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Madhya Pradesh High Court · body

2012 DIGILAW 696 (MP)

Sohan Singh v. State of M. P.

2012-07-10

M.C.GARG, S.K.SETH

body2012
JUDGMENT : Seth, J:- Appellant is aggrieved by the judgment of conviction handed down by the Special Judge Dewas in S.T. No. 11 of 2000. By the impugned judgment, appellant has been found guilty of offences punishable under section 376 IPC and 3(2)(v) of the Scheduled caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter referred to as 'the Act' for short) and for the later offence, he is sentenced to undergo life imprisonment. 2. Prosecution story in brief is that on 25.2.2000 prosecuterix (PW1), lodged a FIR (Ex.P1) at Police Station B.N.P. Dewas against appellant stating that that same afternoon he ravished her. Police registered the FIR for offences punishable under Section 376 IPC and Section 3(2)(v) of the Act because victim was a tribal woman (Bhil). Same day prosecuterix was medically examined by Dr. Indra Gupta (PW10) and the report is Ex.P12. Appellant was arrested on 2.3.2000 and was medically examined by Dr. Yogesh Valimbe (PW4). His report is Ex.P3. Doctor found the applicant was capable of performing sexual intercourse. After completing the investigation chargesheet was filed and appellant was sent up for trial before the Special Judge Dewas. At trial appellant denied the charges and claimed that he was falsely implicated. However, he led no defence evidence. 3. Learned Special Judge, on consideration of prosecution evidence found the appellant guilty on both charges and sentenced him to undergo 7 years' R.I. with a fine of Rs. 5,000 u/s. 376 IPC and life imprisonment and fine under section 3(2) (v) of the Act. It was further directed that in default of payment of fine amount of Rs. 6000/appellant would undergo further jail sentence of six month's simple imprisonment. Both the sentences were directed to concurrently. 4. There is no challenge to the fact that appellant was examined by Dr. Yogesh Valimbe (PW5). He found appellant capable of performing sexual intercourse as per report Ex.P3. It is, therefore not necessary for us discuss this evidence in detail. In case of rape, the conviction could be based on the sole testimony of prosecuterix but for such action the version of the prosecuterix must be found to be worthy of acceptability. In the present case. 5. Now let us examine the evidence of the prosecuterix (PW1). Her evidence shows that in the afternoon of the fateful day, she was coming from the village handpump after fetching drinking water. In the present case. 5. Now let us examine the evidence of the prosecuterix (PW1). Her evidence shows that in the afternoon of the fateful day, she was coming from the village handpump after fetching drinking water. Appellant stopped her on a pretext and then dragged her to nearby agriculture field and ravished her. There was no ditch or culvert in the place of alleged incident. In her cross examination she admitted that she did not sustain any injury, a fact confirmed by Dr. Indra Gupta(PW10) in her deposition. It is clear from the evidence on record that prosecuterix is a young married woman of grown up years (25 years). There is nothing on record to suggest that she was incapable of offering any resistance. No mark of violence was found on her body. Such marks of violence are more likely to be found on the bodies of grown up. Under ordinary circumstances, it is difficult for a single man to perform sexual intercourse with a healthy adult woman in full possession of her senses against her will, unless she is taken unaware, or placed in such a situation as to render her completely helpless. A woman belonging to labouring class who is accustomed to hard labour will be able to offer a greater deal of resistance to frustrate attempts to violate her. The version of rape in broad day light near a thoroughfare seems to be highly improbable and raises serious doubts. It would, therefore, be hazardous to base the conviction of appellant on the sole testimony of the prosecuterix in the present case. 6. Other material prosecution witnesses are Amar Singh (PW3) and Roop Singh (PW2). Husband and brother of the prosecuterix. They only stated what was told to them by the prosecuterix. In other words, their evidence has only corroborative value as regards the version of the prosecuterix. But if the version of the prosecuterix is of doubtful value, the evidence of these two corroborative witnesses is rendered of no value. Evidence of Roop Singh goes to show that the earthen pitcher which the prosecuterix was carrying was found intact. This again creates a dent in the prosecution story. 7. But if the version of the prosecuterix is of doubtful value, the evidence of these two corroborative witnesses is rendered of no value. Evidence of Roop Singh goes to show that the earthen pitcher which the prosecuterix was carrying was found intact. This again creates a dent in the prosecution story. 7. In view of above discussion we find that the judgment of the trial Court is unsustainable in law because in our considered view the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt hence the appellant is entitled to acquittal. We therefore, allow the appeal and set aside and the convictions and sentences awarded to appellant. He is in jail. He be set at liberty forthwith, if not required in any cause. Fine amount, if paid, be refunded to him. 8. Ordered accordingly. Let a copy of this judgment be sent to trial with the record for necessary compliance under intimation to this Court. 7. We are also in complete agreement with the submission of respondent that in. Writ Petition No.885/2011 the amended proviso to Clause 32 of Ordinance 6 was not brought to the notice of the Division Bench as a result of which the petitioner of that case got undue benefit of five grace marks by order dated 9.2.2011. The petitioner, therefore, cannot be allowed to take the advantage of order dated 9.2.2011 passed in Writ Petition No.885/2011. 8. Lastly, the petitioner submitted that as the amended proviso was made applicable from the academic session 2010-11, it was not applicable to him because he was admitted to MBBS course much prior to that academic session. But this submission is not acceptable. Clause 32 of Ordinance 6 deals with the candidate appearing in the examination and not with the admission of a student in any course. Therefore, the result of the examination of petitioner which was held in the month of November 2011 is fully governed by the amended proviso. 9. For these reasons, the petition fails and is dismissed.