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2014 DIGILAW 229 (CHH)

Atmaram v. State of M. P.

2014-06-20

PRITINKER DIWAKER

body2014
Judgment Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 17.8.1998 passed by Sessions Judge Durg, in Sessions Trial No. 339/1997 convicting the accused/appellant under Sections 450 and 376 IPC and sentencing him to undergo rigorous imprisonment for seven years with fine of Rs. 1000/- under each section, plus default stipulations. 2. Facts of the case in brief are that on 17.6.1997 FIR Ex. P-2 was lodged by prosecutrix (PW-3) aged about 15 years alleging that she was residing with his brothers namely Phoolchand and Santosh Kumar and that on 22.2.1997 at about 8.30 p.m. she was all alone in her house and at the time when she was sleeping, accused/appellant came to her house and committed forcible sexual intercourse with her and when she tried to raise the cries, he gagged her mouth. It is also alleged that while leaving the spot after committing sexual intercourse, the accused/appellant had threatened her not to disclose the incident to anyone. Even thereafter the accused/appellant used to visit her house and have physical relations with her and when she became pregnant by 3-4 months, she informed the incident to her neighbour Mangtin and after her brother came to know about the incident, the report was lodged by her. Based on this report, offence under Section 376 IPC was registered against the accused/appellant. On being medically examined, she was found carrying pregnancy of about 20 weeks but no sign of recent intercourse was noticed by the concerned doctor. However, the doctor conducting medical examination has not been examined before the Court. After completion of investigation, charge sheet was filed by the police on 10.7.1997 for the offence punishable under section 376 IPC and the charge was also framed accordingly. 3. So as to hold the accused/appellant guilty, prosecution has examined 05 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No. 1 of this judgment. 5. Accused/appellant remained unrepresented before this Court. 6. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No. 1 of this judgment. 5. Accused/appellant remained unrepresented before this Court. 6. However, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/appellant under Sections 450 and 376 IPC are strictly in accordance with law and there is no infirmity in the same. 7. Heard counsel for the State and perused the evidence on record. 8. Thannulal (PW-1) - the witness to village Panchayat has stated that before the Panchayat the prosecutrix had informed that she was carrying pregnancy through the accused/appellant. However, according to this witness, the accused/appellant denied any such incident. This witness has however been declared hostile. Kanahiya Lal (PW-2) is the retired teacher who had proved the admission register Ex. P-1 and stated that in the said document date of birth of the prosecutrix was recorded as 4.7.1981. However, in cross examination this witness has stated that the entry in the said document was not made by him and he could not tell as to which teacher had made it and on what basis. He has stated that at times the date of birth is recorded on the basis of assumption but he could not tell whether the entry in the above-mentioned register is correct or not. Prosecutrix (PW-3) has stated that two-three year prior to the date of incident when she was all alone in her house as her brother had gone to watch TV, accused/appellant gained an entry to her house and committed forcible sexual intercourse with her. According to her, when her menstrual cycle stopped, she informed her brother about the incident and then the report came to be lodged. Till about 3-4 months after the incident, she had not informed anyone including her brothers about the same. This witness has further stated that accused/appellant had physical relations with her many a time and that he always used to come to her house in the night. She went on to state that whenever the accused/appellant came to her house, she used to bolt the door from inside and that after committing the sexual intercourse, he used to leave her house. She went on to state that whenever the accused/appellant came to her house, she used to bolt the door from inside and that after committing the sexual intercourse, he used to leave her house. According to her, the seminal discharge was being washed out by her and that during the moments of discharge she used to feel good. She has further stated that had her period not stopped, she would not have made the disclosure of the incident. It has also come in her evidence that after she fell sick, she informed the incident to her neighbour but not to her brothers. According to her, she did not know her date of birth and the disclosure of the same in the report was based on assumption. According to this witness, she used to go to the house of Mansaram for sleep and her brothers suspected her to have illicit relations with his son Ajit. According to her, had the accused/appellant not denied the incident before the Panchayat, report would not have been lodged by her. She has stated that report would not have been lodged if Mangtin had not come to know about the incident. Phoolchand (PW-4) - brother of the prosecutrix has stated that he was informed by his sister-in-law Mangtin that prosecutrix was carrying pregnancy and on being enquired, she (prosecutrix) informed him that the accused/appellant had committed forcible sexual intercourse with her. He has denied the factum of village meeting and that his sister (prosecutrix) used to go to the house of Mansaram for sleep. He has also denied the fact that he used to suspect the existence of love affair between Ajit and the prosecutrix. N.K. Suryavanshi (PW-5) is the investigating officer who has duly supported the case of the prosecution. 9. Evidence of the prosecutrix goes to show that the physical relations between her and the accused/appellant which went on to exist for about 3-4 months were without any resistance on her part. Prosecutrix herself has stated that had her period not come to a halt and Mangtin could not come to know about the pregnancy, she would not have lodged the report. Thus her version that the accused/appellant gained an entry to her house and committed forcible sexual intercourse with her is not trustworthy. 10. As regards age, though in the school register (Ex. Thus her version that the accused/appellant gained an entry to her house and committed forcible sexual intercourse with her is not trustworthy. 10. As regards age, though in the school register (Ex. P-1) date of birth of the prosecutrix is mentioned to be 4.7.1981 yet the origin of the same on the basis of which such date of birth was recorded is missing in this case. Even (PW-2) - the retired teacher has stated that the said date of birth was not entered by him and he was not aware as to by whom and on what basis this entry was made. Said teacher (PW-2) has also stated that normally in the village the date of birth is recorded on the basis of assumption. Thus there is nothing on record to show that on the date of incident the prosecutrix was below 16 years of age. In all these circumstances, this Court is of the considered opinion that benefit of doubt has to be given to the accused/appellant. Doing so, the judgment impugned being contrary to the material available on record is set aside. Accused/appellant is acquitted of the charge levelled against him. He is in jail since 21.4.2014 when he was arrested after issuance of non-bailable warrant, he be set free forthwith if not required in any other case. 11. Appeal is thus allowed. Appeal allowed.