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Madhya Pradesh High Court · body

2013 DIGILAW 772 (MP)

Purshottam Tiwari v. State of M. P.

2013-07-08

G.S.Solanki

body2013
JUDGMENT 1. The appellant has preferred this appeal under section 374(2) of CrPC being aggrieved by judgment dated 24.2.1997 passed by Sessions Judge, Damoh in S.T. No. 5/96 whereby the appellant has been convicted under sections 376(1), 450 of the IPC and sentenced to R.I. for 5 years and fine of Rs. 2000/- and R.I. for 1 year and fine of Rs. 500/-, with default stipulations. 2. The prosecution case, in short, is that it is alleged that on 20.11.1995 in the morning, when the prosecutrix was preparing breakfast in her house and her husband had gone to answer the call of nature, the appellant entered into the house of the prosecutrix, threw her on the ground and committed rape on her. When she made hue and cry, her neighbour Suratia came there and saw appellant running from the spot. Thereafter, husband of prosecutrix returned to the house and then, the incident was narrated to him, thereafter, report was lodged at Police Station Damoh instead of Police Station Patharia. During investigation, the prosecutrix was sent for medical examination. The appellant was arrested and medically examined by Dr. Hari Mohan Dixit (PW 6), who found the appellant capable to perform sexual intercourse and prepared report Ex.P-5. 3. After usual investigation, the appellant was charge sheeted before the JMFC, Damoh who committed the matter to the Court of Sessions. The learned Sessions Judge, Damoh framed the charges under sections 376(1), 450 of the IPC. 4. The appellant abjured the guilt and pleaded false implication. 5. On appraisal of evidence on record, the learned Sessions Judge convicted and sentenced the appellant as mentioned hereinabove. 6. Learned Sr. counsel for the appellant has submitted that appellant has been falsely implicated in the case. The trial Court has committed illegality in appreciating the evidence on record in its proper perspective. As per prosecution, one Suratia saw the appellant running from the spot, but he has not been produced by the prosecution. Learned Sr. Counsel has further submitted that it is quite unnatural that one can perform sexual intercourse without consent of the prosecutrix when her children were playing in nearby place. The prosecutrix appears to be a consenting party. As per prosecution, one Suratia saw the appellant running from the spot, but he has not been produced by the prosecution. Learned Sr. Counsel has further submitted that it is quite unnatural that one can perform sexual intercourse without consent of the prosecutrix when her children were playing in nearby place. The prosecutrix appears to be a consenting party. When her neighbout Suratia came on the spot and her daughter narrated the entire incident to her father/husband of the prosecutrix, then, the prosecutrix made colourable statement in regard to the rape committed by the appellant, therefore, the trial Court has committed illegality in recording the conviction and sentence under sections 376(1), 450 of the IPC against the appellant, same be set aside and appellant be acquitted to the aforesaid charges. 7. On the other hand, learned counsel for the State justified and supported the impugned judgment and finding of the trial Court. 8. I have heard the learned counsel for the parties, perused the impugned judgment, evidence and other material on record.Prosecutrix (PW 2) has stated that when she was preparing breakfast, her children/one daughter aged about 8 years and one son aged about 1½ years were playing in courtyard and her husband had gone to answer the call of nature, at that time, the appellant entered her house, threw her on the ground and committed rape on her. When she made hue and cry, he ran away. After about half an hour, her husband came back, she narrated the entire incident to him and thereafter, the report was lodged at Police Station. On perusal of Ex.(P-2), it reveals that initially the prosecutrix narrated about the incident to Suratia and as per FIR, Suratia saw appellant running away from the house of the prosecutrix. Thus, Suratia was the main witness of the incident. The prosecution gave up him. Certainly, if he would have been produced, he would not have supported the prosecution case. Ku. Savita (PW 4), daughter of the prosecutrix, though she is a child witness, she narrated entire story. She specifically stated that the appellant entered into their house and closed the door from inside, therefore, she was scared. When her father came back to the house, she told about the incident to him, however, her mother did not say anything at that time. She specifically stated that the appellant entered into their house and closed the door from inside, therefore, she was scared. When her father came back to the house, she told about the incident to him, however, her mother did not say anything at that time. This fact shows that when Teji (PW 3), husband of the prosecutrix came back to house, his daughter told him about the incident and nothing was disclosed by the prosecutrix to her husband. This fact clubbed with the fact that Suratia came on the spot and saw appellant running from the spot has not been stated by the prosecutrix in her statement recorded before the trial Court, which shows that the prosecutrix deliberately suppressed these facts before the trial Court and therefore, her statement does not inspire the confidence and she does not appear to be believable. Apart from that, there is no evidence in regard to resistance by the prosecutrix or medical corroboration of struggling with the appellant at the time of incident. It seems that she invited the appellant to her house, closed the door from inside, thereafter, when Suratia came there and her husband returned back to home, she did not disclose any thing to him and when her daughter told her husband about the incident, she made colourable story and lodged the report. In these circumstances, possibility of false implication of the appellant cannot be ruled out, if any intercourse has been done, same was with the consent of the prosecutrix. It may be an immoral act, but same cannot be termed as rape committed against the prosecutrix. The learned trial Court has failed to consider the aforesaid aspect of the case and committed illegality in appreciating the evidence on record in its proper perspective. 9. In view of the aforesaid discussion, the appeal is allowed. The conviction and sentence recorded by the trial Court under sections 376(1), 450 of the IPC is hereby set aside. The appellant is acquitted to the charges under sections 376(1), 450 of the IPC. The appellant is on bail, his bail bonds and surety bonds stand discharged. 10. Record of the trial Court be transmitted along with the copy of this judgment for information and necessary action.