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2016 DIGILAW 282 (CHH)

Chinta Ram Yadav v. State of Madhya Pradesh

2016-08-11

PRITINKER DIWAKER

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JUDGMENT : Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 15-10-1997 passed by Additional Sessions Judge, Khairagarh, Link Court Kawardha in Sessions Trial No. 84/1996 convicting the accused/appellant under Sections 376 and 506 (Part-II), IPC and sentencing him to undergo rigorous imprisonment for seven years with fine of Rs. 3000/- u/s. 376 and rigorous imprisonment for two years u/s. 506 (Part-II), IPC, plus default stipulations. Facts of the case in brief are that on 11-4-1996 at about 8 a.m. FIR Ex. P2 was lodged 2 by the prosecutrix (P.W. 2) a married lady aged about 18 years alleging that on 10-4-1996 at S about 7.30 p.m. when she was returning home after attending the call of nature, accused/appellant came there, hold her arm and asked to allow him to have sexual intercourse with her. It is further alleged that when she refused for § the act asked for, the accused/appellant threw her down, mounted over her and committed forcible sexual intercourse with her. Thereafter, on hearing her cries, her brother-in-law (jeth) namely Atmaram along with Dinesh and Dhaneshwar rushed to the spot but by that time the accused had finished his act. In the struggle made with the accused, it is alleged that her bangles were broken and blouse as well as sari torn. On being asked, the accused/appellant admitted his guilt and asked for pardon. Prosecutrix has taken the stand that on account of being night, the report could not be lodged on the same day. Based on this report, offences under Sections 376 and 506 (Part-II), IPC were registered against the accused/appellant and then the prosecutrix was medically examined by Dr. Vimla Buxi (P.W.7) who gave her report Ex. P-7. After completion of investigation, charge-sheet was filed by the police for the offences under Sections 376 and 506 (Part-II), IPC followed by framing of charge by the Court accordingly. 2. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 3. After hearing the parties, the trial Court has convicted and sentenced the accused/ appellant as mentioned above in paragraph No. 1 of this judgment. 4. 3. After hearing the parties, the trial Court has convicted and sentenced the accused/ appellant as mentioned above in paragraph No. 1 of this judgment. 4. Counsel for the accused/appellant submits that from the evidence of the prosecutrix (P.W.2) it appears that she was a consenting party to the act of the accused/appellant because absence of external or internal injury on her person goes to indicate that no protest whatsoever was made by her during commission of the offence alleged. According to him, possibility of lodgment of a false report after the accused and the prosecutrix being soon in a compromising position by her relatives, cannot be ruled out. Counsel for the appellant further submits that in the underwear of the accused/appellant no spermatozoa was found which shows that he has been falsely implicated in the case because as per the case of the prosecution he had committed the sexual intercourse without removing underwear. 5. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/ appellant under Sections 376 and 506 (Part-II), IPC are strictly in accordance with law and there is no infirmity in the same. 6. Heard counsel for the parties and perused the evidence on record. 7. Prosecutrix (P.W. 2) has stated in her evidence that on the date of incident in between 7 and 7.30 p.m. when she had gone to the field to answer the call of nature, accused/ appellant came from behind and caught hold of her hand on account of which bangles worn by her were broken and that when she tried to raise her voice, he threatened to finish her. Thereafter, according to this witness, the accused/appellant threw her on the ground and committed forcible sexual intercourse with her. She has stated that on hearing her cries, Dhaneshwar, Bihari and Atmaram came over there and as at that time also the accused was committing the offence they separated him from her. She has stated that though the accused/appellant was asked by her relatives as to why he committed the offence, he did not say anything. She has further stated that though the place of incident was rough but still she did not receive any injury on her body. Thereafter, the report was lodged and she was taken for medical examination. She has stated that though the accused/appellant was asked by her relatives as to why he committed the offence, he did not say anything. She has further stated that though the place of incident was rough but still she did not receive any injury on her body. Thereafter, the report was lodged and she was taken for medical examination. In cross-examination, the prosecutrix is stated to have disclosed to the police that the accused/appellant has gagged her mouth and committed forcible sexual intercourse by mounting over her but if the same is not mentioned in the FIR and the diary statement, she could not tell the reason for that. She has stated that the accused/appellant took five minutes for committing the offence and did not stand up even after arrival of her relatives on the spot. According to the prosecutrix, at the time of commission of offence, she was not aware of the accused and came to know the same only after police called him by name. According to her, during commission of offence, except moving her hands as a mark of protest she did not do anything and that the accused/appellant was committing the offence silently. This witness has stated that before committing the sexual intercourse the accused/appellant had just taken off his lungi and not the underwear. She has reiterated that accused made the physical relations with her without removing his underwear. According to the prosecutrix, the place where the incident took place was adjacent to a street open to frequent public movement and also the pond open to use by one and the all. Dhaneshwar (PW-3) has stated that on the date of incident while sitting in the nearby shop, he heard cries of some woman and when he along with Jairam, Bihari and Atmaram went to the spot, accused and the prosecutrix were found in compromising position, and on seeing them he tried to flee away. According to this witnesses, the prosecutrix did not disclose anything to him. He has stated that the place where the incident took place, other women of the village also used to go there for easing. He has reiterated that at the time when he along with other villagers reached the spot accused and the prosecutrix were found in compromising position and had they not gone there, the accused would have been indulging in the act. Dr. He has reiterated that at the time when he along with other villagers reached the spot accused and the prosecutrix were found in compromising position and had they not gone there, the accused would have been indulging in the act. Dr. Alok Shrivastava (PW-5) is the witness who medically examined the accused and gave his report Ex. P-5 stating that he was capable of performing sexual intercourse. Dr. Vimla Buxi (PW-7) is the witness who medically examined the prosecutrix and gave her report Ex. P-7 stating that there was no external or internal injury on her person nor was she complaining any pain and that she was habitual to sexual intercourse. Atmaram (PW-8) has stated that at the relevant time he was working in his hotel and after hearing the cries of a girl when he along with others went to the spot, accused/appellant was found committing sexual intercourse with her. According to this witness, on being asked the prosecutrix told him that on account of being forcibly dragged by the accused, she had raised the cries. This witness has further stated that near the place of incident there is a pond where the villagers do frequent to case themselves. Bihari (PW-9) has also made the similar statement like Atmaram (PW-8). According to him also, when he reached the place of incident along with Atmaram, accused and the prosecutrix were involved in sexual intercourse and on being asked the accused admitted his act and pleaded for pardon. Mahesh Kumar Sukhdeve (PW-11) is the Patwari who prepared spot map Ex. P-3. D.S. Bhadoria (PW-12) is the investigating officer who has duly supported the case of prosecution. 8. This Court has now gone through the entire material on record including the evidence of the witnesses, in particular that of the prosecutrix and the doctor who medically examined her. Prosecutrix states that while going to the field for answering the call of nature, the accused came from behind, asked for sexual favour and on her refusal he threatened her of life, threw her on the ground and committed forcible sexual intercourse with her. Prosecutrix states that while going to the field for answering the call of nature, the accused came from behind, asked for sexual favour and on her refusal he threatened her of life, threw her on the ground and committed forcible sexual intercourse with her. So as to look into the veracity of the version of the prosecutrix, this Court carefully examined the statements of the other witnesses also such as Atmaram (PW-8) who happens to be the elder brother-in-law of the prosecutrix, Bihari (PW-9) and Dhaneshwar (PW-3) which goes to show that when they reached the spot after hearing the cries of a woman, they saw the prosecutrix and the accused in compromising position. Further, near the place of incident, there is a road open to frequent public movement and a pond where villagers go for easing and getting fresh but it is a matter of great surprise that the incident went un-noticed by anyone. Further, the place of incident is stated to be a rough surface but even then the prosecutrix did not receive even a single injury on her body. All this is indicative of the fact that no resistance was made by the prosecutrix at all and the sexual intercourse between the two was consensual. The evidence of the witnesses is also suggestive of the fact that had brother-in-law of the prosecutrix not been to the spot along with his companions, probably she would not have raised her cries. Some of the witnesses have even stated that had they not been to the spot, accused might not have risen up without completing the sexual activity. That apart, the accused/ appellant is stated to have committed the sexual offence without removing his underwear but as per the FSL report no spermatozoa was found in it. As regards presence of spots of spermatozoa on the sari and petticoat of the prosecutrix, there are variety of reasons for that keeping in mind the fact that she was a married lady and being so it is of no significance at all. 9. Prosecution has thus not been able to prove the guilt of the accused beyond all reasonable doubt by adducing cogent and reliable evidence in support of its case. Evidence of the prosecutrix does not get corroboration from the other material available on record including the medical evidence. 9. Prosecution has thus not been able to prove the guilt of the accused beyond all reasonable doubt by adducing cogent and reliable evidence in support of its case. Evidence of the prosecutrix does not get corroboration from the other material available on record including the medical evidence. The findings recorded by the Court below are thus not based on the proper appreciation of the evidence of the witnesses and being so they are hereby set aside and the accused stands acquitted of the charge levelled against him. As he is already on bail, no order to set him free etc. is required to be passed. Appeal allowed. Appeal Allowed.