Moongaram vs The State Of M.P.
2023 Latest Caselaw 8867 MP

                                   1
 IN     THE       HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                          BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                        ON THE 15 th OF JUNE, 2023
                   CRIMINAL APPEAL No. 289 of 2005

BETWEEN:-
MOONGARAM S/O BHOGIRAM JATAV, AGED ABOUT 28
YEARS, OCCUPATION: KHETI R/O VILLAGE DEHGAVA,
PS MAO, DISTRICT BHIND (MADHYA PRADESH)

                                                                 .....APPELLANT
(BY SHRI MURARI LAL YADAV WITH PRADEEP KATARE - ADVOCATES)

AND
THE STATE OF M.P. INCHARGE POLICE STATION PS
MAO DIST. BHIND (MADHYA PRADESH)

                                                               .....RESPONDENT
( BY SHRI PRAMOD PACHORI - 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 23.03.2005 passed by Additional Sessions Judge Gohad, District Bhind (MP) in Sessions Trial No.148 of 2004, whereby appellant has been convicted under Section 376 of IPC and sentenced to undergo seven years' RI with fine of Rs.500/-, with default stipulation.

In brief case of the prosecution is that on 29.04.2004 prosecutrix a married lady aged about 32 years lodged a report against appellant at Police Station Mao alleging that she along with her husband had gone to fetch cow- dung. Her husband was also fetching cow-dung at a distance of four fields from

her. Appellant came near her and inquired about his buffalo, she told her that she had not seen his buffalo, thereafter, he caught hold off her, pulled her down on the field, shut her mouth and after putting of her clothes, appellant inserted his penis inside her vagina. When appellant left her, prosecutrix screamed, on hue and cry when her husband to her, appellant fled away from the spot. Prosecutrix narrated the whole incident to her husband. On her report, crime bearing No.61/2004 for the offence punishable under Section 376 of IPC was registered. Prosecutrix was sent for medical examination. No injury was seen. She was found habitual of intercourse. Appellant was arrested and charge-sheet has been submitted. Thereafter, trial Court convicted the appellant as aforesaid.

Learned counsel for the appellant made submission that either false report has been lodged against appellant or prosecutrix aged about 32 years was consenting party, despite this trial Court has convicted the appellant.

As per prosecutrix PW-1 aged about 33 years knows the appellant. On the date of incident, she along with her husband had gone to fetch cow-dung. Her husband was also fetching cow-dung at a distance of four fields from her. Appellant came near her and inquired about his buffalo, she told her that she had not seen his buffalo, thereafter, he caught hold off her, pulled her down on the field, shut her mouth and after putting of her clothes, appellant inserted his penis inside her vagina. When appellant left her, prosecutrix screamed, on hue and cry when her husband to her, appellant fled away from the spot. Prosecutrix narrated the whole incident to her husband. On her report, crime bearing No.61/2004 for the offence punishable under Section 376 of IPC was registered. During cross-examination, she has admitted that for half an hour, appellant did intercourse with her. House of appellant is near to her house. On going through examination-in-chief of prosecutrix and cross-examination done

by defence counsel, it comes out that at the time of incident, she was aged about 33 years. When appellant was doing sexual intercourse with her, her husband was a distance of four fields. It is not possible in rough surface of the field and against her will for an hour if an intercourse will be done, there will be no mark of injury will sustain on her internal or external part of the body. As per medical evidence came on record, she has not sustained any injuries. In this behalf, PW.-6 R.K.Rajouria has stated that on 30.04.2004 prosecutrix was examined and there were no injuries sustained on the prosecutrix body and regarding commission of rape, no definite opinion can be given.

Looking to the facts and circumstances of the case as well as documents available on record, prosecutrix was aged about more than 30 years and at the time of incident, her husband was far away from the place of occurrence. As per her admission, appellant committed sexual intercourse with her for half an hour, despite this there were no injuries sustained by prosecutrix as the commission of rape was done on rough surface against her will. If a forceful intercourse would have occurred against her will, there must be some signs of injuries sustained by her on her internal or external part of the body. In these types of cases, it is very easy to allege somebody, but it is very difficult to rebut.

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 23-03-2005 passed by Additional Sessions Judge, Gohad, Dist. Bhind in Sessions Trial No.148 of 2004 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 17:02:16

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