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2011 DIGILAW 103 (CHH)

Thakur Kumar Vishwas v. State of M. P.

2011-03-14

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 22.03.1995 passed by Additional Sessions Judge, Durg, camp at Bemetara in Sessions Trial No. 292/1992 convicting the accused/Appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Case of the prosecution, in brief, is that on 23.1.1992 at about 12.30 p.m. F.I.R. (Ex.P-2) was lodged by the prosecutrix (PW-4), a married lady aged about 18 years, alleging in it that on that day at about 11 am. when she had gone to the clinic of the accused/Appellant she was subjected to rape by the accused/Appellant on the pretext of providing treatment to her. Based on this F.I.R., offence under Section 376 IPC was registered against the accused/ Appellant. After completion of investigation challan was filed on 24.2.1992 under Section 376 of The Indian Penal Code. 3. So as to hold the accused/Appellant guilty, prosecution has examined as many as 12 witnesses in support of its case. Statement of the accused/ Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. This apart, witnesses namely Jhukuram (DW-1) and Kishanlal Verma (DW-2) have also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/Appellant for the offence as mentioned above. Hence this appeal. 5. Counsel for the accused/Appellant submits that present is a case of false implication where the entire story has been cooked-up against the accused/ Appellant with the help of another doctor whose clinic was opposite to the clinic of the accused/Appellant. He submits that the prosecutrix is alleged to have been raped by the accused/Appellant behind the curtain which was transparent and the other patients were also sitting nearby. He submits that though the prosecutrix was medically examined, but the doctor who had medically examined her has not been examined in the Court. He submits that the prosecutrix is alleged to have been raped by the accused/Appellant behind the curtain which was transparent and the other patients were also sitting nearby. He submits that though the prosecutrix was medically examined, but the doctor who had medically examined her has not been examined in the Court. He further submits that as per own saying of the prosecutrix, her husband and 2-3 other persons were present near her but she did not raise any alarm. He further submits that a very improbable story has been put forth by the prosecution that the prosecutrix was subjected to rape by the accused/Appellant in presence of her husband and 2-3 other persons. 6. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the impugned judgment is in accordance with law and there is no infirmity in the same. He submits that the relation between the patients and the Doctor are supposed to be very good and the doctor has no right to exploit the prosecutrix taking advantage of her helplessness. 7. I have heard counsel for the parties and perused the material available on record including judgment impugned. 8. Prosecutrix (PW-4) has stated in her evidence that she knew the accused/Appellant who was a practising doctor in the village. She has stated that when she was taking treatment from the accused/Appellant, she was given an injection by him and then she was asked to come on the next day for better treatment. According to her, on the date of incident when she had gone to the clinic of the accused/Appellant at about 10.30 a.m., one compounder and one patient were there in his clinic. She has stated that the accused/Appellant had asked her to lay down on the table and then he examined her with his stethoscope. According to her, thereafter, accused/Appellant gave a prescription to her husband for getting medicine from the market and then he had asked her to undo the buttons of her blouse and pressed her breast. She has stated the thereafter the accused/Appellant after upturning her sari took out his private part and inserted the same into her private part. As soon as this act was done by the accused/Appellant, she stood up and thereafter, the accused/Appellant pushed her and came out of his clinic. She has stated the thereafter the accused/Appellant after upturning her sari took out his private part and inserted the same into her private part. As soon as this act was done by the accused/Appellant, she stood up and thereafter, the accused/Appellant pushed her and came out of his clinic. She has stated that she also came out from the clinic of the accused/Appellant and by that time her husband was also there. Then the accused/Appellant had again asked her to take injection, which was refused by her saying that 'you are not a doctor but a rapist' and then she narrated the entire incident to her husband Abhay Ram (PW-5), compounder Vidya Bhushan and the other persons. She has further stated that thereafter the accused/Appellant asked her not to cry otherwise he would be defamed but she told him very categorically that she was going to lodge the report. She has stated that thereafter as the accused/Appellant had asked her to take treatment from some other doctor, and then went to one Dr. Tamrakar for her treatment and narrated the entire incident to him on which Dr. Tamrakar had asked her to lodge the report and accordingly, the F.I.R. (Ex.P-2) was lodged by her. This witness has further stated that as she was having some Gynecological problem, she had gone to the clinic of the accused/Appellant. Abhay Ram (PW-5) - husband of the prosecutrix has stated in his evidence that on the date of incident when he and his wife had gone to the clinic of the accused/Appellant, he gave a prescription for getting the medicine. After half an hour when this witness came back, he saw that the accused/Appellant making preparation to give injection to his wife but his wife was refusing to take the same saying that 'You are not a doctor but a rapist'; then she narrated the entire incident to him. He has admitted the fact that on the date of incident, before going to the clinic of the accused/Appellant, they had gone to the clinic of one Dr. Gupta and it is he who advised him to take one injection from any doctor. He has admitted the fact that on the date of incident, before going to the clinic of the accused/Appellant, they had gone to the clinic of one Dr. Gupta and it is he who advised him to take one injection from any doctor. He admits that after purchasing the medicine when he came back to the clinic of the accused/Appellant, his compounder was sitting there who had asked him to wait as his wife was being examined by the accused/Appellant and after some time he saw the accused/Appellant and the prosecutrix coming out from the clinic. Vidya Bhushan (PW-1) is a compounder of the clinic has stated in his evidence that on the date of incident the accused/Appellant took the prosecutrix behind the curtain which was transparent and, thereafter, the prosecutrix came out of the said partition and made allegations against the accused/Appellant for commission of rape. He has stated that the accused/Appellant was telling everyone that he has not done any such act and the prosecutrix was telling lie. He admits that the clinic of the accused/Appellant is on the main road in a public place and the place is as such where nobody can commit rape. He has further stated that the partition of curtain has been put in such a manner where one can see from the other side as to what is happening inside the partition. According to him, the accused/Appellant had fomented the prosecutrix with the help of machine. He has further stated that the prosecutrix had made false allegation against the accused/Appellant whereas the accused/Appellant had not done any such act. In paragraph six of his cross-examination he has stated that one Dr. Gupta is also practicing at Saja where the accused/Appellant is practicing and as the practice of the accused/Appellant is very good, other doctor are jealous of him. Berendra Kumar (PW-2) is a person who was present in the clinic at the time of incident. He has stated in his evidence that when he was standing outside the clinic of the accused/Appellant, he saw the prosecutrix making allegation of rape against the accused/Appellant and the accused/Appellant was saying that he has not done any such thing. Berendra Kumar (PW-2) is a person who was present in the clinic at the time of incident. He has stated in his evidence that when he was standing outside the clinic of the accused/Appellant, he saw the prosecutrix making allegation of rape against the accused/Appellant and the accused/Appellant was saying that he has not done any such thing. He has further stated that after about prior to 10-15 minutes of the incident prosecutrix was sitting in the clinic of the accused/Appellant along with her husband and the accused/Appellant was sitting on his chair and then all of a sudden prosecutrix stood up and made allegation of rape against the accused/Appellant and at that time the accused/ Appellant was making preparation to provide treatment to the prosecutrix. Mukesh Kumar Sahu (PW-3) is also a person who was present in the clinic at the time of incident. He has also stated that the partition of curtain was visible from outside. He has further stated that no bad work had taken place in the clinic of the accused/Appellant. He has further stated that as there was hustle and bustle near the clinic of the accused/Appellant, no such incident is possible at the place of incident. Gopal Sharma (PW-6) is the witness whose shop is adjacent to the shop of the accused/Appellant has stated that upon hearing the noise when he reached the spot, the people were talking that someone had committed rape. He has further stated that one Dr. Gupta whose clinic is near his shop once had told him that the accused/Appellant is having very good business and, therefore, he should make some efforts to ensure the vacation of the clinic of the accused/Appellant. Santram (PW-7) is a witness to seizure of petticoat of the prosecutrix and underwear of the accused/Appellant made under Exs. P-3 and P-4 respectively. Deendayal (PW-8) has stated in his evidence that he is a Cobbler and regularly goes to the houses of reputed lawyers, doctors, etc. He has stated that on the date of incident he had gone to the house of Dr. Gupta where Dr. Kannoje and one doctor from Chorbhatti were also present and they were talking that one lady has already come and now the accused/Appellant is to be shunted out from the village. He has further stated that the prosecutrix and her husband were present in the clinic of Dr. Gupta where Dr. Kannoje and one doctor from Chorbhatti were also present and they were talking that one lady has already come and now the accused/Appellant is to be shunted out from the village. He has further stated that the prosecutrix and her husband were present in the clinic of Dr. Gupta and then all the doctors had asked them to go and lodge the report against the accused/Appellant and then the prosecutrix and her husband had assured them for lodging the report. He has further stated that some money was given to the prosecutrix and her husband and, thereafter, the prosecutrix and her husband had gone to the house of the accused/Appellant. He has further stated that from the clinic of Dr. Gupta, the clinic of the accused/Appellant is visible and after coming out from the clinic of the accused/Appellant, the prosecutrix and her husband lodged the report. Dr. R.K. Tamrakar (PW-9) who had medically examined the accused/Appellant and given his report Ex.P-7 has stated that the he is capable of performing sexual intercourse. Bhagwati Prasad (PW-10) -Patwari had prepared the spot map (Ex.P-12). AS1 Jai Singh Dhurve (PW-11) is the witness who has done part of investigation. ASI R.P. Triparhi (PW-12) is the Investigating Officer who has supported the case of the prosecution. 9. Minute examination of the evidence of the witnesses makes it clear that a very improbable story has been put forth by the prosecution. According to the prosecution case, prosecutrix was subjected to rape by the accused/ Appellant in a room which was duly partitioned by a curtain and one can see from other side of the partition. Evidence makes it clear that the incident is said to have taken place in presence of 2-3 persons and as there was hustle and bustle near the clinic of the accused/Appellant, no such incident is possible at the place of incident. Evidence also makes it clear that certain local members were unhappy with the progress of the accused/Appellant as he was having very good practice and, therefore, they made a plan against the accused/Appellant to rope him in some case and for which prosecutrix and her husband were managed by them and as a result of which, the report was lodged. Evidence also makes it clear that certain local members were unhappy with the progress of the accused/Appellant as he was having very good practice and, therefore, they made a plan against the accused/Appellant to rope him in some case and for which prosecutrix and her husband were managed by them and as a result of which, the report was lodged. Thus, on the basis of the evidence adduced by the prosecution it would not be safe for this Court to convict the accused/Appellant under Section 376 of the Indian Penal Code. 10. In conclusion, the appeal is allowed. Impugned judgment dated 22.3.1995 is hereby set aside. Appellant is acquitted of the charge levelled against him. Since Appellant is already on bail, his bail bonds stand discharge.