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2014 DIGILAW 91 (MP)

Akil @ Aslam @ Akil Khan v. State of M. P.

2014-01-16

N.K.GUPTA

body2014
Judgment N. K. Gupta, J.:-- The appellant has preferred this appeal against the judgment dated 1.5.1996 passed by the learned Additional Sessions Judge, Seoni in ST. No.68 of 1994 whereby the appellant was convicted for offence punishable under Section 376 of I.P.C and sentenced for 7 years rigorous imprisonment with fine of Rs.1000/-. In default of payment of fine, he was to undergo for six month's rigorous imprisonment. 2. Prosecution's case in short is that the prosecutrix (PW5) was cousin of one Kesari (PW4). She was taken to the house of Kesari at Kanhiwada (Police Station Kanhiwada, District Seoni) to attend the marriage of her cousin Srichand. She went from Village Bhoma to Kanhiwada on 7.5.1994. On 9.5.1994 at about 7.45 p.m, she went to an open place to answer the call of nature along with her cousin Anita (PW3). Anita directed her not to go far away but, she went up to the campus of 'Bone Godown'. When she was ready to come back, the appellant met her, who again took her to the campus of that 'Godown'. He closed the mouth of the prosecutrix by a handkerchief and gave a threat if she shouts, he would kill her. He threw the prosecutrix on the earth in a field and thereafter, he committed rape upon her. In the meantime, Anita and Kesari started search of the prosecutrix but, the appellant held her in the campus of that 'Godown' for the entire night and committed intercourse for four times and thereafter, she was left by the appellant. The prosecutrix went to the house of her cousin Kesari and informed him about the incident. Thereafter, he took the prosecutrix to the Police Station, Kanhiwada where she had lodged FIR Ex.P/5. She was sent for her medico legal examination. Dr. Kiran Katre (PW2) examined her and gave her report Ex.P/2. She also prepared two slides from her vaginal swab and handed over to the concerned Police Constable after sealing them. After due investigation charge sheet was filed before the JMFC, Seoni who committed the case to the Court of Sessions. 3. The appellant abjured his guilt. He did not take any specific plea in defence and no defence evidence was adduced. 4. Learned Additional Sessions Judge after considering the evidence adduced by the prosecution convicted and sentenced the appellant as mentioned above. 5. I have heard learned counsel for the parties. 6. 3. The appellant abjured his guilt. He did not take any specific plea in defence and no defence evidence was adduced. 4. Learned Additional Sessions Judge after considering the evidence adduced by the prosecution convicted and sentenced the appellant as mentioned above. 5. I have heard learned counsel for the parties. 6. The prosecutrix (PW5) has stated about the incident before the trial Court in detail. Her version was duly corroborated by the FIR Ex.P/5 The witnesses Anita (PW3) and Kesari (PW4) have apparently turned hostile. They have stated that the prosecutrix was missing for the entire night but, after her return she did not inform anything about the incident. It would be apparent that the prosecution was guest in the house of witness Kesari and if she did not inform about the incident to Kesari then the FIR Ex.P/5 could not be lodged. Under such circumstances, it would be apparent that the witnesses Anita and Kesari are not informing about the actual facts. 7. It is true that no external or internal injury on person of the prosecutrix was found by Dr. Kiran Katre (PW2). However, in the report of FSL Ex.P/8 which was duly admitted by the appellant before the trail Court, it was found that sperm and semen were present on various spots on petticoat and slide of vaginal swab of the prosecutrix. No suggestion of enmity was given to the prosecutrix and there is no reason so that the prosecutrix could say against the appellant. Under such circumstances, the testimony of the prosecutrix is acceptable to the fact that the appellant committed sexual intercourse with the prosecutrix in that night. 8. It would be apparent that the prosecutrix was above 16 years of age at the time of incident and she was a married woman. When Anita went with the prosecutrix so that the prosecutrix would answer the call of nature then it was not possible for the prosecutrix to go far away from the place where Anita was standing. When Anita and Kesari were shouting for her search, she could shout back and Anita and Kesari could search her. The prosecutrix did not say any reason as to why she did not shout at the time of the incident. Before the Court the prosecutrix has stated that the appellant gave a threat to her life with help of a knife. The prosecutrix did not say any reason as to why she did not shout at the time of the incident. Before the Court the prosecutrix has stated that the appellant gave a threat to her life with help of a knife. However, no availability of knife is shown with the appellant by the prosecutrix in the FIR Ex.P/5. The prosecutrix was a guest in the Village Kahniwada and therefore, she could not know the name of the culprit who committed rape upon her. However, she knew the name of the appellant and she has admitted in her evidence that the accused was resident of her village and his house was situated in front side of her house in the same lane. Under such circumstances, it would be apparent that the appellant was the resident of the same locality in which the prosecutrix was residing and therefore, he could come to Kahniwada only if he had an information that the prosecutrix went to Kahniwada along with her cousin. 9. The appellant could not know about the visit of the prosecutrix to Kahniwada unless he was informed by the prosecutrix. Looking to the conduct of the prosecutrix that though a warning was given by her cousin Anita not to go far way, she went away in the campus of 'Bone Godown'. The appellant could not know as to when the prosecutrix would come to answer the call of nature but, he was found present at the spot at that time. He was known to the prosecutrix and he was resident of the same lane in which the prosecutrix was residing at Village Bhoma. When Kesari and Anita shouted in search of the prosecutrix, the prosecutrix neither shouted nor answered the call of Anita and Kesari. If the appellant had committed a forceful sexual assault then the prosecutrix could have resisted and should have shouted for her help. According to the FIR the appellant did not have any weapon with him and therefore, on her shouting the appellant could not cause any harm to her but, she could not be traced by Anita or Kesari because she was not shouting. Looking to the medico legal examination, no external or internal injury was found on her person though rape for four times is alleged against the appellant. Looking to the medico legal examination, no external or internal injury was found on her person though rape for four times is alleged against the appellant. If she was thrown on earth and a forceful sexual assault was caused then she must have sustained injuries on her back and buttocks but, no such injuries were found. 10. On the basis of the aforesaid discussion, it is apparent that the appellant was present at the spot as informed by the prosecutrix. The prosecutrix disappeared for the entire night and when she went in the morning to the house of her cousin she had no option except to lodge an FIR because she could not tell any reason for her absence during the entire night. Anita and Kesari knew that the prosecutrix went herself to have the company of the appellant and therefore, as the prosecutrix was their cousin, they did not support the prosecution's evidence in the Court. Under such circumstances, it is duly established that the prosecutrix was a consenting party and she enjoyed the company of the appellant on her own request. 11. Under such circumstances, the appellant could not be convicted for offence punishable under Section 376 of I.P.C because the prosecutrix was a consenting party. The learned Sessions Judge has committed an error in appreciating the evidence and convicting the appellant for offence punishable under section 376 of I.P.C. Due to consent of the prosecutrix the appellant cannot be convicted either for offence punishable under section 376 of I.P.C or any inferior offence of the same nature. Hence the appeal filed by the appellant appears to be acceptable and therefore, it is accepted. The conviction as well as the sentence directed by the trial Court for offence punishable under section 376 of I.P.C is hereby set aside. The appellant is acquitted from the charge of Section 376 of I.P.C. He would be allowed to get the fine amount back, if he has deposited the same before the trial Court. 12. At present the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 13. Copy of the judgment be sent to the trial Court along with its record for information and compliance.