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Madhya Pradesh High Court · body

2012 DIGILAW 940 (MP)

Rajkumar v. State of M. P.

2012-09-28

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon the 28th day of September, 2012) The appellant has preferred this appealagainst the judgment dated 26.12.1996 passed by the learned First AdditionalSessions Judge, Sidhi in S.T.No.82/1996, whereby theappellant was convicted for the offence punishable under section 376 of IPC andsentenced for 7 years' rigorous imprisonment with fine of Rs.2,000/-. Indefault of payment of fine, one year's rigorous imprisonment was also directed. 2.Prosecution's case, in short, is that, on 30.3.1995, at about 10 a.m. in the morning, the prosecutrix (P.W.1) was working in Khalihan , situated at Village Khutar , Dihba Tola (Police Station Waidhan , District Sidhi ).Due to power cut, the working of thresher was stopped and therefore, Ramdas , husband of the prosecutrix ,went to his house for taking lunch. At about 10 a.m. in the morning, the prosecutrix wentto a field of Arhar (Pulse) to answer the call ofnature. When she was coming back, the appellant met her and held her hand andtried to drag her towards his field. He pressed her breasts. The prosecutrix shouted then, the appellant threw her on Earth.In the meantime, Ramdas , husband of the prosecutrix reached to the spot and therefore, theappellant ran away from the spot. The prosecutrix thereafter, went to the flour mill of Ramkesh andtold the entire story to him. In the evening, she told the entire story to Ramlal (P.W.3). On the next day, at about 3 p.m. in the evening, she had lodged an FIR,Ex.P/2 at Police Station Waidhan , District Sidhi , which was registered for the offence punishableunder section 354 of IPC. During investigation, the prosecutrix has stated that the appellant had committed rape with her and therefore, afterdue investigation, a charge-sheet was filed before the JMFC, Waidhan for the offence punishable under sections 354 and376 of IPC. The learned JMFC committed the case to the Sessions Court, Sidhi and ultimately, it was transferred to the FirstAdditional Sessions Judge, Sidhi . 3.The appellant abjured his guilt. He took a specific plea that Ramdas , husband of the prosecutrix took a sum of Rs.2 ,200 /- from him and he was notreturning the same on demand. To pressurize the appellant, a false case wasprepared with help of his wife. In defence , Ramkesh (D.W.1) was examined. 3.The appellant abjured his guilt. He took a specific plea that Ramdas , husband of the prosecutrix took a sum of Rs.2 ,200 /- from him and he was notreturning the same on demand. To pressurize the appellant, a false case wasprepared with help of his wife. In defence , Ramkesh (D.W.1) was examined. 4.The learned Sessions Judge, after considering the evidence adduced by theparties, convicted the appellant for the offence punishable under section 376of 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 initially a report ofoffence punishable under section 354 of IPC was lodged by the prosecutrix . FIR was lodged with delay of at least 19 hoursand therefore, no medical examination of either the prosecutrix or the appellant had taken place. It is apparent that she had an opportunity tonarrate the facts at the time of lodging the FIR but, she did not told aboutthe rape and therefore, allegation of the offence of rape was not correct. The prosecutrix was a consenting party. Her conduct andcharacter was duly established by Ramkesh (D.W.1). Itappears that when the husband of the prosecutrix wentto the spot, a false report was lodged against the appellant otherwise, she wasa consenting party. In the alternate, it is submitted that if the appellant isconvicted for the offence punishable under section 354 of IPC then, he remainedin the custody for one year and 19 days. He has faced the trial and appeal forthe last 16 years and therefore, he may not be sent to the jail again. 7.On the other hand, the learned Panel Lawyer has submitted that the convictionas well as the sentence passed by the trial Court appears to be on soundfootings and therefore, no interference is warranted in the appeal. 8.After considering the submissions made by the learned counsel for the parties,it is to be considered as to whether the appeal filed by the appellant can beaccepted? Whether the appellant can be convicted for the offence punishableunder section 354 of IPC? And whether the sentence imposed upon the appellantcan be reduced? 9.The prosecutrix (P.W.1) has stated that her husbandwent to his house to take his lunch and after sometime, the prosecutrix went to answer the call of nature.When she was returning, the appellant held her hand and her waist. And whether the sentence imposed upon the appellantcan be reduced? 9.The prosecutrix (P.W.1) has stated that her husbandwent to his house to take his lunch and after sometime, the prosecutrix went to answer the call of nature.When she was returning, the appellant held her hand and her waist. He threw heron the Earth and committed rape upon her. She was crying and weeping but,nobody came to the spot. Ultimately, her husband heard her cries and came to thespot and thereafter, the appellant ran away. Ramdas (P.W.2) has stated that he went to take his lunch. Thereafter, when he cameback to the Khalihan , he found that his wife was notthere. When he heard her shoutings , he rushed to thespot and found that the appellant left the hand of the prosecutrix and started running from the spot. His wife informed him that the appellant wastaking her to his field to take her Chastity. He did not say that the prosecutrix informed him that the appellant committed rapeupon her. 10.According to the prosecutrix and Ramdas ,the prosecutrix thereafter went to the flour mill of Ramkesh and told the entire story to the witness Ramkesh . However, Ramkesh was notexamined by the prosecution. He was examined as a defence witness as D.W.1. 11.The prosecutrix had lodged an FIR, Ex.P/2 on the nextday of the crime. Ramdas , husband of the prosecutrix had accepted that from his village to thePolice Station Waidhan , public transports areavailable on each and every hour. No reason could be shown by these witnessesas to why they could not go to the Police Station on the same day of theincident. The incident took place at about 10 a.m. in the morning and therefore, they could reach to the PoliceStation at about 2 p.m. in theevening. On the contrary, the FIR was lodged on the next day at about 3 p.m. and therefore, FIR is delayed by atleast 25 hours. No reasonable ground could be shown by the prosecutrix or her husband about such a delay. Also in the FIR, no allegation had been madeby the prosecutrix about the offence of rape. Undersuch circumstances, where she did not inform her husband or the witness Ramkesh about the rape and no such allegation was made inthe FIR then, it appears that she had alleged a false allegation of rapeagainst the appellant. Also in the FIR, no allegation had been madeby the prosecutrix about the offence of rape. Undersuch circumstances, where she did not inform her husband or the witness Ramkesh about the rape and no such allegation was made inthe FIR then, it appears that she had alleged a false allegation of rapeagainst the appellant. The appellant could not be convicted for the offencepunishable under section 376 of IPC. Learned Additional Sessions Judge haserred in convicting the appellant for the offence punishable under section 376of IPC. 12.So far as the offence punishable under section 354 of IPC is concerned, it isalleged by the prosecutrix in the FIR that theappellant held her hand to drag her towards the field of Arhar (Pulse) and he pressed her breasts. Ramdas has alsoconfirmed that when he saw the appellant, he left the hand of the prosecutrix and started running. Ramdas did not tell the entire story before the Court. He did not state before thepolice that when he saw, the appellant left the hand of the prosecutrix and started running. A contradiction was marked with his case diary statement,Ex.D/2. 13. Ramlal (P.W.3) was the witness who was informed aboutthe incident by the prosecutrix in the evening. Ramlal (P.W.3) has stated that in the evening, the prosecutrix was sitting at the flour mill of Ramkesh . When the witness Ramlal asked her as to why she was sitting there, the prosecutrix replied that her husband was not permitting her to go inside the house becausethe appellant held the hand of the prosecutrix .Thereafter, Ramlal asked the prosecutrix that whether her hand was held by the appellant or not then, she has acceptedthat her hand was held by the appellant. The witness Ramlal was not declared hostile. The version given by the witness Ramlal was confirmed by Ramkesh (D.W.1). Ramkesh has further stated that the prosecutrix had told thather husband ousted her from the house and thereafter, he advised her husbandnot do such a thing. Ramkesh gave his opinion thatthe prosecutrix was in a habit to do such an activitywith others and therefore, her husband was disheartened due to such a characterof her. If the evidence of the witness Ramkesh is notaccepted then, still the evidence given by the witness Ramlal indicates that looking at the activity of the prosecutrix ,her husband Ramdas thought that the prosecutrix was a consenting party. If the evidence of the witness Ramkesh is notaccepted then, still the evidence given by the witness Ramlal indicates that looking at the activity of the prosecutrix ,her husband Ramdas thought that the prosecutrix was a consenting party. A patch up took placebetween Ramdas and his wife because she had shown herwillingness to lodge an FIR and therefore, the FIR could be lodged. 14.By evidence of the witness Ramlal , it appears thatthe husband of the prosecutrix ousted her from thehouse and a compromise took place between them and thereafter, the prosecutrix lodged the FIR. Such overt-act of the witness Ramdas indicates that he did not hear any hue and cry ofthe prosecutrix but, when he came back from hishouse, he saw that the appellant holding the hand of the prosecutrix and therefore, he was annoyed with his wife because he was of the view that the prosecutrix was a consenting party. 15.If the prosecutrix was not a consenting party then,she must have made hue and cry, so that her husband or other persons could cometo the spot. On the contrary, she did not make any hue and cry and even she wasnot ready to lodge the FIR against the appellant. Under such circumstances, itis apparent that the prosecutrix was a consentingparty. If a person teases any woman and she was a consenting party then, itcannot be said that by over fact of the accused, any criminal force was used byhim and therefore, due to consent of the prosecutrix ,no offence punishable under section 354 of IPC shall be made out in such acase. 16.On the basis of the aforesaid discussion, the possibility cannot be ruled outthat the prosecutrix was a consenting party andtherefore, the appellant cannot be convicted for the offence punishable undersection 354 of IPC. An FIR was lodged by the prosecutrix due to pressure of her husband and no crime was committed with her. 17.The appellant cannot be convicted for the offence punishable under sections 376or 354 of IPC. The learned Additional Sessions Judge erred in convicting theappellant for the offence punishable under section 376 of IPC. 18.Consequently, the appeal filed by the appellant appears to be acceptable.Hence, it is hereby accepted. The conviction as well the sentence directed bythe trial Court for the offence punishable under section 376 of IPC is herebyset aside. The appellant is acquitted from all the charges appended againsthim. 18.Consequently, the appeal filed by the appellant appears to be acceptable.Hence, it is hereby accepted. The conviction as well the sentence directed bythe trial Court for the offence punishable under section 376 of IPC is herebyset aside. The appellant is acquitted from all the charges appended againsthim. He would be entitled to get the fine amount back from the trial Court, ifhe has deposited. 19.The appellant is on bail. His presence is no more required before this Courtand therefore, it is directed that his bail bonds shall stand discharged. 20.A copy of the judgment be sent to the trial Courtalong with its record for information and compliance.