Pur Singh vs The State Of M.P.
2022 Latest Caselaw 12868 MP

                                          1
                                                                Cr.A. No. 306/1999

              IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                                     BEFORE

              HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

                        ON THE 26th OF SEPTEMBER, 2022


                     CRIMINAL APPEAL No. 306 of 1999

  BETWEEN:-
  PUR SINGH S/O GANPAT RATHORE
  AGE 30 YEARS
  R/O VILLAGE ZARNIYA
  DISTT. RAJGARH, BIAORA (MADHYA PRADESH)
                                                                  .....APPELLANT
  (BY SHRI VIVEK SINGH, ADVOCATE )

  AND
  THE STATE OF M.P. (MADHYA PRADESH)
                                                               .....RESPONDENTS
  (BY MS MAMTA SHANDILYA, GOVT. ADVOCATE )
      This appeal coming on for judgment this day, Hon'ble Shri Justice
Satyendra Kumar Singh passed the following:

                                   JUDGMENT

The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."] against the judgment dated 22.02.1999 passed by the Court of Sessions Judge, Rajgarh (Biaora) (M.P.) in S.T. No.74/1995, whereby the appellant has been convicted for the offences punishable under Section 376 of the Indian Penal Code, 1860 (in short "IPC") and sentenced to undergo 07 years R.I. with fine of 1,000/- with default stipulation.

Cr.A. No. 306/1999

2. Prosecution story, in brief is that:

(i) On 07.08.1995, at about 14.45 hours, minor prosecutrix, aged about 14-15 years made a complaint to P.S. Machalpur to the effect that she resides in Village Jharannya with her father. About 15 days back at about 11:00 hours, she had gone to appellant's shop for getting her blouse stitched as appellant was a tailor by profession and when she entered his shop, appellant closed the door of his shop from inside and committed rape upon her and also threatened the prosecutrix of dire consequences, in case she tell about the incident to anyone. After returning home, she did not tell anyone about the incident due to fear. On 06.08.1995, she narrated the incident to her father and thereafter, came to police station. SHO K.S. Senwar, on the basis of prosecutrix's complaint, lodged the FIR (Ex. P-3) against the appellant at Police Station, Machalpur for the offences punishable u/S 376, 342 and 506 of IPC. He vide application (Ex. P-1) sent the prosecutrix to Distt. Hospital, Rajgarh for medical examination.

(ii) Dr. Chhaya Joshi (PW-1) medically examined her and prepared MLC Report (Ex. P-2). She prepared and sealed her veginal swab slides, handed over the same alongwith her clothes to the constable, who brought her to the hospital. She found the prosecutrix to be having pregnancy. She referred the prosecutrix to the Deptt. Of Forensic Medicine to ascertain commission of Rape and for confirmation of age, referred her to the Deptt. Of Radiology, Rajgarh. Dr. S.K. Joshi conducted her oscification test and found her radiological age above 16 years but less than 19 years as per ossicification test report (Ex. P-6). ASI Devilal went to the place of incident, prepared spot map (Ex. P-8), arrested the appellant as per arrest memo (Ex. P-9) and vide letter (Ex. P-10) sent him to PHC, Zeerapur, where Dr. S.K. Joshi medically examined him and found capable of doing sexual intercourse. All the seized articles were sent to FSL, Gwalior for chemical examination, FSL

Cr.A. No. 306/1999

Report (Ex. P-11) was obtained and after completion of investigation, the chargesheet was filed before the Court of Judicial Magistrate First Class, Jeerapur Distt. Rajgarh, who committed the same to the Court of Sessions Judge, Distt. Rajgarh.

3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Section 376 of IPC against the appellant a, who abjured his guilt and prayed for trial and pleaded his false implication in the matter.

4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record recorded the findings that prosecution proved its case beyond reasonable doubt against the appellant for the offences punishable under Section 376 of IPC and therefore, vide judgment dated 22.02.1999 convicted him for the aforesaid offence and sentenced him, as mentioned in para 1 of this judgment.

5. Being aggrieved with the said judgment of conviction and order of sentence, appellant has preferred this appeal.

6. Learned counsel for the appellant referring para 16 of the impugned judgment submits that it has already been found proved by the learned Trial Court that prosecutrix was above 16 years of age at the time of incident. It is apparent from the statement of prosecutrix (PW-3) as well as her mother (PW-2) and father (PW-4) that prosecutrix was consenting party. Prosecutrix's father (PW-4) admitted in his cross-examination that he has received photographs of the prosecutrix with the appellant. FIR is delayed by about 15 days without any reasonable cause. The whole prosecution case is doubtful. Under such circumstances, learned Trial Court has committed a legal error in holding the appellant guilty while appreciating the evidence available on record, therefore, the impugned judgment of conviction and order of sentence may be set aside and the appellant may be acquitted from the

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charges framed against him.

7. Per contra, learned counsel for the respondent/State, while supporting the impugned judgment of conviction and order of sentence submits that the judgment was passed by the Trial Court after proper appreciation of evidence available on record. It is further submitted that prosecutrix has specifically deposed in her statement that appellant had threatened her due to which she had not made any complaint against the appellant on the date of incident and thereafter after gathering courage she reported the matter. Hence, impugned judgment is well reasoned establishing the guilt of the appellant beyond reasonable doubt. Therefore, confirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant may be dismissed.

8. I have heard learned counsel for the parties at length and perused the record.

9. Prosecution has examined in all 14 prosecution witnesses including prosecutrix (PW-3), her mother (PW-2) and father (PW-4). Other material witnesses are Dr. Chhaya Joshi (PW-1), who medically examined the prosecutrix, Dr. S.K. Joshi (PW-8), who conducted the oscification test of the prosecutrix, SHO K.S. Senwar (PW-14), who lodged the FIR (Ex. P-3) and ASI Devilal (PW-13), who investigated the case.

10. As nothing except oscification test report (Ex.P-6) has been produced on record about the age of the prosecutrix and Dr. S.K. Joshi (PW-8), who conducted the ossicification test of the prosecutrix, has deposed that on the basis of X-Ray Report (Ex.P-6A), he found the prosecutrix's radiological age above 16 and below 19 years, therefore learned trial court has rightly held that prosecutrix was above 16 years of age and was major at the time of incident.

11. Prosecutrix (PW-3) although deposed that on the date of incident at about 10-11.00 hours, caught hold of her in his shop and committed rape upon her, but

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her explanation about not informing the incident to anyone after about 15 days is not consistent. She in her FIR (Ex. P-3) as well as in her statements also stated that due to fear she did not tell anyone about the incident as appellant had threatened her not to tell about the incident to anyone otherwise, he will kill her. But she in para 3 of her statement specifically deposed that after about 15 days of the incident when she was returning from her agricultural field and appellant caught hold of her hand and forcefully took her in his shop and children of the locality informed her parents and they came alongwith other people of the locality, then she narrated the incident to all of them.

12. Prosecutrix's father (PW-4) also deposed that after hearing the hue and cry and his son informed him that appellant had taken the prosecutrix in her shop, he went there and then prosecutrix narrated the incident to him, thereafter he reported the matter to the police. His son i.e. prosecutrix's brother (PW-5) has also made similar statements, therefore, this fact becomes doubtful that prosecutrix due to fear could not inform about the incident to her parents and also to the police for about 15 days. Vishnuprasad (DW-1), whose presence on the spot has also been stated by the prosecution and Ramchandra (DW-2) deposed that prosecutrix's parents forcefully took the prosecutrix from appellant's house as she was not inclined go with them. Jagdish (DW-3), who is a photographer by profession, deposed that he had captured several photographs of the appellant and the prosecutrix together. l

13. In the light of the aforesaid discussion, defence taken by the appellant that prosecutrix was consenting party can not be ruled out, hence this Court finds that the prosecution has failed to prove its case beyond reasonable doubt. Learned trial Court has committed error in holding the appellant guilty for the offences punishable under Section 376 of IPC.

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14. Thus, this Court is of the considered opinion that the impugned judgment cannot sustain in the eyes of law and facts on record, and is liable to be set aside. Hence, conviction of the appellant cannot be upheld and the appeal filed by the appellant deserves to be allowed. Accordingly, this Court passes the following order:

(i) Criminal Appeal No.306/1999 filed by the appellant - Pur Singh is allowed.

(ii)The judgment of conviction and order of sentence dated 22.02.1999 passed in S.T.No.174/1995 by which appellant has been convicted under Section and 376 of IPC and sentenced as stated in para 1 of the judgment is hereby set aside.

(iii) Appellant be set at liberty, if not required in any other case.

(iv) Fine amount(if any) deposited by the appellant be refunded to him.

The Registry is directed to send back the trial Court record forthwith alongwith the copy of this judgment. Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.

                                                                 (Satyendra Kumar Singh)
 sh/-                                                                    Judge
SEHAR
HASEEN
2022.09.30
10:37:57
+05'30'