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Madhya Pradesh High Court · body

2013 DIGILAW 1109 (MP)

Ramesh v. State of M. P.

2013-09-12

N.K.Gupta

body2013
ORDER 1. The appellant was convicted for the offence under section 376(1) of IPC and sentenced with seven years’ rigorious imprisonment with fine of Rs. 2,000/- vide judgment dated 29.11.1996 passed by the learned 10th Additional Sessions Judge, Jabalpur in ST No. 721/1993. Being aggrieved with the conviction and sentence passed by the trial Court, the appellant has preferred the present appeal. 2. The prosecution case, in short, is that the prosecutrix (PW 5) was resident of Bilheri (Police Station Cantt., Jabalpur). On 26.6.1993 the prosecutrix went to answer the call of nature and thereafter she was missing. Mohanlal (PW 1), brother of the prosecutrix had lodged a missing report at Police Station Cantt., Jabalpur. After few days the prosecutrix (PW 5) went to the Police Station and informed about the incident that the applicant made her unconscious and taken to a house where she was kept in confinement. He committed rape upon her. He took the prosecutrix to a temple and forceful marriage was performed with the prosecutrix. Thereafter the appellant released the prosecutrix with a direction that she would go to her house, and therefore the prosecutrix informed about the incident to her father. After recovery of the prosecutrix she was sent for her medico legal examination. Dr. Sharda Mishra (PW 6) examined the prosecutrix and gave her report Ex. P-11. No external or internal injury was found to the prosecutrix. She had 30 teeth in her mouth. There was no indication about the recent intercourse. Dr. Mishra referred the prosecutrix for the ossification test. After due investigation, a charge sheet was filed before the JMFC, Jabalpur (Shri S.N.Khare), who committed the case to the Sessions Court and ultimately it was transferred to the learned 10th Additional Sessions Judge, Jabalpur. 3. The appellant-accused abjured his guilt. He took a plea that there was a dispute between the father of the appellant with the parents of the prosecutrix. The prosecutrix was interested to marry with the appellant, and therefore when she came herself to the house of the appellant, both of them went to a temple and a marriage was performed and it was decided that the prosecutrix as well as the appellant should appear before the police. In defence Vishram Lal (DW 1) was examined. 4. The prosecutrix was interested to marry with the appellant, and therefore when she came herself to the house of the appellant, both of them went to a temple and a marriage was performed and it was decided that the prosecutrix as well as the appellant should appear before the police. In defence Vishram Lal (DW 1) was examined. 4. The learned Additional Sessions Judge, Jabalpur after considering the evidence adduced by the parties acquitted the appellant for the offence punishable under sections 363 and 366 of IPC, but convicted the appellant for commission of offence punishable under section 376(1) of IPC and sentenced as mentioned above. 5. I have heard learned counsel for the parties. 6. Learned counsel for the appellant has submitted that when the appellant was acquitted from the charges of offence punishable under sections 363 and 366 of IPC and the age of the prosecutrix was found to be above 19 years of age, then it was apparent that she was a consenting party for sexual intercourse, and therefore the appellant is wrongly convicted for the offence under section 376(1) of IPC. 7. On the other hand, the learned counsel for the State has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct. 8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that on the basis of educational record the prosecutrix was found to be above 19 years of age. The learned Additional Sessions Judge found that she was a consenting party and no offence of kidnapping or abduction was made against the appellant. In this context, if the evidence of the prosecutrix is perused, then she told in the Court that she was kidnapped by making her unconscious and she was kept in a confinement. The appellant committed rape with her in her unconsciousness and also when she was conscious. She was confined in a house and when she got an opportunity to escape, then she escaped and went to the Police Station Cantt. Where she remained for the remaining night. On the contrary, she had stated a different set of facts to the police that she was forced by the appellant to perform a marriage. She has accepted that in the photograph Ex. D-3 she was garlanding the appellant. Where she remained for the remaining night. On the contrary, she had stated a different set of facts to the police that she was forced by the appellant to perform a marriage. She has accepted that in the photograph Ex. D-3 she was garlanding the appellant. In the Court she had shown her ignorance about the fact of marriage. 9. If the prosecutrix was not conscious, then she could not put a garland on the neck of the appellant in such a manner as shown in the photograph Ex. D-3. She had alleged about the forceful marriage in her case diary statement, whereas in the Court she took a somersault and told nothing about the factum of marriage. According to her police statement, the appellant directed her to go back to her parents’ house and to appear before the police whereas now the prosecutrix told before the trial Court that she escaped from the confinement of the appellant on her own. Similarly, it is apparent that the prosecutrix lived with the appellant for more than two weeks. It is also apparent that she was taken to a temple to perform a marriage, and therefore she had an opportunity to tell to the priest of the temple and other persons present at the spot about the fact that she was kidnapped or confined, but she did not make any hue and cry while the marriage was performed. Under such circumstances, when it was found by the learned Additional Sessions Judge that the prosecutrix was neither kidnapped or abducted and she was a consenting party, then it is apparent that the prosecutrix resided with the appellant for two weeks without any resistance and also participated in performing the marriage. Under such circumstances, if any sexual intercourse was done by the appellant, then certainly it was done with the consent of the prosecutrix. After recovery of the prosecutrix, Dr.Sharda Mishra (PW 6) examined her and found that no intercourse was done in last 6-8 days, which indicate that the appellant did not commit any intercourse in forceful manner with the prosecutrix in last eight days before her recovery. Under such circumstances, it would be apparent that the appellant did not use any criminal force in making intercourse with the prosecutrix. 10. On the basis of aforesaid discussion, it is apparent that the prosecutrix resided with the appellant for two weeks without any resistance. Under such circumstances, it would be apparent that the appellant did not use any criminal force in making intercourse with the prosecutrix. 10. On the basis of aforesaid discussion, it is apparent that the prosecutrix resided with the appellant for two weeks without any resistance. She participated in the marriage performed between the appellant and the prosecutrix and she did not make any hue and cry, and therefore she was a consenting party to the marriage and thereafter when the marriage was consumed, it cannot be said that she did not have any consent for intercourse. Under such circumstances, the appellant could not be convicted for the offence under section 376(1) of IPC. The learned Additional Sessions Judge, Jabalpur has committed an error while convicting the appellant for the aforesaid offence. Consequently, the appeal of the present appellant appears to be acceptable and hence it is hereby allowed. His conviction as well as the sentence for the offence under section 376(1) of IPC is hereby set aside. The appellant is acquitted from the charge of offence under section 376(1) of IPC. 11. At present, the appellant is on bail, his presence is no more required, and therefor,e it is directed that his bail bonds shall stand discharged. 12. A copy of this judgment be sent to the trial Court along with its record for information and compliance, if any.