Geetabai vs State of Madhya Pradesh

Mrs. S.R. Waghmare, J.—Both these appeals are dealt together since they arise out of a common judgment. This common judgment shall govern the disposal of both these appeals. These are the appeals of the year 1997 and they have been filed u/s 374 of the Cr.P.C. by accused appellants Geetabai, Kamlabai and Rajaram being aggrieved by the common judgment dated 27/3/1997 passed by the First Additional Sessions Judge Dhar in S.T.No.17/1996 whereby the appellants have been convicted for offence u/s 363 of the IPC and sentenced to undergo R.I. for two years with fine of Rs. 250/-each and for offence u/s 366 of the IPC they have also been convicted and sentenced to undergo R.I. for three years with fine of Rs. 250/-each; in case of default of payment of the fine they were to undergo additional one month''s imprisonment each.

Brief facts of the prosecution case are that on 29/11/1994 at around 8 O''clock in the night when Rukmabai was pressing the legs of her aged mother Munnibai and her sister-in-law was also present at home, at that time Geetabai came to the house and called her outside. On coming outside accused Geetabai left the complainant Rukmabai in the custody of co-accused Kalu, Kamlabai and Narendra and left the house and all the three accused persons forcefully took her in a bus to Gujarat in village Halod and Chandrapur. Rukmabai was kept in their custody and co-accused Narendra had committed rape on her. A missing persons report was filed on the next day by Raju, the brother of Rukmabai at police station Sagore and on the basis of the report the crime was registered. In the month of September 1995 Rukmabai was recovered from the custody of accused Narendra. However, accused Narendra was absconding. After completion of the investigation the statements of the witnesses were recorded and the accused were arrested and duly committed to their trial.

Accused abjured their guilt and stated that they have been falsely implicated in the matter. However, they did not examine any witness in their defence. On the basis of the evidence on record, the trial Court has convicted and sentenced the accused as herein above indicated. Being aggrieved, the present appellants have filed the present appeals.

Counsel for the appellants has submitted that it is a case of false implication. Even if the prosecution allegations are considered, Counsel submitted that the prosecutrix Rukmabai was more than 18 years of age according to Dr.V.K. Bhandari P.W. 1, who was examined the prosecutrix and the X-ray report indicates that the prosecutrix was more than 19 years of age. Similarly Counsel has submitted that Dr.(Smt.) J.P. Geed, who has conducted the external examination of the prosecutrix, has stated that no injury was sustained on her private parts. Moreover she was habitual to sex and more than six months without any complaint she lived with accused Narendra and she was travelled in many open places along with him. Moreover Counsel has pointed out that there was no sufficient evidence on record to make out the offence under Sections 363 and 366 of the IPC against these appellants. The offence of rape is alleged to have been committed by co-accused Narendra, who was absconding during the trial.

P.W. 4 Raju, the brother of the prosecutrix is not a reliable witness because he has filed the missing report only on the next day of the incident and the offence against the present appellants is not made out. Moreover Kamlabai and Geetabai are relatives and they were not involved in the offence. They were on bail through out the trial. Hence, Counsel prayed for setting aside the impugned judgment. In the alternative Counsel submitted that it is now more than 17 years since the date of incident if the Court was satisfied regarding the conviction the custodial sentence may be reduced to the period already undergone.

Counsel for the respondent/State, on the other hand, has fully supported the impugned judgment and has submitted that the FIR Ex.P/11 was promptly filed on the next day morning and hence there is no need to doubt the prosecution case. Moreover Counsel has admitted that the prosecutrix had stayed in Gujarat and lived with co-accused Narendra for more than six months. Counsel prayed for dismissal of the appeals.

On considering the above submissions, I find that there are material omissions and contradictions in the statements of the prosecution witnesses viz. P.W.1 Raju, P.W. 3 Hindusingh and P.W.5 Rukmabai, the prosecutrix, which have not been considered by the Courts below. Moreover the medical evidence on record clearly establishes the fact that the prosecutrix was more than 19 years of age and had lived along with the co-accused Narendra for more than 6 months at different places. In this view of the matter, there is no material evidence available on record to justify the conviction. The prosecution has unable to prove its case regarding taking away the prosecutrix by the present appellants and hence it appears to be a case of consent. I find that accused appellants Geetabai, Kamlabai and Rajaram are all relatives of the prosecutrix, who have helped the prosecutrix to run away along with the co-accused Narendra. Moreover, the appellants were on bail during the trial and it is now more than 17 years since the date of incident. So also all the appellants are now old persons and their implication is also doubtful. 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 impugned judgment is set aside.

In this light, both the appeals are allowed. The appellants are acquitted from the offence under Sections 363 and 366 of the IPC. The appellants are on bail; their bail bond and surety bonds are hereby be discharged. The Original judgment be retained in the record of Criminal Appeal No. 462/1997 and a copy thereof be placed in the record of Criminal Appeal No. 415/1997.

A copy of this judgment be sent to the concerned Trial Court for immediate compliance.