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2012 DIGILAW 991 (MP)

Pappu @ Pushpraj Singh v. State of M. P.

2012-10-04

ANIL SHARMA

body2012
JUDGMENT : Appellant has filed this appeal under Section 374 (2) of Cr.PC against the judgment dated 9-1-2012 passed in S.T. No. 91/2010 by learned Additional Sessions Judge, Ambah, District Morena whereby appellant has been convicted for the offence punishable under Section 376 of IPC and sentenced to undergo RI for 10 years and line of Rs. 5,000/- with default stipulation, he is further convicted for the offence punishable under Section 342 of IPC and fine of Rs. 1,000/- with default stipulation, he is also convicted for offence punishable under Section 506-B of IPC and fine of Rs. 1,000/- has been imposed upon him with default stipulation. 2. The brief facts of the case are that on 11-1-2010 when prosecutrix (P.W. 1) (name of prosecutrix is not mentioned to hide her identity) went to attend nature's call at about 7.00 a.m. in the field, it is alleged that appellant caught hold of prosecutrix and dragged her to other field and committed rape with her and kept her there till evening. In the evening prosecutrix after reaching to her house narrated the incidence to his family members and lodged the FIR on 14-1-2010. After filing of challan, case has been committed and learned Trial Court after trial of the appellant for the offence punishable under Sections 376, 342 and 506-B of IPC convicted and sentenced the appellant by impugned judgment as mentioned in Para 1 of this judgment. 3. Being aggrieved by impugned judgment, appellant has filed this appeal on the ground that learned Trial Court is not justified in convicting the appellant in the absence of incorporated testimony of prosecutrix. Learned Trial Court is further not justified in overlooking the fact that prosecutrix was major at the time of incidence. 4. The main question for consideration in this appeal is that whether the learned Trial Court is justified in convicting the appellant by impugned judgment. 5. Learned Counsel for the appellant has drawn attention towards the statement of prosecutrix (P.W. 1) who has alleged that appellant took her after shutting her mouth to the field of Gajraj, after crossing 8-10 fields and he committed rape with her. At about 8.00 - 9.00 p.m. he left her near the village. 6. She reached her house at 10.00- 11.00 p.m. and told about the incidence to her mother. At about 8.00 - 9.00 p.m. he left her near the village. 6. She reached her house at 10.00- 11.00 p.m. and told about the incidence to her mother. Her father and uncle had gone in search of her when they returned back on 13-1-2010 her mother told about the incidence to them and thereafter she lodged the report (Exh. P-1) at Police Station, Ambah. Accused has threatened her with death if she told about the incidence to anybody. 7. Learned Counsel for the appellant submitted that prosecutrix (P.W. 1) has admitted that she knew the appellant as appellant was driver on her tractor. He has further submitted that in her cross-examination-in-chief prosecutrix has stated that she has gone to the field of Gajraj on her feet but in cross-examination she has stated that appellant took her in his arms (God). She has further stated in her cross-examination that she got bleeding abrasions on her back due to incidence and her feets and hands were also injured from the mustard crop. Appellant committed intercourse first time at about 2.30 p.m. and second time at about 3.00 p.m. He has not committed intercourse between 7.00 a.m. to 2.30 p.m. and after 3.00 p.m. to 10.00 p.m. Between 2.30 to 3.00 p.m. they were sitting separately. She has shown torn clothes and bleeding out parts of body to the Doctor. She has further stated that due to intercourse she started bleeding and her underwear and salwar were stained with blood. Her private parts remained swollen for six days. She further stated that her hymen and private parts were stained with blood and sperm. 8. Learned Counsel for the appellant has drawn attention towards the statement of Dr. Diksha Gupta (P.W. 10) and has stated that she has not found any injury on her body and private parts. No bleeding and injury was found from the private parts. Hymen was old torn, no pain was found in the private parts. She has referred the prosecutrix to the dentist for confirmation of age. 9. Learned Counsel for the appellant has also drawn attention on the statement of Dr. Ashok Singh (P.W. 9) who has found after taking X-ray, age of prosecutrix above 15 years and below 16 ½ years. 10. Learned Counsel for the appellant has submitted that prosecutrix was known to the appellant from long time before the incidence. 9. Learned Counsel for the appellant has also drawn attention on the statement of Dr. Ashok Singh (P.W. 9) who has found after taking X-ray, age of prosecutrix above 15 years and below 16 ½ years. 10. Learned Counsel for the appellant has submitted that prosecutrix was known to the appellant from long time before the incidence. No injury was found on the private parts of the prosecutrix. Her age is more than 15 years and less than 16 ½ years at the time of incidence. According to Radiologist, there is no evidence regarding actual age of prosecutrix, no reliable evidence has been adduced by the prosecutrix. Prosecutrix never tried to escape from the place where she stayed from the morning till night. Her evidence regarding injury sustained in the incidence and that her clothes were torn is not find support from medical evidence. 11. Learned Public Prosecutrix has submitted that Trial Court has found the age of prosecutrix below 16 years, therefore, the question of consent of prosecutrix is immaterial. Even if the report of Radiologist is considered he has mentioned the age of prosecutrix above 15 years and below 16 ½ years, therefore, the age of the prosecutrix should be treated as above 16 years. Considering the fact that two views are possible and the second view should be executed by the Trial Court. 12. From the perusal of statement of prosecutrix, it is clear that she was not confined or obstructed from going anywhere from the place of incidence. After alleged first intercourse she remained sitting away from the appellant but she did not try to escape. 13. In her cross-examination-in-chief, there is no allegation that at the time of incidence appellant threatened her, therefore, offence punishable under Sections 342 and 506-B of IPC are not made out. 14. Learned Counsel for the appellant has cited judgment of Hon'ble Chhattisgarh High Court in the matter of Ramkumar Dewangan Vs. 13. In her cross-examination-in-chief, there is no allegation that at the time of incidence appellant threatened her, therefore, offence punishable under Sections 342 and 506-B of IPC are not made out. 14. Learned Counsel for the appellant has cited judgment of Hon'ble Chhattisgarh High Court in the matter of Ramkumar Dewangan Vs. State of Chhattisgarh, 2007(3) M.P.H.T. 111 (CG), in which it has been held that as per medical report, no mark of injury over private parts of the prosecutrix - no Gynaecological problem was noticed - Accused was previously known to her - She voluntarily accompanied accused and went towards field - After performing the first intercourse, they silently sat on the field for half an hour - Thereafter, the second intercourse was performed - Despite sufficient opportunity, she neither ran away nor she took help of any other person - Her entire conduct showed that she was a consenting party - Hence, conviction for the offence punishable under Section 376 of IPC and sentence is set aside - Appeal allowed. 15. Learned Counsel for the appellant has also cited judgment of Hon'ble Apex Court in the matter of Rajindra Chandra Vs. State of Chhattisgarh and another, 2002(1) M.P.H.T. 536 (SC) = 2002 SCC (Cri) 333, in which it has been held that while considering the question whether the accused was a juvenile - In borderline cases, if two views are possible on the basis of the evidence adduced, the view which is in favour of the juvenile accused should be adopted. 16. In the present case, the age of the prosecutrix is found more than 16 years according to Radiologist and there is no evidence regarding her actual date of birth, therefore, learned Trial Court is not justified in treating the prosecutrix as below to age of 16 years at the time of incidence. Further the prosecutrix (P.W. 1) is not a reliable witness as her statement regarding torn clothes, injuries and bleeding has not been corroborated by medical evidence. Further the FIR has been lodged after delay of three days and the reason assigned for delay being not reliable, the appellant could not have been convicted for the charges of offence punishable under Sections 376, 342 and 506-B of IPC. The appellant shall be entitled for benefit of doubt. 17. Therefore, appeal is allowed. Further the FIR has been lodged after delay of three days and the reason assigned for delay being not reliable, the appellant could not have been convicted for the charges of offence punishable under Sections 376, 342 and 506-B of IPC. The appellant shall be entitled for benefit of doubt. 17. Therefore, appeal is allowed. Impugned judgment passed by learned Trial Court dated 9-1-2012 is set aside and appellant is acquitted from the charges of offences punishable under Sections 376, 342 and 506-B of 1PC. Fine amount, if deposited, be refunded to the appellant. Appellant is in custody, therefore, he be released immediately.