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2006 DIGILAW 1135 (MP)

LAKHAN HARI YADAV v. STATE OF MADHYA PRADESH

2006-09-26

U.C.MAHESHWARI

body2006
( 1 ) THE appellant has preferred this appeal being aggrieved by the judgment dated 28-8-2004 passed by Sessions Judge Betul in S. T. No. 222/02 convicting the appellant for five years RI with fine of Rs. 2,000/- and one year RI with fine of Rs. 1,000/- after holding guilty for the offences under Section 376 (1) and 506-11 of i. P. C. respectively. ( 2 ) THE facts giving rise to this appeal in short are that on 19-5-2002 at about 5. 00 o'clock in the morning the prosecutrix Bipta bai had gone to satisfy the call of nature near some culvert. After satisfying such call when she was getting up at that time she was caught hold by the appellant and pulled down on the floor. On shouting for help, her mouth was pressed with handkerchief by the appellant and after removing her undergarment and his wearing cloth "the lungi" he committed rape on her. After committing such act he gave a threat by showing the knife to kill her on reporting the matter. Incidentally, punnu Yadav also came there then the appellant ran away from the place of the incident. She narrated the incident to punnu and also to her husband on returning home. Then she went to Police Station chicholi and lodged a report at about 10. 30 a. m. on the same day. On registration of the offence the appellant was arrested for the offence under Sections 376 and 506-11 of I. P. C. The prosecutrix was referred to hospital where on medical examination her MLC was prepared. After completion of investigation the appellant was charge sheeted under the aforesaid sections. ( 3 ) THE case was committed to the Sessions Court where charges under Sections 376 and 506-II of I. P. C. were framed against the appellant. On denying the same the trial was held. On appreciation of evidence after holding guilty to the appellant for the aforesaid offence he was directed to undergo with the aforesaid sentence with fine. Hence, this appeal. ( 4 ) SHRI S. K. Gangrade. learned counsel for the appellant assailed the impugned judgment on the following points : i. By referring the depositions of the prosecutrix Bipta Bai (PW 2)and alleged eyewitness Punnu (PW 4), he said that in view of their testimonies this case appears to be a case of consent. ii. Hence, this appeal. ( 4 ) SHRI S. K. Gangrade. learned counsel for the appellant assailed the impugned judgment on the following points : i. By referring the depositions of the prosecutrix Bipta Bai (PW 2)and alleged eyewitness Punnu (PW 4), he said that in view of their testimonies this case appears to be a case of consent. ii. According to him Punnu Yadav (PW 4)had not seen any incident but due to previous enmity he has falsely implicated the appellant. He also referred the cross examination of Punnu showing the inimical relation with the appellant. iii. Lastly he said that during pendency of this appeal an application for permission to compound the offence has been filed by the prosecutrix Bipta Bai along with her affidavit. This is an additional circumstance to draw an inference that the prosecutrix was a consenting party and had a close relation with the appellant. With these submissions he prayed for allowing his appeal. ( 5 ) WHILE on other hand Shri A. L. Patel, learned counsel for the respondent/state by controverting the aforesaid arguments has justified the impugned judgment and conviction of the appellant. He further said that in view of the evidence available on record findings of the trial Court do not require any interference at this stage and prayed for dismissal of this appeal. ( 6 ) HAVING heard the learned counsel of the respective parties, I have gone through the record of the trial Court. The prosecutrix smt. Bipta Bai (PW 2) has categorically stated entire factual matrix of the incident in her in-chief but during cross-examination she could not give the proper explanation regarding non-mentioning the injuries sustained by her and some other material circumstances in the FIR (Ex. P. 6) as well as in her interrogatory statement (Ex. P1 ). She further said that after performing the alleged act the appellant had worn his lungi and she had also worn her undergarment, subsequent to it Punnu (PW 4) came there, then the appellant ran away from the place of the incident. This conduct of the prosecutrix manifestly showing that she was the consenting party with the appellant for such alleged intercourse. Although, Punnu (PW1)has not supported her deposition in such manner, according to his deposition on his reaching the place of the incident appellant ran away with his lungi (the wearing cloth)in naked position. This conduct of the prosecutrix manifestly showing that she was the consenting party with the appellant for such alleged intercourse. Although, Punnu (PW1)has not supported her deposition in such manner, according to his deposition on his reaching the place of the incident appellant ran away with his lungi (the wearing cloth)in naked position. These inconsistent interse testimonies of these witnesses gives sufficient circumstance to draw an inference that alleged intercourse was performed with the consent of prosecutrix but due to intervention of Punnu the matter was opened and disclosed then either under pressure or to save the position the FIR was lodged. While the other witness Deep Chand (PW 5), the husband of the prosecutrix has stated only the hearsay version from Punnu and his wife the prosecutrix as such he was not the eyewitness of the incident. Except these witnesses no any other witness in respect of the incident was examined by the prosecution. In addition to it the knife as alleged by the prosecutrix in the hand of appellant while giving threat was neither produced nor proved on record. ( 7 ) I have also perused I. A. No. 2622/05, an application for permission to compound the offence. As per averments of it, the prosecutrix has some cordial and close relation with the appellant; the same is further supported by an application for compromise along with an affidavit sworn by the prosecutrix. Although such applications could not be considered and allowed because the offence under Section 376 of I. P. C. has not been made compoundable under the provisions of Section 320 of Cr. P. C. But in any case the same can be considered to draw an inference regarding their conduct and relations to adjudicate the question of consent in respect of the alleged intercourse in between them. My aforesaid view is fortified by the principle laid down by the Apex Court in the matter of Kuldeep K. Mahato v. State of Bihar reported in (1998) 6 SCC 420 : 1998 Cri LJ 4033 Para 11, in which it is held as under : "11. Then coming to the conviction of the appellant under Section 376 of I. P. C. although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. Then coming to the conviction of the appellant under Section 376 of I. P. C. although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr. Maya shankar Thakur, PW 5 also indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376, I. P. C. cannot be sustained. There is one more additional factor, which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at ramgarh with the result that her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant. " ( 8 ) AS per allegation the prosecutrix was threatened by showing knife by the appellant but such knife was neither seized nor proved on the record. Hence the allegation for committing rape under pressure or threat has not been proved. The testimony of prosecutrix does not appear to be reliable on this count also. The decision of the Apex Court in the matter of State of Rajasthan v. Kishanlal reported in (2002) 5 SCC 424 : 2002 Cri LJ 2963, paras 25, 26 in which it is held as under : "25. There is yet another aspect of the matter. According to the prosecutrix she was having sexual intercourse with the accused when her husband came. According to her, it was her husband who separated the accused from her. The husband of the prosecutrix has not said so, though at one place he has stated that his wife was weeping when the accused was having sexual intercourse with her. It appears that the prosecutrix was offering no resistance while she was having sexual intercourse, when suddenly her husband entered the room. The husband of the prosecutrix has not said so, though at one place he has stated that his wife was weeping when the accused was having sexual intercourse with her. It appears that the prosecutrix was offering no resistance while she was having sexual intercourse, when suddenly her husband entered the room. It was, therefore, contended on behalf of the respondent that it was only when her husband entered the room she started raising a hue and cry. It was sought to be argued on behalf of the State that the respondent had carried a knife with him and had threatened the prosecutrix with the knife and, therefore, on account of fear, she could not raise an alarm or resist the respondent. In addition, he had forced a handkerchief in her mouth. It is indeed surprising that the knife has not been exhibited in the trial, nor does it appear to have been seized in the course of investigation. If the respondent had brought a knife with him, and it is prosecution case that he was caught hold of within the precincts of the house itself, he had obviously no opportunity of throwing away the knife. In the normal course the knife should have been recovered from the house of the prosecutrix. The non-seizure of the knife raises a serious suspicion about the truthfulness of the prosecution version that the respondent had sexual intercourse with the prosecutrix under threat. " 26. Having regard to these features of the case, me probability of the accused having had sexual intercourse with the prosecutrix with her consent cannot be ruled out. The features that we have noticed above probabilise the defence of the respondent, and we entertain serious doubt about the truthfulness of the prosecution case that the accused had sexual intercourse with the prosecutrix without her consent. " ( 9 ) IN view of the aforesaid discussion, it appears that the trial Court has committed an error in not considering the aforesaid part of the evidence showing the consent of the prosecutrix. Hence, the findings of the trial court are perverse and deserve to be set aside. ( 10 ) SO for conviction under Section 506-II of I. P. C. is concerned, I have not found any reliable evidence showing that any alleged criminal threat was given to the prosecutrix. Hence, the findings of the trial court are perverse and deserve to be set aside. ( 10 ) SO for conviction under Section 506-II of I. P. C. is concerned, I have not found any reliable evidence showing that any alleged criminal threat was given to the prosecutrix. Even otherwise the uncorroborated testimony of the prosecutrix from the independent source of the evidence could not be relied on. Hence, in the lack of admissible and reliable evidence and considering the conduct of the prosecutrix as consenting party by giving the benefit of doubt to the appellant his conviction is held unsustainable under the law. Hence, it is held that trial Court has committed grave error in holding guilty to the appellant for the afore-said offences. ( 11 ) RESULTANTLY, the appeal is allowed, the impugned judgment as well as conviction and sentence of the appellant by extending the benefit of doubt is hereby set aside. The appellant is acquitted from the. alleged charges. His bail bonds are hereby cancelled. The amount of fine if deposited, on verification the same be refunded to the appellant. Appeal stands allowed. Appeal allowed. .