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Madhya Pradesh High Court · body

2013 DIGILAW 958 (MP)

State of M. P. v. Guddu Singh

2013-08-14

M.K.Mudgal, S.K.Gangele

body2013
ORDER 1. Heard the application for leave to appeal. 2. This is an application under section 378 (3) of the Code of Criminal Procedure, 1973 filed by the applicant/state seeking leave to file an appeal against the judgment of acquittal dated 3.12.2012 under section 3 (2) (xii) of SC/ST Act and under section 363, 366 and 376 (2) (g) of the Indian Penal Code passed by learned Special Judge under SC/ST (Prevention of Atrocities) Act in Special Case No.266 of 2004. 3. Perused the impugned judgment and record. 4. Admittedly, the complainant/prosecutrix (PW1) is Jatav by caste hence, belongs to the Scheduled Caste community, on the other hand, the non-applicants-accused are Yadav by caste hence, belong to the general category who were tried for the offences mentioned above and acquitted vide impugned judgment dated 3.12.2012. 5. The case of prosecution in brief as stated by the complainant/prosecutrix is that the prosecutrix was married in village Nirar and the non-applicants-accused are residents of a place nearby her maternal house. On 15.7.2004 at about 12 noon, when prosecutrix was going to ease herself in her in-laws village Nirar the non-applicants-accused reached the place and threatened her to accompany them or they would kill her and forcefully made her to sit in the tractor and brought her to Jaura where from, they took her to Morena in a bus and kept her in a Dharmshala where, they repeatedly raped her during night. Thereafter, the non-applicants-accused left the Dharamshala one by one and the prosecutrix went to her maternal uncle Ramesh’s house at Joura. Thereafter, a report crime number 187 of 2004 Ex. P/1 of the incident was lodged by the prosecutrix on 21.7.2004 at Police Station Kailaras against the non-applicants- accused and the matter was investigated by the police. During investigation, the map of the scene of occurrence Ex.P/2 was prepared and prosecutrix was sent for medical examination and to ascertain correct age, her X-Ray was got conducted. The non-applicants-accused were arrested and statements of the witnesses were recorded under section 161 of CrPC and on completion of investigation, charge sheet was filed in the Court of JMFC, Morena, from where, the case was committed to the Court of Special Judge, Morena. 6. The non-applicants-accused were arrested and statements of the witnesses were recorded under section 161 of CrPC and on completion of investigation, charge sheet was filed in the Court of JMFC, Morena, from where, the case was committed to the Court of Special Judge, Morena. 6. During the trial, eight witnesses namely Smt. Geeta Bai (PW 1), Bhogiram (PW 2), Dr.Deeksha (PW 3), Dr.Ravindra Singh Sikarwar (PW 4), Surendra Kumar Jain (PW 5), Murari (PW 6), Dharmvir Singh Bhadoria (PW 7) and Bhagrilal (PW 8) were examined. In defence, only witness Chetram Singh Bhadoria (DW1) was examined. 7. In a rape case, the age of a prosecutrix has a great significance. If the age of the prosecutrix is found 18 years or above and consent of the prosecutrix is also confirmed in the incident, the offence of abduction and rape is not made out. In the instant case, the prosecutrix (PW 1) has stated her age to be 19 years in her statement on 20.5.2006. the date of incident is 15.7.2004. According to this, her age works out to be 17 years on the date of incident, however, the prosecutrix (PW 1) has not disclosed her age below 18 years in the chief-examination. In para 4 of her statement, she has admitted her age to be 22 years. Besides this, she has further submitted that her date of birth 1.5.1985 was entered in the school register. Thus, the age of prosecutrix (PW 1) works out to be more than 19 years on the date of incident. To ascertain the actual age of prosecutrix (PW 1), she was examined by Dr.Ravindra Singh Sikarwar (PW 4) who has reported her age between 17 to 18 years. The report Ex. P/5 is based on X-Ray Ex. P/6 and P/7 which has variance of two years plus or mines. In this regard, the learned trial Court has elaborately discussed the evidence in paras 8 to 17 and has held that the age of the prosecutrix was more than 18 years on the date of incident. The said findings are based on proper reasonings. 8. P/6 and P/7 which has variance of two years plus or mines. In this regard, the learned trial Court has elaborately discussed the evidence in paras 8 to 17 and has held that the age of the prosecutrix was more than 18 years on the date of incident. The said findings are based on proper reasonings. 8. As per the story of the prosecution and the statement of the prosecutrix, the prosecutrix (PW 1) was forcibly taken away by the accused persons at about 12 or 1 p.m. from the village Nirar to Kailaras in a tractor, where from, she was led to Joura and from there to Morena. During the cross-examination, it has come on the record that the prosecutrix (PW 1) traveled a long distance from the village Nirar to Morena with the accused by tractor and by bus. It has also come on record that neither she cried for help nor did she disclose anybody that she was being taken away forcibly. As per her statement, she was raped by the accused in the Dharmshala during her stay at night and she was left alone by both of the accused in the morning, but she waited for them till evening. Even during that time, she did not disclose to anyone about her abduction and rape. Thereafter, she reached her maternal uncle Ramesh’s house at Joura even there too, she kept quite about the incident. The report Ex.P/1 was lodged after five days and no proper explanation for inordinate delay in lodging the report has been furnished on behalf of the prosecution. In the medical examination also, no injury was found on her body. 9. The learned trial Court having discussed the entire recorded evidence has not found proved that the prosecutrix (PW 1) was forcibly taken away by non-applicants-accused and raped by them without her consent. The conclusion drawn by the trial Court is absolutely justified and no interference is required in the impugned judgment. 10. Therefore, the leave application filed by the applicant/ state is not granted and hence, the application for leave to appeal, stands rejected.