Radheshyam vs State Of M.P.
2023 Latest Caselaw 10867 MP

                                     1
 IN      THE       HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                           BEFORE
        HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                         ON THE 14 th OF JULY, 2023
                    CRIMINAL APPEAL No. 506 of 2010

BETWEEN:-
RADHESHYAM S/O S/O BHANWARLAL GURJAR , AGED
ABOUT    29    YEARS, OCCUPATION:  NIL  R/O
CHAKAMJIDAPUR,    DISTRICT  SHEOPUR (MADHYA
PRADESH)

                                                              .....APPELLANT
(SHRI ANSHU GUPTA, LEARNED COUNSEL FOR APPELLANT)

AND
STATE OF M.P. (MADHYA PRADESH)

                                                           .....RESPONDENTS
(SHRI PRAMOD PACHAURI- LEARNED COUNSEL FOR RESPONDENT-
STATE)

        Th is appeal coming on for hearing this day, th e court passed the
following:
                                   JUDGMENT

Heard on IA No. 12565 of 2023, which is an application filed on behalf

of appellant for urgent hearing on the ground that his appeal is pending since 2010.

IA is allowed and matter is heard finally.

This criminal appeal under Section 374 of CrPC has been preferred by appellant against the judgment of conviction and order of sentence dated 28-06- 2010 passed by Special Judge (Atrocities), Sheopur in Special Case No.09 of 2009 whereby the appellant has been acquitted of charge under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

Section 506 of IPC and convicted under Section 376 of IPC and sentenced to undergo seven years RI with a fine of Rs.1,000/- with default stipulation.

(2) Prosecution story in brief is that on 16-09-2008 at around 08:30 pm, prosecutrix a married lady aged about 22 years lodged an FIR at Police Station concerned alleging therein that on 14-09-2008 at around 04:00 pm she had gone to the bore well of appellant- accused Radheshyam for fetching the water and from the bore well while she was returning her home, from her behind appellant accused took her in his Tapariya and took off his clothes and forcibly committed sexual intercourse with her. When she tried to shout, appellant- accused closed her mouth and told her if she tells anybody she will be killed.

After returning her home she narrated incident to her mother-in-law and her husband but because her father-in-law was not at home, she did not go to report, the next day morning she told this incident to Sarpanch Shivul who asked her to report at police station. While going to Avada Police Station with her husband to report, Deviram Gurjar, Prabhu Gurjar, Vinod Dhakad, Raju Adivasi, Mohan Dhakad met at Masavani Village on the way who said that her father-in-law is not at home and it is a matter of village, do not go to report and these people took her back home. When her father-in-law came home, she told him whole incident and thereafter report was lodged by her after two days of incident. On the basis of such report, crime no.23 of 2008 was registered for offence under Section 376, 506 of IPC and under Sections 3(1)(v) of Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act. After completion of investigation, charge sheet was filed before the competent Court from where case was committed to the Special Court for its trial. The appellant abjured his guilt and pleaded complete innocence.The appellant in his defence

examined Asharfi Lal as DW1 and prosecution in order to prove its case examined as many as eight witnesses including prosecutrix (PW1). After recording evidence of prosecution witnesses, the trial Court after conclusion of trial convicted the present appellant and sentenced him as mentioned in para 1 of this judgment.

(3) Challenging the impugned judgment of conviction and order of sentence, Shri Anshu Gupta, learned counsel for the appellant submits that at the time of incident, prosecutrix was a married lady aged about 22 years and she was a well-developed lady. At the time of alleged incident, there was no resistance from the prosecutrix which appears that either false allegations have been levelled against present appellant or she was a consenting party to do physical relationship with present appellant. The trial Court has committed an error in convicting the appellant for alleged offence without appreciating the evidence properly. The prosecution has failed to prove its case beyond reasonable doubt. According to para 5 and 6 of statement of the prosecutrix if there is a bore-well in running condition in her house, on the date of alleged incident as to why she had gone to the bore-well installed on the farm of accused, i.e. a half kilometer away from village which appears prosecution story very doubtful as well as unbelievable and perceptible. It is further contended that PW-4 Shivlu had gone with prosecutrix to get FIR lodged

deliberately on the false grounds after two days of incident. Although it is alleged by prosecutrix that rape was committed with her by appellant in the Taparia but there is no Taparia at the scene of incident as per spot map. On these ground, the appellant deserves to be acquitted and the present appeal deserves to be allowed.

(4) On the other hand, learned counsel for the State by supporting the

impugned judgment submitted that as per contents of FIR as well as evidence of prosecution available on record, trial Court has rightly convicted and sentenced the present appellant. There is no infirmity in the impugned judgment and prayed for dismissal of this appeal.

(5) Heard learned counsel for the parties and perused the record as well as the judgment.

(6) For determination of present appeal, first this Court thinks it apposite to go through the testimony of prosecutrix (PW1) as well as medical evidence.

(7) Prosecutrix (PW1) who is a married lady in her examination-in-chief deposed that her aged is 17 years. The incident took place 6-7 months ago at around 04:00 pm. She had gone to fetch the water from the bore well of appellant- accused and he caught hold of her and took her in his Tapariya and thereafter took off her clothes and committed sexual intercourse with her. This witness in para 2 of her examination-in-chief deposed that after raping, the accused left her and she came back to her house from Tapariya and no one had come to there. She narrated the incident to her husband and mother-in-law. At that time, her father-in-law was not in home and had gone to Karahal. She had gone with her husband to police station Avada. This witness further deposed that the day when the incident itself was not to be reported in that day, she went to report the same day, it was her second day. She was sent to Sheopur for medical examination. Police recovered her petticoat after five days of incident.

(8) During cross-examination, this witness in para 8 deposed that the knot of her petticoat was opened by appellant with his both hands. The accused was also wearing underwear attached with knot and he himself opened knot of

his underwear. The accused had removed her bra with both hands and had removed his baniyan with both hands. This witness deposed that she herself put off her petticoat. Accused did bad acts with her for an half an hour and there was mud on the ground. She got injuries during intercourse on her back and backside of her hand and informed about it to the doctor. During the incident, although she had screamed but nobody had listened. In para 9 of her cross- examination she deposed that both utensils were left near bore well. Next day, her husband brought the same from bore well. In para 10 she further deposed that her mother-in-law told her what would have done wrong things with her and her mother-in-law had quarrelled with her. Her husband did not fight with her in the night and did not tell anything.

(9) This witness in para 4 of her cross-examination admitted that there was a dispute between Sarpanch Shivlu of her village and accused Radheshyam who is up-sarpanch and it is true that accused Radheshyam had complained against Shivlu regarding non-working of village works that's why they felt because of this. This witness in para 11 of her cross-examination deposed that they had gone to police station by tractor of Shivlu which was driven by her husband. Her father-in-law-, husband, Shivlu, four persons had gone to police station. She did not know as to whether her father-in-law and Shivlu had telephoned the police station through the politician Brijraj Singh.

(10) From report Ex.P1 lodged by prosecutrix, it is clear that on the other hand, it is stated by her that while going to Avada Police Station with her husband to lodge the report, Deviram Gurjar, Prabhu Gurjar, Vinod Dhakad, Raju Adivasi, Mohan Dhakad met at Masavani Village on the way who said that her father-in-law is not at home and it is a matter of village, do not go to report and these people took her back home and on the other hand, in para 2 of her

examination-in-chef deposed that she had gone alone to police station with her husband and no one had met on way. Similarly, in para 11 of her cross- examination deposed that she along with her father-in-law, husband, Sarpanch Sivlu, four persons had gone to Avada Police Station in a tractor and she had gone one time to Avada Police Station.

(11) From evidence of prosecutrix (PW1), it appears that such type of allegations are very easy but it is very difficult to rebut same. In such a situation, age of prosecutrix is necessary to be scrutinized. As per MLC of prosecutrix who is a married lady aged 22 years and no external or internal injury was found over her body and as per opinion of doctor sample of public hair was taken for forensic examination bearing petticoat sealed, but she was not willing to take of seal, hence, not sealed and no strains found over petticoat and no tearing of clothes was also found. Report is Ex.P5.

(12) Looking to examination-in-chief as well as cross-examination of prosecutrix, it transpires that nowhere she has stated that appellant -accused

had put off her clothes and she had ever raised any resistance. During cross- examination, she has also admitted that appellant had done sexual intercourse with her for an half hour and she got injuries on her back and backside of hand but as per opinion of Dr. B. L.Yadav (PW6) who has specifically stated that no external or internal injury was found over the body of prosecutrix. Further, from evidence of prosecutrix, it is clear that if against her alleged offence would have been happened with her, her mother-in-law could not have quarreled with her.

(13) Looking to the overall testimony of prosecutrix and medical evidence available, it comes out that either she was a consenting party or being a married lady she is telling lie by making prosecution story false or doubtful.

Under these circumstances, proviso to Section 375 of IPC is at all not attracted. Besides this, without any resistance a male person cannot do sexual intercourse with a major lady without her consent and without her consent, if against her will any sexual intercourse is done, then some marks of injury are to be found on her body.

(14) In view of above, prosecution has utterly failed to prove the appellant guilty of aforesaid offence. In the opinion of this Court, the trial Court has committed an error in convicting and sentencing the present appellant for offence under Section 376 of IPC. In the result the appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of charge under Section 376 of IPC. He is on bail, his bonds and surety bonds stand discharged. The fine amount, if any deposited by the appellant be refunded to him.

Let a copy of this judgment along with record be sent to trial Court for information and compliance.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

MAHENDRA BARIK 2023.07.17 14:07:50 +05'30'