Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 699 (MP)

Lekhram Rajput v. State of M. P.

2018-08-13

AKHIL KUMAR SRIVASTAVA, J.K.MAHESHWARI

body2018
JUDGMENT Maheshwari, J.--1. This appeal under section 374(2) of the Code of Criminal Procedure (hereinafter to be referred as the CrPC) read with section 14-A(1) of the SC/ST (Prevention of Atrocities) Act has been filed by the appellant being aggrieved by the judgment of conviction and order of sentence dated 31.1.2018 passed by Special Judge, SC/ST (Prevention of Atrocities) Act, Narsinghpur in Special Case No. 34/2016 whereby the appellant has been convicted for the charge under section 376(1) of the IPC and sections 3 (1)(xii), 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Atrocities Act) and sentenced to R.I. for 7 years with fine of Rs. 2,000/-, R.I. for 5 years with fine of Rs. 2,000/- and life imprisonment with fine of Rs. 2,000/- respectively with default stipulations. All the sentences are directed to run concurrently. 2. As per prosecution’s case, the prosecutrix (PW3) was a resident of village Juwara and engaged in house-hold work. The husband of the prosecutrix stored the Paddy after getting it thrashed in the go-down of the house of Kabraji where the accused used to work as Bataidar. On 14.1.2016 at about 12:00 p.m. in the noon when the prosecutrix had gone to the house of Kabraji to take Paddy bags, the accused caught hold the hand of the prosecutrix, forcefully taken her in a room and committed rape upon her and threatened her to kill, if disclosed to anyone. When the husband of the prosecutrix came back from Gadarwara, she informed about the incident to him as well as to her son Raghvendra and on16.1.2016 i.e. after two days, the first information report was lodged at Police Station Saikheda. Medical examination was conducted. The Police has completed other investigations like preparation of the spot map, collection of the Caste Certificate. The slide was sent for FSL examination. After completion of investigation, Challan was filed before the competent Court where the charges under section 376(1), 506-II of the IPC and sections 3(1)(xii), 3(2)(v) of the Atrocities Act have been framed. 3. The accused abjured the guilt and demanded for trial taking defence that he resides in a joint family at village Chandaun and his father has been working with Kabra Seth for last about 20-25 years and looks after his agriculture. 3. The accused abjured the guilt and demanded for trial taking defence that he resides in a joint family at village Chandaun and his father has been working with Kabra Seth for last about 20-25 years and looks after his agriculture. He belongs to Rajpoot community, other villagers belong to Gurjar community with whom the husband of the prosecutrix resides. The people of Gurjar community intended that the father of the accused should leave the work of Kabra Seth, therefore, the false report was lodged. It was further said that the prosecutrix is 50 years of age and has two major sons. At the relevant point of time, he was working in the field of Prakash Mehra (DW1), however, the accused has been falsely implicated in the case. Learned trial Court relied upon the testimony of the prosecutrix (PW3) to convict the appellant without considering the defence of the accused, however, this appeal has been preferred. 4. Learned counsel for the appellant contends that the appellant has been falsely implicated in the case due to the enmity between the different communities. The incident is alleged to have taken place on 14.1.2016 at about 12:00 p.m. in the noon but the first information report was lodged on 16.1.2014 after two days, though the husband of the prosecutrix came back on the same day along with his son. The testimony of the prosecutrix is not of sterling character, which can be relied upon looking to various omissions and contradictions. The allegation either with respect to external injury on the person of the prosecutrix or on internal part of the body, is not corroborated with the medical evidence. The slides were sent for FSL examination but no FSL report is available on record. In addition, there is no iota of evidence to convict the appellant for the charges under section 3(1)(xii), 3(2)(v) of the Atrocities Act. Merely because the appellant is convicted for the charge under section 376 of the IPC, therefore, the sentence of life imprisonment has been directed for the charge under section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. In view of the foregoing, it is urged that the conviction of the appellant is without any basis, therefore, it is liable to be set aside. 5. In view of the foregoing, it is urged that the conviction of the appellant is without any basis, therefore, it is liable to be set aside. 5. On the other hand, learned Panel Lawyer for the State has vehemently argued in support of the findings recorded by the trial Court inter alia contending that the prosecutrix in her statement has specifically stated against the appellant regarding commission of rape, therefore, the trial Court has rightly relied upon the testimony of the prosecutrix while convicting the appellant though it may not have any support looking to her age, however, the testimony of the prosecutrix is sufficient to convict the appellant, therefore, the trial Court has not committed any error to convict the appellant while passing the impugned judgment. 6. After hearing learned counsel for the parties at length and on perusal of the statement of the prosecutrix (PW3), it is apparent that the incident took place on 14.1.2016 at about 12:00 p.m. in the noon in the broad day light to which first information report was lodged on 16.1.2016 i.e. after two days. The explanation put forth by the prosecutrix for delay in lodging the FIR was that her husband was not available in the village, though as per her own testimony, her husband came back in the evening on the same day and he asked regarding lodging of the FIR. It is not the case of the prosecutrix that when her husband came back, she disclosed about the incident to him and thereafter the FIR was lodged. In addition, the prosecutrix has two major sons, who were also available in the village and we fail to understand, why she has not narrated about the incident to them. In her testimony, she said that at the time of commission of rape, there was manhandling, in which she received various injuries and her clothes were completely torn but the aforesaid fact does not find support from the evidence of Dr. Jyoti Puware (PW1) because neither any external injury nor any internal injury was found on the person of the prosecutrix. Prosecutrix herself stated that she was not willing for the medical examination but on insistence she agreed for the same. The theory of commission of rape at the house of Kabra Seth where present appellant used to work, is an omission from her statement Ex.D-1. Prosecutrix herself stated that she was not willing for the medical examination but on insistence she agreed for the same. The theory of commission of rape at the house of Kabra Seth where present appellant used to work, is an omission from her statement Ex.D-1. Considering all these aspects, it can safely be observed that the testimony of the prosecutrix is not of sterling character, which can be relied upon to convict the appellant for the charge under section 376 of the IPC particularly when there is no evidence available on record and defence put forth that there was a dispute in the village whereby a particular community was intending that the father of the accused should leave the work of Kabra Seth, thus, we are of the considered view that the prosecution has failed to prove the charge under section 376 of the IPC beyond reasonable doubt against the appellant. 7. Apart from that, after perusal of the testimony of the prosecutrix (PW3), even there is no whisper regarding the charge under section 3 (1)(xii) of the Atrocities Act. We are unable to understand, under what circumstances, the trial Court has convicted the appellant for the charge under section 3(1)(xii) of the Atrocities Act in the absence of even a single word uttered by the prosecutrix during commission of said offence. In that view of the matter, the conviction of the appellant for the charge under section 3(1)(xii) of the Atrocities Act is without any basis, therefore, it is liable to be set aside. 8. So far as the charge under section 3(2)(v) of the Atrocities Act is concerned, once main charge under section 376 of the IPC has not been found proved, the appellant cannot be convicted for the aforesaid charge. 9. In view of the aforesaid, in our considered opinion, the trial Court has passed the impugned judgment without due application of mind and without appreciating the evidence available on record in the right perspective, therefore, the impugned judgment is liable to be set aside. 10. Accordingly, this appeal succeeds and is hereby allowed. Impugned judgment is hereby set aside. The appellant is acquitted from the charge under section 376(1) of the IPC and sections 3(1)(xii) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. 11. The appellant is in jail, he be released immediately, if not required in any other offence. 12. 10. Accordingly, this appeal succeeds and is hereby allowed. Impugned judgment is hereby set aside. The appellant is acquitted from the charge under section 376(1) of the IPC and sections 3(1)(xii) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. 11. The appellant is in jail, he be released immediately, if not required in any other offence. 12. Let a copy of this judgment be sent by the Registry to the trial Court concerned as well as the jail authorities for communication and compliance.