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Madhya Pradesh High Court · body

2012 DIGILAW 890 (MP)

Laalu @ Balmukund Sharma v. State of M. P

2012-09-13

N.K.GUPTA

body2012
Judgment The appellant has preferred this appeal against the judgment dated 25-7-2012 passed by the learned Sessions Judge, Damoh in S.T. No. 372/2011, whereby the appellant was convicted for the offence punishable under Section 323 of IPC and sentenced for 6 months' Rigorous Imprisonment with fine of Rs. 1,000/-. In default of payment of fine, Rigorous Imprisonment for 45 days was also directed. 2. Prosecution's case in short, is that on 21-6-2011, the prosecutrix (P.W. 3) was picking some vegetables from the field of the appellant near the Village Jabera. That field was taken on lease by Halle (P.W. 4), the husband of the prosecutrix. At about 12 in the noon, she went to keep the picked vegetables in a container. At that time, the appellant came to that place, where she was collecting the vegetables and on finding her alone, he held her hand and threw her on the ground and thereafter, he committed rape upon the prosecutrix. The prosecutrix went to her house at Village Kheri and informed her father-in-law, Mitthu (P.W. 2). Her husband, Halle was not at the house. He had gone to his relatives and, therefore, she informed about the incident to her husband when he came back. Thereafter, she went along with her husband to the Police Station, Jabera and lodged an FIR (Exh. P-2). The prosecutrix was sent for her Medico Legal Examination. Dr. Shraddha Gangele examined her and gave a report dated 25-6-2012. No external or internal injury was found on her person but, 2 slides of her vaginal swab were prepared and handed over to the concerned Police Constable after sealing them. The appellant was also arrested and sent for his medical examination. Dr. Amit examined the appellant and gave his report (Exh. P-5). No abnormality was found to the appellant. Two semen slides were prepared and handed over to the Police Constable after sealing them. All the sealed substances were sent to the Forensic Science Laboratory. The Forensic Science Laboratory, in its report (Exh. P-9), has found that the slides of the vaginal swab of the prosecutrix as well as the slides received from the appellant contained semen and sperms. After due investigation, a charge-sheet was filed before the JMFC, Damoh, who committed the case to the Sessions Court. 3. The appellant abjured his guilt. The Forensic Science Laboratory, in its report (Exh. P-9), has found that the slides of the vaginal swab of the prosecutrix as well as the slides received from the appellant contained semen and sperms. After due investigation, a charge-sheet was filed before the JMFC, Damoh, who committed the case to the Sessions Court. 3. The appellant abjured his guilt. He did not take any specific plea but, he has stated that there was a dispute between the appellant and husband of the prosecutrix relating to the accounts of agricultural income and, therefore, the appellant was falsely implicated in the matter. However, no defence evidence was adduced. 4. The learned Sessions Judge, after considering the prosecution's evidence, acquitted the appellant for the offence punishable under Sections 376 and 450 of IPC, but, convicted him for offence punishable under Section 323 of IPC and sentenced him as mentioned above. 5. I have heard the learned Counsel for the parties. 6. The learned Counsel for the appellant has submitted that the prosecutrix has turned hostile. She did not mention that when and where she was assaulted. No medical evidence was adduced to corroborate her version but, the appellant was convicted for the offence punishable under Section 323 of IPC without any basis. No charge for an offence punishable under Section 323 of IPC was framed. Neither the Apex Court nor any High Court has ever decided that the offence punishable under Section 323 of IPC is an inferior offence of the same nature to the offence punishable under Section 376 of IPC and therefore, the appellant was convicted for the offence without any basis and without any charge. The prosecutrix has stated in a casual manner that she was assaulted by the appellant but, no injury was found by the concerned Doctor. However, the learned Sessions Judge took the offence to be a grave offence and, therefore, jail sentence was directed against the appellant. It was not considered, as to why he could not be released on probation or only fine could not be imposed. Under such circumstances, it is prayed in the alternate that looking at the age of the appellant, he be released on probation. 7. On the other hand, learned Public Prosecutor has submitted that the conviction and sentence passed by the Trial Court appears to be correct. 8. Under such circumstances, it is prayed in the alternate that looking at the age of the appellant, he be released on probation. 7. On the other hand, learned Public Prosecutor has submitted that the conviction and sentence passed by the Trial Court appears to be correct. 8. After considering the submissions made by the learned Counsel for the parties, it is to be considered as to whether the appellant could be convicted for the offence punishable under Section 323 of IPC Rs. And, if yes, then, whether the sentence awarded to the appellant can be reduced ? 9. The prosecutrix (P.W. 3) has turned hostile. She did not support her original allegation made upon the appellant. According to the FIR (Exh. P-2), the prosecutrix had alleged that the appellant committed rape upon her but, in the Court, she turned hostile. She did not state about the rape but, she has stated in a casual manner that she was assaulted by the appellant, due to a dispute regarding the accounts of agricultural produce. Similarly, Halle (P.W. 4) has stated that his wife told him about the assault, whereas, Mitthu (P.W. 2), father-in-law of the prosecutrix has mentioned that the prosecutrix informed him about the rape. He did not state about the incident of assault. There is no description given in the FIR related to the assault. Under such circumstances, it appears that when Mitthu was examined, no compromise had taken place between the parties and, therefore, Mitthu confirmed the initial story told by the prosecutrix. Thereafter, it appears that a compromise took place between the parties and, 'therefore, the prosecutrix (P.W. 3) and her husband Halle (P.W. 4) turned hostile. In such circumstances, learned Public Prosecutor did not examine Dr. Shraddha Gangele to prove the medical report of the prosecutrix. 10. Since the statement of the witness Mitthu was not relied upon, because the substantial evidence of the prosecutrix was changed and, therefore, the learned Sessions Judge acquitted the appellant for the offence punishable under Section 376 of IPC. The testimony of the prosecutrix relating to the assault was not at all corroborated by her father-in-law Mitthu (P.W. 2), who did not turn hostile. The testimony of the prosecutrix relating to the assault was not at all corroborated by her father-in-law Mitthu (P.W. 2), who did not turn hostile. The testimony of the prosecutrix was nowhere corroborated by the FIR lodged by the prosecutrix herself and, therefore, the story of assault was prepared in an 'after thought' manner, which was given as an explanation, as to why the FIR was lodged by the prosecutrix. Though Dr. Shraddha Gangele was not examined but, MLC report of the prosecutrix is a prosecution's document, which could be read in the favour of the appellant. Though, it was not proved, but, by that report dated 25-6-2011, it is apparent that no external or internal injury was found on the person of the prosecutrix. Under such circumstances, the story of assault is not at all corroborated by the medical evidence. Under such circumstances, the story was cooked by the prosecutrix in an 'after thought' manner, which could not be relied upon. It was not proved that the appellant assaulted the prosecutrix in any manner and, therefore, the learned Sessions Judge erred in convicting the appellant for the offence punishable under Section 323 of IPC. 11. The learned Counsel for the appellant has submitted that the appellant was convicted for the offence punishable under Section 323 of IPC, whereas no charge for that offence was framed. If the learned Sessions Judge was of the opinion that offence punishable under Section 323 of IPC was made out, then, it was for him to frame a fresh charge in the case and the opportunity of cross-examination was to be given to the appellant upon the prosecutrix and her husband. The learned Counsel for the appellant did not cross-examine the witness Halle and his wife on this count, because there was no charge of that offence. There is no instance mentioned in the judgments/orders passed by Hon'ble the Apex Court or any Hon'ble High Court of the country, which discuss that the offence punishable under Section 323 of IPC is an inferior offence of the same nature, as of offence punishable under Section 376 of IPC and, therefore, the appellant could not be convicted for the offence punishable under Section 323 of IPC without any charge. 12. The contention of the teamed Counsel for the appellant appears to be acceptable. 12. The contention of the teamed Counsel for the appellant appears to be acceptable. The learned Sessions Judge quoted Illustration (i) of Section 220, in which, it is illustrated that for a particular incident, charges of offence punishable under Sections 352 and 323 of IPC can be framed but, in that Illustration, it is nowhere mentioned that any conviction can be drawn without framing of the charge. According to the provisions of Section 222 of the IPC, if a charge of superior offence of the same nature is framed then, the accused can be convicted for the inferior offence of the same nature. If charge of offence punishable under Section 376 of IPC is framed then, accused can be convicted for the offence punishable under Sections 376 read with Section 511, 354 or 352 of IPC. If a person commits rape with a woman, then, it cannot be said that he intended to cause hurt voluntarily to the prosecutrix and, therefore, the ambit of offence punishable under Section 376 of IPC and that of the offence punishable under Section 323 of IPC are different. For the offence punishable under Section 376 of IPC, it is, nowhere established that the accused intended to cause hurt to the prosecutrix voluntarily. Under such circumstances, it cannot be said that offence punishable under Section 323 of IPC is an inferior offence of the same nature to the offence punishable under Section 376 of IPC and, therefore, the provisions of Section 222 of IPC, were not applicable in the present case. The appellant could not be convicted for the offence punishable under Section 323 of IPC under the charge of offence punishable under Section 376 of IPC without framing the charge. 13. Moreover, the charges for the offence punishable under Section 376 of IPC, were framed for the incident, which took place on 21-6-2011 at about 12 o'clock, whereas the prosecutrix has not stated that the alleged incident of assault took place on the same day and same time. She has stated about the assault in a vague manner and, therefore, it is not at all clear that the incident of assault took place on the same day and the same time and, therefore, it was for the Trial Court to ascertain the date and time of the assault to frame a separate charge of that offence, which was a separate offence. Under such circumstances, the learned Sessions Judge has erred in convicting the appellant for the offence punishable under Section 323 of IPC without framing of the charge for that offence. 14. Since the appellant cannot be convicted for the offence punishable under Section 323 of IPC, therefore, it is not necessary to discuss about the sentence directed by the Trial Court. However, approach taken by the learned Sessions Judge appears to be incorrect and, therefore, it would be proper to discuss about the sentence imposed by the Trial Court. According to the story given by the prosecutrix, if the statement of the prosecutrix is accepted as such then, it was apparent that the appellant did not use any weapon to assault the prosecutrix. No external injury was found to the prosecutrix in her Medico Legal Examination and, therefore, it was possible that the appellant could have given some slaps to the prosecutrix. The appellant was admittedly 26 to 27 years of age at the time of the incident, who was the first offender and then, looking at his overt act, he could be released on probation. The learned Sessions Judge did not discuss as to why the appellant was not released on probation. Similarly, looking at the overt act of the appellant, a small fine could be imposed upon the appellant but, no reason was mentioned by the learned Sessions Judge as to why a severe sentence like 6 months' Rigorous Imprisonment and maximum fine of Rs.1,000/- was imposed for the offence punishable under-Section 323 of IPC. It is awful to see that the learned Sessions Judge quoted 4 judgments of Hon'ble the Apex Court as well as of Hon'ble High Courts in support of the sentence drawn against the appellant, but, he quoted all the judgments relating to Section 354 of IPC. Not a single judgment was quoted, which was related to the offence punishable under Section 323 of IPC. It appears that the learned Sessions Judge was bent upon sending the appellant behind bars, though the prosecutrix has turned hostile in the case. 15. Not a single judgment was quoted, which was related to the offence punishable under Section 323 of IPC. It appears that the learned Sessions Judge was bent upon sending the appellant behind bars, though the prosecutrix has turned hostile in the case. 15. If some accused is convicted in a wrongful manner, then, such accused has to file an appeal against that judgment and if sentence directed by the Trial Court is suspended, then, the appellant is required to appear before the Registry of the High Court or before the Trial Court or before the CJM of the concerned Sessions Division, till the disposal of the appeal and it is a hardship for a person to face the trial and appeal unnecessarily for so many years without his fault and, therefore, the imposition of such type of baseless convictions and harsh sentences without any basis should be strictly discouraged. 16. On the basis of the aforesaid discussion, it is apparent that no offence punishable under Section 323 of IPC is made out against the appellant and, therefore, the appeal filed by the appellant appears to be acceptable and consequently, it is hereby accepted. Conviction as well as sentence directed by the Trial Court for the offence punishable under Section 323 of IPC is hereby set aside. The appellant is acquitted for the offence punishable under Section 323 of IPC. He would be entitled to get the fine amount back from the Trial Court. 17. At present, the appellant is on bail. His presence is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged. 18. Copy of the judgment be sent to the Trial Court along with its record for information and compliance. 19. Comments given by the learned Presiding Officer shall be considered separately on the administrative side.