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Madhya Pradesh High Court · body

2006 DIGILAW 1198 (MP)

ASHOK KUMAR THAKUR v. STATE OF MADHYA PRADESH

2006-10-17

U.C.MAHESHWARI

body2006
( 1 ) THE appellant has invoked the jurisdiction of this Court under section 374 of Cr. P. C. being aggrieved by the judgment dated 31-3-1993 passed by the Special Judge, Raisen (established under S. C. and S. T. Prevention of Atrocities Act, in short 'the Act") in the Special Case No. 403/96 convicting and sentencing the appellants under section 366 and 376 of IPC and Section 3 (1) (xi) of the Act and directed him to undergo for five years R. I. and for seven years R. I. with fine of Rs. 500, in default of it further two months R. I. and six months R. I. respectively under the aforesaid sections. ( 2 ) THE case of the prosecution giving rise to this appeal in short are that the prosecutrix Vishnabai being a woman of "gond" tribe covered by the Act was residing at mandideep in the family of her mother and father and she was working as labourer in a stone mine of the appellant. On dated 18-5-1996 when the father and mother of the prosecutrix had gone to Bareli and market respectively on such date at 3 o'clock in the noon the prosecutrix was going to market for bringing vegetable. On the way she was asked by the appellant for going to Bareli saying that her mother is seriously ill. On his request she accompanied him and seated in a mini bus by which the appellant took her to Bhopal where he kept her in the family of his maternal uncle. They also stayed there for such night. On subsequent date the appellant took her to Pipali by bus. She remained there in a vacant house. As alleged the appellant committed rape on her thrice in such house. Even on second day again such act was committed with her by the appellant. Thereafter they came to bhopal where by leaving her the appellant ran away. On receiving such information by her Bhabhi (sister-in-law), she was sent to mandideep and mentioned the entire incident to her mother and father. The incident was reported at P. S. Mandideep. After registering the offence the prosecutrix was referred to hospital where on her examination the MLC was prepared. The necessary investigation like x-ray for assessing her age was also carried out. The incident was reported at P. S. Mandideep. After registering the offence the prosecutrix was referred to hospital where on her examination the MLC was prepared. The necessary investigation like x-ray for assessing her age was also carried out. After arresting the appellant and interrogating the witnesses the appellant was charge sheeted under Sections 363, 366, 376 of IPC and also under Section 3 (1) (xii) of the Act. ( 3 ) THE Special Court framed the charges against the appellant under Sections 366, 376 of IPC and Section 3 (l) (xi) of the Act. On denying the same the appellant was put on trial. The prosecution has examined eight witnesses in order to prove the case but no one has been examined on behalf of the appellant in his defence. At the stage of appreciaton of evidence the Special Judge after holding guilty for the aforesaid all the offences directed the appellant to undergo with fine as mentioned in the earlier part of this judgment. Against the aforesaid conviction and sentence the appellant has preferred his appeal. ( 4 ) SHRI Abhinav Dubey learned counsel for the appellant while arguing the case said that the testimony of the prosecutrix Vishna bai was sufficient to draw an inference that the alleged act was committed by the appellant with her consent. On considering her statements with proper approach the trial court ought to have acquitted the appellant from the alleged charges. He also said that the prosecutrix was major on the date of the incident and went voluntarily with the appellant and remained with him for so many days in between 18-5-1996 to 22-5-1996 at different places. She openly travelled with the appellant in a bus or other conveyance. She remained in Mandideep, Bhopal and pipali where not only the relations of the appellants but other persons were also present. She did not shout or complained that the appellant had brought her without her consent or forcefully. As per his submission she had some affairs that is why she went with him and this was the reason that even in between aforesaid period the parents or other family members of the prosecutrix did not lodge any missing report regarding her. It shows the implied consent of the prosecutrix as well as family members. As per his submission she had some affairs that is why she went with him and this was the reason that even in between aforesaid period the parents or other family members of the prosecutrix did not lodge any missing report regarding her. It shows the implied consent of the prosecutrix as well as family members. But after returning home due to some pressure or inducement by the parents or other family members the FIR was lodged and the appellant was falsely implicated for the alleged offence. According to him the ingredients of any of the alleged offences have not been proved against him. He further said that the incident was not happend because the prosecutrix belonged to the tribal community. It was only a matter of consent. No assault or humiliation was done by the appellant with the prosecutrix and the appellant has also not committed any act with intention to outrage the modesty of the prosecutrix, hence the offences of the Act has not been proved. With this background he prayed for allowing this appeal. ( 5 ) IN contra Shri J. K. Jain, learned Government Advocate by supporting the judgment as well as the judgment and conviction of the appellant said that the same is based on proper appreciation of the evidence and in conformity with the law. It does not require any interference at the stage of appeal and prayed for dismissal of the same. ( 6 ) HAVING heard learned counsel for the respective parties for considering their rival submissions, the record of the trial Court was perused. As per averments of FIR Ex. P/1, prosecutrix was working as a Labourer, it appears that the appellant was running the business of Stone Mine (Gitti) and the prosecutrix was working in his concern for breaking stones. She was taken by the appellant from the market in front of her residence. Considering the entire circumstances mentioned in the FIR it appears that the prosecutrix accompanied the appellant voluntarily by sitting in a Mini Bus from mandideep to Bhopal where they stayed for one night in the house of maternal uncle of the appellant. Then on the next day they went to village Pipali where the alleged bad work was done by the appellant for two days. During this period she was also provided food and other necessary things by the brother of the appellant. Then on the next day they went to village Pipali where the alleged bad work was done by the appellant for two days. During this period she was also provided food and other necessary things by the brother of the appellant. The FIR does not speak that while she was taken to Bhopal instead to Bareli why the prosecutrix had not shouted to tell any person of the market or passengers of the bus. It has been held by the trial Court that the prosecutrix was major and more than 18 years of the age on the date of the incident. Being resident of mandideep she was knowing the way to bhopal and Bareli in different directions. Knowing this thing she did not object or shout. It shows conduct that she had done the alleged act with her own consent. Otherwise she could have shouted or taken objection not only at Mandideep but at Bhopal and Pipali also. ( 7 ) ON perusing the depositions of Vishna bai (PW-1) the prosecutrix, she said the incident against the appellant in her chief. During cross-examination in para 7 she said that she is not aware of the way even to go her village or the way to Bhopal from mandideep as she did not go to Bhopal prior to such incident. In para 9 she said that during the performance of such alleged act she did not sustain any injury. She further said that when they were living in the village Pipali many persons were present in some prayer where she cried but due to loud speaker of such prayer no one had heard her voice. But such version has not been found in her case diary statement. In para 10 she said that the appellant had performed the intercourse at first instance. He was turning with both side and also took turn (Kulati ). After going through the entire cross-examination she has not said that before returning to her home either in the market or bus stand or the village or the places where they stayed, she had complained to anyone for any offending act of the appellant. Hence, looking to the entire depositions of these witnesses the alleged acts committed by the appellants appear to be act of consent with the prosecutrix. Hence, looking to the entire depositions of these witnesses the alleged acts committed by the appellants appear to be act of consent with the prosecutrix. Although the story regarding illness of the mother of the appellant mentioned in the FIR was said by the prosecutrix (PW-1) as well as her mother chhoti Bai (PW-2) and the father Vijay (PW-4)but simultaneously it has not been explained by the prosecution during 3-5 days why the report of missing person was not lodged by the said witnesses, the parents of the prosecutrix. Although the parents tried to explain that they were searching the prosecutrix in their relations but this conduct of the parents does not appear to be bona fide. Besides this for the sake of arguments if explanation of this witness is taken for consideration then in the absence of the depositions of those persons in whose village or residence the prosecutrix was searched by her parents, such version cannot be believed. Although in the normal circumstances the depositions of the prosecutrix can be accepted as true version for the incident without any corroboration from any independent source of evidence but looking to the conducts of the prosecutrix from the very beginning of the incident till lodging the report shows her consent with the appellant for the alleged committed act then on account of the consenting party of the prosecutrix for commiting the alleged act the appellant could not be held guilty for the alleged offences. ( 8 ) BESIDES above Dr. Jyotsana Tiwari (PW-5) who examined and prepared the report of prosecutrix, ex. P-3 she categorically said that no external injury was found on the person of the prosecutrix. Even in the private part no such injury was found. The hymen was found in torn position. In the matter of consent as found in the foregoing paragraphs absence of any injury on the body of the prosecutrix is another circumstance to draw inference regarding her consent. ( 9 ) DEVI Singh (PW-8), although he is maternal uncle of the appellant has categorically said that the appellant and the prosecutrix came and stayed at his residence for a night and voluntarily both had gone in the morning. ( 9 ) DEVI Singh (PW-8), although he is maternal uncle of the appellant has categorically said that the appellant and the prosecutrix came and stayed at his residence for a night and voluntarily both had gone in the morning. ( 10 ) AFTER going through the entire evidence, it appears that in spite having the opportunities on various occasions at mandideep, during travelling in the bus to bhopal or for the village Pipali and while coming from Pipali to Bhopal neither the prosecutrix ran away nor shouted or complained to anyone alleging offending act against the appellant. Therefore, it could be inferred that the appellant has committed such act with the consent of the prosecutrix. ( 11 ) MY aforesaid view is based on a decided case in the matter of Jinish Lal Sah v. State of Bihar, reported in (2003) 1 SCC 605 : (2003 Cri LJ 4914) in which it was held as under (Para 6) :- "in this regard, if we examine the evidence of PW-1, it is clear that on the date of incident when the appellant came to her house and told her that he will not be taking tuition class on that day, she decided to go to her grandfather's house to watch TV. She says on the way she was met by the appellant who took her on his motorcycle promising her of taking her to a movie at sitamarhi. She found on the way that he was not going to Sitamarhi but was going to muzaffarpur Railway Station. According to her she protested but she was threatened. Then from Muzaffarpur to Jasidih they went by train and then onwards they went by tempo to Devghar for stay in Devghar for some days, then proceeded to Bajitpur from where she was recovered on 10-5-1989. She alleged that the appellant forced her to sign some papers to marry him. In our opinion, it is extremely difficult to accept her evidence when she states that she was taken by the appellant without her consent. If we see the sequence of events starting from 30-4-1989 to 10-5-1989 it is clear that she has accompanied the appellant willingly. She alleged that the appellant forced her to sign some papers to marry him. In our opinion, it is extremely difficult to accept her evidence when she states that she was taken by the appellant without her consent. If we see the sequence of events starting from 30-4-1989 to 10-5-1989 it is clear that she has accompanied the appellant willingly. The evidence of PW-1 indicates that there was a prior planning by her with the appellant together to elope and it is because of that, the appellant came to PW's house on 30-4-1989 and told her that he will not be taking tuition on that day and immediately thereafter PW-1 left her house on the pretext of going to her grandfather's house to see television. It is not her case that when she was accosted by the appellant on his motorcycle, she went with him under a threat. On the contrary, the evidence shows that she willingly went with him on his motorcycle to see movie at sitamarhi. She says she was threatened only when she protested as against she being taken to Muzaffarpur. On the contrary, we notice she was with him from 30th April to 10th May, during which period she had travelled by train, tempo and stayed with the appellant without there being any evidence of her having protested or having made any effort to seek help from others or even trying to run away. "( 12 ) SO far the offences under the act is concerned in view of the testimony of prosecutrix it has been established that the appellant has not committed any act of assault or humiliation against her with an intention to outrage her modesty, although she happened to be from a community of tribal covered by the Act but such act was committed by the appellant with the consent of the prosecutrix, hence no inference could be drawn against the appellant that he has committed the offence with any intention because the prosecutrix was belonging to the caste of "gond" tribe community covered by the Act, hence such offence is also not proved. ( 13 ) MY view for the offence of the Act is based on a decided case in the matter of shankar Lal v. State of M. P. reported in 2005 (1) MPLJ 449 , in which it was held as under :- "assuming that it is established that the prosecutrix belongs to SC or ST still it is difficult to hold that the offence under Section 3 (1) (xi) of the Act is established. There is no evidence to show that the appellant used criminal force to the prosecutrix to outrage her modesty only because she belonged to a particular caste or community. There is no such circumstance to suggest that her modesty was intended or tried to be outraged simply because she belonged to a particular community. It is thus clear that the ingredient of Section 3 (l) (x) of the act is not proved and conviction of the appellant under section 3 (1) (xi) of the Act deserves to be set aside. " ( 14 ) IN view of the aforesaid it is held that the trial Court has committed apparent perversity and error in appreciation of the: evidence holding guilty to the appellant. Hence, the judgment as well as conviction of the appellant for the alleged offence are not sustainable under the law. Resultantly the same is set aside. ( 15 ) THEREFORE, under the aforesaid premises by allowing this appeal the judgment as well as conviction and sentence of the appellant for the alleged offences are hereby set aside and the appellant is acquitted from all charges. The amount of fine if deposited, the same be refunded to the appellant. The appeal stands allowed. Appeal allowed. .