Madhya Pradesh High Court
Radheshyam & Ors. vs The State Of M.P. on 15 February, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 15 th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 1284 of 1999
BETWEEN:-
1. RADHESHYAM AGED ABOUT 25 YEARS,
LABOURER, R/O PEETHAMPUR, DISTRICT DHAR
(MADHYA PRADESH)
2. GORKHIYA @ REMESHWAR S/O HIDYSINGH,
AGED ABOUT 23 YEARS, OCCUPATION:
LABOURER PEETHAMPUR (MADHYA PRADESH)
3. GHANSHYAM S/O SHANKAR, AGED ABOUT 23
YEARS, OCCUPATION: LABOURER PEETHAMPUR
(MADHYA PRADESH)
.....APPELLANTS
(NONE FOR APPELLANTS )
AND
THE STATE OF M.P. THROUGH P.S. BALWADA,
DISTRICT WEST NIMAR, KHARGONE (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI TARUN PAGARE - G.A. )
This appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
This appeal is of the year 1997 and the matter is being listed since
2.1.2024. Nobody is present today. The case is heard on merits.
The present appeal is filed under section 374(2) Cr.P.C. being aggrieved
by the judgment of conviction and sentence dated 11.8.1999 passed by ASJ,
Signing time: 2/15/2024 5:26:48
PM
Barwah, West Nimar in S.T.No. 310/1998. The appellants have been convicted
and sentenced as under :-
CONVICTION & SENTENCE
Appellant No.1-Radheshyam u/s 376 IPC - 7 years RI & fine of
Rs.1000/-
and in default of fine, 4 months RI
u/s 366 IPC - 5 years RI & fine of
Rs.1000/-
and in default of fine, 4 months RI
u/s 506-B IPC- 3 months RI & fine of
Rs.500/-
and in default of fine, one and half month
RI
Appellant No.2-Gorkhiya u/s 366 IPC - 5 years RI & fine of Rs.1000/-
and in default of fine, 4 months RI
Appellant No.3-Ghanshyam u/s 366 IPC - 5 years RI & fine of Rs.1000/-
and in default of fine, 4 months RI
As per prosecution story, on 30.3.1997 the appellants kidnapped the
prosecutrix and carried her to Gandhidham (Gujarat) where appellant No.1-
Radheshyam is said to have committed rape against her will and also threatened
her.
3. Missing report was lodged at S.No. 2/1997 at P.S. Balwada. On
10.4.1997 she was recovered from Gandhidham (Gujarat) from the custody of
appellant NO.1-Radheshyam. The prosecution case is based on the testimony
of prosecutrix (PW-1), her brother-in-law, Bhawarsingh (PW-1), Arjunsingh
(PW-3), Assistant Sub-Inspector M.S.Patel (PW-4) and A.K.Singh 9PW-5).
4. Admittedly, the prosecutrix is a major married woman having a child of
2 years old. She was examined as PW-1 and deposed that she had gone to
Sunday market along with one Basubai. Accused persons namely Radheshyam,
Ghanshyam and Gorakhiya met her. They stopped a bus and asked her to
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board on the bus stating that her mother is sick. She was taken to Indore by bus
and from there they changed the bus and went to the State of Gujarat. In Surat
they had taken one room on rent where the prosecutrix stayed for 4-5 days with
accused Radheshyam. It is alleged that in the said room, 4-5 times he
committed rape against her will. Brother-in-law of prosecutrix Bhawarsingh
(PW-2) stated that prosecutrix had gone to market along with Basubai and after
coming from the market, Basubai informed him that one boy forcibly took the
prosecutrix in a bus. They went to police station and lodged a missing report
and search was made for about 10-12 days but they could not get any
whereabouts of the prosecutrix. After sometime they got information that
prosecutrix is staying in a rented room in Gandhidham, Gujarat. He along with
his father and brother Kailash went to Gandhidham along with police and
prosecutrix was recovered. Prosecutrix informed her that accused Radheshyam
had forcibly taken her and committed rape with her for 10-11 days and did not
allow to go her back. She was also threatened to kill. Thereafter the report was
lodged. M.S.Patel (;W-4) proved the possession Panchnama Ex.P/8 to
establish the fact that prosecutrix was recovered from the possession of
Radheshaym. The same was supported by Arjunsingh (PW-3) and also by
Bhawarsingh (PW-2). The slides and undergarments of prosecutrix and
accused were sent to FSL and the FSL report is Ex.P/11. In the slide and
undergarments, semen was found.
5. Upon perusal of record and the statement of prosecutrix, this Court
finds that prosecutrix is a major married woman and as per her statement, first
she was taken to Indore in bus and then from Indore to Gandhidham (Gujarat).
Her statement cannot be believed that she was forcibly kidnapped by the
accused persons on threatening. She was travelling in a bus and she could raise
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alarm at any time. She was shifted from one bus to another and she stayed in a
rented room for 10-12 days but she did not raise any alarm or cry for help. The
prosecution has not examined the girl along with whom she had gone to the
market namely Basubai. Considering the testimony of prosecutrix and other
witnesses and the fact that prosecutrix was a major and married woman, her
allegation that she had gone along with accused persons because of threatening
and also promise of marriage cannot be believed because she was already
married and therefore, there was no occasion of false promise of marriage by
the appellant No.1. She travelled to different places in busses and lived for long
period in a room but never raised any alarm. It appears that prosecutrix was a
consenting party.
6. In view of aforesaid assimilation of facts and evidence, this Court is of
the view that prosecution could not establish its case and the appellants have
been erroneously convicted without proper appreciation of the facts and
evidence. Accordingly, the appeal is allowed and judgment of conviction and
sentence is set aside.
The appellants are acquited of the aforesaid charges.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
Signing time: 2/15/2024 5:26:48
