Madhya Pradesh High Court
Jamnalal @ Chimman Dhimar vs State Of Madhya Pradesh on 5 December, 2001
Equivalent citations: 2002(1)MPHT229
JUDGMENT S.P. Khare, J.
1. Appellant Jamnalal has been convicted under Section 376, Indian Penal Code and sentenced to rigorous imprisonment for three years. Notice for enhancement of sentence was given to the appellant by this Court.
2. After hearing the learned counsel for both the sides and after scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellant for the aforesaid offence is not sustainable. The finding of the Trial Court is that Geetabai (P.W. 6) who is the prosecutrix in this case was more than sixteen years of age on the date of incident which took place four-months before 22-5-98. The only question which has been debated during the course of hearing of this appeal is whether the accused had sexual intercourse with the prosecutrix with her consent or without her consent ? The FIR has been lodged on 22-5-89. That is Ex. P-2. According to this FIR the incident of rape took place four-five months ago in the 'Dak Bungalow' of the PWD in Village Chim. Geetabai (P.W. 6) has deposed that she was working as a labourer and accused Jamnalal was also engaged there for white-washing the building. She went near the accused to give him a bucket and at that time he caught hold of her hands, made her to lie on the ground, lifted her saree and had sexual intercourse with her. According to her testimony she resisted but the accused overpowered her and threatened her and he left her only after the completion of the act. She became pregnant. She has deposed in the examination-in-chief itself that the accused had sexual intercourse with her two-three times more even after this incident. She has further added that Gulabbai was also working there as a labourer and she gave her hand to that of the accused and ran away from there.
3. Geetabai (P.W. 6) has stated that she did not disclose this incident to her mother or anyone else when she came back to her house. She kept silent for a long time. It is after four months of her pregnancy that her mother noticed that she was pregnant. Then she revealed that she was subjected to sexual intercourse by accused Jamnalal. She had not disclosed this incident to her father also. The other evidence on record is of formal character.
4. Apart from the fact that the FIR was lodged after four-five months of the incident, the striking feature of the case is that the prosecutrix did not complain or disclose to her parents that she was ravished by the accused. Her silence for such a long time is against the normal course of human conduct and diminishes the value of her testimony. There is no other corroborative evidence in support of the prosecution case as Gulabbai who was present in the building where the incident took place has not been produced as a prosecution witness and Bhaskar Rao (P.W. 4) who was the Supervisor and who is said to have been informed by the prosecutrix about this incident on the said date has not supported the prosecution case.
5. In case the prosecutrix had not been the consenting party on the date of incident she would not have allowed the accused to have sexual intercourse with her two or three times after the incident. That is the strongest 'probability factor' to show that her consent was not lacking even on the date of incident. It appears that she was fully a consenting party to the act of sexual intercourse on the date of incident also and that explains her being tight-lipped for five months. The suppression is indicative of her being in 'flagrante-delicto'.
6. The learned counsel appearing on behalf of the Slate has relied upon the decision of the Supreme Court in State of Rajasthan v. N.K., AIR 2000 SC 1812. The ratio of this decision is that if the prosecutrix is above sixteen years of age her consent cannot be presumed; inference as to consent can be drawn 'if only based on evidence or probabilities of the case'. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable.
7. Now applying the test laid down in the above case to the facts of the present case it is clear that the prosecution has not been able to prove its case of want of consent of the prosecutrix 'based on evidence or probabilities of the case'. In the Supreme Court case the prosecutrix had immediately complained to her father that she had been subjected to rape and the evidence of the father was held to be a corroborative piece of evidence under Section 157 as former statement of the prosecutrix and also as her conduct under Section 8 of the Evidence Act. That kind of assurance is not available in the present case. Here the prosecutrix who has after a long time complained of the onslaught on her by the accused did not disclose to her parents at the earliest available moment that she had been ravished by the accused. After this incident she indulges in sexual intercourse with the accused two-three times and lodges the FIR after her mother notices her five months pregnancy. These 'probability factors' distinguish this case from that of 'N.K.'. The cardinal principle remains undiluted that in a criminal case the prosecution has to prove all the ingredients of the offence beyond reasonable doubt. That is discernible even from the judgment in 'N.K.', where it is ruled that a high degree of probability must be shown in view of the subject matter being a criminal charge.
8. The Trial Court has wrongly pressed into service Section 114A of the Evidence Act. The present case is not covered by that provision as it is not a prosecution of the categories given in Section 376(2), IPC.
9. In view of the foregoing discussion this appeal is allowed. The conviction and sentence are set aside and the appellant is acquitted of the charge under Section 376, IPC.
10. Criminal Appeal allowed.