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Madhya Pradesh High Court · body

2015 DIGILAW 19 (MP)

Bhagirath v. State of M. P.

2015-01-06

ALOK VERMA

body2015
ORDER 1. This criminal appeal is directed against the judgment passed by Additional Sessions Judge, Garoth, Distt. Mandsaur in Sessions Trial No.122/2007 dated 10.7.2008, whereby learned ASJ found the present appellant guilty under sections 376(1), 366 and 506 (Part-II) of IPC and sentenced him to undergo R.I. for ten years with fine Rs.200/- under sections 376(1) and 366 of IPC on each count and three years R.I. under section 506 (Part-II) of IPC with default clause. 2. The fact giving rise to this appeal are that the prosecutrix was married about 7-8 years prior to the incident. She had two daughters from her marriage and she was living with her mother Dakhibai PW1 as her husband was away to earn livelihood. It was alleged that the present appellant took the prosecutrix and her two daughters to village-Gurla, Distt. Zalawad and kept them in a rented accommodation belonging to Murli Sharma. There he forcibly established physical relationship with the prosecutrix. Finally, finding an opportunity, the prosecutrix informed her mother about her confinement by the present appellant and thereafter, her mother along with police went and recovered the prosecutrix from the possession of present appellant. A crime was registered by P.S.Garoth, Distt. Mandsaur and after investigation, charge-sheet was filed. 3. Learned ASJ, after recording the evidence of the prosecutrix and the defence, found the present appellant guilty under sections 376(1), 366 and 506 (Part-II) of IPC and sentenced him as aforesaid. Aggrieved of the conviction and sentence, this criminal appeal is filed. 4. Learned counsel for the appellant has placed reliance on a judgment of Hon’ble Supreme Court delivered in the case of Narendra Kumar v. State (NCT of Delhi) reported in 2012 SAR (Criminal) 511, whereby it was held that if evidence of prosecutrix is found suffering from serious infirmities and making deliberate improvements on material point with a view to rule out consent on her part and there being no injuries on her person, then no reliance can be placed on her evidence. 5. In this case, the appellant and the prosecutrix admittedly remained in a rented accommodation at village Gurla, Distt. Zalawad, (Raj.). Owner of the house Murli Sharma was not examined by the prosecution. He was in the best position to support the prosecution story that the present appellant kept the prosecutrix forcibly at village Gurla in his house. 5. In this case, the appellant and the prosecutrix admittedly remained in a rented accommodation at village Gurla, Distt. Zalawad, (Raj.). Owner of the house Murli Sharma was not examined by the prosecution. He was in the best position to support the prosecution story that the present appellant kept the prosecutrix forcibly at village Gurla in his house. If we examine the statement of the prosecutrix herself, there is a lot of improvements in her statement. In her statement in para-3, she stated that when the present appellant came to her house, he stated that her mother and her husband entered into an compromise and her husband was calling her to Garoth. However, in her statement under section 161 of CrPC, she stated that the present appellant took her on the pretext of showing her various places. Further, in para-3 of her statement, she stated that when she tried to raise alarm while the present appellant was taking her in a jeep, the appellant threatened her that he would throw her daughters from the running vehicle. She was contradicted by this omission. She could not explain the improvement in her Court statement. 6. This apart, when she was kept about 3-4 months in the house of Murli Sharma, she had ample opportunity to complain to the people living around. However, she did not complain to anybody. 7. Narendra Bhargava PW10 is the investigating officer. He admits in para-6 of his statement that he went to the house of Murli Sharma where the prosecutrix was allegedly kept by the present appellant. He stated that the appellant was doing tailoring job in the front portion of the house, while in another room, they were cooking food. There is no mention in his statement, how the prosecutrix was kept in confinement in such portion. Also, he does not State, whether he tried to collect evidence, whether the prosecutrix was kept confined forcibly in that portion. 8. Thus, there is material contradictions and omissions in the statement of the prosecutrix. No mark of injury was found on her body, when she was recovered and therefore her statement is not reliable and the conviction of the present appellant cannot be based on such statement. 8. Thus, there is material contradictions and omissions in the statement of the prosecutrix. No mark of injury was found on her body, when she was recovered and therefore her statement is not reliable and the conviction of the present appellant cannot be based on such statement. It appears that the prosecutrix went with the present appellant with her consent and had physical relationship with him with her consent and therefore, no charge under sections 376(1) and 366 of IPC are proved against the present appellant. So far as the charge under section 506 (Part-II) of IPC is concerned, for this purpose also, when we find that the statement of the prosecutrix is not reliable, this charge cannot be accepted as proved and therefore, in my opinion, learned Additional Sessions Judge erred while holding the present appellant guilty under sections 376(1), 366 and 506 (Part-II) of IPC. 9. Accordingly, present appeal is allowed. The conviction and the sentence passed on the present appellant by the impugned judgment are set aside. The present appellant is acquitted from the charge under sections 376(1), 366 and 506 (Part-II) of IPC. The present appellant is in jail. It is directed that he should be released immediately, if his presence is not required in any other case. The fine, if deposited, be refunded to him. Vikas Jain for appellant; Rahul Vijayvargiya, Panel Lawyer for respondent/State.