Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1333 (MP)

Ballu @ Balram v. State of M. P.

2008-11-17

S.S.DWIVEDI

body2008
JUDGMENT 1. The appellant has preferred this appeal under section 374 (2) of the Code of Criminal Procedure, feeling aggrieved by the judgment of conviction and sentence dated 21.1.2008 passed by First Additional Sessions Judge, Vidisha in Sessions Trial No. 164/07, whereby the appellant-accused has been found guilty under sections 457 and 376 of IPC and sentenced to five years RI with a fine of Rs. 5,000/- and 10 years RI with a fine of Rs. 25,000/-. Both the sentences are ordered to run concurrently. 2. Briefly stated the facts of the case are that it is alleged that on 7.5.2007 at about 8:30 p.m. the complainant-prosecutrix together with her father went to the Police Station at Pathari, district Vidisha, and lodged the report against the appellant-accused for commission of offence of rape on her on the previous night, on which basis the police had registered a case under sections 457 and 376 IPC, sent the complainant-prosecutrix for medical examination to the hospital where Dr. (Smt.) S. Lal (PW 9) examined the complainant-prosecutrix and after examination proved the report Ex. P-6; also prepared slides of vaginal discharge; seized the undergarments of the complainant-prosecutrix and after sealing it handed over to the Police Constable for its chemical examination by the Forensic Science Laboratory (FSL) and proved the report Ex. P-6. After due investigation the charge sheet had been filed. 3. The learned trial Court after due appreciation of the evidence on record held the appellant-accused guilty for the offence punishable under sections 457 and 376 IPC and sentenced him as stated herein above; feeling aggrieved by which the appellant has preferred this appeal. 4. Having heard the learned counsel for the appellant as well as the learned Public Prosecutor appearing for the State and perused the record. 5. It is submitted by the counsel for the appellant that there is no corroboration about the incident of rape as alleged by the complainant-prosecutrix (PW 5); no medical support is also available. Similarly as per FSL examination report (Ex. P-17) also the chemical examiner has also not detected any semen in the vaginal discharge and top garment of the complainant-prosecutrix. It is submitted by the counsel for the appellant that there is no corroboration about the incident of rape as alleged by the complainant-prosecutrix (PW 5); no medical support is also available. Similarly as per FSL examination report (Ex. P-17) also the chemical examiner has also not detected any semen in the vaginal discharge and top garment of the complainant-prosecutrix. Similarly the material witnesses, namely, Laxman (PW 2), Pappu (PW 3), Kaptan Singh (PW 8) and Santram (PW 10) had also not supported that any such type of incident had taken place in the house belonging to the complainant-prosecutrix, therefore, independent support about the prosecution story is also not on record. The complainant herself admitted that there is enmity in between the complainant and the accused party due to some Panchayat election also. The FIR had also been lodged after few delay and under these circumstances the learned trial Court has wrongly believed the prosecution story and wrongly held the appellant-accused guilty for the aforesaid offence, therefore, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. Learned Public Prosecutor for the State supported the impugned judgment and submits that in the offence under section 376 the sole testimony of the complainant-prosecutrix can be believed and no other corroboration is necessary whereas in the present case the corroboration by the statement of the mother of the prosecutrix and that of the father of the prosecutrix is also on record and learned trial Court has rightly held the appellant-accused guilty for the aforesaid offence and no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court. Hence, prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellant the prosecution had examined the complainant-prosecutrix (PW 5), who stated that the appellant-accused entered into the room where she was sleeping and thereafter removed her undergarment, lying on her and committed rape on her. She tried to make an alarm but the appellant-accused had shut her mouth, therefore, she could not resist. When she stated that she would complain to her parents, at that time the accused assured her that he will pay Rs. 20/- to her for not disclosing the incident to anybody; thereafter she went to Pathari Police Station with her father and lodged the report Ex. P-5. When she stated that she would complain to her parents, at that time the accused assured her that he will pay Rs. 20/- to her for not disclosing the incident to anybody; thereafter she went to Pathari Police Station with her father and lodged the report Ex. P-5. The police sent her for medical examination. In detailed cross-examination she specifically admitted that there is some dispute in between her mother, who was elected as Sarpanch of the Village and the mother of the accused. There is also dispute with regard to the sale and purchase of the house belonging to the accused because her mother also tried to purchase the house, that has been admitted in para 6 of the statement. Similarly in para 8 of cross-examination of the complainant-prosecutrix she stated that in the night itself she had not disclosed the incident to her mother but next day in the morning at 6 a.m. she had narrated the incident to her mother and thereafter to Village Chowkidar. That conduct of the complainant-prosecutrix also appears to be doubtful because if any such act of offence of rape is committed by the accused then the normal course of the complainant-prosecutrix would be to immediately disclose the incident to her mother, who was also sleeping in the next room of the house. Similarly the complainant-prosecutrix also admitted the fact that due to this act some blood was oozing and her clothes were smeared with blood and the clothes were seized by the doctor concerned but before the trial Court no such seized clothes were produced by the prosecution, which were found to be stained with blood. 8. It is pertinent to note that FSL report has been produced by the prosecution, which is Ex. P-17 and as per this report, the slides of vaginal discharge marked as 'A' and cloth of prosecutrix marked as 'B' were examined by the analyst and he found no sperm on these articles as per report Ex. P-17, which also disproves the statement of the complainant-prosecutrix that the appellant-accused has committed any rape on her in the night of the incident concerned. 9. Similarly, the medical evidence Dr. P-17, which also disproves the statement of the complainant-prosecutrix that the appellant-accused has committed any rape on her in the night of the incident concerned. 9. Similarly, the medical evidence Dr. (Smt.) S. Lal (PW 9) has also not found any external injury on the body of the complainant-prosecutrix, only found some redness on the vaginal part but this redness is due to the act of commission of rape is also not proved on the basis of her statement whereas as per FSL report Ex. P-17, no sperm was found on the slide prepared from the vaginal discharge. Therefore, there is no medical support also available to the effect that the act of commission of offence of rape has been committed by the accused. 10. The independent witnesses examined by the prosecution are Laxman (PW 2), Pappu (PW 3), Kaptan Singh (PW 8) and Santram (PW 10) had also not supported the prosecution version that the complainant-prosecutrix or her mother or father stated to them about the commission of offence of rape by the accused on the prosecutrix. All these witnesses had been declared hostile by the prosecution. 11. Now there remains the statements of Awadh Rani (PW 6) the mother of the prosecutrix, and Makhan Singh (PW 7) the father of the prosecutrix. In para 7 the witness Awadh Rani (PW 6) also admitted that in the night itself her daughter had not stated anything about the commission of offence of rape by the accused. As discussed hereinabove this also shows doubtful conduct of the complainant-prosecutrix in this incident. She also stated that in the same night there was some dispute in between her and mother of the accused. Makhan Singh (PW 7) also admitted the fact that in the night itself his daughter had not stated anything against the appellant for commission of offence concerned. 12. On re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove beyond reasonable doubt that the appellant-accused had entered into the house of the complainant and committed the offence of rape on the prosecutrix. Therefore, the finding of conviction and sentence recorded by the trial Court appears to be erroneous and liable to be set aside. 13. Resultantly, the appeal preferred by the appellant is allowed and the impugned judgment of conviction and sentence passed by the trial Court is set aside. Therefore, the finding of conviction and sentence recorded by the trial Court appears to be erroneous and liable to be set aside. 13. Resultantly, the appeal preferred by the appellant is allowed and the impugned judgment of conviction and sentence passed by the trial Court is set aside. The appellant is in jail, he be released immediately, if not required to be detained in any other case. The fine amount, if any deposited by him be refunded to him.