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Madhya Pradesh High Court · body

2009 DIGILAW 954 (MP)

Salram Singh v. State of M. P.

2009-08-07

A.K.SHRIVASTAVA

body2009
JUDGMENT 1. This appeal has been filed by the appellant assiling his judgment of conviction and order of sentence dated 10/12/2002 passed by learned Additional Sessions Judge, Mungawali, District Guna in Sessions Trial No.37/1999 convicting the appellant for the offence punishable under Section 376 of IPC and thereby sentencing him to suffer seven years rigorous imprisonment and fine of Rs. 1,000/- and in default to suffer further simple imprisonment of one month, this appeal has been filed under Section 372 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that prosecutrix along with her friend Nirmal and Vimal went to evacuate in the open field at 6 p.m. in the evening. At that juncture, it is said that appellant-Balram and other two acquitted co-accused, namely, Nandram and Gangaram arrived there. It is said that acquitted co-accused Nandram and Gangaram stayed nearby the temple and appellant after catching hold of the hands of the prosecutrix carried her behind the Khadera (dilapidated building). It is said that appellant threw prosecutrix on the ground and after putting off her clothes, he put off his own clothes and against the will and wishes of the prosecutrix committed rape over her. It is the further case of prosecution that when the prosecutrix tried to scream, appellant gagged her mouth. 3. It is the further case of prosecution that her friends Nirmal and Vimlabai went to complain to the brothers of prosecutrix, namely, Phoolsingh, Ramsingh and Gyansingh, as a result of which they arrived at the spot. On the arrival of the brothers of the prosecutrix, acquitted co-accused Gangram and Nandram hurled abuses of mother and sister to them and told that in case they would go to lodge the report, they may face dire consequences. On account of fear, prosecutrix could not go to lodge the report, however, on 17/ 8/1998 she went to lodge the report along with her brother and the report was registered at 15: 10 hours on 17/8/1998. On lodging of the report, a case was registered under Section 376/506 later part and 294 of IPC against the appellant as well as against acquitted co-accused persons. On lodging of the report, a case was registered under Section 376/506 later part and 294 of IPC against the appellant as well as against acquitted co-accused persons. The investigating agency in furtherance to its investigation sent the prosecutrix for medical examination; recorded the statement of witnesses; arrived at the spot; prepared the spot map; arrested the appellant and sent him for his medical examination and seized the wearing apparels of the prosecutrix as well as of the appellant. 4. After the investigation was over, a charge sheet was filed in the committal Court, which on its turn committed the case to the Sessions Court and from where it was received by the trail Court for trial. 5. The learned trail Judge, on the basis of the evidence placed on record, framed charges punishable under Section 376 (2) (g) and 506 later part of IPC, against the appellant and other acquitted co-accused persons which they denied and requested for the trial. 6. The learned trial Judge on the basis of the evidence placed on record, came to hold that charges are not proved against Nandram and Gangaram and eventually acquitted them from all the charges. However, on the basis of the evidence placed on record, learned trial Judge came to hold that the charge under Section 376 of IPC has been found to be proved against the present appellant, as a result of which he has been convicted under the said charge and has been directed to suffer seven years rigorous imprisonment and a fine of Rs.1 ,000/- with default stipulation. 7. In this manner this appeal has been preferred by the appellant against the judgment of conviction and order of sentence passed by the learned Trial Court. 8. The contention of Shri M.S. Yadav, learned counsel for the appellant, is that as per prosecution's own case the age of the prosecutrix on the date of incident was more than sixteen years and if that would be the position, looking to her statement, it may be inferred that she was a consenting party and, therefore, the appellant has been wrongly convicted under Section 376 of IPC. 9. On the other hand Sushri Sudha Shrivastava, learned Public Prosecutor for the respondent/State, has argued in support of the impugned judgment. 10. Having heared learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 11. 9. On the other hand Sushri Sudha Shrivastava, learned Public Prosecutor for the respondent/State, has argued in support of the impugned judgment. 10. Having heared learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 11. In order to hold whether the charge under Section 376 of IPC is proved or not, the sole statement of prosecturix is to be considered and if her testimony inspire full confidence, no corroboration is needed. By keeping this well settled principle in mind I shall now examine the testimony of the prosecutrix. On going through her testimony this Court finds that at 6 O' clock in the evidence she went to evacuate along with her friends Nirmal and Halkibai at the outer skirt of the village nearby Khadera where she found appellant standing there. According to her, appellant caught hold of her hair, as a result of which her friends ran away from there. Thereafter, appellant dragged her behind the bushes where he took out her clothes and committed rape over her. Specifically she is saying that after committing rape when she was in the process of wearing her clothes, at that juncture, her three brothers, namely, Phoolsingh, Gyansingh and Ramsingh arrived there. On seeing her brothers, the acquitted co-accused Nandram and Gangaram who were hidden nearby the temple came out and hurled the abuses to her brother. Thereafter, she wore her clothes and came to the place where her brothers were standing and narrated the incident to them. 12. In cross examination the prosecutrix has stated that when the appellant after catching hold of her and was pulling hair, she was screaming. Further she says that she was dragged by the appellant, as a result of which she fell down and despite it, appellant dragged her. At that juncture, she was wearing salwar suit and because she was dragged by appellant, her salwar was tom. Further she says that she also sustained injuries on her knee, elbows and blood was oozing from the wounds. Further she says that she showed these injuries to the lady doctor. Later on, she says that she also sustained injuries on her thigh and this injury was also shown by her to the lady doctor. In para 12 of her cross examination she says that she had bitten the hands of the appellant. Further she says that she showed these injuries to the lady doctor. Later on, she says that she also sustained injuries on her thigh and this injury was also shown by her to the lady doctor. In para 12 of her cross examination she says that she had bitten the hands of the appellant. On close scrutiny of the testimony of the prosecutrix, it can be inferred that when the appellant and the prosecutrix were in compromising position, at that juncture, her brothers arrived there, because she has admitted that at the time of arrival of her brothers she was in the process of wearing her clothes and therefore it can be inferred that in such a situation no option was left to her except to demonstrate herself to be a victim of rape. In this context, her examination-in-chief (para 2) is very much material in which she has specifically stated that when she was wearing the clothes, at that juncture, her brothers arrived and, therefore, according to me, deliberately the prosecutrix demonstrated herself to be a victim of rape. In this context, I may profitably place reliance on the decision of this Court in Sitaram Rameshwar Kewat v. State of M.P. 1996 JLJ 456 = 1995 MPLJ 1009 . 13. As per the case of prosecution, the age of prosecutrix on the date of incident was sixteen years. Although Radiologist Dr. Sitaram Raghuvanshi (PW-11) after obtaining x-ray of the prosecutrix found her age to be more than eighteen years. It has been stated by the prosecutrix that she was dragged by the appellant and she sustained several injuries on her thigh, knee and elbow region, but the lady doctor, Dr. Chhaya Sharma (PW-8) did not find any injury sustained by the prosecutrix. The lady doctor also did not find any injury on her private part. Apart from this, as per as the statement of the prosecutrix she bit the appellant on his hands, but Dr. R.P. Sharma (PW-6) who examined the appellant on 18/12/1998 did not find any external injury. Hence, it can be inferred that the prosecutrix was a consenting party. 14. Since the prosecutrix is a major married woman and on scanning her testimony, it appears that she was a consenting party, therefore, according to me, learned trial Court erred in convicting the appellant for the offence under Section 376 of IPC. 15. Hence, it can be inferred that the prosecutrix was a consenting party. 14. Since the prosecutrix is a major married woman and on scanning her testimony, it appears that she was a consenting party, therefore, according to me, learned trial Court erred in convicting the appellant for the offence under Section 376 of IPC. 15. For the reasons stated hereinabove, this appeal is allowed. The impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby set aside and the appellant is acquitted from the charge punishable under Section 376 of IPC. Appellant is on bail, his bail bonds are hereby discharged.