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2007 DIGILAW 860 (MP)

Seth @ Rajendra Prasad v. State of M. P.

2007-08-07

S.C.SINHO

body2007
JUDGMENT 1. Additional Sessions Judge, Harda of the Court of Sessions Judge, Hoshangabad in Sessions Trial No. 156/91 vide impugned judgment dated 10.2.1993 recording conviction of appellant under section 376 of IPC sentenced him to undergo RI for a period of 7 years and to pay fine of Rs. 1,000/- in default to suffer further RI for a period of 6 months. Being aggrieved, appellant has preferred this appeal under section 374 (2) of the 2. Prosecutrix (PW 2), a married lady, aged about 22 years on 25.3.1991 at 18:05 p.m. lodged the FIR (Exhibit P-6) at Police Station Handiya to the effect that on the same day in the noon at about 11.00 hours she had been to canal for bringing water. Meanwhile, appellant caught hold her from backside and forcibly removed her sari, putting her both legs on his shoulder committed rape with her. Meanwhile, her father Dadu, brothers Motilal, Saligram and Mangal Singh reached on the spot. Appellant saw them and ran away from the spot. She narrated the whole incident to her father and brothers and on the same day lodged the FIR (Exhibit P-6) which was written by Shri P.N. Singh (PW 5). Recording the report, prosecutrix (PW 2) was sent for medical examination. Dr. Smt. Abha Jesani (PW 1) examined her and as per the medical examination report (Exhibit P-5), no marks of violence on any part of her body were noticed. She opined that being a married lady, prosecutrix was habitual of sexual intercourse therefore, no opinion as to alleged rape has been recorded by Dr. Smt. Abha Jesani. Completing the investigation, appellant has been charge-sheeted under section 376 of IPC. 3. Appellant abjured the guilt. However, the Court below relying upon the statements of prosecutrix (PW 2), Dadu (PW 3) and Mangal Singh (PW 4) held the appellant guilty under section 376 of IPC and sentenced him for the period said above. The sole testimony of the prosecutrix (PW 2) if reliable, may be accepted to record the guilt of accused of sexual assault. However, if the testimony does not stand to credibility test, unless corroborated by some other piece of evidence on record, must not be made the basis for conviction of accused of facing charge of sexual assault. 4. The sole testimony of the prosecutrix (PW 2) if reliable, may be accepted to record the guilt of accused of sexual assault. However, if the testimony does not stand to credibility test, unless corroborated by some other piece of evidence on record, must not be made the basis for conviction of accused of facing charge of sexual assault. 4. In this appeal, Shri A. Usmani learned counsel for the appellant has contended that the prosecutrix is a major married lady and if her evidence is considered in a proper perspective the only interference which could be drawn is that she was a consenting party. 5. On the other hand, it has been contended by Shri Amod Gupta, Panel Lawyer appearing for State-respondent that the trial Court, after scanning the entire evidence and the surrounding circumstances, came to hold that the appellant did commit the offence under section 376 of the IPC and accordingly he was rightly convicted by the trial Court. The judgment of the trial Court is based on cogent reasons, and hence there is no merit in the appeal and the same be dismissed. 6. PW 2 is the prosecutrix, according to her statement on the date of incident while she was going for bringing water from the canal, the appellant came and hugged her. Thereafter, he threw her on the ground and completely undressed her. He took off all her clothes which she was wearing and appellant also completely undressed himself. The appellant put her both legs on his shoulder and committed foreply and rape for about an hour. When prosecutrix did not return, her father Dadu (PW 3) and brother Mangal Singh (PW 4) came there. Appellant saw them, fled away. After the departure of appellant, the prosecutrix narrated the whole story to her father and brothers and lodged the FIR (Exhibit P-6) which was written by P.N. Singh (PW 5). 7. In the cross-examination, prosecutrix (PW 2) has stated that before rape she was completely undressed by the appellant. She has further stated that while she was lying on the ground, appellant completely undressed himself. thereafter, on the ground rape was committed with her. She has stated that when they were in compromising position and were cohabiting his father Dadu (PW 3), brother Mangal Singh (PW 4) arrived at the spot and on their arrival appellant fled away. She has further stated that while she was lying on the ground, appellant completely undressed himself. thereafter, on the ground rape was committed with her. She has stated that when they were in compromising position and were cohabiting his father Dadu (PW 3), brother Mangal Singh (PW 4) arrived at the spot and on their arrival appellant fled away. She has further stated that when co-habitation was taken place, her both legs were on appellant's shoulder. The other important witness is Dadu (PW 3) and Mangal Singh (PW 1) who have stated that on the date of incident she went to bring water from the canal and when she did not return, they went near canal and noticed that prosecutrix was lying on the ground and was in compromising position with the appellant. On seeing these witnesses the appellant fled away. Therefore, prosecutrix narrated that appellant committed rape with her and lodged the FIR Ex. P-6 at P.S. Handiya. 8. On going through the testimony of these above two said eye-witnesses and prosecutrix the only interference which could be gathered is that the prosecutrix was a consenting party. It has come in her own evidence that while they were in compromising position and were cohabiting her both legs were lying on the shoulder of appellant. She has also stated that before she was thrown on the ground, the appellant completely undressed her and after that appellant also undressed himself but she did not refrain. It is only when they were seen by Dadu (PW 3) and Mangal Singh (PW 4). The only option left to the prosecutrix was to present herself to be a viction of rape. She did not put any resistance. Doctor did not find any injury on her person. No injury was found in her MLC report Exhibit P-5 by Dr. Smt. Abha Jesani (PW 1). 9. It has been held in the case of Pratap Mishra and others v. State of Orissa [ AIR 1977 SC 1307 ] that the absence of any injuries either on the appellant or on the prosecutrix clearly shows that she did not put up any resistance to the alleged rape committed by the appellant. The only irresistible inference there from can be gathered that she was a consenting party and that was re-inforced by the other circumstances in the case. The only irresistible inference there from can be gathered that she was a consenting party and that was re-inforced by the other circumstances in the case. Otherwise also, under ordinary circumstances it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses, against her will unless she has been taken unawares, thrown accidentally on the ground and placed in such a position as to render her completely helpless. 10. I have no hesitation to hold that prosecutrix (PW 2) who was a major lady of 22 years on the date of incident mother of a child was a consenting party and therefore. no offence is made out against the appellant as has been held in Sitaram Rameshwar Kelvat v. State of M.P. [ 1996 JLJ 456 ] 11. In the result, the ape pal succeeds and is hereby allowed. The judgment of conviction of the appellant under section 376, IPC is hereby set aside and he is acquitted from the said charge. The appellant is on bail. His bail bonds stand cancelled.