Gajendra Dhakad vs State Of M.P.
2023 Latest Caselaw 8676 MP

                                                     1
                           IN   THE    HIGH COURT OF MADHYA PRADESH
                                             AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                            ON THE 14 th OF JUNE, 2023
                                        CRIMINAL APPEAL No. 552 of 2004

                          BETWEEN:-
                          GAJENDRA DHAKAD S/O SHRI PRAHLAD DHAKAD,
                          AGED ABOUT 30 YEARS, OCCUPATION: KASHTKARI
                          RESIDENT OF VILLAGE KHERLI PS SABALGARH,
                          DISTRICT MOREN (MADHYA PRADESH)

                                                                            .....APPELLANT
                          (SHRI RAJ KUMAR SHRIVASTAVA, LEARNED COUNSEL FOR APPELLANT
                          GAJENDRA DHAKAD)

                          AND
                          STATE OF M.P. INCHARGE POLICE STATION PS
                          RAMPUR, DISTRICT MORENA (MADHYA PRADESH)

                                                                           .....RESPONDENT
                          ( SHRI PRAMOD PACHAURI- LEARNED COUNSEL FOR THE
                          RESPONDENT -STATE AND AND SHRI G.S.SHARMA, LEARNED COUNSEL
                          FOR THE COMPLAINANT)

                                        CRIMINAL APPEAL No. 571 of 2004

                          BETWEEN:-
                          RAMESH S/O RAGHUVAR DAYAL DHAKAD, AGED
                          ABOUT 35 YEARS, OCCUPATION: NONE RESIDENT
                          NIWASI BAROLI, PS PAHADGARH DISTRICT MORENA
                          (MADHYA PRADESH)

                                                                            .....APPELLANT
                          (SHRI MADHUKAR KULSHRESTHA, LEARNED COUNSEL FOR THE
                          APPELLANT)

                          AND
                          STATE OF M.P. INCHARGE POLICE STATION PS ARCHI
                          KENDRA RAMPUR, DISTRICT MORENA (MADHYA
                          PRADESH)
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 6/16/2023
10:51:18 AM
                                                             2
                                                                                       .....RESPONDENT
                          ( SHRI PRAMOD PACHAURI- LEARNED COUNSEL FOR THE
                          RESPONDENT- STATE AND SHRI G.S.SHARMA- LEARNED COUNSEL FOR
                          THE COMPLAINANT)

                                  Both the criminal appeals coming on for final hearing this day, the
                          court passed the following common judgment:
                                                           JUDGMENT

Since facts of aforesaid criminal appeals are same, therefore, they are heard simultaneously and disposed of by this common judgment.

(2) Aforesaid Criminal Appeals under Section 374 of CrPC have been preferred by both appellants, namely, Gajendra Dhakad and Ramesh Dhakad challenging common judgment of conviction and sentence dated 25-08-2004

passed by Second Additional Sessions Judge (Fast Track Court) Sabalgarh, District Morena (MP) in Sessions Trial No.74 of 2004, whereby both the appellants have been convicted under Section 376(2)(g) of IPC and sentenced to undergo Rigorous Imprisonment of ten years with fine of Rs.500/-each with default stipulation.

(3) Prosecution case, in brief, is that on 25-09-2003 prosecutrix, a married lady aged around 20 years, lodged an FIR with PS Rampurkala District Morena against both appellants alleging therein that appellant- accused Gajendra who is the real son-in-law of her aunt (bua) appears to be brother-in-law, on Sunday night of 21-09-2003 came to her house and told that her father Banwarilal has been admitted to Kailaras Hospital. After having food, she got ready to go with Gajendra. Near Mata Mandir appellant- accused Ramesh was standing with motorcycle. Thereafter, she sat in the middle of the motorcycle and parked the motorcycle near the culvert of Rampur canal and took her to the bank of canal and at around 12:00 in the night forcibly committed sexual Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

intercourse with her one by one. Thereafter, they took her to village Tiktoli (Parsota) where she was kept at the house of brother of one Babu Kushwah and where both the accused again committed sexual intercourse with her. On the next day, both the accused took her on the motorcycle and brought her to to Kailaras where her father Banwari was seen and on seeing her father, both the accused left the motorcycle and she narrated the whole incident to her father by which she was brought to Rampur via Sabalgarh where her husband was was informed about the incident. On the basis of which, an FIR vide Crime No.52 of 2003 for offence under Section 376 read with Section 34 of IPC was registered against both the accused after four days of the incident. She was sent for medical examination. As per her MLC, no external or internal injury was found on the body of prosecutrix. She was found to be habitual of intercourse. Both the appellants were arrested. After establishing the crime on the report as well as after completion of investigation and other formalities, charge sheet was filed before the competent Court from where the case was committed to Sessions Court for its trial.

(4) Statements of both accused under Section 313 of CrPC were recorded in which both accused abjured their guilt and pleaded complete innocence. Accused Gajendra in his statement under Section 313 of CrPC pleaded that he had a fight with the husband of prosecutrix regarding non-

returning of gold ornaments which were given to her at the time of marriage and therefore, he has been falsely implicated. Similarly, accused Ramesh in his statement under Section 313 of CrPC pleaded that all witnesses are estranged from each other and, therefore, he has been falsely implicated. Both the accused did not lead any evidence in defence. Prosecution in order to prove its case examined seven witnesses including material prosecutrix (PW1) and Dr.Archana Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

Chhari (PW3).

(5) The trial Court, after appreciating the entire evidence led by prosecution and relying on the same, found charges against appellants proved and after conclusion of trial, the trial Court convicted and sentenced them for the offence as mentioned above in para 1 of this judgment.

(6) It is contended by learned Counsel for the appellants that the trial Court has committed an error in convicting and sentencing the appellants. The trial Court has not properly appreciated the prosecution evidence while passing the impugned judgment. FIR was lodged belatedly i.e. after four days of alleged incident and no explanation in this regard has been given either prosecution or prosecutrix. Prosecution case is highly doubtful as it does not support by medical evidence. As per evidence of Dr. Archana Chhari (PW3), no external or internal injury was found on the body of prosecutrix (PW1). It is further contended that although there is an allegation of committing again sexual intercourse with prosecutrix at the house of brother of one Babu Kushwah situated in Village but at there, the prosecutrix did not complain anybody about the incident, therefore, the prosecution story is highly doubtful. It is further contended that prosecutrix in para 19 of her cross-examination admitted the fact that accused Gajendra had a fight with her husband regarding non-returning o f gold ornaments which were given to her at the time of marriage. There are major contradictions and omissions in the evidence of prosecutrix. Therefore, impugned judgment passed by trial Court is contrary as well as foreign to law. Thus, appellants are entitled for acquittal and the appeals deserve to be allowed.

(7) On the other hand, learned Counsel for the State as well as complainant

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

supported the impugned judgment and submitted that there being no infirmity in the impugned judgment and the findings arrived at by trial Court do not require any interference by this Court. Hence, prayed for dismissal of both the appeals.

(8) I have heard learned Counsel for the parties and gone through the record including evidence of material witnesses i.e prosecutrix (PW1) and Dr.Archana Chhari (PW3).

(9) Prosecutrix (PW1) in her examination-in-chief stated that she is aged around 25 years. She is well-acquainted with the accused- appellants. Near about six months back, at around 08:00 in the evening accused Gajendra came to her house and told that her father Banwarilal is sick. After having food, she got ready to go with Gajendra. Near Mata Mandir appellant accused Ramesh was standing with the motorcycle. Thereafter, she went with the accused by sitting herself in the middle of motorcycle and the motorcycle was parked near the culvert of Rampur canal and they took her to the bank of canal and at around 12:00 in the night forcibly committed sexual intercourse with her one by one. Thereafter, they took her to village Tiktoli (Parsota) where she was kept at the house of brother of one Babu Kushwah and at there both the accused again committed sexual intercourse with her. On the next day, both accused took her on the motorcycle and brought her to Kailaras where near petrol pump, her father Banwari was seen and on seeing her father, she screamed. After leaving her both the accused fled away. Then she narrated the story to her father by which she was brought to Rampur via Sabalgarh where her husband was was informed about the incident.At Rampur Kala Police Station, report Ex.P1 was lodged. Thereafter, she was sent for medical exmaination. During investigation, spot map was prepared by police vide Ex.P2.

(9.1) The prosecutrix (PW1) in para 6 of her cross-examination admitted Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

that when accused Gajendra came to her house she was alone. Her husband had gone four days back for treatment of his uncle. After leaving her three years child in the house, she got ready to go with accused Gajendra after locking house and the key was handed over by her to her brother-in-law Rameshwar. This witness further deposed that at the time of leaving house, she informed her brother-in-law that her father is ill, therefore, she is going to see him. Accused Gajendra had come to her house at 08:00 pm. She went with him after two hours i.e. at around 10:00 pm. At about 11:00 pm, they reached near the culvert where motorcycle was parked and nobody was present near the field. This witness further deposed that her child was looking after by accused one by one. She further in para 7 of her cross-examination deposed that her child was weeping. At the time of committing sexual intercourse by accused Ramesh, accused Gajendra was also standing nearby the place. She in para 8 of her cross-examination further deposed that she got internal injury in the incident but she did not have any external injury. She in para 9 of her cross-examination also

deposed that the incident took place with her for a fifteen days and at the time of incident it was a summer season. At village Titkoli, the brother of one Babu Kushwah was living alone in the house to whom she did not know. There were two rooms at there. In one room, brother of Babu Kushwah was slept and in another room she slept along with both accused.

(9.2) The prosecutrix (PW1) in para 10 and 11 of her cross-examination deposed that both the accused took off their clothes and she slept with them in their middle till morning without taking off her clothes. Both accused again committed sexual intercourse with her. She could not make any hue and cry because both accused shut her mouth and gave slap on her cheek. She did not

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

narrate the incident to the brother of Babu Kushwah at village Titkoli. This witness further in para 12 deposed that on the way from Village Titkoli to Kailaras, the people were coming and going. This witness further deposed that she along with accused crossed through police station Kailaras while going towards to petrol pump and no body was available in front of Police Station. She again deposed that one old person was at there to whom she narrated incident and accused parked motorcycle for sometime at there. After parking, both accused were talking each other. She along with both the accused took water from the hand pump near petrol pump. Thereafter, they forcibly took her on the motorcycle but she did not raise any resistance.

(9.3) The prosecutrix (PW1) in para 13 of her cross-examination deposed that near the petrol pump, she was seen by her father and on seeing her father, she started screaming. Both accused thereafter left her at there. Her husband and Jeth were present along with her father to whom she had narrated the entire incident. She did not lodge the report at Kailaras because of shame but the report was lodged at Rampur. This witness further in para 14 of her cross-examination deposed that her husband had searched her for a period of two days. Her husband had searched Rampur, her parental house Gohara and at Kailaras where she met him. This witness further deposed that Vijaypur is situated on the way from Kailaras to Gohara and there is three- four hours distance from Vijaypur to Gohara and from Gohara to Rampur there is four hours distance. This witness further in para 15 deposed that previously her husband had lodged a guminshan report before one day of the incident at police station at Rampur. This witness denied that report was lodged after four- five days.

(9.4) The prosecutrix (PW1) in para 20 of her cross-examination Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

deposed that Gajendra is her brother-in-law. This witness in para 25 of her cross-examination deposed that on the next day of incident at around 05:00 pm she had returned to Rampur and druing this period, she had not taken either bath or gone for latrine.This witness in para 27 of her cross-examination she admitted that she should not have seen her father or she should not have screamed. She denied that during sexual intercourse with her she did not raise any resistance against accused.

(10) Looking to examination-in-chief as well as cross-examination of prosecutrix (PW1), from the evidence, it comes out that at the time of incident she was alone in her house along with her three years child. Although as per prosecution case, accused Gajendra who is her brother-in-law in relation came to her house and stayed in her house for two hours who told her that her father is sick and after having food, she got ready to go with accused Gajendra and near Mata Mandir, accused Ramesh was standing with the motorcycle and they forcibly sat her on the motorcycle and took her near the culvert and one by one, near the bank of canal they committed sexual intercourse with her but during this period she did not raise any resistance.As per further allegation of prosecution that although her bangles were broken and she got injuries on her both hands and under beneath of tree both the accused committed sexual intercourse one by one and thereafter, they took her to village Titkoli, at the house of brother of one Babu Kushwah where they again committed sexual intercourse in a room but at there she did not raise any hue and cry. As per evidence of prosecutrix, she was returning with both accused and near Petrol Pump at Kailaras, she had seen her father, husband and Jeth and on seeing them, she started screaming and if she did not see her father, she did not have

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

screamed. As per her admission, she got injuries on her both hands but Dr.Archana Chhari (PW3) who conducted her MLC, has specififically deposed that she never found any internal injury on the body of prosecutrix. The prosecutrix was a fully developed lady. There is no discharge from her private part and she was habitual with sexual intercourse and no definite opinion regarding rape could be given. Her report Ex.P3. Dr. Archana Chhari (PW3) in para 6 of her cross-examination admitted that stains found on the clothes may be artificial. It is correct to say that if intercourse is done forcefully, then the injuries can occur on her labia majora and external part of her body. It is correct to say that if on a rough part of the ground with a hurt, if it is done forcefully, it will be possible to come injuries on the back side and hip.

(11) Besides the above, from the evidence of prosecutrix (PW1) as well as medical evidence, it is evident that statement of prosecutrix is highly doubtul. Being a married lady she was alone in the house having three years child ought not to have gone with the accused Gajendra. When appellant forcibly sat her on motorcycle at Mata Mandir, she ought to have taken any resistance and screamed but that was not done by her and, therefore, as per her evidence, both the accused took her to Titkoli where both the accused again committed sexual intercourse with her and she had slept in the middle of the accused in a room but she had never raised any resistance. Besides this, she was going with both accused and in front of police station Kailaras accused parked motorcycle and thereafter all of them took water but she never narrated the incident to anybody. She again sat on the motorcycle and near Petrol Pump of Kailaras, if she would not have seen her father she would not have screamed.

(12) On going through the entire evidence available on record, it is apparent that at the time of incident prosecutrix is more than 18 years of age Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM

and is a married lady. Her conduct is highly doubtful as her evidence is not corroborated by medical evidence. Besides this, as per her statement although she had lodged report promptly after one day but as per FIR Ex.P1, the incident had happened with her on 21-09-2003 at around 12:00 in the night and the report was lodged after four days i.e. 25-09-2003 for which, no explanation has been given either by prosecution or by prosecutrix.

(13) Looking to the totality of the facts and circumstances of the case, it appears that the evidence of prosecutrix cannot be relied upon. Pprosecution has utterly failed to prove appellants guilty of offence under Section 376(2)(g) of IPC. Thus, the learned trial Court without going through prosecution evidence properly has committed an error in convicting and sentencing the appellants for aforesaid offence as a result of which both criminal appeals filed by appellants deserve to be and are hereby allowed. Appellants are acquitted of charge levelled against them. If they are on bail, their bail bonds and surety bonds stand discharged and the fine amount deposited by them be refunded to them.

A copy of this judgment along with record be sent to trial Court for necessary information and compliance and also, copy of this judgment be kept in connected Criminal Appeal No.571 of 2004 filed by appellant Ramesh Dhakad.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/16/2023 10:51:18 AM