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Madhya Pradesh High Court · body

2010 DIGILAW 114 (MP)

Sukhram v. State of M. P.

2010-01-27

R.K.GUPTA

body2010
JUDGMENT : Shri R.K. Gupta,J.- Inthe present case, the appellant No. 2 has already expired on 8.8.01, therefore, the present appeal is heard only with respect to appellant No. 1. Thisis an appeal preferred under Section 374(2) of the Cr.P.C .against the order of conviction and sentence of the appellant dated 12.07.1995in Special Case No. 60/ 94 passed by the Second Additional Sessions Judge, Chhindwara wherein the present appellant has been convictedunder Section 376(2 )( Ch) (G) of IPC and sentenced toRI for 10 years and fine of Rs . 2000/-; in default ofpayment of fine, further R.I. for 6 months. 2.According to the prosecution story, on 24.1.94 when prosecutrix who was aged about 14-15 years had gone natural call and while returning home,it is alleged that appellant Sukhram wrongly confinedto complainant Gajal in one room of wine shop ofVillage Bad Chicholi of P.S. Pandurna ,District Chhindwara and committed rape on her. Shenarrated the entire incident to her mother and then the matter was reported tothe police at P.S. Pandhurna . Thereafter, she wastaken to Govt. Hospital where she was examined by Dr. Dhanshri Harne . His report is Ex. P/6. According to him, two fingerscould easily be penetrated in her vagina. Hymen was ruptured and no injury wasfound on the same. Her age was found to be more than 18 years. The FIR isEx.D/1. The Trial Court on the basis of the same convicted the appellant forthe aforesaid offence. 3.The learned Trial Court, after the trial, found the accused guilty of thecharged offence and convicted and sentenced the appellant in the manner andextent as mentioned hereinabove. 4.Accused/appellant abjured the guilt and denied the prosecution story in itsentirety. 5.The prosecution has examined the prosecutrix as PW-2.In her statement, she has stated that on the date of incident, she was goingfor a natural call and while returning accused Sukhiram and co-accused Kailash came and a piece of cloth was tied on her face and committed rape on her. Shehas further deposed that she tried to shout but accused took his knife andthreatened to kill her. Thereafter, she become unconscious. She has further deposed that after committing rape, accusedexpelled her out of Bhatti . On the way, her mother mether. She narrated the entire incident to her mother and then the matter wasreported to the police. 6. Smt . Nasim Begum has beenexamined by the prosecution as PW-2. Thereafter, she become unconscious. She has further deposed that after committing rape, accusedexpelled her out of Bhatti . On the way, her mother mether. She narrated the entire incident to her mother and then the matter wasreported to the police. 6. Smt . Nasim Begum has beenexamined by the prosecution as PW-2. She was the mother of the prosecutrix . In her statement, she has stated that herdaughter told her about the incident that accused had committed rape on her. 7. Safi Beg has been examined by the prosecution asPW-3. Prosecutiex was his niece. He has also corroboratedthe story as stated by prosecutrix . 8.Dr. Smt . Dhanshri Harne has been examined by the prosecution as PW-11. Shehas examined the prosecutrix . Her report is Ex. P/6.According to him, two fingers could easily be penetrated in her vagina. Hymenwas ruptured and no injury was found on the same. Her age was found to be morethan 18 years. She had also found no injury on the private parts of her body. 9.Prosecution has also examined Dr. S.K. Dubey asPW-12. He was posted as Asst. Surgeon at District Hospital , Chhindwara .He has conducted the ossification test of the prosecutrix .In para 9 of his statement, he has stated that afterexamining the prsecutrix , he found that the age of prosecutrix to be more than 15 years. The report is Ex.P/7. 10.After marshalling the evidence, it is seen that the Trial Court has also foundthat the age of the prosecutrix is below 16 years atthe time of incident. Dr. S.K. Dubey , PW-12 thoughhas stated that prosecutrix was more than 15 years ofage but he also admitted that there could be variation of three years in theage. In cross examination, Dr. S.K. Dubey in para 11 has admitted that age of various persons isassessed on examination of the bones and hierarchy of the person being examinedand standard of food and climate and on the basis of the same, there can bedifference of two years. On this basis, Dr. S.K. Dubey ,in para 11, has further not denied the possibility ofthe prosecutrix being of 18 years. In the presentcase, the statement of prosecutrix has to be examinedin the light of the FIR which is Ex. D/2 and her statement given to the policeunder Section 161 which is Ex. D/4. On this basis, Dr. S.K. Dubey ,in para 11, has further not denied the possibility ofthe prosecutrix being of 18 years. In the presentcase, the statement of prosecutrix has to be examinedin the light of the FIR which is Ex. D/2 and her statement given to the policeunder Section 161 which is Ex. D/4. In the FIR, the prosecutrix has to stated that the accused was having a knife withhim and he threatened to kill her and because of this, she was not able toresist. Similarly, in Ex. D/4 also there was no mention of showing of knife bythe appellant. Thus, it is clear that there has been improvement in thestatements of the prosecutirx with regard to showingof knife at the time commission of the offence and this makes the whole of thestory of the prosecution as doubtful. 11.For the aforesaid reasons and in the obtaining facts and circumstances of thecase, consent has to be inferred. In this connection, I may profitably refer tothe decision of the Apex Court in Pratap Mishra vs. State of Orissa , AIR1977 SC 1307 wherein it is held that in the absence of any injuries on the bodyof the accused or on the body of the prosecutrix thenin such circumstances, inference of consent of the prosecutrix can be drawn. 12.In view of the aforesaid, I am inclined to allow the appeal. Resultantly, theconviction and sentence imposed on the appellant is hereby set aside. Theappellant is on bail. His bail bond and surety stands discharged. The appealstands allowed.