Gendalal vs The State Of M.P.
2023 Latest Caselaw 13963 MP

 IN THE HIGH COURT OF MADHYA PRADESH
             AT JABALPUR
                          BEFORE
          HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                ON THE 25th OF AUGUST, 2023
                 CRIMINAL APPEAL No. 322 of 1999

BETWEEN:-
GENDALAL, S/O JAGAN MARAR,
AGED ABOUT 40 YEARS, R/O GRAM
THANEGAON, RAMPAYALI, TAHSIL
WARASEONI, DISTRICT BALAGHAT
(M.P.)
                                                         .....APPELLANT
(BY SHRI R.P. KANOJIYA - ADVOCATE)

AND
THE STATE OF M.P., RAMPAYALI,
TAHSIL  WARASEONI,   DISTRICT
BALAGHAT (M.P.)
                                                       .....RESPONDENT
(BY SHRI PRASANNJIT CHATTERJEE - PANEL LAWYER )

RESERVED ON             :     23.08.2023
PRONOUNCED ON           :     25.08.2023

      This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:

                            JUDGME NT

      This criminal appeal has been preferred against the judgment dated
08.01.1999 passed by the First Additional Sessions Judge, Waraseoni,
District Balaghat in S.T. No.46/1996, whereby the appellant was convicted
 for the offence under Section 376/511 of IPC and was sentenced to undergo
three years' rigorous imprisonment with fine of Rs.50/-, and in default of
payment of fine amount, to undergo further rigorous imprisonment of one
month.
2.   Facts

of prosecution case, in brief, are that on 14.01.1996, the prosecutrix was plucking the tomatos in her field (Baadi), near which the appellant was also present. He came from behind and threw the prosecutrix on the ground. He tried to rape her. The prosecutrix was shouting and on hearing her cries, Mahesh came to the spot. The appellant chased him away and in the meantime when prosecutrix tried to run away, appellant again caught hold of her. He dragged the prosecutrix near his house and tried to take her inside the house. The prosecutrix was resisting him, therefore, appellant again threw her on the ground and tried to rape her. In the meantime, the light went off; taking advantage of which the prosecutrix escaped therefrom. She arrived on the road where Sohanlal, Girdhari and Bharatlal were present. She told them of the incident, they took her to her house, where she narrated the incident to her husband. In the incident prosecutrix suffered many abrasions on her both elbows and also on the face, her bangles were broken and Mangalsutra was lost somewhere. The incident was reported to the police next day, on the basis of which an FIR was registered against the appellant and investigation was conducted. After filing of charge-sheet, the trial was conducted, in which the appellant was convicted and sentenced by the impugned judgment.

3. In this criminal appeal, the grounds raised by the appellant are that there were many discrepancies in the statements of witnesses and also in their previous statements recorded under Section 161 of Cr.P.C. The evidence did not disclose that any attempt was made by the appellant to take off the clothes of the prosecurix. The delay in lodging the FIR was not explained. The alleged eyewitness Mahesh (PW5) denied to have seen the incident. There was only uncorroborated testimony of prosecutrix, it was therefore, prayed that the appeal be allowed and the appellant be acquitted of the charge.

4. Learned counsel for the State has opposed the present appeal on the ground that the judgment passed by the trial Court is based upon the reliable evidence available on record and there is no reason to doubt the prosecution case, therefore, it is prayed that the appeal be dismissed.

5. Counsel for both the parties have been heard, impugned judgment and record of the trial Court have been perused.

6. To prove its case the prosecution has relied upon the statement of prosecutrix (PW3) and the alleged eyewitness Mahesh (PW5). The husband of prosecutrix is examined as PW4. As claimed in the appeal memo, the alleged eyewitness Mahesh (PW5) has not supported the prosecution story to the least. According to him, he knows nothing about the incident. It is claimed by the prosecution that he saw the appellant outraging the modesty of prosecutrix and tried to intervene, but he was chased away by the appellant. It is not explained by the prosecution that if this witness was brave enough to intervene and try to save the prosecutrix on his own, then why did he not take the help of others when he was chased away by the appellant. The facts established by the prosecution disclose that the incident occurred at around 5:30 in the evening at a place which was adjoined by the agricultural field and huts of other persons. It has also been admitted by the husband of prosecutrix (PW4) that on the said day, there were many people around, their number would have been 100-150 and the crowd was there till the evening. In the light of these facts, it seems doubtful that only Mahesh came to rescue the prosecutrix on hearing her shouts and he too went away without asking others to help.

7. It is claimed in the FIR that after the prosecutrix was successful in escaping, she came on the road where she met Sohanlal, Girdhari and Bharatlal Lodhi, to whom she narrated the incident but none of these three witnesses were examined by the prosecution and no reason has been assigned by the prosecution for their non-examination.

8. The statements of husband of prosecutrix ((PW4) reveal that their whole family had gone to the field where they cooked the food and had lunch and then he came back home alongwith the daughter, while the prosecutrix stayed back all alone in the field. His Court testimony suggests that the prosecutrix had told him that she would come back within half an hour, but when she did not return by 4-5 p.m., he asked three boys to go to the field to check out the wellbeing of the prosecutrix and with these three boys the prosecutrix came back. He further states that the three of them told him that prosecutrix met them on the road, and that he scolded the prosecutrix. His further statements are that his wife told him that she had some scuffle with a neighbor. It is further disclosed in his statement that name of appellant was not disclosed by the prosecutrix and this information was given to him by those three boys with whom the prosecutrix returned home. Further, it is claimed by the husband of prosecutrix that it was him who had asked his wife to lodge a report against the appellant. These statements suggest that the prosecutrix was not inclined to narrate the incident of attempt of rape and was also not willing to disclose the name of appellant to her husband or to lodge the FIR against him. The husband of prosecutrix got the information from the boys accompanying the prosecutrix to her home, about the name of appellant. This conduct of prosecutrix raises grave suspicion.

9. It is claimed by the defence that the husband of prosecutrix was angry over her staying back in the field so late in the evening and this suggestion has been admitted both by the prosecutrix and her husband. The further suggestion given by the defence is that the husband of prosecutrix had assaulted her for this reason. Although, this suggestion has been denied by the prosecutrix and her husband, but the sequence of events make the story of defence probable. The alleged eyewitness Mahesh did not went to the house of prosecutrix to inform her husband perhaps for the reason that there was no necessity to seek help about the incident. Further, the boys who were sent by the husband of prosecutrix, were not examined to disclose what was narrated to them by the prosecutrix just after the incident and what information they gave to the husband of the prosecutrix.

10. In the light of above discussion, it is evident that the prosecution story is supported only by the sole testimony of prosecutrix, but her conduct has not been found to be instinctive in the given situation. Though several abrasions have been found on the body of prosecutrix, but this evidence is also there on record that she had to face the wrath of her husband for staying back in the field and returning home so late in the night. It is claimed by her that she was scratched and dragged by the appellant, but there is no evidence on record to show that any piece of cloth worn by her at the time of incident was torn. It has been claimed by her that she was dragged to a distance of 300 feet; naturally this dragging would have caused injuries on her wrist if she was dragged in standing position or on her back if she was dragged in lying position, but there were no injury on either of these parts of her person.

11. In the entirety of these facts and circumstances, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt, therefore, this appeal is allowed and the conviction as well as sentence of appellant under Section 376/511 of IPC is set aside. The fine amount, if any, deposited by him shall be refunded back to him. His bail bonds shall stand discharged.

12. Let a copy of this judgment be sent to the trial Court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE

rv Digitally signed by NITESH PANDEY Date: 2023.08.28 18:05:41 +05'30'