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2014 DIGILAW 446 (MP)

Ghanshyam Singh Raghuvanshi v. State of M. P.

2014-04-23

B.D.RATHI, S.K.GANGELE

body2014
JUDGMENT Rathi, J. -- 1. This criminal appeal has been preferred being aggrieved by the judgment of conviction and order of sentence dated 5.2.2001 passed by the learned Special and Sessions Judge, Shivpuri (M.P.) in Special Sessions Trial No.50/2000 (Atrocities) whereby the accused/appellant Ghanshyam Singh Raghvuanshi was convicted under section 450, 376(1) of IPC read with section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989 [for brevity “the Act”] and sentenced to suffer rigorous imprisonment for two years with a fine of Rs.500/- under section 450 of IPC and imprisonment for life with a fine of Rs.5,000/- under section 376(1) of IPC read with section 3(2)(v) of the Act respectively with default stipulations. It was also ordered that on depositing the total amount of fine of Rs.5,500/-, same be paid to the prosecutrix as compensation. 2. As per the prosecution story, the incident occurred on 28.4.1999 at about 11 am. At the relevant point of time, when the prosecutrix was all alone in her house situated in village Indaar and her husband was also not present in the house as he had gone in the village, the accused in an drunken state entered into the house of the prosecutrix after committing house trespass. Thereafter, the accused caught hold of the prosecutrix, threw her on the ground and committed rape on her. It is alleged that before committing said act, the prosecutrix was also abused denoting her caste. After commission of the crime the accused fled away. When the husband of the prosecutrix reached the house, the entire incident was narrated by the prosecutrix to him. Thereafter, FIR Ex.P-3 was lodged. Crime No.56/99 was registered. After completion of investigation, charge sheet was filed. 3. To bring home the charges, prosecution has examined as many as nine witnesses, namely, Dr. S.K. Majeji (PW 1), Dr. Smt v. Kumra (PW 2), Bhan Singh Sisodiya (PW 3), M.P. Singh Chouhan (PW 4), prosecutrix (PW 5), Sualal alias Raghuraj (PW 6), Lakhan (PW 7), G.S. Chouhan (PW 8) and Rajesh Kumar Singh (PW 9). Similarly, four witnesses were examined by the accused in defence, namely, Gudda (DW-1), Shivcharan (DW-2), Gyarsi (DW-3) and Virendra Singh (DW-4). 4. After taking into consideration the evidence adduced by the parties, impugned judgment of conviction and order of sentence was passed by the learned trial Court. Hence, this appeal. 5. Similarly, four witnesses were examined by the accused in defence, namely, Gudda (DW-1), Shivcharan (DW-2), Gyarsi (DW-3) and Virendra Singh (DW-4). 4. After taking into consideration the evidence adduced by the parties, impugned judgment of conviction and order of sentence was passed by the learned trial Court. Hence, this appeal. 5. It is argued by Shri Ankur Mody, learned counsel appearing on behalf of the appellant, that the learned trial Court has not appreciated the evidence available on record properly. Further, it was not considered that the prosecutrix was in the habit of making false reports against the villagers and after taking substantial amount from them she used to enter into compromise with them. Apart that no external or internal injuries were found present by the doctor on her private parts. Thus, on these grounds, learned counsel for the appellant submitted that the appeal be allowed and the appellant be acquitted of all the charges levelled against him. 6. Per contra, learned Panel Lawyer appearing on behalf of the State vehemently opposed the prayer made by the learned counsel for the appellant and submitted that the impugned judgment of conviction and order of sentence has been passed on proper appreciation of evidence on record and needs no interference. It is also submitted by him that in view of section 53A of the Indian Evidence Act, 1872 previous character or previous sexual experience of prosecutrix is not relevant factor in this case. 7. Having heard learned counsel for the rival parties and perused the impugned judgment and evidence available on record, we are of the considered view that the impugned judgment is liable to be set aside for the discussion made in the subsequent paras. 8. The learned trial Court has not appreciated the evidence adduced by the parties on record in its true perspective. It was not considered by the learned trial Court that caste certificate of the prosecutrix (PW 5) has not been produced by the prosecution to prove that at the time of incident the prosecutrix was belonging to Scheduled Caste community. In the aforesaid premises, the conviction inflicted on the appellant under section 3(2)(v) of the Act appears to be bad in law. 9. In the aforesaid premises, the conviction inflicted on the appellant under section 3(2)(v) of the Act appears to be bad in law. 9. So far as conviction in other offences is concerned, it also cannot be sustained because the prosecutrix (PW 5) deposed in para 1 of her evidence that she was caught hold of by the accused/appellant and thrown on the ground and thereafter rape was committed with her but Dr. Smt. V. Kumra (PW 2) who had examined the prosecutrix deposed in her statement that she has not found any external or internal injuries on the private parts of the prosecutrix as per Ex.P-2. So, it is unnatural that one is forcibly thrown on the ground and does not receive any injury. Similarly, on perusal of para 3, 4, 10 and 11 of the evidence of Prosecutrix (PW 5) and para 3 of the evidence of Gudda (DW-1), it is clear that the prosecutrix is in the habit of making false reports against the persons and after taking substantial amount from them she used to enter into compromise. Apart that, Lakhan (PW 7) who had reached the spot as per the evidence of prosecutrix (PW 8) in para 8 but Lakhanlal (PW 7) deposed that on the spot he saw that some altercation and hurling of abuses were going on between the prosecutrix, her husband and the appellant. He has not seen anything except this. This witness has not been declared hostile. 10. So far as objection in regard to section 53A of the Indian Evidence Act raised by the learned Panel Lawyer is concerned, it is not applicable in this case. section 53A of the Indian Evidence Act reads as thus : “53A. Evidence of character or previous sexual experience not relevant in certain cases.-In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim, or of such person's previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent. We are not considering the fact whether the prosecutrix was in the habit of making illicit relationships with other persons. The fact which is to be considered is that whether she was in the habit of making false reports or not in regard to commission of rape. Therefore, the provisions contained under section 53A of the Indian Evidence Act are not applicable in the present case. 11. Very important fact in this case is that M.P. Singh Chouhan (PW 4), Investigating Officer, deposed in para 3 of his evidence that during investigation it was also found that FIR lodged by the prosecutrix (PW 5) was false and the prosecutrix was in the habit of lodging reports of rape. It is stated by him that he has mentioned this fact in the case diary. It was also stated by him that when he was transferred from the concerning police station, thereafter charge sheet was filed in this case. 12. Looking to the facts and evidence on record as discussed hereinabove, we are of the considered view that the impugned judgment cannot be sustained and thus it is set aside. Accordingly, present appeal is hereby allowed and the accused/appellant is acquitted of all the charges levelled against him under sections 450 and 376(1) of IPC read with section 3(2)(v) of the Act. Appellant is on bail. His bail bonds shall stand discharged. It is also directed that if any fine amount has been deposited by him, same be refunded to him. Record of the trial Court be sent back with the copy of the judgment to the trial Court.