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Madhya Pradesh High Court · body

2011 DIGILAW 165 (MP)

Khuman Singh v. State of M. P.

2011-02-04

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 18.9.2003 passed by learned Additional Sessions Judge, Sheopur in Sessions Trial No. 231/2000 convicting appellant No.5 Ramsingh for the offence punishable under section 376 IPC and further convicting other appellants for the offence punishable under section 366 of IPC and thereby sentencing them as mentioned in the impugned judgment, the appellants have knocked the doors of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of the prosecution is that on 9.3.2000 at 8.00 p.m. when the prosecutrix was cooking the meals at her home, her uncle's son and nephew namely Khuman and Deetaya arrived at her house and told her to accompany them since their father is calling her, as a result of which, prosecutrix accompanied them and went to the house of Mansingh and Veersingh. All these four persons told her to accompany them to the house of appellant Ramsingh at village Kapuria. It is also said that forcibly she was asked to accompany them, as a result of which she came to village Kapuria and in the house of appellant Ramsingh where she stayed for three months and during this period repeatedly rape was committed by appellant Ramsingh over her. 3. Further the case of the prosecution is that one day, she anyhow managed to flee away from the house of Ramsingh and came back to the house of her father and one month after her arrival at her father's home, she lodged the report. On lodging of FIR, criminal law was triggered and set in motion. Investigating agency sent the prosecutrix for medical examination; recorded the statement of witnesses; arrested the appellants and sent appellant No.5 Ramsingh for medical examination. 4. After the investigation was over, a charge sheet was submitted in the committal Court which committed the case to the Court of Sessions from where it was received by the trial Court for trial. 5. The learned trial Judge on the basis of allegations made in the charge sheet, framed charges punishable under sections 363 and 366 of IPC against the appellants No.1 to 4 while appellant No.5 Ramsingh was charged under section 376 of IPC. Needless to say that all the appellants abjured their guilt and pleaded complete innocence. 6. 5. The learned trial Judge on the basis of allegations made in the charge sheet, framed charges punishable under sections 363 and 366 of IPC against the appellants No.1 to 4 while appellant No.5 Ramsingh was charged under section 376 of IPC. Needless to say that all the appellants abjured their guilt and pleaded complete innocence. 6. In order to bring home the charges against the appellants, the prosecution examined as many as ten witnesses and placed Ex. P/1 to P/20 the documents on record. The defence of the appellants is that prosecutrix solemnized marriage with appellant No.5 and they have been falsely roped in the case. In support of their defence, they examined four witnesses, they are Gopal Murti Dubey (DW 1), Kanji (DW 2), Laxman (DW 3) and Kanchan (DW 4). 7. The learned trial Judge on the basis of evidence placed on record came to hold that charge under section 363 of IPC is not proved against appellants No. 1 to 4 and eventually acquitted them from that charge. However, learned trial Court came to hold that these appellants have committed offence under section 366 IPC while appellant No.5 Ramsingh has committed offence under section 376 of IPC and eventually they have been convicted and passed sentence as mentioned in the impugned judgment. 8. Vehemently, it has been put-forth by Shri Srajan Shrivastava, assisted by Shri P.C. Chandil, Advocate that looking to the entire gamut and particularly by paying heed to the testimony of the prosecutrix safely it can be inferred that she is a consenting party and indeed she solemnized marriage with appellant No.5 and stayed with him for a considerable long period as his wife. Learned counsel further submitted that since the prosecutrix is a major lady and is a consenting party, no offence has been proved against appellant No.5 Ramsingh and learned trial Court committed an error in convicting other appellants under section 366 of IPC. Learned counsel for appellants by placing heavy reliance on the Division Bench decision of this Court in Munnalal v. State of M.P. 1977 JLJ 731 has submitted that since prosecutrix lived voluntarily with the appellant for a considerable long period and never objected to anybody during this long period of three months, it can be inferred that she is a consenting party. By putting a deep dent on the case of prosecution it has been put-forth by Shri Shrivastava learned counsel for the appellants that nobody restrained the prosecutrix after she was released from the clutches of appellant Ramsingh to lodge the FIR, but she did not lodge it immediately when she was released, however, the same was lodged after one month from the date when she came back to her father's house and therefore according to learned counsel it can be inferred that in order to implicate the accused persons falsely the present case has been cooked upon. In support of his contention, learned counsel has placed heavy reliance on the decision of the Supreme Court in Ramdas and others v. State of Maharashtra (2007) 2 SCC 170 . On these premised submissions, it is submitted by learned counsel that by allowing this appeal, appellants be acquitted from all the charges. 9. On the other hand, Shri J.P. Sharma, learned Public Prosecutor has argued in support of impugned judgment. 10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 11. On bare perusal of testimony of prosecutrix it is gathered that her age is 18 years. According to Radiologist Dr. Yogendra Singh (PW 2) the age of prosecutrix was between 17 and 18 years. The variation of age on the basis of radiological examination would further vary from two years either side and therefore it can be inferred that the age of the prosecutrix on the day of incident was in between 17 and 20 years. The lady doctor Smt. Chandra Jatav examined the prosecutrix and found that her secondary sexual character were fully developed; the hymen was tom and no injury was found on either external or private part of the prosecutrix. This witness says that the age of 15 years of prosecutrix which has been written by her in the MLC report (Ex. P/1) has been written according to the age stated by the prosecutrix. Looking to the evidence of Radiologist, I hereby hold that on the day of incident, the age of prosecutrix was 18 years or more and this fact is not proved that her age was below 18 or 16 years. 12. P/1) has been written according to the age stated by the prosecutrix. Looking to the evidence of Radiologist, I hereby hold that on the day of incident, the age of prosecutrix was 18 years or more and this fact is not proved that her age was below 18 or 16 years. 12. On going through the evidence of prosecutrix this Court finds that her cousin brothers came to her house when she was cooking the food at 8.00 p.m. and told that their father is calling her. Thereafter, voluntarily she accompanied her cousin brothers and went to the house of Mansingh and Veersingh and thereafter all these persons carried her at the house of Ramsingh. Although she has stated that forcibly she was carried to the housel of Ramsingh which is in different village, but, there is no evidence in order to substantiate that forcibly she was carried. According to her, she stayed at the house of appellant Ramsingh for three months and during this period daily he was committing rape over her, but, no prudent man will digest this fact that for a continuous period of three months if a lady who is not a consenting party, would continue to live in the house of accused. Apart from this, on bare perusal of FIR (Ex. P/11), it is gathered that one month prior to lodge the FIR, which was lodged on 9.3.2000 prosecutrix came to the house of her parents, but, FIR was not lodged for a considerable long period of one month and hence, it poses a big question mark on the story put-forth by the prosecution. In this context the decision of Supreme Court in Ramdas (supra) may be taken into consideration, which has been rightly relied upon by learned counsel for appellants. Indeed, according to me, for not lodging FIR for a considerable period of one month, even though she was having opportunity to lodge the same as she was residing with her parents, shows her conduct that she was a consenting party. 13. For the reasons stated hereinabove, I am unable to uphold the conviction of learned trial Court convicting the appellants No.1 to 4 under section 366 IPC and further convicting appellant No.5 Ramsingh under section 376 IPC and accordingly the impugned judgment is set aside and appellant are acquitted from all the charges. Appellants are on bail, their bail bonds are discharged.