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Madhya Pradesh High Court · body

2008 DIGILAW 904 (MP)

Rakesh v. State of M. P.

2008-07-23

S.L.KOCHAR

body2008
JUDGMENT (Oral) 1. The appellant named above being aggrieved by the judgment dated 25.3.2008 passed by the learned XVI Additional Sessions Judge, Indore in ST No. 15/08, thereby convicting him under section 376 of the Indian Penal Code and sentencing to undergo RI for seven years and to pay a fine of Rs. 5,000/-, in default of payment of fine, to suffer additional RI for six months, has preferred this appeal under section 374 of the Code of CrPC. 2. Briefly stated, the prosecution case as unfolded before the trial Court is that on 22.9.2007 in the evening at 4:30 p.m., the prosecutrix aged 15 years, daughter of the complainant Manohar had gone to answer the call of nature behind the godown of one Paw an Agrawal situated on the back side of the house of the complainant Manohar. At that moment Manohar overheard the outcry of his daughter and he along with witness Sanjay reached behind the godown and saw that the watchman of the godown, the appellant was committing rape with the prosecutrix who was trying to get herself released from his clutches. Complainant Manohar raised alarm attracting the inhabitants of that area and appellant was caught on the spot itself. The prosecutrix disclosed about the incident to the persons assembled there. The appellant was brought by the complainant and Sanjay Verma, brother of the prosecutrix to Police Station Lasudiya where Manohar lodged the report Ex. P-l. Prosecutrix was sent for medical examination to M. Y. Hospital, Indore and examined by PW 4 Dr. Bharti Dwivedi who issued medical report Ex. P-4. The appellant was also arrested and was sent for medical examination and examined by PW 5 Dr. Hemant Kumar Dwivedi. His medical report is Ex. P-9. On due investigation, appellant was charge-sheeted for the offence punishable under sections 376 and 506 of the Indian Penal Code. 3. Appellant denied the charges and pleaded his false implication. He did not examine any witness in defence. Learned trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the appellant as mentioned herein-above. 4. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. 5. The star prosecution witness PW 1 Manohar, father of the prosecutrix has turned hostile. 4. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. 5. The star prosecution witness PW 1 Manohar, father of the prosecutrix has turned hostile. In his statement, nothing substantial has come in favour of the prosecution. He has denied the contents of the' First Information Report as well as the contents of the documents from Ex. P-2 to Ex. P-5. PW2 Sanjay, the brother of the prosecutrix, has also turned hostile and in cross-examination, he denied the contents of his contiguous police-statement Ex. P-7. PW 3, the prosecutrix has also turned hostile. I But in her cross-examination by A.G.P. in para 5, she has admitted about removal of her clothes by the appellant and commission of bad act with her, but in para 12, learned trial Court put a specific question to clarify the ambiguity occurred in her examination-in-chief as well as in cross-examination and in answer, she deposed that the appellant did not remove her clothes. In cross-examination by the defence, she has denied giving of any statement to police as well as the statement Ex. P-13 recorded as per provision under section 164 of the Code of Criminal Procedure by the learned Magistrate. The prosecution has not examined other witnesses who had reached on the spot and saw the appellant with the prosecutrix as well as disclosure by the prosecutrix to them about the incident. The remaining witnesses are for medical examination of the prosecutrix and the appellant as well as in regard to investigation. 6. Learned trial Court, in para 14 of the impugned judgment has held that in cross-examination by the learned A.G.P. the prosecutrix supported the prosecution case and the same is corroborating the prosecution case. In the considered opinion of this Court, learned trial Court has failed to consider that the statement recorded under section 164 of the Code of Criminal Procedure has been completely disowned by the prosecutrix Therefore, the same cannot be used for supporting the prosecution case. In the considered opinion of this Court, learned trial Court has failed to consider that the statement recorded under section 164 of the Code of Criminal Procedure has been completely disowned by the prosecutrix Therefore, the same cannot be used for supporting the prosecution case. Learned trial Court has also failed to consider that the prosecutrix, in answer to the Court-question, denied her earlier statement given during the course of cross-examination by the A.G.P. The statement of the witness/witnesses recorded under section 164 of the Code of Criminal Procedure during pendency of investigation, can be used only for the purposes of contradiction and corroboration to the statement of the said witness/witnesses given in Court. This statement cannot be used as substantive piece of evidence. In the instant case, since the prosecutrix has denied the entire prosecution story and turned hostile, therefore, the question would not arise for seeking corroboration to her statement Ex. P-13 recorded under section 164 of the Criminal Procedure Code especially when she has disowned the entire statement. {See State of Delhi v. Shri Ram Lohiya [ AIR 1960 SC 490 ], Gurjant Singh v. State of Rajasthan [ AIR 1970 SC 1305 ], Ramkishan Singh v. Harmit Kaur [AIR 1973 SC 468] and Dhanabai and another v. State of Tamil Nadu [ AIR 1980 SC 628 ]}. 7. For the foregoing factual and legal position and discussion, this appeal deserves to be and is hereby allowed. The conviction and sentence of the appellant as passed by the learned trial Court are hereby set aside. The trial Court is directed to release the appellant forthwith unless required in any other criminal case. Office is directed to send a copy of this judgment to the trial Court along with its record immediately for compliance.