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Madhya Pradesh High Court · body

2016 DIGILAW 1061 (MP)

State of M. P v. Mohar Singh

2016-11-22

G.S.AHLUWALIA, N.K.GUPTA

body2016
JUDGMENT 1. The State has preferred the present appeal against the judgment dated 22.7.2015 passed by Second Additional Sessions Judge, Shivpuri in S.T. No.217/2014 whereby the respondent has been acquitted from the charge of sections 366, 376(2)(D) and 506(Part-2) of IPC. 2. Prosecution's case in short is that the prosecutrix (PW1) who is wife of Saheb Singh Rathore (PW2), having four children, was found missing on 5.7.2014. According to Nana Ram Rathore (PW5), she left the house with the intimation that she was going to a tailor. After sometime, when she did not come, Nana Ram Rathore and his son Saheb Singh Rathore searched the prosecutrix but their efforts were futile. After few days, the prosecutrix came back and intimated her husband Saheb Singh Rathore that she was taken by the respondent forcefully and he committed rape upon her at various places. He also threatened her not to inform the police otherwise he would take the life of her husband and children. On 24.7.2014, the prosecutrix was taken to the police station–Kotwali, Shivpuri by her husband and a written report Exhibit P-1 was lodged. Case was registered by document Exhibit P-2 and the prosecutrix was sent for her Medico Legal Examination. Dr. Mamta Chauhan examined the prosecutrix and found no external or internal injury on her person. The Investigating Officer examined the various witnesses and sent the various articles to the Forensic Science Laboratory. FSL report Exhibit P-12 was filed during the pendency of the trial. 3. The respondent abjured his guilt. He took a plea that the prosecutrix was his aunt and due to some dispute relating to property with her husband, he was falsely implicated in the matter. However, no evidence was adduced. 4. The trial Court, after considering the evidence adduced by the prosecution, acquitted the respondent from the above charges. 5. Since no one was appearing for the respondent, Shri R.K.S.Kushwah, Advocate from the panel of High Court Legal Services Committee, who has vast experience in dealing with the criminal cases was appointed to argue the matter on behalf of respondent. Thereafter, we have heard the learned counsel for the parties. 6. If evidence adduced by the prosecution is considered as it is, then prosecutrix (PW1) is a mature women having four children. She was married to Saheb Singh Rathore (PW2). Thereafter, we have heard the learned counsel for the parties. 6. If evidence adduced by the prosecution is considered as it is, then prosecutrix (PW1) is a mature women having four children. She was married to Saheb Singh Rathore (PW2). It is strange that she was missing and neither Saheb Singh Rathore (PW2), husband of the prosecutrix nor Nana Ram Rathore (PW5), father in law of the prosecutrix had lodged an FIR or missing report to that effect. It is also pertinent to note that after arrival of the prosecutrix back to her home, no FIR was lodged for four days and again the FIR which was lodged by the prosecutrix is a typed report Exhibit P-1. If entire text of the report Ex.P-1 is perused then it would be apparent that it was prepared by some law knowing person. If the prosecutrix was threatened by the respondent when she was left to the Railway Station, Shivpuri then there was no reason that she would have lodged an FIR after four days. It indicates that only to explain the delay in making the FIR, story of threatening was prepared by the prosecutrix and her husband. It is apparent from the cross-examination of Saheb Singh Rathore (PW2) that the respondent was relative of Saheb Singh Rathore and there was a dispute of property between the parties. The prosecutrix came back to Shivpuri and thereafter she did not lodge any FIR for four days. However, in FSL report Exhibit P-12, it was found that semen particles and sperms were present on her Peticoat and vaginal swab opening of her vagina was wide then such semen particles could not remain in the vaginal track for more than 48 hours and therefore if it is presumed that last cohabitation was done by the respondent with the prosecutrix four days back of the FIR then there was no possibility that sperm particles or semen would have found in her vaginal swab. Looking to the FSL report Exhibit P-12, it is apparent that before going to the police station, she had an intercourse with her husband. In the FSL report Exhibit P-12, it could not be proved that the semen particles found in her vaginal swab were of the respondent. Hence looking to the FSL report Exhibit P-12, it is possible that a case was cooked against the respondent by husband of the prosecutrix. 7. In the FSL report Exhibit P-12, it could not be proved that the semen particles found in her vaginal swab were of the respondent. Hence looking to the FSL report Exhibit P-12, it is possible that a case was cooked against the respondent by husband of the prosecutrix. 7. If such a fact is considered with the fact that prosecutrix was shown to be missing but no missing report was lodged, which indicates that Saheb Singh Rathore and Nana Ram Rathore, husband and father in law of the prosecutrix had no objection that the prosecutrix had visited with the respondent. In alternative, it is considered that she was taken by the respondent then according to her, she visited to various places like Gwalior, Howrah, Kolkata, Indore etc. where she visited to various places along with the respondent without any resistance. In open market or at open place of Kali Mata Mandir at Kolkata, she could cry and inform the citizens present that she was abducted. However, she did not make such a hue and cry before the public when she was present in the public at Gwalior, Howrah, Kolkata and Indore, therefore, apparently she was a consenting party. 8. On the basis of the aforesaid discussion, it appears that there is possibility that the prosecutrix was never abducted and a false case was prepared by her husband Saheb Singh Rathore against the respondent or if she was abducted then she was a consenting party and in both the cases, the respondent could not be convicted of offence under sections 366 and 376 of IPC. Also as discussed above, it was not proved beyond doubt that any threat was given by the respondent to the prosecutrix and, therefore, the trial Court has rightly acquitted the respondent from all the charges including charge of section 506(2) of IPC. 9. On the basis of the aforesaid discussion, there is no substance in the state appeal. Consequently, the same is hereby dismissed by affirming the judgment passed by the trial Court. 10. Though, the respondent could not be traced but now it is not required to seek his presence before the Court and, therefore, no action is required to be taken against the respondent. 11. Copy of this judgment be sent to the Court below along with its record for information. B. P. S. Chauhan, Public Prosecutor for appellant/State; None for respondent.