Madhya Pradesh High Court
Ravindra @ Chati @ Ravi @ Chini vs The State Of Madhya Pradesh on 18 September, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.1201/2010
Ravindra @ Chati @ Ravi @ Chini
VERSUS
State of Madhya Pradesh
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Shri Y.K.Gupta, counsel for the appellant.
Shri Ajay Tamrakar, Panel Lawyer for the State/ respondent.
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J U D G M E N T
(Delivered on the 18th day of September, 2012) The appellant has preferred this appeal against the judgment dated 26.5.2010 passed by the learned Special Judge, Betul in Special case No.124/2009, whereby the appellant was convicted for the offence punishable under sections 376 (1) and 450 of IPC and sentenced for 7 years' rigorous imprisonment with fine of Rs.500/- and 5 years' rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, 3 months' rigorous imprisonment was also directed for each count of default.
2. Prosecution's case, in short, is that, on 5.9.2009, at about 8.30 p.m. in the night, the prosecutrix (P.W.3) was in her house, situated in the township of Amla, near Kali
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Criminal Appeal No.1201 of 2010 Mandir, behind Bus Stand Amla. The appellant entered in the house forcefully and shown a knife to the prosecutrix. Thereafter, he threw her on the Earth and committed rape upon her. On shouting of the prosecutrix, the witness Ram Singh (P.W.4), Shriram (P.W.2) etc. had came to the spot who saw the appellant running from the spot. The prosecutrix informed about the incident to her husband Kishore (P.W.5) and thereafter, she went to the Police Station Amla along with his uncle Ram Singh (P.W.4), where she lodged an FIR, Ex.P/3. The prosecutrix was directed for her medico legal examination to CHC, Amla. Dr. Vandana Ghoghre (P.W.7) examined the prosecutrix and gave a report, Ex.P/8. There was no external or internal injury found on the person of the prosecutrix but, there was a bleeding from her vagina due to menses. Dr.Ghoghre prepared two slides of her vaginal swab and also took a sample of her pubic hair and handed over to the concerned police constable after sealing them. The appellant was also arrested on 5.9.2009 and he was also directed for her medical examination. Dr.V.P.Chourasiya (P.W.6) examined the appellant and gave his report, Ex.P/5. The appellant was found competent to do the intercourse. His semen sample was taken on slides and handed over to the concerned police constable, after their sealing. All the sealed properties were sent to the Forensic Science
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Criminal Appeal No.1201 of 2010 Laboratory vide memo Ex.P/5. No report from Forensic Science Laboratory was submitted till the disposal of the case. After due investigation, a charge-sheet was filed before JMFC, Betul, who committed the case to the Special Court, Betul.
3. The appellant abjured his guilt. He did not take any specific plea in the case but, he has stated that there was a dispute of the appellant with the uncle of the prosecutrix and therefore, he was falsely implicated in the matter. In defence, Ramkali (D.W.1) and Smt. Reshmi Satankar (D.W.2) were examined.
4. The learned Special Judge, after considering the evidence adduced by the parties, acquitted the appellant for the offence punishable under sections 506 (II) of IPC and section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act but, convicted him for the offence punishable under sections 450 and 376 (1) of IPC and sentenced him 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. The allegations made by the prosecutrix were not corroborated by the medical report. Actually, the appellant was falsely implicated due to his quarrel with Ram Singh, uncle of the prosecutrix. The prosecutrix had admitted that
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Criminal Appeal No.1201 of 2010 her uncle came inside the house then, the appellant left the prosecutrix and the appellant was held by the prosecutrix and her uncle Ram Singh but, Ram Singh (P.W.4) did not support the story given by the prosecutrix. On the contrary, he has stated that the appellant entered in the house of the prosecutrix and started abusing her by some abuses. Under such circumstances, no offence punishable under section 376 or 450 of IPC is made out against the appellant. The appellant is in the custody since the date of the judgment without any substantial reason and therefore, it is prayed that he may be acquitted.
7. On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence passed by the trial Court appears to be correct and no interference is required in this appeal.
8. After considering the submissions made by the learned counsel for the parties, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence directed against the appellant can be reduced?
9. The prosecutrix (P.W.3) has has stated that on the date of the incident, she was all alone in the house along with her children. At about 8 p.m. in the night, the appellant entered in her house. He had a knife and he had
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Criminal Appeal No.1201 of 2010 shown that knife to the prosecutrix and with the threat, he committed rape upon the prosecutrix. She has further stated that on her shouting, her uncle Ram Singh (P.W.4) came inside the house, who saw the accused and thereafter, the prosecutrix and her uncle held the appellant and tied him by a rope. Thereafter, the prosecutrix went to lodge an FIR along with her uncle. In this connection FIR, Ex.P/3 was proved by the prosecutrix, which was lodged within 45 minutes of the incident. However, it is no where mentioned in the FIR that the appellant was held by the prosecutrix and her uncle or he was with them.
10. On the contrary, the witnesses who were named in the FIR, turned hostile. For example, Gurucharan (P.W.1), Shriram (P.W.2) have turned hostile. They did not support the prosecution's story. In support of the prosecutrix, the witness Ram Singh (P.W.4), her uncle was a star witness, who saw the appellant in the house but, when he was examined in the trial Court, he has stated that at about 7.30 p.m., in the evening, he came from the work and he was sitting in his house. His sister's house was adjacent and the prosecutrix came to her mother's house in those days. The appellant entered in the house of the prosecutrix and abused her. He has specifically denied that he saw the appellant that the appellant had done any intercourse with the
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Criminal Appeal No.1201 of 2010 prosecutrix. Similarly, he has denied to the fact that the prosecutrix had informed him that the appellant had done any intercourse with her. Ram Singh is a maternal uncle of the prosecutrix and there was no enmity between him and the prosecutrix and therefore, looking to the testimony of Ram Singh (P.W.4), it appears that the allegations made by the prosecutrix are not correct. Only a small portion of the statement of the prosecutrix is corroborated by the witness Ram Singh that the appellant went inside the house of the prosecutrix and abused her but, the testimony of the prosecutrix cannot be believed to that extent that either the appellant assaulted her to outrage her modesty or tried to commit rape or committed a rape.
11. Moreover, when the prosecutrix was examined by the Dr.Vandana Ghoghre (P.W.5), no external or internal injury was found on her person and the bleeding was present from her vagina due to menses. Under such circumstances, the medical evidence also appears to be not corroborative. Kishore @ Harikishore (P.W.5), husband of the prosecutrix also partly turned hostile. He did not support the prosecution's evidence that the appellant gave any threat to his wife and therefore, the trial Court has acquitted the appellant from the charges of offence punishable under section 506 (II) of the IPC. He has stated
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Criminal Appeal No.1201 of 2010 that the prosecutrix had informed him that the appellant had committed rape upon her but, since Kishore @ Harikishore was not an eye witness, he could be informed by the prosecutrix in a tinted manner.
12. In case of rape, generally no corroboration is required to the testimony of the prosecutrix. She can be believed but, in the present case, she has submitted that the entire incident was seen by her uncle Ram Singh and the appellant was held by the prosecutrix with the help of her uncle Ram Singh but, Ram Singh did not confirm such facts. Under such circumstances, the testimony of the prosecutrix cannot be believed where it is not at all corroborated by the medical evidence. It is not proved beyond doubt that the appellant committed any rape upon the prosecutrix or he attempted for that offence or he used any criminal force upon the prosecutrix to outrage her modesty. Under such circumstances, the appellant cannot be convicted for the offence punishable under section 376 of IPC or any lower offence of the same nature.
13. On the basis of the evidence given by the prosecutrix, Ram Singh (P.W.4) and timely lodged FIR, Ex.P/3, it is proved that the appellant went inside the house of the prosecutrix and abused her. Under such circumstances, if any offence is constituted against the
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Criminal Appeal No.1201 of 2010 appellant then, it would be the offence punishable under section 451 of IPC but, no offence punishable under section 450 of IPC is made out against the appellant because no otherwise intention of the appellant was established. Since offence punishable under section 451 of IPC is an inferior offence of the similar nature, therefore, the appellant can be convicted for the offence punishable under section 451 of IPC without framing of charge for that offence. The appellant can be convicted for the offence punishable under section 451 of IPC, under the head of the offence punishable under section 450 of IPC.
14. So far as the sentence is concerned, offence punishable under section 451 of IPC is not so grave and therefore, 6 months' imprisonment could be a sufficient sentence for that offence. However, the appellant is in the custody since 26.5.2010 and therefore, it would be proper that his sentence may be reduced to the period, which he has already undergone in the custody.
15. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction and sentence directed against the appellant for the offence punishable under sections 450 and 376 (1) of IPC are hereby set aside. He is acquitted from the charges of both the offences. However, he is convicted for the offence
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Criminal Appeal No.1201 of 2010 punishable under section 451 of IPC under the head of charge of offence punishable under section 450 of IPC and sentenced for the period, which he has already undergone in the custody. No further fine is imposed upon the appellant for the offence punishable under section 451 of IPC.
16. Registry is directed to issue a supersession warrant forthwith, so that the appellant may be released from the jail as soon as possible.
17. Copy of the judgment be sent to the trial Court along with its record for information.
(N.K.GUPTA)
JUDGE
Pushpendra 18/9/2012