Suresh vs The State Of M.P.
2023 Latest Caselaw 8379 MP

                                    1
 IN     THE       HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                          BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                        ON THE 12 th OF JUNE, 2023
                   CRIMINAL APPEAL No. 189 of 2005

BETWEEN:-
SURESH S/O MANGILAL, AGED ABOUT 21 YEARS,
OCCUPATION: AGRICULTURST R/O VILLAGE MOHASA,
P.S.CHACHODA DISTRICT GUNA (MADHYA PRADESH)

                                                                  .....APPELLANT
(BY SHRI GAGAN SHARMA - ADVOCATE)

AND
THE STATE OF M.P. THROUGH P.S. CHANCHODA
DISTRICT GUNA (MADHYA PRADESH)

                                                                .....RESPONDENT
(BY SHRI PRAMOD PACHOURI - PUBLIC PROSECUTOR)

      Th is appeal coming on for hearing this day, t h e court passed the
following:
                                     ORDER

This criminal appeal u/S 374 of CrPC is directed against judgment of

conviction and order of sentence dated 01.03.2005 passed by Additional Sessions Judge Chanchoda, District Guna (MP) in Sessions Trial No.183 of 2001, whereby appellant has been convicted under Sections 366, 376(1) and 342 of IPC and sentenced him to undergo 2 years' RI, 7 years' RI and 2 months' RI with fine of Rs.200/-, 500/- respectively, with default stipulations.

In brief case of the prosecution is that on 28.02.2001 prosecutrix aged about 16 years lodged a report against appellant at Police Station Chachoda bearing crime No.80/2001 for the aforesaid offences. As per her complaint,

yesterday in the evening when she was at her agricultural field, the appellant came there and finding her alone caught hold of her hands and forcibly took her to village Mohasa. When she cried, her mouth was gagged and took her in a "Taparia" of his agricultural field and by throwing her in it committed sexual intercourse against her will. The appellant committed sexual intercourse 4-5 times with her and kept her throughout the night and leaving her alone, in the morning, the appellant went away. When Bablu younger brother of the appellant came there, he took her and left her near the railway track, from there she came back to her house and narrated the incident to her mother and along with her father, she went to lodge a report. Thereafter, she was sent for medical

examination in which it was found that hymen was old ruptured. No definite opinion can be given. Appellant was arrested. After investigation charge-sheet has been filed.

Learned counsel for the appellant made submission that during investigation of trial prosecution could not establish by record that prosecutrix was below 18 years. Beside this, during investigation her ossification test was conducted. As per the report, she was more than 18 years and 19 years. According to prosecutrix, PW-6, she is acquainted with the appellant. One and a half years back her father had gone to mandi, she was sitting on the field, appellant came and took her inside the taparia where he kept her and committed sexual intercourse with her whole night 4 -5 times and leave her in the morning. Thereafter, appellant's brother Bablu came and took her and left her near the railway track, from there she came back to her house and narrated the incident to her mother and along with her father, she went to lodge a report. During cross-examination, she has admitted that she was married to one Preetam, who had left her and later on, she was kept by her parents with one Devendra. She

has also stated that the appellant had taken her away by dragging and blood was coming out from her ankle. In struggling with the appellant, she had sustained multiple injuries.` Looking to the evidence of the prosecutrix, it has been established that at the time of incident, she was more than 18 years and below than 19 years. Prosecutrix stated that when appellant committed sexual intercourse with her all over the night, she got multiple injuries on her body, but Dr. S.J.Bague (P.W.-3) who had examined the prosecutrix has stated that prosecutrix was fully matured as a female, there were no injuries on her internal or external part of the body and he cannot give definite opinion regarding commission of rape with her. During cross-examination, P.W.-3 has admitted that if more than one time intercourse is done with any female, chances of injuries are very high, but he didn't fine any injury on her body. Despite prosecutrix was sexually harassed 4- 5 times by the appellant, there were no marks were present on her clothes. Her hymen was old ruptured. Beside this independent witness Bablu (P.W.-11) who met her first time in the morning after the incident was took place, he has not supported her evidence. As per Bablu (P.W.-11), prosecutrix knows the appellant from last two years, Bablu also denied that prosecutrix met her near the well and informed him that accused/appellant committed rape with her. During examination, P.W.-11 has also stated that there was no hutment present

near the field.

Looking to the facts and circumstances of the case as well as documents available on record, at the time of incident she was already a major and her testimony is not corroborated by medical evidence. Despite prosecutrix was sexually harassed by the appellant over-night, but there were no injuries

sustained on her body. Also the indenpendent witness Bablu P.W.-11 has not supported the case.

In view of above, the criminal appeal filed by appellant deserves to be and is hereby allowed. The conviction of appellant so recorded by the learned trial Court suffers from basic infirmity which renders it unworthy of evidence, Accordingly, the judgment dated 01-03-2005 passed by Additional Sessions Judge, Chanchoda, Dist. Guna in Sessions Trial No.183 of 2001 is set aside. Appellant is acquitted from all charges levelled against him. He is on bail, therefore, his bail bonds and surety bonds stand discharged. Fine amount, if any paid shall be refunded to the appellant.

A copy of this judgment along with record be sent to the trial Court concerned forthwith.

(DEEPAK KUMAR AGARWAL) JUDGE Vijay VIJAY TRIPATHI 2023.06.19 17:01:33

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