Baliram @ Balloo vs State of Madhya Pradesh

Mrs. S.R. Waghmare, J.—This is an appeal of the year 1996 and it has been filed u/s 374 of the Cr.P.C. by accused appellant Baliram @ Balloo being aggrieved by the judgment dated 20/11/1996 passed by the I Additional Sessions Judge in S.T. No. 253/2003 whereby the appellant has been convicted for offence u/s 376(1) of the IPC and sentenced to undergo R.I. for 7 years with fine of Rs. 2,000/-. Brief facts of the prosecution case as alleged are that on the date of incident i.e. on 8.3.1995 prosecutrix Shyamibai went to the Nala of the village Chiragpura, P.S. Bheekangaon, West Nimar for washing clothes. Accused Ballu @ Baliram took out Rs. 200/-from his pocket and told the prosecutrix to take the amount and permit him to indulge into sexual intercourse with her. She refused and complained to her mother-in-law Devkibai and then went to the house of the appellant and complained to his father and returned. She then went to attend some marriage function. The prosecutrix was all alone in her house and she was sleeping with her daughter. At 1.00 a.m. in the night, the accused appellant entered her house and sat down on the cot of the prosecutrix and he lifted her clothes and tried to indulge in sexual intercourse. She cried and asked her daughter to call her mother-in-law Devkibai. The accused threatened her not to cry otherwise he would murder her and he began to commit rape with her. He stuffed a cloth in her the mouth of the prosecutrix and pressed her mouth also. After accomplishing the sexual intercourse, the accused ran away. At the same time Devkibai returned from marriage and she also saw the accused running away, jumping from the wall of the house. Accused also threatened them not to report in police station otherwise he would commit their murder, but in fear no report was lodged up to late in the night. On the next day i.e.on 9/3/1995 the report was lodged at the police station Bheekangaon. The police registered the offence u/s 376 of the IPC and the appellant was arrested and duly committed to his trial.

Accused abjured his guilt and stated that he has been falsely implicated in the matter. However, on the basis of the evidence on record, the trial Court has convicted and sentenced the appellant as herein above indicated. Being aggrieved, the present appeal.

Learned Counsel for appellant has urged the fact that the conviction is contrary to the provisions of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses especially the prosecutrix; and which have not been considered by the trial Court. Moreover Counsel submitted that Rs. 200/-was offered earlier by the accused to the prosecutrix and the mother-in-law caught the prosecutrix along with the accused red handed in the night and false story has been put up. The medical evidence on record does not support the prosecution case. Moreover Counsel submitted that the prosecution has examined witness P.W.2 Devkibai, P.W. 3 Jaymatibai, who are the mother-in-law and daughter of the prosecutrix and P.W.4 Rajmani Sharma, who is also a friend of the prosecutrix and all are the interested witnesses. Moreover Counsel submitted that the prosecutrix was 37 years old and the mother-in-law had caught them red-handed and it was a case of consensual sex and the medical evidence on record also does not support the prosecution. Hence, Counsel prayed that the conviction under the said offence be set aside.

Learned Counsel for respondent/State per contra stated that the judgment of the trial Court is in accordance with law and does not require any interference. Counsel further submitted that the FIR was promptly filed at 11 O'' clock on the next day of the incident and the daughter of the prosecutrix had gone to fetch the mother-in-law of the prosecutrix. The accused had threatened her and there is no need to doubt regarding the implication of the appellant in the offence. Hence, Counsel prayed that the appeal be dismissed.

On considering the above submissions, I find that it would be crucial to convict the accused for offence under Sections 376 (1) of the IPC. All the prosecution witnesses were the interested witnesses. Moreover, the medical evidence on record has not supported the prosecution case Then under these circumstances, it is trite to state that as has been directed by the Apex Court in several cases, suspicion however, strong, cannot take the place of proof and since there is no concrete evidence on record to convict the present appellants hence the accused/appellant deserves to be acquitted from the said offence and the impugned judgment is hereby set aside.

In this light, the appeal is allowed. The appellant is acquitted from the offence u/s 376 (1) of the IPC. The appellant is on bail; his bail bond and surety bonds are hereby be discharged. A copy of this judgment be sent to the concerned lower Court for compliance.