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Madhya Pradesh High Court · body

2008 DIGILAW 921 (MP)

SURESH v. STATE OF M. P.

2008-07-28

SUSHMA SHRIVASTAVA

body2008
Judgment SUSHMA SHRIVASTAVA, J. ( 1. ) Appellant has preferred this appeal against his conviction and order of sentence passed by Session Judge, Betul in S.T. No.18/ 94, decided on 2.5.94. ( 2. ) Appellant has been convicted under Section 376 of IPC and sentenced to rigorous imprisonment for seven years by the impugned judgment. ( 3. ) According to prosecution, on 24.12.93, prosecutrix was going to Betul by bus alongwith her husband in search of work. Prosecutrix and her husband had to get down from the bus, as her husband had vomits. When he got better, both prosecutrix and her husband boarded the milk van driven by the appellant for reaching their destination. On way at village Theska, appellant offered them food at his nearby house and also brought food. After they finished their food, appellant asked the husband of the prosecutrix to go and sleep in the bus, but did not allow the prosecutrix to go with her husband. After her husband had gone to sleep in the bus, appellant forcibly committed sexual intercourse with the prosecutrix. Prosecutrix narrated the whole incident to her husband when she met him in the morning and lodged the FIR at Police Station, Jhallar. On the basis of her report, an offence was registered against the appellant and was investigated. Prosecutrix was sent for medical examination. On the arrest of the appellant, he was also sent for medical examination. The petticoat of the prosecutrix and vaginal slide prepared during her medical examination as well as underwear of the appellant and his semen slide were seized by the Police and were sent for forensic examination. After due investigation, appellant was prosecuted under Section 376 of IPC and was put to trial. ( 4. ) Appellant abjured the guilt and pleaded false implication. ( 5. ) Learned Session Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty of committing rape with the prosecutrix, convicted and sentenced him under Section 376 of IPC as aforesaid by the impugned judgment. Hence, this appeal. ( 6. ) Appeal is preferred mainly on the ground that the trial court gravely erred in convicting the appellant under Section 376 of IPC without there being evidence of the prosecutrix on record or any other material against him. ( 7. ) Perused the evidence on record. Hence, this appeal. ( 6. ) Appeal is preferred mainly on the ground that the trial court gravely erred in convicting the appellant under Section 376 of IPC without there being evidence of the prosecutrix on record or any other material against him. ( 7. ) Perused the evidence on record. Admittedly, the prosecutrix and her husband were not examined, as they could not be found and served after the alleged incident of rape. The trial court convicted the appellant on the basis of the evidence of the conductor of Matador, namely, Aran (P.W-3) coupled with the averments made in the FIR (Ex.P-8), which was recorded by A.S.I. M.L. Gathe (P.W-5). However, P.W-3 Arun himself was not a witness to the alleged incident of rape. P.W-3 Aran simply deposed in his evidence that a husband and his wife had boarded the Matador of the appellant near village Jhallar and they had slept in his house at village Theska and sometime thereafter they were quarrelling and the husband was complaining that appellant had committed rape with his wife. However, P.W- 3 Arun nowhere stated in his evidence that he heard any screams of the prosecutrix or she ever complained to him of rape by the appellant. Rather he clearly deposed in his cross-examination that when the husband was complaining of rape with his wife by the appellant, his wife had kept mum and she was asleep. ( 8. ) There was no other evidence on record against the appellant regarding commission of rape. Dr. Smt. Nisha Badhve (P.W-2), who examined the prosecutrix, did not find any injuries or signs of struggle on her body. She did not give any opinion about commission of rape with her. Although, as per evidence of M.L. Gathe (P.W- 5), petticoat of the prosecutrix was seized, but there was no report of chemical examiner on record to indicate that any sperms or semen stains were found on her petticoat. ( 9. ) Appellant, after his arrest, was also sent for medical examination by A.S.I. M.L. Gathe (P.W-5), but there was no medical evidence or any material on record to indicate that any scratch marks or any other sign of commission of rape were found on his body. ( 10. ( 9. ) Appellant, after his arrest, was also sent for medical examination by A.S.I. M.L. Gathe (P.W-5), but there was no medical evidence or any material on record to indicate that any scratch marks or any other sign of commission of rape were found on his body. ( 10. ) In the aforesaid circumstances and in absence of the evidence of prosecutrix, who was an adult married woman, the mere hearsay statement of P.W-3 Arun that the husband was complaining of rape with his wife by the appellant, was not sufficient to establish that appellant committed rape with her. Similarly, the statement of P.W-1 Ramprasad that the Police personnel informed him of the commission of rape by the appellant, did not have any evidentiary value. ( 11. ) Needless to emphasize that the FIR by itself is also not a substantive piece of evidence. In absence of evidence of the prosecutrix, the averments made in the FIR (Ex.P-8) could not be acted upon as the evidence of commission of rape by the appellant with her. A.S.I. M.L. Gathe (P.W-5), who recorded the FIR (Ex.P-8), also did not depose that the FIR was recorded as per version of the prosecutrix. ( 12. ) In fact, there was no legal evidence on record, either direct or circumstantial, to hold the appellant guilty for commission of offence of rape with the prosecutrix. Even in the case cited and relied upon by the trial court reported in AIR 1992 Supreme Court page 2043 it was held that there must be some other evidence available for proving the criminal act of the accused, if the victim is dead and could not be examined. However, in the instant case, there was no legal evidence on record to hold that appellant committed rape with the prosecutrix. ( 13. ) Thus, the trial court gravely erred in convicting the appellant under Section 376 of IPC without any legal evidence on record. ( 14. ) Appeal is, therefore, allowed. The conviction of appellant and sentence passed on him under Section 376 of IPC are set aside. Appellant is acquitted of the charge. Appellant is on bail. His bail bonds shall stand discharged. Appeal allowed.