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2002 DIGILAW 606 (MP)

Ramesh v. State of M. P.

2002-07-01

S.B.SAKRIKAR

body2002
JUDGMENT Accused appellant has directed this appeal against the judgment dated 6.5.1999 rendered by 2nd Additional Sessions Judge, Ratlam thereby convicting appellant for the offence punishable under S. 376 IPC and sentencing him to undergo seven years RI and Rs. 200/- fine; in default of payment of fine further imprisonment of three months was also awarded. Accused appellant was charged for the offence of committing rape on PW 5 Basantibai wife of Inshwarlal on 25.8.1989 at her house in village Kaneri, District Ratlam. As per case of the prosecution, on 25.8.1989 at about 12.30 noon, when Basantibai was all alone in her house at the same time, accused appellant entered in her house, and committed sexual intercourse without her consent by applying force. At the time of incident on making hue and cry by prosecutrix Basantibai, one Geetabahan came on the spot. On seeing Geetabahen the accused appellant fled away from the house of the prosecutrix. Soonafter the incident, the alleged incident of rape was narrated by Basantibai to her aunt Kalabai and thereafter to her father-in-law Mangilal and husband Ishwarlal on returning home in the evening. The FIR of the incident was lodged at P.S. Manak Chowk, Ratlam same day at 9.00 p.m. The FIR is Ex. P. 5. The prosecutrix was sent for medical examination and examined on 25.8.1989 by Dr. Smt. Bina Mathur at Sanyogitaganj Hospital, Indore. The report of Dr. Smt. Mathur is Ex. P. 6. The witnesses were examined during the course of the investigation and on completion of the formalities and arrest of the appellant, challan was filed. At the trial accused appellant denied the charge levelled against him under S. 376 IPC. Learned trial Judge on appreciation of the evidence of the prosecution found appellant guilty for the alleged offence of rape and sentenced for the said offence as indicated above. Aggrieved the appellant has filed this appeal. I have heard Shri N.S. Purohit, learned counsel appearing for the appellant and Shri Mayank Upadhyay, D.G.A. for the respondent State. Learned counsel for the appellant contended that in view of the statement of the prosecutrix and the belated FIR as also other circumstances of the case on hand, the sole testimony of Basantibai PW 5 on the point of commission of rape by the appellant cannot be believed for basing the conviction for alleged charge of rape by the accused. Learned counsel for the appellant contended that in view of the statement of the prosecutrix and the belated FIR as also other circumstances of the case on hand, the sole testimony of Basantibai PW 5 on the point of commission of rape by the appellant cannot be believed for basing the conviction for alleged charge of rape by the accused. Learned counsel submitted that in view of the facts and the circumstances as also the conduct of the prosecutrix before and after the alleged incident, the case of the prosecution suffers from infirmity and the appellant deserves acquittal giving benefit of doubt. As against this, the learned D.G.A. appearing for the State supported the impugned judgment and the order of sentence passed against the appellant by the trial Court and submitted that in view of the facts of the case and the evidence of the prosecution available on record, the impugned judgment of the trial Court requires no interference and deserves to be upheld. I have considered the rival submission of the learned counsel for the parties and carefully perused the record as also the evidence available on record. It is not in dispute that on the date of the incident Basantibai PW 5 was a married lady of about 30 years of age and mother of one child; as such it is necessary for the prosecution to prove beyond reasonable doubt that alleged act of rape was committed on the prosecutrix by force without consent of said prosecutrix Basantibai. The law is well settled on the point that in a rape case sole testimony of the prosecutrix for basing the conviction can be relied on if her statement is found trustworthy and totallity of the circumstances appearing on the record disclose that the prosecutrix was not the consenting party for the a11eged sextual intercourse. The law is also well settled on the point that from the evidence of the prosecution if the circumstances disclose sexual intercourse with the consent of the prosecutrix then offence of rape is not proved. In the present case, the prosecutrix Basantibai PW 5 in her Court statement has stated the facts with regard to commission of the rape by the present appellant. On perusal it emerged that the incident of the alleged rape took place at about 12.00 noon in the house of prosecutrix in village Kaneri; whereas the FIR Ex. In the present case, the prosecutrix Basantibai PW 5 in her Court statement has stated the facts with regard to commission of the rape by the present appellant. On perusal it emerged that the incident of the alleged rape took place at about 12.00 noon in the house of prosecutrix in village Kaneri; whereas the FIR Ex. P. 8 of the incident was lodged at P.S. Manak Chowk, Ratlam in the night at 9.05 p.m. when the alleged police station was only at a distance of 7 km. from the village Kaneri. Material contradictions are found in the statement of PW 5 Basantibai and the facts stated in FIR Ex. P. 8. In the FIR she states that on making hue and cry one Gitabahen came to the house of the prosecutrix and on seeing said Gitabahen the appellant Ramesh fled away from the house of the prosecutrix but this fact is not stated by Basantibai in her statement before the Court. Alleged Gitabahen named in the FIR is also not examined on behalf of the prosecution. In the FIR she has stated that after alleged incident at about 3.00 p.m. her cousin-mother-in-law came to her house and at that time for the first time she narrated the incident to her cousin mother-in-law but PW 7 Kalabai (cousin mother-in-law) does not corroborate the aforesaid version of Basantibai as stated in the FIR. PW 7 Kalabai was declared hostile by the prosecution as she does not corroborate the version of the prosecutrix. As per facts of the case the alleged rape on Basantibai was committed in the day light at about 12.00 noon, and that too in a house with all the doors open. PW 5 Basantibai is a married grown up woman of 30 years of age did not say, that at the time of commission of alleged sexual intercourse she resisted and has scuffled with the accused. No marks of violation or injuries external or internal were detected by Dr. Smt. Mathur PW 9 at the time of her medical examination. In my considered opinion it is not possible to commit rape on a grown up lady of 30 years of age during the day time with all the doors of the house open, without receiving any of the injuries on the body indicating that the prosecutrix resisted the alleged act of rape. In my considered opinion it is not possible to commit rape on a grown up lady of 30 years of age during the day time with all the doors of the house open, without receiving any of the injuries on the body indicating that the prosecutrix resisted the alleged act of rape. In view of the aforesaid facts and the circumstances under which the said act of rape alleged to have been committed by the appellant on Basantibai cannot be considered to have been established beyond reasonable doubt. From the facts and circumstances of the case and the evidence on record it appears to be a case of consent, if at all any sexual intercourse is done with said Basantibai. In view of the facts and circumstances of the case on hand as also the evidence available on record, the impugned judgment of the trial Court convicting appellant under S. 376 IPC cannot be allowed to sustain and deserves to be demolished. In the result, this appeal filed on behalf of the appellant succeeds. The impugned judgment of conviction and sentence passed by the trial Court is set aside. The accused appellant stands acquitted of the charges under S. 376 IPC. The accused appellant is on bail. His bail bands stand cancelled. The amount of fine, if deposited, be refunded.