Madhya Pradesh High Court
Vijay Kori vs The State Of M.P on 7 September, 2012
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SINGLE BENCH
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.866/1996
Vijay Kori
Vs.
State of Madhya Pradesh
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For the appellant : Shri Raman Patel, Advocate.
For the respondent: Shri S.K. Kashyap, Public Prosecutor
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JUDGMENT
(Delivered on the 7th day of September, 2012) The appellant has preferred this appeal against the judgment dated 13.5.1996 passed by the Additional Sessions Judge, Sihora, District Jabalpur in ST. No.1122/1994 whereby the appellant was convicted for offence punishable under Section 376 of I.P.C and sentenced for 8 years rigorous imprisonment with fine of Rs.1000/- and in default of payment of fine, he was to undergo additional rigorous imprisonment for four months.
2. The prosecution's case in short is that, on 17.9.1994 at about 2.00 p.m in the noon, the prosecutrix (PW1) left her house to search her child Santosh in the village Khaga (Police Station Majhgawa, District Jabalpur). When she went near the house of 2 Criminal Appeal No.866 of 1996 the appellant Vijay, she found that the appellant was lying in his parchi (varanda). When he saw the prosecutrix, he held her and took her to the parchi, he threw the prosecutrix on earth and threatened her not to shout. Ultimately, he committed rape upon the prosecutrix. The prosecutrix went to her house and informed the story to her brother-in-law Narbada Prasad (PW6). The appellant had also told her that he would keep her in his house. Narbada Prasad went to the house of the Sarpanch and told the entire story. Since the prosecutrix was all alone in the house, she could not go to the Police Station to lodge an FIR and therefore, FIR Ex.P/8 was lodged on 29.9.1994 at about 8.00 a.m. The prosecutrix was sent for her medico legal examination . Dr. S. Palod (PW5) examined the prosecutrix and gave a report Ex.P/3. No external or internal injury was found on her person. Two slides were prepared from her vaginal swab and handed over to the concerned Constable after sealing them. The appellant was also arrested and sent for his medico legal examination. Dr. Pandey (PW4) prepared his report Ex.P/2 after examining the appellant. No semen slide could be prepared because semen could not be obtained in ejaculation. After due investigation a charge sheet was filed before the Additional Chief Judicial Magistrate, Sihora who, committed the case to the Sessions Court and ultimately it was transferred to the Court of Additional Sessions Judge, Sihora, District Jabalpur.
3. The appellant abjured his guilt. He did not take any specific plea but, he has stated that he was falsely implicated due 3 Criminal Appeal No.866 of 1996 to enmity and politics. In defence, one Awadhesh Kumar Pande (DW1) was examined to show that the prosecutrix was involved with one Naresh and a Panchayat took place and she had accepted that she had illicit relation with the appellant for last 6-7 months but, the appellant refused in the Panchayat about such relations. Thereafter, Naresh, Devkar and Ramesh claimed that they had illicit relations with the prosecutrix. Thereafter, the Panchayat could not decide anything. After few days of that Panchayat the appellant was arrested by the Police for offence punishable under Section 376 of I.P.C because the prosecutrix had falsely implicated him.
4. After considering the evidence adduced by the parties the learned Additional Sessions Judge, Sihora, District Jabalpur convicted the appellant for the offence punishable under Section 376 of I.P.C and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter. FIR was lodged after delay of seven days and no explanation of delay has been shown. The prosecutrix was shown to be 23 years old woman. No external or internal injury was found in her medico legal examination. Witness Jhallu (PW2) was inserted in the case without any basis. His presence was not at all shown in the FIR. Under such circumstances, the appellant is falsely implicated in the matter. It is prayed that he may be acquitted.
7. On the other hand the learned Public Prosecutor has 4 Criminal Appeal No.866 of 1996 submitted that by evidence of the prosecution guilt of the appellant is duly established. There is no reason by which any interference can be done in the sentence. No Court can grant a sentence less than the minimum for the offence without any special reason and there is no special reason in the present case.
8. After hearing the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appellant could be convicted for the offence punishable under Section 376 of I.P.C ? And whether the sentence imposed upon the appellant can be reduced ?
9. It is apparent from the evidence adduced by the prosecution that the prosecutrix was a woman aged approximately 30 years (as per FIR and in the MLC report Ex.P/3), no external or internal injury was found on her person in the examination done by Dr. S. Palod (PW5). No report of Forensic Science Laboratory was submitted before the trial Court till the disposal of the case to show that any semen particle was found in her vaginal swab. The prosecutrix (PW1) and Jhallu (PW2) were examined as eye witnesses. Jhallu had stated in his case diary statements that he was accompanied with one Gudda (PW3) but, in the Court he refused that he was accompanied by Gudda. However, Gudda (PW3) has turned hostile. He did not support the prosecution's case.
10. Prosecutrix (PW1) and Jhallu (PW2) have stated that the prosecutrix was searching for her son Santosh and when she went 5 Criminal Appeal No.866 of 1996 near the house of the appellant, appellant held her and took her into the parchi of the house and thereafter, he committed rape upon the prosecutrix. Jhallu has stated that he saw the act and when he called the appellant, appellant wore his dress and went inside the house then the prosecutrix came to the witness Jhallu and told the entire story to her. An allegation was made upon the witness Jhallu that his brother Naresh took the prosecutrix with him and therefore, a Panchayat was held but, the witness Jhallu denied about such suggestions. Narbada Prasad (PW6) was also suggested about the Panchayat, with the fact that the prosecutrix went with one Naresh. He denied about such facts. However, the witness Awadhesh Kumar Pandey (DW1) has stated about the Panchayat and the entire transaction. Under such circumstances, it would be apparent that Jhallu (PW2) was an interested witness who is supporting the prosecutrix because his brother Naresh was involved with the prosecutrix.
11. In this connection the FIR lodged by the prosecutrix may be perused. FIR was lodged after 12 days of the incident and therefore, it appears that it was lodged after due deliberations and consultation with so many persons but, after preparation of the FIR in such a manner the prosecutrix could not narrate before the Police that Jhallu (PW2) came to the spot and he saw the entire incident and she told about the incident to the witness Jhallu. Under such circumstances, it is apparent that Jhallu is a created witness who, was not at all an eye witness and he gave his evidence to save his brother Naresh from the prosecutrix. 6
Criminal Appeal No.866 of 1996
12. The story of the prosecutrix is no where corroborated by the medical evidence. However, after 12 days of the incident there was no possibility of any injuries visible upon the person of the prosecutrix and therefore, the medical evidence could not be positive after 12 days. FIR has been lodged with delay of 12 days and no reason has been shown either by the prosecutrix or her elder brother-in-law Narbada Prasad (PW6). The prosecutrix (PW1) has stated that there was nobody in the home and therefore, she did wait for return of her brother-in-law and thereafter, she told the story to her brother-in-law and with his help she went to the Police Station and lodged an FIR. Narbada Prasad (PW6) has accepted that he came back to his house in the evening of the same day, whereas in FIR Ex.P/8 it is mentioned by the prosecutrix that after the incident she went to her house and told the story to her brother-in-law Narbada Prasad. Under such circumstances, it would be apparent that at the time of incident Narbada Prasad was very well available in his house and the prosecutrix and Narbada Prasad could go to the police station on the same very day to lodge the FIR.
13. If it is presumed that Narbada Prasad came back in the evening of the same day then Narbada Prasad and the prosecutrix could go to the Police Station on the next day morning but, report was lodged with a delay of 12 days and no reason has been shown for the delay caused in lodging the FIR. Delay in lodging the FIR creates a great doubt in the prosecution's case and that delay is fatal to the prosecution. Looking to the delay of 12 days, it 7 Criminal Appeal No.866 of 1996 appears that the relatives of the prosecutrix were bent upon that the appellant should keep the prosecutrix in his house as his wife and the appellant was not agreeing to this proposal because the prosecutrix was a woman who, had illicit relations with one Naresh, another Ramesh, third one Chhote and the appellant Vijay. Under such circumstances, the evidence given by the defence witness Awadhesh Kumar appears to be acceptable that in the Panchayat no decision took place and therefore, to pressurize the appellant a false case was lodged against the appellant. Under such circumstances, the testimony of the prosecutrix cannot be accepted.
14. If it is accepted that such intercourse took place between the prosecutrix and the appellant then as per prosecutrix the house of the appellant is situated in a dense locality. Incident took place in a broad day light and if the appellant could take the prosecutrix up to the parchi then he could take her in the room and close the room. There was no need to the appellant to do such an act at an open place. Secondly, the prosecutrix was dragged from the road to the parchi of the appellant then she could shout and neighbours of the appellant could come to save her. Similarly she could shout during the act. There is no reason shown by the prosecutrix as to why she did not make any hue and cry. Under such circumstances, looking to the conduct of the prosecutrix and also as per her admission that she had illicit relations with the appellant since 6 to 7 months, it appears that either she has falsely implicated the appellant or she was a 8 Criminal Appeal No.866 of 1996 consenting party. It is established by the defence witness that she had illicit relations with the appellant since seven months. Under such circumstances, in both the situation, the appellant cannot be convicted for offence punishable under section 376 of I.P.C or any inferior offence of the same nature. The learned Additional Sessions Judge erred in convicting the appellant for offence punishable under Section 376 of I.P.C.
15. On the basis of the aforesaid discussion the appellant cannot be convicted for offence punishable under Section 376 of I.P.C or any inferior offence of the same nature. The appeal filed by the appellant appears to be acceptable and hence it is accepted. The conviction and sentence directed by the trial Court for offence punishable under Section 376 of I.P.C is hereby set aside. The appellant is acquitted from all the charges appended against him. He is entitled to get the fine amount back if he has deposited before the trial Court.
16. The presence of the appellant is no more required and therefore, it is directed that his bail bonds shall stand discharged.
17. Copy of the judgment be sent to the trial Court along with its record for information and compliance.
(N.K.GUPTA) JUDGE 7.9.2012 bina