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2005 DIGILAW 1186 (MP)

PEERU ALIAS PRABHULAL v. STATE OF M. P.

2005-11-23

A.K.SHRIVASTAVA

body2005
A. K. SHRIVASTAVA, J. ( 1 ) FEELING aggrieved by the judgment of conviction and order of sentence dated 8/11/2000 passed by 1st Additional Sessions Judge, Guna in Sessions Trial No. 158/2000 convicting the appellant under section 376, I. P. C. and sentencing him to suffer R. I. of 10 years and fine of Rs. 10,000. 00, in default, further S. I. of six months, the appellant has knocked the door of this Court by preferring this appeal. ( 2 ) SANS unnecessary details, the facts lie in a narrow compass. On 9/5/1994 prosecutrix lodged a First Information Report that she is the resident of fatehgarh and the appellant is the resident of village Jhiri. The appellant happens to say her that he is having relations with the Chief Minister and he can manage to allot patta of the land to the prosecutrix. Eight days earlier to the date of incident, appellant along with ransingh, brother-in-law (Jeeja) of the prosecutrix and the prosecutrix on the pretext of allotment of patta, came to guna where all these three persons lived for some days. On 8/5/1994 the appellant told the prosecutrix that the task of obtaining patta from Guna is completed and now they are required to meet with a clerk. Thereafter, he carried away the prosecutrix in a bus. At that juncture, ransingh who is the brother-in-law of the prosecutrix stated that he will also go but appellant did not allow him. Thereafter, the appellant and the prosecutrix went from Guna to fertilizer plant where he asked the prosecutrix to sit and he went away. The prosecutrix sat there for whole of the day and when there was sunset and appellant did not come, she started weeping. At that juncture, appellant arrived there and asked that why she is weeping. The prosecutrix told that now she would like to go back. Thereafter, they proceeded up to some distance and when they reached nearby the factory of fertilizer and near the bank of the river, the appellant caught hold that neck of the prosecutrix as a result of which the female child which was in the lap of the prosecutrix started weeping. Thereafter, the appellant gave some slaps to the said child. The appellant thereafter threw the prosecutrix on the ground and against her will he committed rape over her. The appellant also closed her mouth. Thereafter, the appellant gave some slaps to the said child. The appellant thereafter threw the prosecutrix on the ground and against her will he committed rape over her. The appellant also closed her mouth. Thereafter, appellant flee away from the place of occurrence. The prosecutrix came to ruthiyai from where she boarded a bus and came to Guna. She narrated the entire episode to her brother-in-law ransingh. Thereafter, they went to the police station and lodged the report. ( 3 ) ON lodging of the First Information report, criminal law was set in motion. The investigating agency arrested the accused; sent him for medical examination; the prosecutrix was also sent for her medical examination; the statement of the witnesses were recorded. After completion of the investigation, a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of session and from where it was received by the Trial Court for trial. ( 4 ) THE Trial Court on going through the charge-sheet framed charge punishable under section 376, I. P. C. against the appellant. Needless to emphasise, the appellant abjured his guilt and pleaded complete innocence. His defence is of maladroit implication. ( 5 ) IN order to prove the charge the prosecution examined as many as 9 witnesses and placed Ex. P-1 to P-7 the documents on record. Though the defence of the appellant is of false implication, however, he did not choose to examine any witness in his defence. ( 6 ) THE Trial Court on scrutiny of the evidence came to hold that appellant did commit the offence for which he was charged and eventually convicted him and passed the sentence which I have mentioned hereinabove. Hence, this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence. ( 7 ) IT has been vehemently argued by learned Counsel for appellant that if the testimony of the prosecutrix is considered in proper perspective it would reveal that it does not inspire confidence. It has also been put forth by him that indeed there was a money transaction between the parties and the appellant made a demand of money which made a cause between him and prosecutrix to altercate. It has also been put forth by him that indeed there was a money transaction between the parties and the appellant made a demand of money which made a cause between him and prosecutrix to altercate. As a matter of fact, the prosecutrix did go to lodge the report that altercation took place between her and the appellant but on the insistence of other persons the report of rape was lodged by her. It has been further canvassed by learned counsel that appellant did not commit any rape on the prosecutrix and in support of his contention he has placed reliance on Ex. D-1 which is an affidavit of the prosecutrix. By inviting my attention to F. I. R. (Ex. P-1) it has been propounded by learned Counsel that though the incident has taken place on 8/5/1994 in the evening but the F. I. R. was lodged after 24 hours on the next day i. e. 9/5/1994 at 9. 30 p. m. and when the prosecutrix appeared in the Court she has stated that she lodged the report in the broad daylight at 12-1 p. m. on 9/5/1994. On the basis of these premised submissions, it has been submitted by learned counsel for the appellant that this appeal be allowed and the appellant be acquitted. ( 8 ) ON the other hand Shri Sihare, learned Counsel for respondent argued in support of the impugned judgment. ( 9 ) AFTER having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. ( 10 ) IT is well settled in law that in a case under section 376, I. P. C. , the statement of the prosecutrix alone is required to be considered and no corroboration is required. But it is also equally true that her statement should inspire confidence. Thus, I have to consider that whether the statement of the prosecutrix implicating the appellant for the offence under section 376, I. P. C. inspire any confidence or not/admittedly, the prosecutrix is a major married woman. The F. I. R. (Ex. P-1) was lodged on 9/5/1994 at 9. 30 p. m. and the incident is said to have committed on 8/5/1994 at 7 p. m. thus the F. I. R. has been lodged after 24 hours. The F. I. R. (Ex. P-1) was lodged on 9/5/1994 at 9. 30 p. m. and the incident is said to have committed on 8/5/1994 at 7 p. m. thus the F. I. R. has been lodged after 24 hours. There is no explanation by the prosecutrix in that regard that why the F. I. R. was lodged after 24 hours. It has already come in the evidence of the prosecutrix that on the date of incident i. e. 8. 5. 1994 she narrated the incident to Ransingh but no report was lodged on that day nor the same was lodged in the morning. The prosecutrix in para 22 of her testimony has stated that on the next day they went to an office of an Advocate and thereafter at 12-1 in the afternoon she went to lodge the report. According to her, she reached at police station at 2-3 in the afternoon. If the statement of the prosecutrix is kept in juxtaposition to the F. I. R. (Ex. P-l), it is gathered that the F. I. R. was lodged in the night at 9. 30 on 9. 5. 1994 while the prosecutrix is saying that at 12-1 in the afternoon she arrived at police station to lodge the report, later on she says that at 2-3 in the afternoon she lodged the report. If the incident of rape would have been occurred with the prosecutrix, why such a great disparity is appearing in her testimony and this poses a big question mark and raises a heavy doubt in regard to the credibility of the statement of the prosecutrix. In the F. I. R. the prosecutrix has stated that after committing rape over her the appellant fled from the spot. Thereafter, she came to Ruthiyai and was weeping. From Ruthiyai she came to Guna and narrated the incident to her brother-in-law and thereafter they have come to lodge the report at police station. However, when the prosecutrix appeared as P. W. 1 in the Court, she has specifically stated that after committing rape over her, appellant told her to accompany him up to Guna and both of them came together to Guna by bus. However, when the prosecutrix appeared as P. W. 1 in the Court, she has specifically stated that after committing rape over her, appellant told her to accompany him up to Guna and both of them came together to Guna by bus. Not only this, though she stated the entire episode to her brother-in-law soon after the incident 011 the same day when she came to Guna but no report was lodged and the prosecu-trix, her brother-in-law and appellant all these three persons took the dinner jointly and all of them slept at the railway station. ( 11 ) SHE has further stated that on the next day in the morning she met with ramcharan. Thereafter, they went to the office of an Advocate and told him that appellant had taken money from her and has also committed rape over her, thereafter on the insistence of the said Advocate, she went to lodge the report. In para 17 of her testimony she has stated that since appellant took Rs. 5000/- from her on the pretext that he will manage to allot a patta of the land to her and because the money was not given, therefore she has lodged this report. It is to be seen that if the appellant committed the vile act of rape with the prosecutrix why she accompanied him up to Guna from the place of occurrence in the bus; why she slept with him in the night along with her brother-in-law ransingh and why she and her brother-in-law took the dinner with appellant. All these questions raise a great suspicion over the credibility of the evidence of the prosecutrix. The story put forth by the defence that in order to allot patta to the prosecutrix he took some amount from her and the same amount was not returned back, therefore this false report has been lodged. It has come in the evidence of the prosecutrix that she went to the office of the advocate where she stated that appellant has taken money from her and did not manage to allot patta of the land. Thus, it cannot be ruled out that since the appellant was not returning back money to her, on the insistence of the Advocate, a report of rape was lodged by the prosecutrix. ( 12 ) AFTER X-raying the statement of the prosecutrix in its entirety, her statement does not inspire confidence. Thus, it cannot be ruled out that since the appellant was not returning back money to her, on the insistence of the Advocate, a report of rape was lodged by the prosecutrix. ( 12 ) AFTER X-raying the statement of the prosecutrix in its entirety, her statement does not inspire confidence. In this context I may profitably rely the decision of the Supreme Court in the case of mohan Lal v. State of Rajasthan. ( 13 ) RESULTANTLY, the appeal succeeds and is hereby allowed. The conviction of appellant under section 376, I. P. C. is hereby set aside. Though the appellant was directed to be enlarged on bail by this court on 4/4/2003, but according to learned Counsel the appellant did not furnish the bail bonds. In this manner he is in custody, he be released forthwith if not required in any other case. Appeal allowed. .