Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 448 (MP)

Sugreev v. State of M. P.

2015-04-20

B.D.RATHI

body2015
ORDER 1. The aforesaid two appeals arise out of the impugned judgment and order of conviction and sentence dated 24th June, 2006 rendered in Sessions Trial No.82/2006 by the Sessions Judge, Gwalior (M.P.), whereby each of the accused has been convicted for the offence punishable under section 376 of IPC and sentenced to undergo for four years rigorous imprisonment with fine of Rs.500/-. Since the judgment and order challenged in these criminal appeals is one, they are taken up together for hearing and disposed of by this common judgment. 2. The facts, in short, are that the incident occurred four months prior to the date of lodging of the report, i.e., 25.11.2005. The FIR (Ex.P-1) was lodged by the prosecutrix, having age of 14 years, with her parents at Police Station, Maharajpura to the effect that near about four months ago, when she went to attend natural call, in the agricultural field of one Gulab Singh, all of a sudden, Rakesh and Sugreev, (present accused) who are residing in front of the house of the victim, reached over the spot. She alleged that accused Sugreev wrapped her mouth with towel and thereafter accused Rakesh pulled her down and committed rape on her. Accused Sugreev was simply standing over there. After commission of the incident, both the accused threatened her not to disclose about the incident to anybody otherwise she will be killed. She further alleged that thereafter, during the period of two months, from the date of first incident, when she went to the same field to attend call of nature, again these two accused came over there. This time, accused Sugreev pulled her down and committed rape on her. Accused Rakesh was standing over the spot watching the incident. She was again threatened not to disclose to anybody else she will have to face serious consequences. Thereafter on 23.11.2005 again when she was proceeding in the same way, during the course, both the accused came over there; caught hold of her hands and insisted her to accompany them but seeing other persons of the locality coming forward, the accused fled away from the spot. Then, the prosecutrix rushed to the house, narrated the incident to her mother and after due discussion, she along with her parent went to police station and lodged the report as mentioned above vide Ex.P-1 on 25.11.2005. Accordingly, the crime was registered against the accused-appellants. Then, the prosecutrix rushed to the house, narrated the incident to her mother and after due discussion, she along with her parent went to police station and lodged the report as mentioned above vide Ex.P-1 on 25.11.2005. Accordingly, the crime was registered against the accused-appellants. The investigation was set in motion. After investigation, the charge-sheets were submitted to the concerning criminal Court. 3. In order to bring home the aforesaid charges, the prosecution examined as many as five witnesses, namely, RLS Yadav (PW1), Ramvati (PW2), prosecutrix (PW3), Dr. Anjali Jain (PW4), and Rajaram Singh (PW5). The accused in defence examined Chhotelal (DW1). 4. After taking into consideration the entire evidence adduced by the prosecution as well as defence, the learned trial Court convicted and sentenced the present accused for the commission of the alleged offences, hence, these appeals. 5. The contention of the learned counsel appearing for the accused/appellants in both appeals are that the judgment of conviction and order of sentence awarded to the accused/appellants are against the record and the law and therefore same are liable to be set aside. It is submitted that the prosecutrix was major on the date of incident. No cogent evidence has been produced to prove that the prosecutrix was minor on the date of incident. The ossification test has not been conducted. The original mark sheet has not been produced to prove the date of birth of the victim. The FIR was lodged after a period of four months whereas as per the prosecution case, the offence repeatedly committed with the prosecutrix after gape of two months of the first incident and thereafter within two days but deliberately the delay has not been explained. In FIR it was mentioned that after thinking over the matter, the FIR was lodged by the prosecutrix after a period of two days. It is also submitted by the counsel that if the statement of the prosecutrix (PW3) is taken into account, it seems that the appellants have been falsely roped in. That apart there are material contradictions, omissions and exaggeration in the statements of the witnesses adduced by the prosecution. Therefore, on the basis of the above grounds, it is requested that by allowing these appeals, the judgment of conviction and order of sentence be set aside. That apart there are material contradictions, omissions and exaggeration in the statements of the witnesses adduced by the prosecution. Therefore, on the basis of the above grounds, it is requested that by allowing these appeals, the judgment of conviction and order of sentence be set aside. It is submitted that in this case no independent person was examined to unfold the reality of incident before the trial Judge. 6. The learned Panel Lawyer appearing for the respondent/State, on the other hand, contended that the learned trial Judge has rightly appreciated the evidence and passed the appropriate judgment of conviction and sentence. Accordingly, it is prayed that by dismissing the appeals of the convicts the conviction and sentence passed by the trial Judge against them be maintained. 7. Having regard to the arguments put forth above, the entire record of the case has been examined. 8. It was stated by the prosecutrix (PW3) that she was 14 years of age at the time of commission of incident. Same fact was stated by the witness Ramwati (PW2), mother of the prosecutrix but no cogent or reliable evidence has been produced by the prosecution to prove the fact that the prosecutrix was minor having age of 14 years. Witness Rajaram Singh (PW5) admitted in para 4 that ossification test was not conducted to determine the age of the prosecutrix. He also stated that original copy of the mark sheet was not produced and only photocopy of the mark sheet (Ex.P-9) was produced. But how the date of birth was mentioned in the mark sheet marked as Ex.P-9 and by whom such information was given to be entered into the mark sheet, no evidence was produced. In that view of the matter, the argument advanced by the learned counsel for the appellants that the prosecution has failed to prove the said fact about minor of the prosecutrix at the time of incident cannot be ignored. 9. Prosecutrix (PW3) further deposed that she knew very well to the appellants from before as they were residing in the same vicinity. She stated that four-five months prior to the date of her evidence when she went to attend call of nature, she was caught hold by accused Rakesh and thereafter she was subjected to rape. 9. Prosecutrix (PW3) further deposed that she knew very well to the appellants from before as they were residing in the same vicinity. She stated that four-five months prior to the date of her evidence when she went to attend call of nature, she was caught hold by accused Rakesh and thereafter she was subjected to rape. She also stated that at the time of incident accused Rakesh was having Katta and accused Sugreev was armed with knife but this fact of holding weapons was not mentioned in the FIR lodged by the prosecutrix It was again stated by the prosecutrix that after a period of two months she was subjected to rape by accused Sugreev after the first incident. Just thereafter on 23.11.2005 when she was going to attend natural call, she was caught hold by both the accused and insisted her to accompany them but after seeing 4-5 persons coming towards them, the accused fled away. No such person has been examined by the prosecution. Besides that the FIR was lodged after inordinate delay. No explanation has been given by the prosecution that why the report was not lodged by the prosecutrix after commission of incident in the first phase. Thereafter again in second time, when she was subjected to rape by these accused why the report was not lodged by the prosecutrix. Ramvati (PW2), mother of the prosecutrix stated in para 3 of the evidence that all times she was informed by the prosecutrix that offence was committed by the accused-appellants but it was not explained as to why the report was not lodged. 10. Furthermore, when the prosecutrix was examined by Dr. Anjali Jain (PW4) it was opined by the doctor that no definite opinion in regard to commission of rape with the prosecutrix can be given. It was further opined by the doctor as per Ex.P/3 that her hymen was old ruptured. No sign of pregnancy was found present even after pregnancy examination test as per Ex.P-4. No internal or external injury was seen present over the person of the prosecutrix. 11. In view of the discussions, this Court has come to conclusion first that the prosecution has utterly failed to prove the age of the prosecutrix therefore in the absence of any cogent/reliable evidence, it is presumed that the prosecutrix was major on the date of incident. 11. In view of the discussions, this Court has come to conclusion first that the prosecution has utterly failed to prove the age of the prosecutrix therefore in the absence of any cogent/reliable evidence, it is presumed that the prosecutrix was major on the date of incident. Secondly, looking to the conduct of the prosecutrix for maintaining silence coupled with the absence of adverse medical report and because delay in lodging FIR has not been explained at any count, it is held that there is possibility of false implication of the accused. Therefore, the prosecution has utterly failed to prove the alleged charge against the present appellants beyond all reasonable doubt. The benefit of doubt is therefore given to the appellants. 12. In the result, both the appeals are hereby allowed. The impugned judgment of conviction and sentence dated 24th June, 2006 recorded by the learned trial Judge against the appellants for commission of offence under section 376 of IPC is hereby set aside. The appellants are on bail. They need not surrender. Their bail bond and surety bond are discharged. 13. A copy of this order be sent to the trial Court for necessary compliance. ...................