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Madhya Pradesh High Court · body

2017 DIGILAW 903 (MP)

Manish Verma v. State of M. P.

2017-08-10

G.S.AHLUWALIA

body2017
JUDGMENT 1. This criminal appeal has been filed under section 374 of CrPC against the judgment dated 27.11.2007 passed by 6th ASJ, Gwalior in Sessions Trial No.146/2007 by which the trial Court acquitted the appellant for offence under sections 294 and 323 of IPC and convicted the appellant for offence under section 376 r/w section 511 of IPC and sentence him to undergo the rigorous imprisonment of four years and a fine of Rs.1,000/- with default imprisonment. 2. The necessary facts for the disposal of the present appeal in short are that on 2.2.2007 the complainant Smt. Pushpa Rathore lodged a report alleging that she is a tenant in the house of one Tiwari in which the appellant also resides along with his family members. On 1.2.2007 at about 8:00 p.m., her daughter aged about 2 years had gone to the house of the appellant for playing. The appellant took her daughter in his lap and took her in his room and closed the room from inside. When the room was got opened, it was found that the undergarments of the prosecutrix were already removed and the appellant was also naked and was trying to commit rape on the prosecutrix and the prosecutrix was lying on the appellant. The police after recording the FIR, recorded the statements of the witnesses and after completing the investigation, filed the charge sheet against the appellant for offence under sections 376/511, 323, 294 and 506 of IPC. 3. The trial Court by order dated 17.5.2007 framed charges under sections 294, 323 and 376 r/w section 511 of IPC. The appellant abjured his guilt and pleaded not guilty. 4. The prosecution in order to prove its case examined Mukesh Rathore (PW1), Radheyshyam (PW2), Pushpa (PW3), Nand Kishore Rajak (PW4), Jyoti (PW5), Mihir Kumar (PW6), Dr. Sunil Singhal (PW7), Dr. Kamlesh Sharma (PW8) and Dhaval Singh (PW9). The appellant did not examine any witness in his defence. 5. Mukesh Rathore (PW1), Pushpa (PW3), Nand Kishore Rajak (PW4) and Jyoti (PW5) have stated that the appellant had taken the prosecutrix who is aged about 2 years to his house. About 15-20 minutes thereafter, Pushpa (PW3) went to the house of the appellant and she found that the door was closed. When the door was opened, it was found that the clothes of the prosecutrix were already removed and the appellant was also naked. About 15-20 minutes thereafter, Pushpa (PW3) went to the house of the appellant and she found that the door was closed. When the door was opened, it was found that the clothes of the prosecutrix were already removed and the appellant was also naked. The appellant had kept the prosecutrix on himself. 6. Mukesh Rathore (PW1) has further submitted that the spot map was prepared by the police which is Ex.P-1 and the appellant was arrested vide arrest memo Ex.P-2. 7. Pushpa (PW3) has stated that on the next day she lodged the report which is Ex.P-4 and the computerized copy of the report which is Ex.P-5 and the spot map Ex.P-1 was prepared. 8. Nand Kishore Rajak (PW4) and Jyoti (PW5) are the independent witnesses. All these witnesses were cross-examined in detail but nothing could be elicited from their evidence which may make their evidence unreliable or which may indicate that these witnesses had not seen the incident. 9. Radheyshyam (PW2) has not supported the prosecution case and was declared hostile. 10. Mihir Kumar (PW6) had written the FIR on the information given by Pushpa (PW3) which is Ex.P-4 and computerized copy is Ex.P-5. 11. Dr. Sunil Singhal (PW7) had medically examined the appellant and he was found fit. The MLC report of the appellant is Ex.P-6. 12. Dr. Kamlesh Sharma (PW8) had medically examined Pushpa (PW3) and did not find any external injury and the MLC report is Ex.P-7. 13. Dhaval Singh (PW9) is the investigating officer who prepared the spot map which is Ex.P-1. He recorded the statements of the witnesses. On 2.2.2007 itself, he arrested the appellant vide arrest memo Ex.P-2 and filed the charge sheet after completing the investigation. In cross-examination, this witness has stated that the prosecutrix was not sent for medical examination because the only allegation was that the prosecutrix was stripped of her clothes but as there was no allegation of committing rape, therefore, she was not got medically examined. He further stated that as the clothes of the prosecutrix were removed by the appellant and he himself was naked and the prosecutrix was lying on the appellant, therefore, offence under section 376 r/w section 511 of IPC was registered. It was further stated that the complainant as well as the accused were tenants and no complaints were received with regard to any enmity. 14. It was further stated that the complainant as well as the accused were tenants and no complaints were received with regard to any enmity. 14. The appellant in his statement under section 313 of CrPC has taken a defence that a dispute had taken place between the complainant and his maternal uncle and as the appellant had made a complaint to his landlord, therefore, this false complaint has been made against him. 15. It is submitted by the counsel for the appellant that even if the entire allegations are accepted, it would be clear that at the most it can be an offence punishable under section 354 of IPC. 16. It is further submitted that the prosecution had not got the prosecutrix medically examined which clearly shows that no attempt was made by the appellant to commit rape on the prosecutrix and further the appellant has been falsely implicated because of enmity. 17. Per contra, it is submitted by the State that under the facts and circumstances of the case, it cannot be said that the appellant has merely committed an offence punishable under section 354 of IPC. It is submitted that according to the prosecution case the clothes of the prosecutrix who is aged about 2 years were also removed as well as the undergarments of the appellant were also removed and the appellant had kept the prosecutrix on himself, therefore, it is clear that his intention was to commit rape but because of timely intervention by the mother of the prosecutrix he could not succeed in completing the offence. It is further submitted that considering the allegations made against the appellant, it cannot be said that the appellant has been falsely implicated. 18. Heard the learned counsel for the parties. 19. From the evidence of Mukesh Rathore (PW1) and Pushpa (PW3) it is clear that when Pushpa (PW3) opened the door of the room of the appellant, she found that the appellant was naked and was not wearing his undergarments and the undergarments of the prosecutrix were also removed by the appellant and the prosecutrix was on the appellant. The evidence of Pushpa (PW3) is corroborated by the evidence of Nand Kishore Rajak (PW4) and Jyoti (PW5). The evidence of Pushpa (PW3) is corroborated by the evidence of Nand Kishore Rajak (PW4) and Jyoti (PW5). These witnesses have been examined in detail but nothing could be pointed out by the counsel for the appellant as to why Pushpa (PW3) would make a false allegation against the appellant by putting the pride and dignity of her own daughter at stake. Further there is nothing on record as to why the independent witnesses Nand Kishore Rajak (PW4) and Jyoti (PW5) have stated falsely against the appellant. From the appreciation of evidence which has come on record it is clear that the appellant had taken the prosecutrix with him and subsequently after removing his own undergarments as well as the undergarments of the prosecutrix lay down and kept the prosecutrix on himself and at that time the witnesses came inside the room and witnessed the entire incident. So far as the submission made by the counsel for the appellant that even if the entire allegations are accepted then at the most it can be a case of outraging the modesty of the prosecutrix is concerned, suffice it to say that the manner in which the incident is alleged to have taken place, it cannot be said that the appellant has committed an offence of merely outraging the modesty of the prosecutrix. If the intention of the appellant was not to commit rape, then there was no reason for him to remove his undergarments. It appears that an attempt was made by him and before the offence could be completed, because of the timely intervention by the witnesses the prosecutrix was saved. 20. So far as the defence taken by the appellant is concerned, it is his case that he is residing along with his maternal uncle and maternal grand parents. A dispute has arisen between his maternal uncle and Pushpa (PW3) on the issue of water and the appellant had made a complaint to his landlord and, therefore, on this dispute the complainant had threatened that she would settle the score and accordingly this false case has been lodged. 21. So far as the dispute of his maternal uncle with the complainant is concerned, the appellant did not examine his maternal uncle in his defence. 21. So far as the dispute of his maternal uncle with the complainant is concerned, the appellant did not examine his maternal uncle in his defence. Although the burden to prove the defence on the accused is not onerous but still he has to point out the probabilities which may indicate that he was falsely implicated. The stand of the appellant is that he had made a complaint to the landlord because of some dispute which arose between his maternal uncle and the complainant, therefore, he has been falsely implicated but neither the landlord has been examined nor the maternal uncle has been examined. The enmity which has been pointed out by the appellant is not so grievous which may compel the mother to put the dignity and pride of her own daughter at a stake. 22. Accordingly, the judgment and sentence passed by the trial Court dated 27.11.2007 passed by 6th ASJ, Gwalior in S.T.No.146/2007 is hereby affirmed. 23. So far as the question of sentence is concerned, the maximum sentence for offence under section 376 of IPC is life imprisonment and for attempting to commit an offence, the punishment is half of the longest term imprisonment provided for that offence can be awarded. 24. Considering the age of the prosecutrix, this Court is of the view that the imprisonment of four years awarded by the trial Court does not call for any interference. Accordingly, the sentence awarded by the trial Court is hereby maintained. The appellant is on bail. His bail bonds and surety bonds are hereby cancelled. He is directed to immediately surrender before the trial Court for undergoing the remaining jail sentence. 25. The appeal fails and is hereby dismissed.