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2018 DIGILAW 672 (MP)

State of M. P. v. Rajlalan Singh

2018-08-01

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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JUDGMENT Gupta, C.J.--1. Challenge in the present appeal is to a judgment passed by learned First Additional Sessions Judge, Satna in S.T. No. 80/1991 (State of M.P. v. Rajlalan Singh @ Raja), dated 7.2.1996 whereby the accused-respondent was acquitted of the offence punishable under section 376 of the Indian Penal Code. 2. The prosecution charged the respondent-accused for an offence under section 376 of IPC, for violating prosecutrix of 13 years on 5.4.1991. 3. The prosecution process was initiated on the basis of report by the prosecutrix (PW7) who came to the Police Station Nagod along with her father Vishnudeo Pandey at about 5:35 p.m. The statement is that the accused came to their house and asked for mother of the prosecutrix and also asked her to fetch water for him. She went inside to get water but the accused came along with her and shut the door. He pushed her and pressed her mouth by one hand and stated that if she creates noise he will kill her. He then removed her Salwar and underwear and forcibly committed intercourse. She was in pain and raised noise. Her father came from Satna and knocked the door. The accused left her and escaped. While escaping Sharda Prasad Mishra, Kallu Dheemar, Sanjay Bari and her aunt Ramkali who lives behind her house, have witnessed the accused running away. On the basis of such report, an FIR (Ex.P-2) was recorded. The prosecutrix was medically examined by Dr. Sudha Jain (PW9) on 6.4.1991 at about 1:15 noon. 4. In evidence, the prosecutrix appeared as PW7 who deposed that she was 13 years of age but she didn’t remember her year of birth. She further deposed that she got married after about one month of the incident. Vishnudeo Pandey (PW10) father of the prosecutrix stated that when he reached his house, he heard the cries of her daughter but since her mouth was covered with the hand, the noises were not clear. When he reached, the accused got up and ran away with towel wrapped. 5. No evidence has been led on the part of the prosecution to prove the age of the prosecutrix. She was radiologically examined by Dr. T.K. Tiwari, but, Dr. T.K. Tiwari has not been examined. The photocopy of Primary School Certificate Examination of the Year 1987 has been produced, but no witness has been examined to prove that certificate. 6. 5. No evidence has been led on the part of the prosecution to prove the age of the prosecutrix. She was radiologically examined by Dr. T.K. Tiwari, but, Dr. T.K. Tiwari has not been examined. The photocopy of Primary School Certificate Examination of the Year 1987 has been produced, but no witness has been examined to prove that certificate. 6. The prosecutrix was medically examined by Dr. Sudha Jain (PW9). In her medical report Ex.P-14, she inter alia found that there were no marks of external violence over any part of the body and that the hymen torn ruptured by old tags. Thus, the rupture of hymen was not of recent origin but old one. The Doctor examining the prosecutrix deposed that according to physical structure of the prosecutrix she was about 17 years of age. However, the Doctor said that no definite opinion can be given as to whether she was subjected to sexual intercourse. 7. The learned trial Court found the statement of the father of the prosecutrix as contradictory to the version given by the prosecutrix in her statement that her father knocked the door and the accused ran away. The statement of father is that he heard cries of his daughter and the accused left with towel. As a necessary consequence, he must have left his clothes at the place of occurrence but this fact is not corroborated by the prosecution evidence. The witnesses who are said to have seen accused running away from the place of incident i.e. Sharda Prasad Mishra, Kallu Dheemar, Sanjay Bari and Ramkali, have not been examined. Though, Sharda Prasad Mishra and Kallu Dheemar were produced and their examination-in-chief were recorded but after they were declared hostile, they were given up. The other witnesses Sanjay Bari and aunt of the prosecutrix namely Ramkali have not been examined. 8. The learned trial Court has rightly concluded that the prosecution has failed to prove the allegation of sexual intercourse with the prosecutrix. Not only there was no proof of commission of sexual intercourse, even the story has been found to be not believable for the reason that there is contradiction in the statement of the prosecutrix and her father and the persons who have seen the accused running away from the place of occurrence, have not been examined. Not only there was no proof of commission of sexual intercourse, even the story has been found to be not believable for the reason that there is contradiction in the statement of the prosecutrix and her father and the persons who have seen the accused running away from the place of occurrence, have not been examined. In view of the aforesaid, the medical evidence and as per the report given by the doctor, there cannot be any finding that the prosecutrix was subjected to sexual intercourse. 9. In view thereof, we do not find any perversity in the judgment passed by the trial Court which may warrant interference in the present appeal against acquittal. The appeal is dismissed.