Madhya Pradesh High Court
Rajesh Baghel vs The State Of Madhya Pradesh Judgement ... on 10 September, 2013
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
1 Cr.A. No.2172 of 2009
HIGH COURT OF MADHYA PRADESH JABALPUR
SINGLE BENCH:
Hon'ble Shri Justice A.K. Shrivastava
CRIMINAL APPEAL No.2172 of 2009
APPELLANT: Rajesh Baghel S/o Bhopat Baghel,
aged about 26 years, R/o Gram
Koniapar, Police Station
Lakhanwada, Seoni (M.P.)
Versus
RESPONDENT: State of M.P., Through : Police
Station Lakhanwada, District Seoni
(M.P.)
___________________________________________________
Shri Paras Nath Das, Advocate for the appellant.
Shri Umesh Pandey, Public Prosecutor for the non-applicant.
JUDGMENT
(10.09.2013) Feeling aggrieved by the judgment of conviction and order of sentence dated 12.11.2009 passed by learned Special Judge under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Seoni District Seoni in Sessions Trial No.61/08 convicting the appellant under Section 376 IPC and thereby sentencing him to suffer imprisonment of 7 years R.I. and fine of Rs.1000/-; in default of payment of fine additional R.I. for six months, the appellant has 2 Cr.A. No.2172 of 2009 knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
2. Sans unnecessary details the facts lie in a narrow compass. Suffice it to say that the appellant carried the prosecutrix in the field and nearby the bushes he committed rape over her. The FIR (Ex.P/2) was lodged by her brother, namely, Tirath on 17.7.2008. On lodging of the First Information Report, the criminal law was triggered and set in motion. The investigating agency sent the prosecutrix for her medical examination. The investigating agency in furtherance to its investigation prepared the spot map; recorded the statement of witnesses; and sent the accused for medical examination.
3. After the investigation was over, a charge-sheet was submitted in the committal court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for trial.
4. The learned Trial Judge on the basis of the allegations made in the charge-sheet framed the charge against the accused/appellant under Section 376 of IPC and also under Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,1989 (in short 'the Act of 1989') which the appellant denied and requested for the trial.
5. In order to bring home the charges, the prosecution examined 3 Cr.A. No.2172 of 2009 as many as 10 witnesses and also placed Ex.P-1 to P-14 the documents on record. The defence of appellant is of false implication. The same defence he has put forth in his statement recorded under Section 313 of Cr.P.C. However, he did not choose to examine any witness in support of his defence.
6. The learned Trial Court on the basis of the evidence placed on record came to hold that the charge under Section 3(2)(v) of the Act of 1989 has not been proved and eventually acquitted the accused/appellant from the said charge. The State has not filed any appeal against the said charge. However, the learned Trial Court on the basis of evidence placed on record came to hold that the charge under Section 376 of IPC is proved against the appellant and eventually convicted him and passed the sentence which I have mentioned herein above.
7. In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.
8. The contention of Shri Paras Nath Das, learned counsel for the appellant/accused is that on going through the entire testimony of the prosecutrix and other witnesses, it cannot be said that the appellant has committed the offence under Section 376 of IPC because the prosecutrix has not at all stated any of the ingredients as envisaged under Section 375 of IPC.
9. On the other hand, Shri Umesh Pandey, learned Public 4 Cr.A. No.2172 of 2009 Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the learned Trial Court convicting the appellant and therefore, this appeal be dismissed.
10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.
11. I have read the statement of prosecutrix microscopically and I find that nothing has been stated by her in order to attract the ingredients of Section 375 of IPC. To me, unless and until the essential ingredients of Section 375 IPC are deposed by the prosecutrix in her testimony, a person cannot be convicted for the offence under Section 376 of IPC. On bare perusal of the testimony of the prosecutrix in examination-in-chief as well as cross- examination, this Court finds that relevant questions which were put to her were not answered and she remained silent. True, in the statement of the prosecutrix it has come that the appellant put off her clothes and also put off her Salwar but despite the Court asked repeatedly to her that what kind of act the accused had committed, she kept mum and did not give any answer. Further she has deposed that at that juncture her brother Tirath and other inhabitants of the village arrived at the spot and thereafter the accused/appellant fled from the place of occurrence. Nowhere in her examination-in- chief she has stated that when the appellant was carrying her 5 Cr.A. No.2172 of 2009 nearby the bushes she resisted or she screamed when her clothes were being taken off by the appellant. It would be relevant to mention here that the incident is of 17.7.2008 and her testimony was recorded on 11.5.2009 in which she has deposed her age to be 18 years. Thus her age on the date of incident was above 16 years.
12. The lady Dr. Leela Kudape (PW-8) has deposed that when the prosecutrix was brought to her on the date of incident i.e. 17.7.2008 she narrated her age to be 18 years. The lady doctor referred the prosecutrix to the Radiologist for the verification of her age, but for the reasons best known to the prosecution the investigating agency did not send her for radiological examination. Hence, I am of the view that the investigating agency was fully aware that the age of the prosecutrix was 18 years, therefore, deliberately she was not sent for radiological examination. In the FIR (Ex.P/2) also the age of prosecutrix has been written as 18 years. Thus on the date of incident she was major girl.
13. Coming back to the testimony of the prosecutrix, a specific question was put to her that when her clothes were being taken off by the appellant, what he did, she has stated nothing. In these state of affairs, I am of the view that looking to the totality of the facts and circumstances and the evidence of the prosecutrix that she did not resist when her clothes were being taken off by the appellant nor she screamed to take help of any other person, therefore it can be 6 Cr.A. No.2172 of 2009 inferred that she was a consenting party. Had any resistance been made by her or if she would have shrieked, it could be inferred that she was not a consenting party. But, as I have x-rayed the testimony of the prosecutrix and I have found that she remained silent and did not reply the relevant questions put to her. Looking to the illustration
(h) to Section 114 of the Evidence Act because she has not given the answers to the relevant questions it would be inferred that if she would have answered those questions the answers may be unfavourable to her.
14. That apart, it has been specifically stated by the prosecutrix that when the appellant put off her clothes at that juncture her brother Tirath and other inhabitants of the village arrived there. In these state of affairs, I am of the view that no option was left to her except to demonstrate herself to be a victim of rape. It would be condign to mention here that not even a single injury either internal or external was found by the lady doctor upon examining the prosecutrix.
15. If the testimony of prosecutrix in para 5 is considered in true perspective, it would reveal that when the appellant and the prosecutrix were going on the public way, at that juncture her brothers, namely, Tirath, Kishore and Ritesh arrived there. If this statement of prosecutrix is taken to be true, then when the vile act of rape was committed by the appellant, it is not clear because the 7 Cr.A. No.2172 of 2009 prosecutrix herself has deposed that when she was going all along with the appellant on the way, at that juncture she was seen by her brothers, namely, Tirath, Kishore and Ritesh. Thereafter a very relevant question was put to the prosecutrix that on seeing the prosecutrix with the appellant her brother Ritesh hurled abuses to the appellant but on this question also the prosecutrix did not give any answer. Hence it can be inferred that on seeing the prosecutrix along with the appellant his brother Ritesh lost his temper and hurled the abuses to the appellant since it was not liked by him that his sister is accompanying the appellant. An another very relevant question was put to the prosecutrix in para 7 as to whether she remembered the incident occurred with her at the time of incident, again the prosecutrix did not give any answer to this question and kept mum. In para 8 the prosecutrix is further saying that the appellant caught her hand and carried towards the bushes but why she did not resist or opposed the act of the appellant, nothing has been stated by her.
16. Thus, I am of the view that from the testimony of the prosecutrix the offence under Section 376 of IPC is not at all made out. It has been then contended by the learned Public Prosecutor that at the relevant point of time the prosecutrix was mentally ill. It has further been contended by him that the prosecutrix was a mentally retarded girl and this has also been found by the Trial Court 8 Cr.A. No.2172 of 2009 in para 19 of the impugned judgment. However, absolutely there is no evidence of the mental doctor nor the prosecutrix was referred to the said doctor. That apart, no document in that regard including the medical treatment and report so as to prove the factum of mental disorder of the prosecutrix has been filed by the prosecution. Learned Public Prosecutor by putting emphasis upon the testimony of the lady Dr. Leela Kudape (PW-8) has stated that the prosecutrix is a mentally retarded girl. True the lady doctor has also stated that when the prosecutrix was brought to her for medical examination she found herself to be mentally ill but she is not a mental doctor. The lady doctor did not even refer the prosecutrix to any mental doctor so that specific report in respect of her mental status could be obtained.
17. For the reasons stated herein above, I am of the view that the learned Trial Court erred in convicting the appellant under Section 376 of IPC. Eventually, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence passed against the appellant is hereby set aside. The appellant is in jail, he be set at liberty forthwith, if not required in any other case.
(A.K.Shrivastava) Judge 10.09.2013 DV 9 Cr.A. No.2172 of 2009