not, however, support the story fully and stated that accused Banesingh s/o Parvatsingh had merely caught Anokhibai. She denied having seen any sexual intercourse being committed by that accused Banesingh on Anokhibai. She has been declared hostile by the prosecution and she resiled from certain portions of her Police statement made u/s 161 of CrPC. She also denied any assault on her by co-accused Banesingh s/o Nagusingh. It is well settled that nothing is decided against a witness merely because he or she is permitted to be declared hostile and cross-examined by the prosecution. Pyaribai is a witness who is closely related to Anokhibai and having absolutely no relation with the accused persons. Their husbands are real brothers. The attending circumstances of the case also indicated that the version given by Pyaribai was more close to the truth than the one given by Anokhibai. Both Anokhibai and Pyaribai have on returning home immediately related the incident to Mansingh, the husband of the former. No report was, however, lodged by any of them with the Police promptly and they awaited for nearly 24 hours to lodge the report. There was thus time to deliberate and make a tainted version before the Police. On medical examination of Anokhibai by Dr. Tungare (PW 4), a minor abrasion was found on the left thumb of the prosecutrix. However, there was no injury caused by cutting weapon like knife as stated by her in the evidence. On this count also her version appeared to be exaggerated. No definite opinion as to the commission of rape could also be given by Dr. Tungare. In fact, no marks of resistance were found on her body even though the rape is said to have been committed on a bare ground in the fields of the village. On this count also her version appeared to be exaggerated. No definite opinion as to the commission of rape could also be given by Dr. Tungare. In fact, no marks of resistance were found on her body even though the rape is said to have been committed on a bare ground in the fields of the village. Having given serious thought to the aforesaid evidence, I feel hesitant to accept the uncorroborated version of Anokhibai (PW 5) that she was sexually assaulted by accused Banesingh s/o Parvatsingh with the active assistance of accused Banesingh s/o Nagusingh.1t appears that the former accused did use criminal force on this prosecutrix thereby outraging her modesty. However, an exaggerated report was lodged by her as is evident from the evidence of Pyaribai and the unexplained delay in lodging the report. Under the circumstances, accused appellant Banesingh s/o Parvatsingh can be held guilty only u/s 354 of IPC while co-accused Banesingh s/o Nagusingh deserves acquittal. Accordingly this appeal succeeds in part and to the extent indicated above. Conviction and sentence passed against accused appellant Banesingh s/o Parvatsingh u/s 376 of IPC are set aside and instead he is convicted u/s 354 of IPC and sentenced to 6 months' RI and pay fine Rs. 500/-. In default of payment of fine, he shall further undergo RI for 3 months. Conviction and sentence passed against appellant Banesingh s/o Nagusingh u/s 376/114 of IPC are set aside and he is acquitted of the said charge. He is already on bail and his bail bonds shall stand discharged. Appellant Banesingh s/o Parvatsingh is also on bail and he shall surrender to his bail before the trial Court to serve out the sentence remaining due, if any.