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Madhya Pradesh High Court · body

2012 DIGILAW 1062 (MP)

Jagan S/o Bheru v. State of M. P.

2012-10-16

PRAKASH SHRIVASTAVA

body2012
Judgment Prakash Shrivastava, J.;- 1. This appeal under Section 374 of the Cr.P.C is directed against the judgment dated 6/8/1997 passed by the Additional District Judge, Manavar, District Dhar in ST No. 515/1996 convicting the appellant for an offence under Section 376 of the IPC and sentencing him for seven years RI and fine of Rs. 2,000/- in default two years SI. The prosecution story is that the prosecutrix in the dehati nalishi had disclosed that on the date of the incident she had gone to the agricultural field at 10 O' clock. Her nephew and husband's brother (Devar) had gone towards the hut to have their food and she had come to the well of Bherusingh to take water. On the well the accused appellant was present who had committed the offence of rape. At that moment, her nephew and Devar reached the spot, therefore, the appellant had run away. The prosecutrix had disclosed the incident to her family members in the evening, thereafter the Dehati Nalishi Ex. P.1 was recorded. The medical examination of the prosecutrix was done and after investigation, the challan was filed before the trial Court. 2. The appellant had abjured the guilt and the trial had taken place in which the trial Court had convicted and sentenced the appellant as mentioned above. 3. Learned counsel for appellant submits that it is a clear case of consent as is apparent from the statement of the prosecutrix (PW.1) and the two alleged eye witnesses PW.2 Laxman and PW.5 Ramesh as well as the conduct of the prosecutrix. In this regard he has also referred to the medical evidence. 4. As against this, the learned counsel for State has supported the judgment of the trial Court and has submitted that from the evidence of PW.1, PW.2 and PW.5 the offence under Section 376 of the IPC is clearly made out against the appellant. 5. I have heard the learned counsel for parties and perused the record. 6. The evidence of the prosecutrix as also the alleged eye witnesses and the conduct of the prosecutrix at the time of incident indicates that the prosecutrix was a consenting party. 5. I have heard the learned counsel for parties and perused the record. 6. The evidence of the prosecutrix as also the alleged eye witnesses and the conduct of the prosecutrix at the time of incident indicates that the prosecutrix was a consenting party. The prosecutrix PW.1 has stated that she had stayed at the spot of incident for about 1/2 an hour and had not shouted at the time of incident and at the time of incident her hands were on the backside of the appellant and appellant's hands were on her backside and she had enjoyed at the time of the incident. She has also stated that after the incident when she was coming out, at that time her nephew and Devar had seen her and on being enquired from them whether she had done any "khotta kaam", she had declined. Though, in her statement before the Court she has stated that at the time of incident she had received injuries but the medical evidence in this regard does not support her version. In the medical evidence, it has been found that the prosecutrix had neither received any internal injury nor she had received any external injury. Though the prosecutrix has stated that at the time of incident her bangles were broken but the police had not found any broken bangles on the spot. The prosecutrix has also stated that her husband and Devar allege that she had illicit relations with the appellant and she was doing "khotta kaam" at the time of the incident willingly. She has even admitted that PW.2 Laxman and PW.5 Ramesh had reached the spot and had seen her doing "khotta kaam" hence the incident was disclosed otherwise nobody would have come to know about it. She has also admitted that even prior to the incident her husband was having the suspicion that she had illicit relations with the appellant. She has also admitted till the evening neither she nor her nephew and devar had informed about the alleged incident to anyone. Though in her statement before the Court she has stated that the appellant had caught her hand but in the dehati nalishi Ex. P.1 such a statement is missing. 7. So far as PW.2 Laxman is concerned, though he is alleged to be an eye witness but he has not stated anything about the alleged incident. Though in her statement before the Court she has stated that the appellant had caught her hand but in the dehati nalishi Ex. P.1 such a statement is missing. 7. So far as PW.2 Laxman is concerned, though he is alleged to be an eye witness but he has not stated anything about the alleged incident. Though he has stated that the appellant had caught hold of the hand of the prosecutrix but at the same time he has also stated that in his police statement he had not disclosed that the appellant had caught hold of the prosecutrix hand forcibly. 8. So far as PW.5 Ramesh is concerned, he has stated that he had seen the appellant doing "Khotta Kaam" with the prosecutrix but he has disclosed that when he reached the spot the prosecutrix was lying and allowing the appellant to do "khotta kaam" with her and on seeing him she had run away from the spot. From his statement also it appears that the prosecutrix was a consenting party. 9. Before the trial Court, an argument was advanced that the intercourse had taken place with the consent of the prosecutrix but the trial Court, without properly appreciating the aforesaid aspect of the matter, had rejected the said argument. From the evidence on record, it is apparent that prosecutrix was a consenting party but since PW.5 Ramesh had seen the prosecutrix in a compromising position with the appellant, therefore, a report was made to the police alleging commission of offence under Section 376 by the appellant. 10. Since the prosecution has failed to establish that the appellant had committed sexual intercourse with the prosecutrix against her will or without her consent instead it has been found that the prosecutrix was a willing and consenting party, therefore, the necessary ingredients of rape as required by Section 375 of the IPC are not established. The prosecutrix is undisputedly a married woman of 28 years. In view of the above, the offence of rape is not established and the conviction and sentence of the appellant under Section 376 of the IPC cannot be upheld and is hereby set aside. Bail and surety bond furnished by him shall stand discharged. Appeal is accordingly allowed.