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Madhya Pradesh High Court · body

2007 DIGILAW 34 (MP)

Lachhu @ Lakshman v. State of M. P.

2007-01-11

U.C.MAHESHWARI

body2007
JUDGMENT Maheshwari, J. -- 1. This appeal is directed by the appellant being aggrieved by the judgment dated 9.9.1992 passed by the IInd Additional Sessions Judge, Sagar in Sessions Trial No. 6/92 convicting the appellant for the offence under section 376 read with section 511 of the IPC with a direction to undergo RI for five years. 2. The factual matrix of the case in short is that on dated 10.12.1991, the prosecutrix Meera Bai, aged 11 years, was sleeping in her house all alone as her parents had gone to Sagar in respect of treatment of her mother. The appellant was also sleeping outside of the house in the courtyard of it. In the night, said Lachchhu by opening the door of the house, entered inside and committed rape on the prosecutrix Meera Bai. On returning her parents from Sagar, she mentioned the incident to her mother who further mentioned to her husband. Then other villagers were also informed about it. Subsequent to it, on dated 11.12.1991 at 5 0' clock in the evening, this matter was reported to Police Station Rohatgarh where the offence under section 376 of the IPC was registered against the appellant. The prosecutrix was sent to hospital where her medical examination was carried out and MLC report was prepared. During the course of investigation witnesses were interrogated and the appellant was arrested. The clothes of the prosecutrix were also seized and on medical examination slides of vaginal fluid were also prepared. The same were sent to Forensic Laboratory for chemical examination. On completion of the investigation, the appellant was charge-sheeted for the offence under section 376 of the IPC. 3. The case was committed to the Sessions Court where the charge for the offence under section 376 IPC was framed against the appellant. On denying the same, the trial was held in which prosecution has examined as many as 16 witnesses while no one was examined by the appellant in his defence. At the stage of appreciation of the evidence, the appellant was found guilty for attempt to commit rape and punished for the offence under section 376 read with section 511 of the IPC for which the aforesaid sentence was awarded. The same is under challenged in this appeal. 4. At the stage of appreciation of the evidence, the appellant was found guilty for attempt to commit rape and punished for the offence under section 376 read with section 511 of the IPC for which the aforesaid sentence was awarded. The same is under challenged in this appeal. 4. Shri Abhinav Dubey, learned counsel for the appellant assailed the judgment on the ground that the aforesaid conviction is not based on the evidence available on the record. By referring the deposition of the prosecutrix Meera Bai and her father and mother, namely, Durgan and Rampyari Bai, he said that they have not stated anything against the appellant. On the contrary, they were turned hostile at trial. Inspite it, they have not stated anything against the appellant. By referring the deposition of other witnesses, he said that the circumstances in respect of the alleged offence have not been proved on the record. In the absence of any evidence regarding material ingredients of the alleged offence, appellant could not be held guilty or convicted under the alleged section. With these submissions, he prayed for allowing his appeal. 5.1n response of the aforesaid arguments, Shri Ramesh Shukla, Deputy Government Advocate while supporting the impugned judgment along with the findings regarding conviction and the sentence of the appellant said that the same is based on proper appreciation of the evidence and also is in conformity with the law, it does not require any interference at this stage and prayed for dismissal of this appeal. 6. Having heard the learned counsel, I have carefully examined the record of the trial Court and also perused the impugned judgment. It appears from the FIR Ex. P-1 lodged by the prosecutrix Meera Bai (PW 1) that at that stage the name of the appellant was mentioned in it as culprit of the incident. According to it, the alleged rape was committed by the appellant. It is settled position of the law that the averments of the FIR is not a substantive evidence but it is only an intimation to the police to move its agency for investigation of the offence. But at the stage of trial, the prosecution is duty bound to prove each and every fact beyond reasonable doubt in respect of the alleged offence. But at the stage of trial, the prosecution is duty bound to prove each and every fact beyond reasonable doubt in respect of the alleged offence. On perusing the deposition of examined witnesses, I have not found any material circumstances showing that the alleged incident was committed by the appellant. Even on perusing the deposition of the prosecutrix Meera Bai (PW 1), it is apparent that she has not stated any incriminating thing against the appellant. On the contrary, she positively stated that some person came and committed rape but such person was not the appellant. Although after declaring her hostile, she was cross-examined by the public prosecutor at length, inspite it, no fruitful thing has come on the record in favour of the prosecution. In the same manner, her father Durjan (PW 2) and mother Rampyari (PW 4) have also not stated anything against the appellant and turned hostile. Even, in their cross-examination held by the prosecutor, no incriminating things have come-up on the record against the appellant. Besides this, the other witnesses of the village, namely, Gora Bai (PW 5), Gulab (PW 7), Imrat (PW 11) and Baldeo (PW 12) have also not supported to the case of the prosecution and many of them turned hostile. Accordingly, the evidence either for committing the rape or for attempting to commit rape have not come-up on the record by any source of the evidence. 7. Besides the above, on medical examination of the prosecutrix held hymen was found intact and any kind of injury was not found on her person which creates suspicion about the happening of the incident. 8. It is settled principle of the law that the person could be convicted only for that act which he actually committed and the same is proved against him with cogent and reliable evidence. Merely on account of imagination or assumption and contrary to the record the person like the appellant could not be convicted. 9. In view of the aforesaid discussion, it is apparent that the appellant was convicted only on the basis of imagination and assumption for which there is no foundation in the recorded evidence. Although, the prayer of the appellant was opposed by the counsel for the State but he was also not able to justify the findings of the trial Court holding guilty to the appellant. Although, the prayer of the appellant was opposed by the counsel for the State but he was also not able to justify the findings of the trial Court holding guilty to the appellant. Under such circumstances, the judgment of the trial Court is apparently perverse and contrary to the law and the same is not sustainable. Resultantly, it is liable to be vitiated and set aside. 10. Under the aforesaid premises by allowing this appeal, the appellant is acquitted from the alleged charge of section 376 read with section 511 of the IPC and the judgment of the trial Court and its findings as well as conviction and sentence of the appellant is hereby set aside. His bail bonds are hereby discharged. 11. The appeal is allowed as indicated above.