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Madhya Pradesh High Court · body

2019 DIGILAW 430 (MP)

MOHANLAL s/o MANGILAL v. STATE OF M. P.

2019-06-20

S.K.AWASTHI

body2019
JUDGMENT : 1. Present appeal is directed by the appellant under section 374(2) of the Criminal Procedure Code, against judgment dated 20-5-1999 passed by Additional Sessions Judge, Manasa, District-Neemuch in S.T. No. 86/1998, whereby the appellant has been convicted for the offence under sections 366 and 376 of the Indian Penal Code and sentenced to undergo RI for 3 years and 7 years and to pay fine of Rs. 2,000/- for each offence respectively with usual default stipulation. 2. In short the prosecution story is that on 23-2-1998 at about 9:30 p.m., the prosecutrix along with her mother-Bhagwanti Bai went to the house of one Mohanlal Balai situated at Village Hathuniya for watching television programme. At about 10:30 pm mother of the prosecutrix returned back to her house and the prosecutrix remain stayed at the house of Mohanlal along with his daughter Radha. After sometime, when she was returning to her house, appellant/accused met her on the street and after seeing the prosecutrix he told her to go with him and he caught hold the hands of the prosecutrix and pressed her mouth. When the prosecutrix tried to shout, the appellant threatened that if she will raise any alarm, then he would kill her. After that, the appellant took the prosecutrix to the khaliyan of village Barlai, where he committed rape with her. Thereafter, the prosecutrix started crying, appellant assured her that he will marry with her. Then on the same night, he again committed sexual intercourse with the prosecutrix. Next morning, appellant took the prosecutrix to Village-Badkua and sat her in culvert. In the night of 24-2-1998, appellant twice committed rape upon the prosecutrix. In the morning of 25-2-1998, when the prosecutrix and the appellant were washing their mouth and hands on the well at the time some persons of the village Badkua came there and they interrogated them and thereafter, they took them to the house of village Sarpanch-Gangaram. Looking to the tender age of the prosecutrix, Gangaram sent both of them to Police Station-Manasa with village Chowkidar-Ishaq Mohammad, however, in the Manasa, Chhotu and Mohan Das resident of village Hathuniya met them and they took the appellant and the prosecutrix to Police-Station Kukdeshwar, where the prosecutrix has lodged the FIR (Ex. P/1) against the appellant for the commission of offence punishable under sections 363, 366 and 376 of the Indian Penal Code. P/1) against the appellant for the commission of offence punishable under sections 363, 366 and 376 of the Indian Penal Code. The prosecutrix and the appellant were sent for medical examination, where X-ray examination of the prosecutrix was also conducted for verifying her age. Police recorded the statement of the prosecutrix and other witnesses and the appellant was arrested. Clothes of the prosecutrix and the appellant were received from the hospital under sealed cover and the same were sent by the Police to FSL for chemical analysis. After completion of the investigation, charge-sheet was filed before the Court of Judicial Magistrate Manasa, District-Neemuch, who committed the case to the Sessions Court and ultimately it was transferred to the Court of Additional Sessions Judge, Manasa, District-Neemuch. 3. The trial Court framed the charge for offence under sections 363, 366 and 376 of the Indian Penal Code against the appellant. The appellant abjured his guilt and took a plea that he has falsely been implicated in the present offence. He took a defence that the prosecutrix herself came to his house and she went with him on her own accord and he has not committed rape with the prosecutrix. When they reached at Village Badkua, they were caught by the villagers, then the prosecutrix has lodged the FIR against the applicant. However, he has not examined any witness in his defence. 4. The trial Court after considering the evidence adduced by the parties pronounced the impugned judgment on 20-5-1999 and convicted and sentenced the appellant as mentioned hereinabove. However, at the time of alleged incident the prosecutrix was found to be more than 18 years, therefore, the appellant was acquitted for the offence punishable under section 363 of the Indian Penal Code. 5. Learned counsel for the appellant argued at length and submits that the appellant has been illegally convicted by the trial Court. The trial Court has committed error in not considering the material omissions and contradictions present in the statement of the prosecutrix. Medical evidence is also inconsistent with the ocular evidence, which is also ignored by the trial Court. The trial Court has not properly appreciated the evidence available on record and arrived at incorrect findings, which is liable to be set aside. 6. Medical evidence is also inconsistent with the ocular evidence, which is also ignored by the trial Court. The trial Court has not properly appreciated the evidence available on record and arrived at incorrect findings, which is liable to be set aside. 6. On the other hand, learned Public Prosecutor for the respondent/State supported the findings given by the trial Court by contending that after due appreciation of the evidence, the trial Court has found the appellant guilty for the alleged offence, therefore, no interference is warranted in the findings given by the trial Court. 7. I have carefully perused the record and have considering the rival contentions of the parties. 8. The prosecutrix (PW 1) deposed that 10 months ago, she had gone to the house of Mohanlal Balai along with her mother for watching T.V. Programme. At about 10:30 p.m., they came back to their house. Her mother went to sleep and she was going to sleep at her grand-father’s house. When she reached on the street, appellant was standing there. The appellant pressed her mouth and took her on the main road, where he threatened her that if she will raise any alarm, then he would kill her. Thereafer, the appellant, took her to Khaliyan of Village Barlai, which is 2 Kms., away from village-Hathuniya, where the appellant slammed her and committed rape upon her. Accused kept her for two hours in the Khaliyan and he again committed sexual intercourse against her will. After that, the appellant took her to Village Badkua, where they stayed at culvert and in the night, the appellant committed rape with her for two times. In the next morning, when they went to the well, 3 to 4 persons of Village Badkua came there and they asked about the name of their parents and address. Then they took them to the house of Sarpanch-Gangaram. Sarpanch interrogated her, thereafter, he sent them to Police Station-Manasa with Village Chowkidar. While going to Police Station-Manasa resident of her village- Chhotu and Mohan Das met them and they took her and the appellant to Police-Station-Kukdeshwar, where she lodged the FIR against the appellant. After lodging the report, she was sent to hospital for medical examination. Police visited the spot and prepared spot map (Ex. P/3). 9. While going to Police Station-Manasa resident of her village- Chhotu and Mohan Das met them and they took her and the appellant to Police-Station-Kukdeshwar, where she lodged the FIR against the appellant. After lodging the report, she was sent to hospital for medical examination. Police visited the spot and prepared spot map (Ex. P/3). 9. Bhagwanti Bai (PW 2)-mother of the prosecutrix has supported the statement of her daughter and deposed that her daughter had gone to the house of Mohanlal Balai for watching television programme. At about 10:30 p.m., she came home to sleep; whereas the prosecutrix went to sleep at her grand-parents house. In the next morning when at about 7:00 a.m., the prosecutrix did not return to her house, then she went to the house of her mother-in-law, who informed her that in last night the prosecutrix did not come to sleep at her house. Thereafter, they searched the prosecutrix but she did not trace. She informed her husband about the disappearance of her daughter. After two days of the alleged incident, Chhotu telephonically informed that the prosecutrix has been caught with the appellant-Mohanlal. Then her father-in-law went to the Police-Station-Manasa, took the prosecutrix and the appellant to Police-Station-Kukdeshwar, where the prosecutrix narrated him about the incident. 10. Mohandas (PW 3) and Ranchhoddas (PW 4) have also supported the prosecution case. 11. Ishaq Mohd. (PW-5)-the village Chowkidar deposed that one year ago at about 11 a.m. to 12:00 p.m., one boy and girl were found at Babu’s well, they stayed there since night, then Balu along with 3-4 persons reached the well and they asked the girl about her address and tried to know why she came here. Girl told that the boy is her brother and boy also introduced the girl as his sister but when the father’s name given by them found different, then they doubted that they cannot be siblings. Thereafter, they took them to the house of Sarpanch-Gangaram (PW 9), where also they told that they are brother and sister. Gangaram (PW 9) also supports the statement of Mohd. Ishaq (PW 5) and testified that girl said him that she is the sister of appellant and she came there with the boy with her own will, however, on the suspicion he sent both of them to Police Station-Manasa with village Chowkidar-Mohd. Ishaq. 12. Gangaram (PW 9) also supports the statement of Mohd. Ishaq (PW 5) and testified that girl said him that she is the sister of appellant and she came there with the boy with her own will, however, on the suspicion he sent both of them to Police Station-Manasa with village Chowkidar-Mohd. Ishaq. 12. According to the findings given by the trial Court at the time of alleged incident the prosecutrix was found to be more than 18 years, therefore, she was major. This finding has not been challenged by the prosecution by filing an appeal before this Court, therefore, there is no reason for interfering the finding given by the trial Court regarding the age of the prosecutrix. Although the prosecutrix claims that appellant took her forcibly to the Village Barlai and Badkua and committed rape upon her, however, she did not raise any alarm when the appellant took her near the house of her grand parents. She has also not made any complaint to the persons, who met her when the accused took her to Village Barlai and Badkua. Statement of the prosecutrix also disclose that on 24-2-1998, she stayed on the culvert of village Badkua all day long. However, during this period also neither she tried to escape from the company of the appellant nor she made any hue and cry for the help, which indicates her consent. In the cross-examination, the prosecutrix accepted that accused went to the village for taking food leaving her alone and during that time also she did not try to escape from there, which clearly shows that the prosecutrix was the consenting party. During the intercourse also neither the prosecutrix made any resistance nor made any shout for the help. When she was caught by the villagers at Badkua and they asked about her warehouse at that time also she did not disclose to them that the applicant took her forcibly and committed rape upon her. Instead of that she gave false statement to them that she is the sister of the appellant. As per MLC report also no internal or external injury was found on the body of the prosecutrix. There are material contradictions, omissions and exaggerations have come in the statement of the prosecutrix. Instead of that she gave false statement to them that she is the sister of the appellant. As per MLC report also no internal or external injury was found on the body of the prosecutrix. There are material contradictions, omissions and exaggerations have come in the statement of the prosecutrix. Her statement has not been corroborated by the medical evidence, which clearly reveals that the prosecutrix had gone with the appellant at her own accord and the appellant has made physical relations with the prosecutrix out of her own will. Hence, testimony of the prosecutrix is not found trustworthy that accused forcibly took her and committed rape upon her. 13. From the aforesaid going discussion, it is clear that the prosecutrix was consenting party and she was more than 18 years at the time of alleged incident, therefore, the prosecution has failed to prove his case beyond reasonable doubts and has not been established an offence under sections 366 and 376 of the Indian Penal Code against the appellant. 14. In view whereof, this appeal is allowed and impugned judgment dated 20-5-1999 passed by Additional Sessions Judge, Manasa, District-Neemuch in S.T. No. 86/1998 is hereby set aside. Consequently, the appellant has been acquitted from the offence punishable under sections 366 and 376 of the Indian Penal Code. 15. Appellant is in jail, therefore, it is directed that appellant be released forthwith, if he is not required in any other case. Office is directed to make arrangements for issuance of release warrant of the appellant. 16. Let record of the trial Court be sent back along with the copy of this judgment for information and necessary compliance.