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Madhya Pradesh High Court · body

2009 DIGILAW 570 (MP)

KANA @ KANAIYALAL s/o BHERULAL v. STATE OF M. P.

2009-04-29

N.K.MODY

body2009
JUDGMENT : 1. Being aggrieved by the judgment dated 16-1-2009 passed by Special Judge, SC and ST (Prevention of Atrocities) Act, Ujjain in Special Sessions Case No. 32/2008 whereby the appellant was convicted for the offence punishable under section 376(1) of Indian Penal Code for a period of 7 years imprisonment with fine of Rs. 25,000/- in default further sentence of 1 year imprisonment, the present appeal has been filed. 2. In short case of the prosecution was that on 10-2-2008 prosecutrix went to the field of Baraji Rajput situated at village-Baloda Lakha to meet out the natural call, at that time, the prosecutrix was caught hold by appellant and was raped. Further case of the prosecution was that upon her shouting Nirmalabai mother of the prosecutrix came on the spot and pelted stones on the appellant. It was alleged that upon this appellant ran away. It was alleged that at that time other persons also came on the spot and saw the appellant who was running. The FIR was lodged at Police Station-Bhatapchalana and prosecutrix was sent for medical examination. After investigation the challan was filed. After framing of charges and recording of evidence, appellant was convicted against which the present appeal has been filed. 3. Learned counsel for the appellant submits that appellant was convicted illegally while appellant has not committed any offence. It is submitted 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 omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 4. In alternative it is submitted that appellant was in jail from the date of offence i.e. 10-2-2008. It is submitted that looking to the nature of offence and substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced. 5. Learned counsel for respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. 5. Learned counsel for respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed. 6. From perusal of record, it is evident that to prove the case prosecution has filed the documents Ex.P/1 to P/15 and has also examined PW/1 Dr. Babita Mathur, PW/2 Sitabai, PW/3 Dr. Ramesh Chandra Tiwari, PW/4 Dr. Rajendra Upalawadia, PW/5 Shyam Das Vaishnav, PW/6 Rajendra Garwal, PW/7 Anita, PW/8 Nirmalabai and PW/9 Mahendra Singh Gour. PW/7 Anita, the victim has stated that on 10-2-2008 at about 01.00 PM in the mid-day she was raped. It is stated that at that time after removing out the Salwar and Panty when she was trying to sit for natural call, she was caught by the appellant for doing the wrong work. Prosecutrix has further stated that her age is 16 years and she has studied upto 5th standard at Girl's School at Village-Balodalakha. Since it was stated by the prosecutrix that wrong work was done by the appellant, therefore, there was a Court question to the effect that what does she means by wrong work. In answer the prosecutrix stated that she will not be in a position to answer and the prosecutrix was weeping. She has also stated that upon her shouting her mother Nirmalabai came to her rescue. She has also stated that Bhimsingh, Sitabai and daughter-in-law of Premsingh also came on spot. Bhimsingh and daughter-in-law of Premsingh were not examined. Even their statements were not recorded by the prosecution during investigation. 7. Sitabai was examined by the prosecution as PW/2 who has not supported the case of the prosecution. On the contrary, she has stated that she has not given any statement to the Investigating Officer. She has further stated that at that time when the Investigating Officer came she has stated that she cannot give false statement. 8. To prove the age of the prosecutrix Shyam Das Vaishnav, Head-master of Primary Girls' School was examined as PW/5 and has stated that as per the record date of birth of the victim was 10-2-1993. This statement was based on the scroll register which is marked as Ex.P/6. 8. To prove the age of the prosecutrix Shyam Das Vaishnav, Head-master of Primary Girls' School was examined as PW/5 and has stated that as per the record date of birth of the victim was 10-2-1993. This statement was based on the scroll register which is marked as Ex.P/6. PW/5 has stated that in spite of search no document was found in the record in support of entry made in the scroll register Ex.P/6. He has further stated that on 6-9-2000 when the victim was admitted in the school, he was not posted in the said school. 9. The victim has stated in her statement that the appellant has done the wrong work with her but she has not stated that what wrong work was done with her by the appellant. It is true that there is a note of Presiding Officer to the effect that upon asking she was weeping but in the cross-examination after setling down again she has stated that she will not tell what wrong work was done by the appellant with her at that time, also again the Presiding Officer has noted that in spite of repeatedly asking the prosecutrix is not giving the reply. 10. So far as age of the prosecutrix is concerned, she has admitted that her age is equal to Anita, daughter of Ramchand who is married and is also having a daughter. She has further stated that Anita was her classmate. Nirmalabai, mother of the prosecutrix was also examined as PW/8 who has also stated that Anita, daughter of Ramchand is equal in age of the prosecutrix. Nirmalabai has also admitted that her marriage took place when she was aged 13-14 years. The age of Nirmalabai at the time of evidence which was recorded on 28-5-2008 was 40 years, meaning thereby the marriage of Nirmalabai took place before 26 years i.e. somewhere in the year 1982. In para 10 of her statement, she has also stated that the birth of Anita took place after one and half year of marriage i.e. somewhere in the year 1984 while the alleged incident is of the year 2008, thus, it can safely be said that the age of the prosecutrix was above 20 years at the time of incident. 11. There are material contradictions in the statements of PW/7-Anita and PW/8-Nirmalabai. 11. There are material contradictions in the statements of PW/7-Anita and PW/8-Nirmalabai. Prosecutrix has admitted that she is working as a labourer and her parents are also labourers. She has also stated that the members of the family of the prosecutrix are landless labourers and they are doing the work of plucking the pees and onion and hardly earning Rs. 50/- to Rs. 60/- per day. She has also admitted that the appellant is having land measuring 25 bighas. She has also stated that the victim and her mother were working in the field of appellant. In para 18 of her cross-examination, she also stated that prosecutrix and her mother used to go to the house of appellant and after completing the work in the field, while returning they used to go to the house of the appellant and after meeting the members of the family of appellant, they used to come to their home. She has also stated that she is well acquainted with the wife of appellant namely Meerabai while PW/8-Nirmalabai, mother of prosecutrix has denied that while returning after completing the work, they used to go to the house of the appellant. She has shown her ignorance that name of the wife of appellant is Meerabai. The defence of appellant is that on the date of incident, the appellant was not present on the spot as he was busy in the marriage of Jalamsingh S/o Thakur Bharat Singh. To prove this facts invitation card Ex.D/5 has been filed wherein the date of marriage is mentioned as 10-2-2008 and the time of reception has also shown from 09.00 AM to 01.00 PM. In para 20 of her cross-examination prosecutrix has admitted that there was marriage in the family of Bhimsingh Devoda. She has admitted that appellant is the son-in-law of Bhimsingh Devoda. PW/8-Nirmalabai has also admitted that she knows Jalamsingh but she has shown her ignorance about the marriage function at the place of Jalamsingh on 10-2-2008. Dr. Babita Mathur-PW/1 who has examined the victim stated that no opinion about rape can be given. 12. She has admitted that appellant is the son-in-law of Bhimsingh Devoda. PW/8-Nirmalabai has also admitted that she knows Jalamsingh but she has shown her ignorance about the marriage function at the place of Jalamsingh on 10-2-2008. Dr. Babita Mathur-PW/1 who has examined the victim stated that no opinion about rape can be given. 12. In view of the evidence of Nirmalabai-PW/8, the mother of prosecutrix and only on the basis of Ex.P/6 the scroll register of school wherein the age of the prosecutrix has been mentioned, cannot be treated to be correct as no supporting document has been filed on the basis of which the entry was made in the scroll register. Apart from this, in the statement of Dr. Ramesh Chandra Tiwari PW/3 who has examined Anita and on the basis of ossification test the age of prosecutrix was found as 17 years. 13. After going through all the facts and circumstances of the case, this Court is of the opinion that the prosecutrix was above 18 years in age. After due appreciation of evidence no independent witness was examined by the prosecution and the independent witness examined has not supported the case of prosecution and the fact that the alleged offence took place in the mid-day and also keeping in view the defence taken by the appellant that at the relevant time he was busy in some marriage in the family and the fact has not been disputed by the evidence adduced by the prosecution that there was marriage in the near relative of the appellant at the time when the alleged offence took place, this Court is of the view that the prosecution has failed to prove the case beyond doubt. 14. In view of this, the appeal filed by the appellant is allowed and the impugned judgment passed by Special Judge, SC and ST (Prevention of Atrocities) Act, Ujjain in Special Sessions Case No. 32/2008 whereby the appellant was convicted for the offence punishable under section 376(1) of Indian Penal Code is set-aside and the appellant stands acquitted. Consequently, the respondent is directed to release the appellant forthwith. 15. With the aforesaid observation, appeal stands disposed of. C. C. as per rules.