Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 989 (MP)

Shan Singh Lodhi v. State of M. P.

2002-10-25

AJIT SINGH

body2002
JUDGMENT 1. Appellant, Bhan Singh Lodhi, the sole accused person in this case, has been convicted under section 376 of the Indian Penal Code and sentenced to undergo ten years' rigorous imprisonment and fine of Rs. 500/- or in default to undergo three months rigorous imprisonment by the impugned judgment dated 22.9.2001 passed in Sessions Trial No. 110/2000 by the Sessions Judge, Damoh. He has also been convicted under section 506 Part II of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment. Both the sentences are to run concurrently. He has been found guilty for committing an offence of rape with the prosecutrix, Malti Bai (PW 4), on 3.5.2000 at about 12 O'clock in the night in her house. 2. The appellant is admittedly a disabled person since time immemorial. He is having paralysis on both the limbs and cannot stand/walk without support. He can only crawl in a sitting posture by means of his hands. In compliance of my order dated 8.10.2002, a medical report was submitted by the Medical Officer of Central Jail, Sagar, which also confirms the paralytic condition of the appellant. He was also produced in custody before me and I too found him totally incapable of committing the offence of rape on the prosecutrix Malti Bai (PW 4), who is a married, well-built lady and was aged about 25 years on the date of incident. On seeing the appellant, I am of the firm opinion that if at all he could commit sexual intercourse with• the prosecutrix Malti Bai (PW 4), that could only be done with her active cooperation and consent. 3. According to the prosecution, prosecutrix Malti Bai (PW 4) is married to Khuman Singh (PW 10) who is employed as a Chowkidar at a place which is about 50 kms. from their house. The appellant lives in the same locality and is virtually their neighbour. He is known to them and visits their house very often. It is alleged that on 3.5.2000, at about 12 O'clock in the night, while the prosecutrix (PW 4) was sleeping in the Verandah of her house and Kusum Bai (PW 11), her 'Jethani', was also sleeping about 5 to 6 feet away in the 'Angan', the appellant committed sexual intercourse with the prosecutrix (PW 4) without her consent. It is alleged that on 3.5.2000, at about 12 O'clock in the night, while the prosecutrix (PW 4) was sleeping in the Verandah of her house and Kusum Bai (PW 11), her 'Jethani', was also sleeping about 5 to 6 feet away in the 'Angan', the appellant committed sexual intercourse with the prosecutrix (PW 4) without her consent. While committing sexual intercourse, the appellant had allegedly put his hand on her mouth to prevent her from shouting. The appellant, after committing sexual intercourse, threatened the prosecutrix (PW 4) for not disclosing the incident to anyone or else he would kill her. Prosecutrix (PW 4), after the act, is said to have shouted but, because of the noise of thresher, no one could hear her. Her husband Khuman Singh (PW 10) suddenly came and saw the appellant by the side of prosecutrix (PW 4). Seeing them together, Khuman Singh (PW 10) lost his temper and gave beating to both prosecutrix (PW 4) and the appellant. Thereafter, prosecutrix (PW 4) disclosed to him that the appellant committed rape on her while she was sleeping. She also disclosed the incident to her 'Jethani' Kusum Bai (PW 11). First Information Report, Ex. P-3 was lodged by the prosecutrix (PW 4) at Police Station, Nohta, District Damoh, on the following morning at 4:00 a.m. Her husband Khuman Singh (PW 10) had accompanied her upto the police station. 4. Dr. Smt. Alka Nikhar (PW 2) examined the prosecutrix (PW 4) on 4.5.2000. She found three contusions on the person of prosecutrix (PW 4) which were caused by hard and blunt object. Her medical report is Ex. P-12. According to the medical report, Vulva and Vagina of the prosecutrix (PW 4) were gaping and admitted three fingers easily. There was no sign of intercourse as the prosecutrix was habitual to it. Dr. Smt. Alka Nikhar (PW 2) also prepared a sealed packet of petticoat, Article 'D', and Vagina Smear Slide, Article 'C', of the prosecutrix (PW 4) and handed over the same to the police for their chemical examination. 5. The appellant was arrested on 5.5.2000. Dr. K.K. Athya (PW 12) examined him and opined in his report, Ex. P-13, that the appellant was disabled from both his legs. He had ten contusions on his person which were caused by hard and blunt object within 24 hrs. 5. The appellant was arrested on 5.5.2000. Dr. K.K. Athya (PW 12) examined him and opined in his report, Ex. P-13, that the appellant was disabled from both his legs. He had ten contusions on his person which were caused by hard and blunt object within 24 hrs. According to him, he could not find anything to suggest that the appellant was unable to perform sexual intercourse. He seized the underwear, Article 'B' of the appellant and prepared semen slide, Article 'A', and handed over the same to the police for its chemical examination. 6. The Assistant Chemical Examiner of Forensic Science Laboratory, Sagar, found the presence of seminal stains and sperms on the petticoat, Article 'D', of the prosecutrix as also on the underwear, Article 'B', seized from the appellant. His report is Ex. P-16. The said report also confirms the presence of seminal stains and human sperms on the Vaginal Smear Slide, Article 'C'. 7. The appellant, in his defence, pleaded that he is innocent and has been falsely implicated. 8. The trial Court, relying upon the evidence of prosecutrix (PW 4) and her husband, Khuman Singh (PW 10), convicted the appellant for an offence punishable under section 376 and 506 Part II of the Indian Penal Code and sentenced as aforesaid. The trial Court also relied upon the injury reports, Exs. P-12 and P-13, of the prosecutrix (PW 4) and appellant and the Forensic Science Laboratory (FSL) Report, Ex. P-16. 9. Ku. Manju Khatri, learned counsel for the appellant, challenged the conviction on the ground that the trial Court ought to have disbelieved the evidence of prosecutrix (PW 4) and her husband, Khuman Singh (PW 10), as it was impossible for the appellant to commit sexual intercourse with the prosecutrix (PW 4) without her active cooperation and consent. On the order hand, Shri Yogesh Dhande, Panel Lawyer for the State, argued that the appellant has rightly been convicted by the trial Court. 10. I have carefully gone through the evidence and material available on record and I am unable to agree with the trial Court that the appellant committed an offence of rape on the prosecutrix (PW 4). 11. As already stated above, the appellant is paralysed from both his lower limbs and cannot stand/walk without support. He can only crawl in a sitting posture by means of his hands. 11. As already stated above, the appellant is paralysed from both his lower limbs and cannot stand/walk without support. He can only crawl in a sitting posture by means of his hands. When he was produced before me in custody, I too also found him totally incapable of committing an offence of rape. Prosecutrix, Malti Bai (PW 4), has admitted in her cross-examination that the appellant is disabled from both his legs and cannot stand/walk since the time she is known to him. She has also admitted that the appellant is her neighbour and he used to visit her house quite often. She has further admitted that her 'Jethani' and other relations were also sleeping in the courtyard at about 3 to 4 feet away at the time of incident and that her husband, Khuman Singh (PW 10), had given beating to her as a result of which she had sustained injuries on her person. Khuman Singh (PW 10) has deposed that when he suddenly reached his house at 12 O'clock in the night, he found the prosecutrix (PW 4) and the appellant in a compromising position as a result of which he lost his temper and gave beating to both of them. According to him, the prosecutrix (PW 4), on his asking, disclosed that the appellant committed sexual intercourse with her against her consent. Witnesses, Natthu (PW 6) and Kusum Bai (PW 11), who are close relations of Khuman Singh (PW 10) and were present in the house at the time of incident, admitted the presence of appellant but have denied the incident of rape by him on the prosecutrix (PW 4). Dr. K.K. Athya (PW 12), who examined the appellant, has admitted that the appellant was disabled from both his legs but he could not find anything to suggest that he was incapable of committing sexual intercourse. He, however, looking to the physical condition of the appellant, nowhere opined that the appellant was capable of committing rape. Thus, for the foregoing reasons, I am of the firm view that the prosecutrix (PW 4) was a consenting party at the time when the appellant committed sexual intercourse with her. Not only this, she must have actively cooperated with him. Thus, for the foregoing reasons, I am of the firm view that the prosecutrix (PW 4) was a consenting party at the time when the appellant committed sexual intercourse with her. Not only this, she must have actively cooperated with him. It is only when her husband, Khuman Singh (PW 10), appeared unexpectedly at 12 O'clock in the night she disclosed to him about the commission of sexual intercourse by the appellant. The very fact that Khuman Singh (PW 10) gave beating to the prosecutrix (PW 4) further confirms that he too was not satisfied with her explanation and believed that she was a consenting party with the appellant. Looking to the disabled condition of the appellant, it is unmistakeably clear that his act of intercourse with the prosecutrix (PW 4) was a consenting act and she was left with no option but to present it as a case of rape as she was caught unaware by her husband Khuman Singh (PW 10). 12. The prosecution has not been able to prove its case beyond all reasonable doubt against the appellant that he committed an offence of rape on the prosecutrix (PW 4) and had threatened her. 13. The appeal is allowed. The conviction of the appellant, as recorded by the trial Court, is set aside. The appellant is acquitted of the charges under section 376 and 506 Part II of the Indian Penal Code. He is in jail. He be released forthwith, if not wanted in any other case.