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Madhya Pradesh High Court · body

2001 DIGILAW 571 (MP)

Rahislal v. State of M. P.

2001-08-02

S.K.KULSHRESTHA

body2001
JUDGMENT The appellant has filed this appeal against the judgment dated 30.11.1999 of the learned 1st Additional Sessions Judge, Waraseoni, District Balaghat, in Sessions Trial No. 117/99, by which the appellant has been convicted under section 376 of the IPC and sentenced to R.I. for seven years and fine of Rs. 200/- and under section 506 Part I to R.I. for six months. In default of payment of fine, he has been directed to undergo further rigorous imprisonment for a month. The appellant was prosecuted for the said offences on the allegation that on 3.5.1999 he had committed rape with his brother's widow namely Dwarika Bai at 12.00 O'clock in the night and had thereafter intimidated her with dire consequences if she disclosed the fact to anyone else. As per the prosecution story, the prosecutrix Dwarikabai was living jointly with the accused, after the death of her husband, along with her two children. It is alleged that on 3.5.1999 the wife of the accused was not in the house as she had gone to her parents' house and only 'Dwarikabai and the accused were in the house. At about 12.00 O'clock in the night the accused gave the prosecutrix some money to keep the same inside the house and while she entered the room to keep the money, he bolted the door from inside and thereafter committed rape with her. The accused also intimidated her. It is alleged that the incident was related by the prosecutrix to her sister-in-law (Sister of accused), Shamabai (PW 3) and her husband Madanlal. On learning about the incident the wife of the accused also returned to the house and she was informed by the prosecutrix about the incident but she tried to hush up the matter by saying that she should not pursue any further as it would bring bad name to the family. It is also alleged that on the next day when the mother and brother of the prosecutrix came to the house of the prosecutrix in connection with a marriage to collect certain utensils, they were also informed. It was further alleged that the prosecutrix made a complaint about the act of the accused in the Panchayat on 12.5.1999. It is also alleged that on the next day when the mother and brother of the prosecutrix came to the house of the prosecutrix in connection with a marriage to collect certain utensils, they were also informed. It was further alleged that the prosecutrix made a complaint about the act of the accused in the Panchayat on 12.5.1999. Thereafter again Panchayat was held on 15.5.1999 with regard to the division of the property between the prosecutrix and the accused and it was only thereafter that she lodged first information report Ex. P-5 on 21.5.1999 at Police Station Rampayali. On receipt of the report PW 7 K.R. Karveti, A.S.I. registered a case under sections 376 and 506 Part II of the IPC and forwarded the prosecutrix for medical examination. She was examined by PW 1 Dr. Rajrani Khare who gave report Ex. P-l. As per the testimony of the Doctor as also the report Ex. P-1 no injury was found on the prosecutrix. In further investigation PW 7 K.R. Karveti prepared a spot map and after ,completion of investigation filed charge sheet against the accused. The accused denied the charges and pleaded that on account of the dispute with regard to the division of property the prosecutrix had falsely implicated him. On trial the learned Judge, however, found the appellant guilty of the offences and convicted and sentenced him as stated above. Learned counsel for the appellant has referred to the evidence adduced by the prosecution in support of his contention that the circumstances clearly indicated that on being dissatisfied with regard to the division of property, the prosecutrix had made a false report against the accused while, in fact, no such incident had taken place. Learned Panel Advocate has, however, referred to the testimony of the prosecutrix PW 6 Dwarikabai and contended that the judgment of conviction was well founded. The prosecution examined in all seven witnesses. Prosecutrix PW 6 Dwarikabai in her statement has stated that the accused had returned from Waraseoni after selling paddy at about 12.00 O'clock in the night while she was alone and there was nobody in the house as her sister-in-law (wife of the accused) had gone to her parents' place. She had served food to the accused but thereafter the accused caught her hand and fell her down and committed rape with her. She had served food to the accused but thereafter the accused caught her hand and fell her down and committed rape with her. She has stated that next day she related the incident to her sister-in-law (sister of the accused) and her husband who were living at a distance of about three Kms. in village Nawegaon. Her husband had sent information about it to the wife of the accused who on learning about it had returned to the village and on being told about the act of the accused she had asked her not to disclose it to anyone else, otherwise she would be beaten. She has admitted that a Panchayat was convened in which she had demanded her share of property to which the accused had disagreed and in the Panchayat also she had told the members about the act of the accused and thereafter she lodged the report at the Police Station. PW 3 Kshama Bai has not supported the prosecution and has been declared hostile and PW 4 Dasha Ram, brother of the prosecutrix has also not supported the prosecution and has stated that his sister had not told him anything. PW 6 Jugram who was member of the Panchayat also did not support the prosecution but in his cross-examination by the prosecution, he did state that she had made a complaint about the act of the accused. Thus the only evidence that is available on record is the testimony of PW 6 Dwarika Bai and, therefore, it is necessary to see whether on the basis of the sole testimony of Dwarika Bai the accused could have been convicted. It is not disputed that report of the incident was made on 21.5.1999 at 11.00 a.m. with regard to the incident which had taken place' on 3.5.1999. During this period, accordingly to the prosecution, the prosecutrix had complained to her sister-in-law, her own brother and to Panchayat but none has supported the version of the prosecutrix. There is no explanation as to why after the second Panchayat was convened on 15.5.1999, the prosecutrix waited for six more days to lodge the report. The prosecutrix has clearly admitted in her cross-examination that if the accused had given her share of paddy to her, she would not have lodged any report against him. There is no explanation as to why after the second Panchayat was convened on 15.5.1999, the prosecutrix waited for six more days to lodge the report. The prosecutrix has clearly admitted in her cross-examination that if the accused had given her share of paddy to her, she would not have lodged any report against him. This shows that the purpose of the report was to coerce the accused to accede to the demand of the prosecutrix than anything else. While it is true that on the basis of the testimony of the prosecutrix alone a person can be convicted for offence punishable under section 376 of IPC if the same is trustworthy, in the present case there are glaring circumstances which indicate that the purpose of making the complaint against the accused was different viz. to obtain share of the property. It is an admitted position that Panchayat was convened on 12.5.1999 and again on 15.5.1999 and it was only when she was dissatisfied with the distribution of the property that report was made by her after six days of the last Panchayat meeting. Learned Panel Advocate has contended that the delay in lodging the report stands explained as she has stated that she was first threatened by the accused and later by his wife not to disclose the incident to anyone with the result, she was deterred from lodging the report. It is clear from her evidence that she had disclosed the incident to the Panchayat on 12.5.1999 and, therefore, in any case on 12.5.1999 and thereafter she had no reason for not making the complaint to the Police. In the facts and circumstances of the case, therefore, possibility of false implication of the accused cannot be ruled out and on the sole testimony of the prosecutrix not corroborated by any other circumstance on record, indeed contradicted by other circumstances, it would be unsafe to sustain the order of conviction passed by the trial Court. In the result, this appeal is allowed. The conviction and sentence passed against the accused by the trial Court is set aside and he is acquitted of the charges against him. The accused shall be forthwith released from custody if not required in connection with any other matter.