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2014 DIGILAW 287 (CHH)

Dilsay v. State of M. P.

2014-08-01

PRITINKER DIWAKER

body2014
JUDGMENT Pritinker Diwaker, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 14.12.1998 passed by the Sessions Judge, Surguja (Ambikapur) in S.T. No. 285/97 convicting the accused/appellant under Section 376(1) of I.P.C. and sentencing him to undergo R1 for seven years, to pay a fine of Rs. 5000/- and in default thereof to undergo additional imprisonment for 1% year. Brief facts of the case are that on 22.8.1997 at 7.15 p.m. FIR (Ex. P/1) was lodged by the prosecutrix (PW-1), aged about 15 years I alleging therein that she works as agriculture labour along with her mother and father, on the previous day at about 5 p.m. when she was working in the field of the accused/appellant along with her mother, father, grand-mother and sister, the accused/appellant came there, caught hold of her hand, started dragging her to a nearby field and on objection being raised by her, he gagged her mouth and threatened to throw her into river. After taking her to the nearby field, the accused/appellant threw her on the field and after upturning her petticoat committed forcible sexual intercourse with her. She has stated that while she was being subjected to rape by the accused/appellant, her father reached there in search of her and after seeing him, the accused/appellant fled from the spot. Based on this FIR, offences under Sections 376 and 506-B of I.P.C. were registered against the accused/appellant. The prosecutrix was medically examined on 23.8.1997 by Dr. Anita Shrivastava (PW-9) vide Ex. P/18 and she found no external or internal injury on the person of the prosecutrix. As per the doctor, no definite opinion could be given regarding recent sexual intercourse. Ossification test of the prosecutrix was done by PW-5 M.K. Jain vide Ex. P/3 according to which the prosecutrix was in between 14-16 years of age. After investigation, charge-sheet was filed against the accused/appellant for the offence under Sections 376, 506-B, 364-A and 366-A of I.P.C. However, the trial Court framed charge under Sections 376 read with 506 Part-II of I.P.C. against him. 2. So as to hold the accused/appellant guilty, the prosecution examined as many as 9 witnesses. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 2. So as to hold the accused/appellant guilty, the prosecution examined as many as 9 witnesses. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In defence, he examined Vijay and Muniram as DW-1 and DW-2 respectively. 3. The trial Court after hearing counsel for the respective parties and considering the material available on record by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment.. 4. Contention of learned counsel for the appellant is as under:-- (i) that the present appears to be a case of consent and as the father of the prosecutrix had seen the accused/appellant with the prosecutrix in a compromising position, a false report has been lodged against him; (ii) that even till arrival of father of the prosecutrix no sexual intercourse was done by the accused/appellant and this fact is evident from the medical report of the prosecutrix as also from the evidence of PW-2 Jugul, father of the prosecutrix who has stated that when he saw the accused/appellant mounting on the prosecutrix, he was wearing underwear; (iii) that the prosecutrix has also stated that when she was being subjected to sexual intercourse she did not object to the same; (iv) that as per ossification test, the prosecutrix was 14-16 years of age on the date of incident and considering the fact that there may be variation of two years on either side when age is determined through ossification test, the age of the prosecutrix comes to 16-18 years and 'as such, on the date of incident she was major. 5. On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of the accused/appellant is strictly in accordance with law; there is no illegality or infirmity in the same warranting interference by this Court. 6. Heard learned counsel for the parties and perused the material available on record. 7. PW-1 prosecutrix in her Court statement has stated that she 'knew the accused/appellant and on the date of incident she was working in his field. She has stated that the accused/appellant caught hold of her hand, took her to a nearby field, threw her on the field and then committed forcible sexual intercourse with her. 7. PW-1 prosecutrix in her Court statement has stated that she 'knew the accused/appellant and on the date of incident she was working in his field. She has stated that the accused/appellant caught hold of her hand, took her to a nearby field, threw her on the field and then committed forcible sexual intercourse with her. She has stated that she did not object to the act of the appellant and had simply asked him as to why he is doing so. However, she has further stated that the said act was done by the accused/appellant against her wish forcibly. She has further stated that while the accused/appellant was committing the said act, her father reached there and after seeing him, the accused/appellant fled from the spot. In cross-examination, she has stated that on the date of incident the field was completely wet. 8. PW-2 Jugul Ram, father of the prosecutrix, has stated that on the date of incident he, his wife and the prosecutrix were working in the field of the accused/appellant and while he was searching his daughter/prosecutrix, he saw the accused/appellant and the prosecutrix in an objectionable condition, When he shouted, the accused/appellant fled from the spot. He has stated that when he saw the accused/appellant, he was wearing underwear and there the prosecutrix informed him that the accused/appellant has outraged her modesty. 9. PW-3 Runiabai, sister of the prosecutrix, has stated that on the date of incident her sister/prosecutrix was working in the field of the accused/appellant whereas she was working in the adjacent field. She 'was informed by the prosecutrix that the accused/appellant was dragging her and then her father informed her that he saw the accused/appellant mounting on the prosecutrix. She has further stated that she was informed by her sister/prosecutrix that the accused/appellant was merely dragging her and was pressing her neck and he did nothing more. At this stage, this witness was declared hostile. She has admitted the fact that previously there was quarrel - between the wife of the accused/appellant and her father. 10. PW-4 Labdu Das is a witness to seizure Ex. P/2 by which underwear of the accused/appellant was seized. PW-5 Dr. M.K. Jain, Assistant Surgeon, conducted radiological test of the prosecutrix vide Ex. P/3 and opined that the prosecutrix was in between 14-16 years of age. 10. PW-4 Labdu Das is a witness to seizure Ex. P/2 by which underwear of the accused/appellant was seized. PW-5 Dr. M.K. Jain, Assistant Surgeon, conducted radiological test of the prosecutrix vide Ex. P/3 and opined that the prosecutrix was in between 14-16 years of age. PW-6 R.S.K. Rana, Assistant Sub Inspector, is the investigating officer and has duly supported the prosecution case. PW-7 Dr. Pramod Malviya, Assistant Surgeon, conducted MLC Ex. P/11 of the accused/appellant and opined that he was capable of performing sexual intercourse. PW-8 A.K. Joshi, Sub Inspector, recorded FIR (Ex. P/1). PW-9 Dr. (Smt.) Anita Shrivastava, conducted MLC of the prosecutrix vide Ex. P/18 wherein she stated that there is no external or internal injury on the person of the prosecutrix, hymen was already torn and healed and no definite opinion regarding recent sexual intercourse could be given. 11. DW-1 Vijay has stated that about one year prior to the date of incident there was quarrel between father of the prosecutrix Jugul (PW-2) and the accused/appellant as the accused/appellant had stolen plate (thali) of Jugul and wife of the accused/appellant was concealed by Jugul in his field. DW-2 Muniram has not stated anything specific in support of the accused/appellant. 12. Minute examination of the evidence makes it clear that there is no conclusive piece of evidence to prove that the accused/appellant committed forcible sexual intercourse with the prosecutrix. At one place, the prosecutrix has stated that the appellant after forcibly taking her away from her family members, who were working in the same field/nearby field, threw her on the field and committed forcible intercourse with her, however, at another place she has stated that she did not object to the said act of the appellant. She has further stated that when the sexual act was being done by the appellant, her father reached there and after seeing him the accused/appellant fled from the spot. So far as forcible sexual intercourse is concerned, as per medical evidence, no external or internal injury was found on the body of the prosecutrix, hymen was already torn and healed, no definite opinion regarding recent sexual intercourse could be given by the doctor. Moreover, as per evidence of PW-2 Jugul, father of the prosecutrix, when he reached the place of occurrence he saw the accused/appellant mounting on the prosecutrix and after seeing him, the accused/appellant fled from the spot. Moreover, as per evidence of PW-2 Jugul, father of the prosecutrix, when he reached the place of occurrence he saw the accused/appellant mounting on the prosecutrix and after seeing him, the accused/appellant fled from the spot. He has categorically stated that at the time of commission of the offence the accused/appellant was wearing underwear. As per ossification test (Ex. P/3), on the date of incident the radiological age of the prosecutrix was 14-16 years and keeping in view the settled legal position that in case of age determination through ossification test there may be variation of two years on either side, the age of the prosecutrix comes to about 18 years. Thus, considering the facts and circumstances of the case, the ocular and the medical evidence available on record as also the conduct of the prosecutrix, this Court is of the opinion that the prosecution has not been able to prove involvement of the accused/appellant in commission of the offence beyond the shadow of reasonable doubt and he is definitely entitled to be acquitted of the charge by extending him benefit of doubt. In the result, the appeal is allowed. Conviction of the accused/appellant under Section 376(1) of I.P.C. is hereby set aside. He is acquitted of the said charge by extending him benefit of doubt. He is on bail, therefore, his bail bonds shall continue for a period of six months from today in view of provisions of Section 437-A of Cr.P.C. Appeal allowed.