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2010 DIGILAW 220 (CHH)

Ram Kumar Verma v. State of M. P. (now C. G. )

2010-09-14

SUNIL KUMAR SINHA

body2010
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 20.9.93 passed in Sessions Trial No. 313/92 by the Fifth Additional Sessions Judge, Durg. 2. By the impugned judgment, the Appellant has been convicted and sentenced in the following manner with further direction to run the sentences concurrently: Conviction Sentence Under Section 450 IPC R.I. for five years and fine of Rs. 250/-, in default imprisonment for 3 months Under Section 506 Part-II IPC R.I. for one year Under Section 376 IPC R.I. for seven years 3. The facts, briefly stated, are as under: Prosecutrix (PW-1) was a married lady aged about 29-30 years. She lodged a First Information Report (Ex.-P/1) on 5.8.92 at about 2.15 p.m. that her neighbour, Ram Kumar Verma, came to her house at about 10.00 a.m., threatened her by knife, threw her on the ground and thereafter committed forcible sexual intercourse against her. Her husband and mother-in-law had gone out, she was all alone, therefore, the said act was committed by the Appellant. She was sent for medical examination and was examined by Dr. (Smt.) Shobha Rajput (PW-8) on 6.8.92. No external injuries were found on any part of her body. No injuries were seen over vulva, forchutte, thighs and perineal region. Vagina was lax. No injuries were seen over vagina. Uterus was of normal size and was at normal position. She opined that the prosecutrix was habitual to sexual intercourse and no definite opinion can be given about rape. The medical report is Ex.-P/5. 4. The learned Sessions Judge, relying on the testimony of the prosecutrix (PW-1), convicted and sentenced the Appellant as aforementioned. 5. Mr. Arun Kochar and Mr. Ravi Bhagat, learned Counsel appearing on behalf of the Appellant, argued that the prosecutrix was a married and major lady; the Appellant was her next door neighbour; it was a day time at about 10-11 a.m.; the house of the prosecutrix is in dense locality, therefore, the version of the prosecutrix that the Appellant committed forcible sexual intercourse does not appear to be reliable. 6. On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 7. I have heard the learned Counsel for the parties at length and have also perused the records of the sessions case. 8. 6. On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 7. I have heard the learned Counsel for the parties at length and have also perused the records of the sessions case. 8. The prosecutrix (PW-1) deposed that on the fateful day at about 12 in the noon, she was all alone in her house. The Appellant came there, pointed a knife on her neck and got her fell down on the ground. When she tried to cry, the Appellant put a cloth on her mouth. Thereafter he committed sexual intercourse against her. When her husband came, she narrated the story to him and then F.I.R. (Ex.-P/1) was lodged. In the cross-examination, she admitted that the house of the Appellant is on the eastern portion of her house. The house of her mother-in-taw (cousin) is on the western side of her house. When the Appellant put knife on her neck, she cried, but nobody came to rescue her. She had stated to the police that the Appellant put cloth on her mouth, but if the same is not there in the F.I.R., she cannot tell reasons. She very categorically admitted in Para-4 of her cross-examination that the Appellant got her lying on the floor. She remained in the said position. The Appellant thereafter removed his loongi and underwear. At that time also she remained lying on the floor. The Appellant thereafter took up her saree. At that time also, she did not do anything. The Appellant committed sexual intercourse with her for about half an hour. When the Appellant was committing sexual intercourse at that time also, she did not resist him. After completion of sexual intercourse, the Appellant put his underwear and loongi but at that time also she did not try to run out from the house. Mr. Kochar argued that the above conduct of the prosecutrix would show that she did not resist commission of sexual intercourse, and the manner in which she allowed the Appellant to commit sexual intercourse, a possibility of her being consenting party cannot be fully ruled out in this case. 9. Admittedly, the prosecutrix was a major lady and the Appellant was her next door neighbour. 9. Admittedly, the prosecutrix was a major lady and the Appellant was her next door neighbour. According to the map and admissions of the prosecutrix, her house was situated in a dense locality in the village. It was a day time incident of about 11-12 a.m. If the prosecutrix was aggrieved by behaviour of the Appellant, she had ample opportunity to make hue and cry. The prosecutrix stated that she could not make cry on account of fear because the Appellant was holding a knife. She also stated that the Appellant put a cloth on her mouth, but we find that the fact in relation to putting the cloth on her mouth is an omission in the F.I.R. (Ex.-P/1). Even the prosecutrix did not make alarm when the Appellant was running away from her house. The above facts together with the manner in which sexual intercourse was allegedly committed and that the Appellant committed sexual intercourse for about half an hour and she was lying on the ground throughout, even at the time when the Appellant was engaged in putting-off his cloths, creates a doubt on the testimony of the prosecutrix that in fact rape was committed against her. In the above facts and circumstances, a possibility of her being a consenting party cannot be fully ruled out in this matter. Besides the above, there were no marks of resistance on the person of the prosecutrix. In her medical examination, no external or internal injuries at all were found by the lady Doctor while examining the prosecutrix on 6.8.92. 10. For the forgoing reasons, the versions of the prosecutrix regarding commission of forcible sexual intercourse by the Appellant at about 11-12 a.m. in her house in the dense locality, does not inspire confidence of the court so as to hold the Appellant guilty of the above offences. In the opinion of this Court, the learned Sessions Judge erred in law in relying on the testimony of the prosecutrix for convicting the Appellant Under Section 376 and other Sections of IPC. 11. For the foregoing reasons, the appeal is allowed. The conviction and sentences imposed against the Appellant are set-aside. The Appellant is acquitted of the charges framed against him. It is stated that the Appellant is on bail. His bail bonds are cancelled and surety stands discharged.