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Madhya Pradesh High Court · body

2007 DIGILAW 947 (MP)

Lakhan Singh v. State of M. P.

2007-08-30

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence, dated 2.3.2000 passed by Sessions Judge, Shivpuri (M.P.) in Sessions Trial No. 226/98, by which the appellant has been convicted under section 376 (1) of IPC and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 5,000/- with a default stipulation. 2. In brief, the story of the prosecution is that on 5.1.1998 in the early morning at about 4 am, the prosecutrix (PW 1) was sleeping alongwith her children in her house, her husband had gone to the field. Appellant came and pushed the door by which the door was opened. He brought the prosecutrix from the room to the courtyard and threw her on the ground. Then he removed her clothes and committed sexual intercourse with her. When the act was completed, the prosecutrix cried. On hearing her cries, Brajlal (PW 9) came there arid appellant ran away from the spot. Prosecutrix (PW 1) informed all the incidents to Brajlal. In the morning, her husband Natha (PW 2) when came to the house, he informed about. the incident. She alongwith her husband went to the police station and lodged the report at the Police Station Narbar which is Ex. P-2. She was examined by doctor and x-ray was also taken. The report of the prosecutrix is Ex. P-4 which is not positive regarding the commission of rape. After completion of investigation, charge-sheet was filed. The learned trial Court after conclusion of trial and perusing the evidence from the record, found the appellant guilty under section 376 (1) of IPC and convicted him as stated in above para one of this judgment. 3. The main submission of the learned counsel for the appellant is that in this case, the learned trial Court has not appreciated evidence properly. There is an improvement in the statement of the prosecutrix (PW 1) and her husband Natha (PW 2) and her son Raghuveer (PW 3). Further, Braj1al (PW9) who is material witness whose statement was recorded after one month of the incident and the pieces of bangles of the prosecutrix (PW 1) were recovered by R.S. Patsariya (PW 6) SDO (Police) on 15.1.1998 i.e. 10 days after the incident. There was enmity between the complainant and the accused party, therefore, the appellant has falsely been implicated in this case. 4. There was enmity between the complainant and the accused party, therefore, the appellant has falsely been implicated in this case. 4. On the other band, learned Public Prosecutor for the State submits, that from the testimony of the prosecutrix (PW 1), it appears that on the date of incident, appellant committed sexual intercourse against her will. Her son Raghuveer (PW 3) was locked by the appellant so, he could not come out from the room. Therefore, the learned trial Court has rightly convicted the appellant. 5. In the light of submissions made by both the counsel, I have perused the evidence of the prosecutrix (PW 1). The prosecutrix (PW 1) stated that at the time of incident, her son Raghuveer (PW 3) about 15 years age was in the house and apart from her son Raghuveer, her kids were in the house. Her husband had gone to the field. Appellant came and took her from the room to the courtyard; and removed her clothes and committed sexual intercourse with her. He commits act about 10-5 minutes. On hearing the noise, when Brajlal came there, appellant ran away from the spot. She sustained injuries due to broken of her bangles. In the morning, when her husband came, she narrated the incident to him. She alongwith her husband went to the police station and lodged the report which is Ex. P-2. In paras 3, 4 and 5 of her cross-examination, she admits that there was enmity with the appellant and there is also altercation between the brother of the appellant and other relatives. In para 7 of her cross-examination, she deposed that her son Raghuveer (PW 3) was locked by the appellant. But this fact was not narrated in the first information report (Ex. P-2) by the prosecutrix. In para 9, she also told that she also sustained injuries on her both hands and her broken bangles were lying on the courtyard of her house. 6. Raghuveer (PW 3) is son of the prosecutrix, who told that when appellant was taking his mother from the room, he was locked by the appellant, therefore, he could not come out from the room. At that time his father was not at home. At about 5 am in the morning, his father came and unlocked the door. Her mother was outside the house. There is omission of his previous statement Ex. At that time his father was not at home. At about 5 am in the morning, his father came and unlocked the door. Her mother was outside the house. There is omission of his previous statement Ex. 0-1 that the appellant had locked him. But this omission is material omission which was stated by the witness in para 3 of his statement. Natha (PW 2) husband of the Prosecutrix, stated that when he came his house, prosecutrix (PW 1) informed about the incident to him. In his cross-examination, he told that he did not know Nane Shah and Kallu Rathore. While he lodged the report at the police station they were not present. They were not examined by the prosecution. In para 3 of his cross-examination, he also admits that there was enmity with the appellant. 7. Dr. Smt. Anjana Jain (PW 5) examined the prosecutrix (PW 1) on 5.1.1998 at 6 p.m., According to the doctor, no definite opinion about recent sexual intercourse can be given as she is habitual to sexual intercourse. There was no external or internal injury found on her person. The report is Ex. PA. 8. R.S. Patsariya (PW 6) was posted as SDO (Police) at Karera. According to the witness, on 15.1.1998 he reached at the spot at about 2 p.m.. The pieces of bangles were found and seized by him through seizure memo Ex. P-5 and spot map was also prepared which is Ex. P-6. It appears that the pieces of bangles were remained on the spot for about 10 days and no explanation was given why the seizure was made after 10 days of the incident. In para 2 of the statement, he admits that he has taken statement of Brajlal (PW 9) on 4.2.1998 i.e. after one month of the incident. Brajlal (PW 9) was material witness of the case. 9. Brajlal (PW 9) in para 4 deposed that on hearing her cries, he came to the prosecutrix (PW 1). She informed about the incident to him. Thereafter, he returned to his own field. He had not gone to the field of the husband of the prosecutrix after the incident. 10. From the testimony of the prosecutrix, it appears that she had not cried, when appellant took her. She cried when the act was committed. Her son was locked by the appellant, appears to be an improvement. Thereafter, he returned to his own field. He had not gone to the field of the husband of the prosecutrix after the incident. 10. From the testimony of the prosecutrix, it appears that she had not cried, when appellant took her. She cried when the act was committed. Her son was locked by the appellant, appears to be an improvement. Why prosecutrix (PW 1) not called her husband Natha (PW 2) when Brajlal (PW 9) came on the spot immediately after the occurrence, no reason has been given by the prosecutrix. 11. Looking to the overall evidence of the prosecution, it creates doubt about the story of the prosecution. In the facts and circumstances of the case, keeping in view that there was enmity between both the parties and there is an improvement in the statement of the material witness. Thus, the prosecution has failed to establish the guilty beyond reasonable doubt. The benefit of doubt should be given to the appellant. Therefore, the conviction and sentence as recorded by learned trial Court is hereby set aside. The appellant is acquitted of the charge levelled against him. If the amount of fine is realized, it shall be refunded to the appellant. His bail bond shall stand discharged. In the result, the appeal is allowed accordingly. 12. Copy of this judgment be sent to the concerning Court.