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2013 DIGILAW 88 (CHH)

ISHWAR v. STATE OF M. P.

2013-03-07

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 30.6.1997 passed by Additional Sessions Judge Raipur in Sessions Trial No. 72/1996 convicting the accused/appellants for the offence punishable under Section 376(2)(g) IPC and sentencing each of them to undergo RI for ten years. 2. Facts of the case in brief are that on 8.11.1995 FIR Ex. P-6 was lodged by the prosecutrix (PW-1) - a married lady aged about 28 years at the relevant time alleging that on that day at about 7 p.m. when she was going to Raipur to sell plums along with her husband who was walking about one furlong ahead of her, accused/appellant Ishwar pushed the basket carried by her, gagged her mouth, accused Narendra took her to the field by catching hold of her hand where both of them committed forcible sexual intercourse with her one after the other. After commission of the offence, the accused/ appellants left the spot and she started weeping on hearing which her husband stopped and she narrated the entire incident to him. While going to police station for lodging the report, Sonai and Ohani met her and she narrated the incident to them also. Based on this report, offence under Sections 341, 376/34 IPC was registered against the accused/appellants. After completion of investigation, charge-sheet was filed on 11.12.1995 under Sections 341, 376 (2)(g)/34 IPC. Court below however framed the charge only under Section 376 (2) (g) IPC. 3. In support of its case the prosecution has examined 09 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. One Mehtaruram (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No.1 of the judgment. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the accused/appellants submits that a very improbable story has been put forth by the prosecution as it is literally impossible for anyone to commit the offence of like nature with a woman accompanying her husband. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the accused/appellants submits that a very improbable story has been put forth by the prosecution as it is literally impossible for anyone to commit the offence of like nature with a woman accompanying her husband. According to the counsel for the appellants, the Court statement of the prosecutrix is entirely different from that of the FIR and the case diary statement Ex. D-1 as in the Court she has stated that her husband had gone to sell plums and when she was going to give food to him, accused/appellants met her on the way, gagged her mouth, took her to the filed and committed forcible sexual intercourse with her whereas in the FIR and case diary statement she has stated that while she was going to sell plums in the company of her husband, accused/ appellant Ishwar pushed her basket full of plums, gagged her mouth, accused Narendra caught hold of her hand, took her to the filed where both of them committed forcible sexual intercourse with her one after the other. He further submits that the sole defence witness has stated that prosecutrix was having affair with accused Ishwar and the other accused Narendra was acting as his mediator. He submits that even the medical report of the prosecutrix does not support the case of the prosecution. 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that barring certain minor contradictions and omissions, statement of the prosecutrix is fully trustworthy and therefore the Court below has been absolutely justified in convicting and sentencing the accused/appellants as mentioned above. 8. Prosecutrix (PW-1) has stated that she knew the accused/appellants and that on the date of incident her husband had gone to Raipur to sell plums and when she was going to give food to him, near village Lakholi, accused/appellants came from behind, gagged her mouth, dragged her to the nearby field and committed forcible sexual intercourse with her one after the other. She has stated that after the act of accused Ishwar she was feeling hot and that he had a talk with her and tried to make her cool by waving his scarf. She has stated that after the act of accused Ishwar she was feeling hot and that he had a talk with her and tried to make her cool by waving his scarf. After completing their act, accused/appellants accompanied her up to the midway and then she went to her husband weeping and on being asked by him she disclosed the entire incident to him in the presence of two persons namely Sonai and Dhaniram. Thereafter, she went to police station, Mandir Hasaud and lodged the report. In cross-examination, she has denied that she allowed accused/appellant Ishwar to have physical relations with her in order to have a child from him. She has admitted the fact that earlier her husband had deserted 45 women as he was not having issues from them and then he married her through Choodi custom. This witness has however denied that she had physical relations with accused Ishwar with an intention to have child. In paragraph No. 16 she has denied that while lodging the report she informed the police that' she was going to Raipur to sell plums along with her husband and that when the incident took place, she could not see her husband but the portion marked as “B to B” in the FIR where it has been mentioned that on hearing her cries her husband stopped and she went to him, was not informed by her to the police. In paragraph 18 she has admitted that she did not sustain any injury and even her clothes were not torn nor the bangles broken. According to her, the accused/appellants had also not sustained any injury nor their clothes were torn. In paragraph 19 she has stated that for half an hour the appellant Ishwar tried to cool her with scarf and when she felt better he took her up to the midway and left her saying that her husband would be in the station. In paragraph 20 she has admitted that when the appellants were trying to cool her, their hands were empty and told her that she would be fine within some time. Raghunandan (PW-2) - the husband of the prosecutrix has stated that the prosecutrix came to him and informed that she was subjected to sexual intercourse by the accused/appellants and at that time Sonai and Dhaniram were also present there. Raghunandan (PW-2) - the husband of the prosecutrix has stated that the prosecutrix came to him and informed that she was subjected to sexual intercourse by the accused/appellants and at that time Sonai and Dhaniram were also present there. In cross-examination, this witness remained firm to what he has stated in the examination-in-chief. Sonai Bai (PW-3) has stated that on the date of incident she had gone to village Lakholi to sell the plums and in the station prosecutrix came there weeping and informed about the act of the accused/appellants. According to her, at that time, her husband and other people of the village were also there. Ramkhilawan (PW-4) is the witness to seizure of petticoat made under Ex. P-2. Dr. K.S. Rai (PW-5) is the witness who medically examined the accused/appellants and gave his reports Ex. P-3 and P-4 stating that they were capable of performing sexual intercourse. Chhabiram Diwan (PW-6) is the Patwari who prepared spot map Ex. P-5, Rajbhan Tiwari (PW-7) is the investigating officer who has duly supported the case of the prosecution. Amarnath (PW-8) is the witness who assisted in the investigation. Dr. (Smt.) Nidhi Gupta (PW-9) is the witness who medically examined the prosecutrix and gave her report Ex. P-12 stating that there was no internal or external injury on her person and that she being a married lady was habitual to sexual intercourse. Mehtaruram (DW-1) has stated that he was informed by the husband of the prosecutrix that she was having illicit relations with appellant Ishwar whereas accused Narendra was acting as messenger of Ishwar. Husband of the prosecutrix had also informed this witness that if accused appellants paid Rs.10,000/- each, he would get the matter closed after taking the prosecutrix in confidence. 9. Thus from the record it is apparent that the prosecutrix has not been consistent while stating the things in the FIR, statement recorded under Section 161 Cr. P.C as also in the deposition made before the Court and has given altogether different stories all the times. Record also shows that while being subjected to rape by the accused/appellants, she did not offer any protest because it is nowhere in the record that any injury was sustained by her or her clothes were torn or bangles broken. Thus in view of all these things, possibility of false implication cannot be ruled out. Record also shows that while being subjected to rape by the accused/appellants, she did not offer any protest because it is nowhere in the record that any injury was sustained by her or her clothes were torn or bangles broken. Thus in view of all these things, possibility of false implication cannot be ruled out. Further, the sole defence witness (DW-1) has stated that prosecutrix was having illicit relations with appellant Ishwar and the other accused Narendra used to act as his messenger. He has stated that husband of the prosecutrix had demanded Rs.10,000/- from each of the accused/appellants to get the matter settled. Even the FSL report is not on record. Thus in view of the aforesaid lacuna in the case of the prosecution, the accused/appellants are entitled for benefit of doubt. 10. Accordingly, the appeal is allowed. Judgment impugned is set aside. I Accused/appellants are acquitted of the charge levelled against them. Accused/ appellants are on bail. Their bail bonds stand discharged. Appeal Allowed.