Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1282 (MP)

Poonam Chand v. State of M. P.

2009-11-17

N.K.MODY

body2009
Judgment ( 1. ) Being aggrieved by the judgment dated 28/2/2009 passed by Addl. Sessions Judge, Bagli, Dist. Dewas in S.T.No. 221/2008, whereby appellant was convicted for the offence punishable under section 376 (1) IPC for a period of seven years with fine of Rs. 500/-, present appeal has been filed. ( 2. ) In short case of the prosecution was that on 20.5.2008 at about 11.30 p.m. when complainant/prosecutrix Reshambai was sleeping in yard of her house (Tapri) at that time somebody caught her legs. It was alleged upon identifying, the prosecutrix found that it was the appellant Poonamchand. Upon asking what he is doing appellant shut her mouth by poring the saree and raped her. It was alleged that upon her resistence and shouting appellant ran away. It was alleged that Mukesh also saw the appellant when he was running. It was also alleged that because of non-availability of the transport the FIR could not be lodged immediately after the incident, hence there was delay. Upor complaint the case was registered. After investigation charge sheet was filed against the appellant and after framing of charges and also recording of the evidence appellant was convicted as stated above, against which present appeal has been filed. ( 3. ) Learned counsel for the appellant argued at length and submits that appellant has convicted illegally while appellant has not committed any offence. Learned counsel further submits that the learned Court below committed error in not properly appreciating the evidence, which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering material omission and contradictions appearing in the testimony of the prosecution witnesses. Learned couonsel further submits that appellant was 30 years of age while the prosecutrix was aged 40 years at the time of alleged incident. It is submitted that case of the prosecution was not supported by medical evidence. No FSL report was filed by the prosecution. It is submitted that Rekhabai is the daughter of the prosecutrix, who was examined as PW-7 and, who has also alleged to be the eye witness, which is impossible. It is submitted that the prosecutrix is also having the another daughter Laxmibai, who was examined as DW-1, who has stated on oath that appellant was falsely implicated. It is submitted that Rekhabai is the daughter of the prosecutrix, who was examined as PW-7 and, who has also alleged to be the eye witness, which is impossible. It is submitted that the prosecutrix is also having the another daughter Laxmibai, who was examined as DW-1, who has stated on oath that appellant was falsely implicated. On the aforesaid grounds it is prayed that appeal filed by the appellant deserves to be allowed and the impugned judgment be set aside. ( 4. ) In alternative learned counsel for the appellant submits that appellant is in jail w.e.f. 26.7.2008 continuously. It is submitted that the jail sentence be reduced as undergone and the fine amount be enhanced reasonably. ( 5. ) Learned counsel for the State submits that after due appreciation of evidence learned Court below has found the appellant guilty for the aforesaid offence. Hence no interference is called for in the findings recorded by the learned trial Court. ( 6. ) From perusal of the record, it appears that to prove the offence prosecution has filed documents Ex.P/1 to P/ll and also examined PW-1 Ghasiram, PW-2 Mohan Singh, PW-3 Nirmal, PW-4 Ramcharan, PW-5 Reshambai, PW-6 Mukesh, PW-7 Rekhabai, PW-8 C.L. Verma, PW-9 Dr. G.K. Chouhan, PW-10 Dr. Charu Tiwari and PW-11 Vijay Soni. ( 7. ) From perusal of record, it appears that some of the important aspects of the case were not taken into consideration by the learned trial Court while convicting the appellant for the alleged offence which are as under:- (A) Ex. P/12 is the MLC report which has been proved by PW/10 Dr. Charu Tiwari. In the MLC Ex. P/12 it is mentioned that no definite opinion can be given regarding the rape. In her statement PW/12 Dr. Charu Tiwari has stated that prosecutrix was mother of three children, out of which two were daughters and one was son. It was also found that prosecutrix was operated for tubectomy. So far as injuries are concerned, she has stated that there was swelling over right temporal region. Apart from that there was no external injury sustained by the prosecutrix and her age was 40 years approximately. She has also stated that there is no symptoms on the basis of which it can be said that she was raped. Dr. So far as injuries are concerned, she has stated that there was swelling over right temporal region. Apart from that there was no external injury sustained by the prosecutrix and her age was 40 years approximately. She has also stated that there is no symptoms on the basis of which it can be said that she was raped. Dr. Charu Tiwari has further stated that she prepared two vaginal swaps for examination and handed over to the police constable for examination but no evidence is placed about the results of examination of the veginal swaps. (B) As per the case of prosecutirx she was raped at her residence at about 11.30 p.m. on 20/5/2008 while FIR was lodged on 21/5/2008 at about 10.15 a.m. Thus, there is a delay in lodging the FIR of 10 hours of which no satisfactory explanation was given by prosecutrix. (C) Reshambai prosecutrix was examined as PW/5 who has stated that her daughter/Rekha was also sleeping with the prosecutrix. She has further stated that Rekha was slept by the appellant. She has further stated that thereafter appellant put Rekha in a room and locked the door from out side and thereafter rape was committed by appellant. Prosecutrix has further stated that she sustained injuries on external part of her body. In her cross-examination she has also stated that she also sustained head injury and also injuries on her cheek and other parts of the body. This part of the statement of prosecutrix has not been corroborated by medical evidence. (D) Prosecutrix also admitted that Laxmibai is the daughter of prosecutrix. She has also admitted that the marriage of Laxmibai was solemnized with Umesh who happens to be the brother-in-law of appellant. She has also admitted that Laxmibai is residing with Umesh since last 2-3 years. A suggestion was given to her that the prosecutrix wanted to separate Laxmi from the company of Umesh for which she did not agree, but the same was denied by the prosecutrix. (E) Prosecutrix has also stated in her cross-examination that her husband died because of falling down in the well. She has denied that she was prosecuted in a murder case of Kailash. In para 12 of her statement she has admitted that police station is sitatued nearby her house. (E) Prosecutrix has also stated in her cross-examination that her husband died because of falling down in the well. She has denied that she was prosecuted in a murder case of Kailash. In para 12 of her statement she has admitted that police station is sitatued nearby her house. She has also admitted that there is transformer of electricity department nearby the house of prosecutrix where the employees of electricity department are residing. Reshambai also admitted that there are number of small huts near to her house out of which one of the hut belongs to Rajaram Thakur. It is surprising that inspite of shouting by the prosecutrix and her daughter Rekha, no one come to her rescue. (F) Prosecutrix has further stated in her cross-examination that she narrated the incident to Rajaram on the next day morning after the incident, but neither statement of Rajaram was recorded by the investigating officer, nor he was produced in Court as prosecution witness. (G) Rekha PW/7 young married daughter has stated that at the time when her mother was raped she was present. She has further stated that appellant put her in the room and saw when appellant was raping her mother. She has further stated that she did not inform about the incident to the neighbourers. She has also stated that there is no enmity with the neighboured. Statement of Rekha PW/7 who is a young married girl is completely unbelievable and is sufficient to hold that in fact incident has taken place. (H) Laxmibai who is none else but the daughter of prosecutrix was examined by appellant as defence witness who has stated that Umesh is her husband. She has further stated that, she lost her father in her childhood and after his death her mother started to live with Badri as wife. She has also stated that she knows the appellant who is her maternal uncle in relation, She has further stated that her husband Umesh is the brother-in- law of appellant. She has also stated that sister of her husband has been married to Lalsingh. She has also stated that Lalsmgh is son of Reshambai/prosecutrix and in relation he is brother of deponent. She has also stated that divorce has taken place between Lachchi, sister of Umesh who happens to be her husband and Lalsingh who happens to be her brother in relation. She has also stated that Lalsmgh is son of Reshambai/prosecutrix and in relation he is brother of deponent. She has also stated that divorce has taken place between Lachchi, sister of Umesh who happens to be her husband and Lalsingh who happens to be her brother in relation. She has also stated that because of this reason her mother/prosecutrix wants that she should not live in the company of her husband/Umesh and she should also remarry somewhere else. She has also, stated that the prosecutrix threatened that in case she will not come back after leaving her husband/Umesh, then she will involve appellant in some crimianl case. She has also stated that the prosecutrix also attempted to assault the deponent. She has also stated that her mother who is prosecutrix is not a lady of good character. She has also stated that her mother has lodged the complaint against number of persons of the village. She has also stated her mother has been ousted from the society. ( 8. ) Keeping in view the statement of Laxmibai, daughter of prosecutrix and also keeping in view the medical evidence and the material contradictions in the evidence adduced by the prosecution and also after going through the evidence of the prosecutrix when read as a whole which is full of discrepancies, it does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. ( 9. ) In view of this, this Court is satisfied that the evidence does not warrant a finding of guilt at all and the learned trial Court erred in returning a finding of guilt. Thus, the appeal filed by the appellant is allowed and the impugned judgment whereby the appellant was convicted is set-aside. Appellant stands acquitted. Appellant be released forthwith if not required in any other case.