Gulam @ Farukh vs State of Madhya Pradesh

R.C. Mishra, J.—This appeal has been preferred against the judgment-dated 05.10.1998 passed by Additional Sessions Judge, Balaghat in S.T. No. 106/1995 whereby the appellant, though charged with the offences under Sections 456 and 376 of the IPC, was convicted u/s 451 of the IPC and sentenced to undergo R.I. for 6 months and to pay fine of Rs. 200/- and in default, to suffer R.I. for 1 month.

The prosecution story, in short, may be narrated as under-

(i) On 21.12.1994, Gaurishankar (PW2) had gone to Joudapat leaving his wife viz. the prosecutrix (PW1) and 8-year old son namely Kuldeep (PW6) at his house situated in village Kayadi. At about 6 p.m., the appellant came there and after ascertaining that Gaurishankar was not at home, asked Kuldeep to leave the place. Accordingly, Kuldeep proceeded towards his grandfather�s house located in the same vicinity. The appellant then dragged the prosecutrix into inner room of the house and forcibly committed sexual intercourse with her and fled away. Shouts

raised by the prosecutrix attracted attention of Phoolchand @ Mandari (PW3) and Sheelabai (PW8), her sister-in-law. Phoolchand called Gaurishankar who, in turn, took her the police station where a case under Sections 456 and 376 of the IPC was registered against the appellant upon the FIR (Ex.P-2) lodged by the prosecutrix.

(ii) The prosecutrix was sent to the hospital for medical examination. Dr. Santeega Totode (PW9), while expressing her inability to give any definite opinion as to commission of rape, prepared two slides from vaginal smear of the prosecutrix and also preserved her Sari for chemical analysis.

(iii) During investigation, the appellant was apprehended and was subjected to medical examination. Dr. S.K. Tiwari found him capable of performing sexual intercourse.

The appellant abjured the guilt and pleaded false implication due to animosity. According to him, the contract for running the stone quarry was awarded to him only and Gaurishankar, while working as his Munim, had misappropriated a huge amount collected on his behalf from various purchasers of crush stones. In support of his plea, one Dharamchand (DW1) was also examined.

To bring home the charges, the prosecution examined as many as 9 witnesses including the prosecutrix, her husband Guarishankar, Mandari @ Phoochand and the medical expert. Upon a critical appraisal of the entire evidence and for the reasons recorded in the judgment, learned trial Judge proceeded to acquit the appellant of the charge of rape. However, he further concluded that instead of the offence of lurking house-trespass, the offence of house-trespass in order to commit offence carrying custodial sentence was proved beyond a reasonable doubt.

Legality and propriety of the impugned conviction have been assailed primarily on the ground that it was not sustainable in view of a categorical finding of fact that the intercourse was consensual in nature. According to learned Counsel, the trial Judge erred in convicting the appellant for the offence of house trespass despite the fact that he had entered into the house upon an invitation extended by the prosecutrix (PW1) only. However, fact of the matter is that the house belonged to Gaurishankar (PW2), the husband of the prosecutrix. Moreover, the acquittal in respect of the offence of rape was not based on the premise that the sexual act in question was not committed at all. Although, Dharamchand (DW1) came forward with the statement that Gaurishankar had failed to pay a total sum of Rs. 20,000/- to the appellant yet, in absence of evidence of any purchaser of the road stone, his evidence did not inspire confidence.

A bare perusal of the judgment would reveal that learned trial Judge, after relying upon the incriminating pieces of evidence brought on record in the form of sworn testimony of the prosecutrix (PW1), a married woman aged about 40 years, her husband Gaurishankar (PW2), their 8-year old son Kuldeep (PW6) and neighbours viz. Mandari @ Phoolchand (PW3) and Gendlal (PW4) as trustworthy and rejecting the defence as improbable, proceeded to hold that she was subjected to sexual intercourse by the appellant only. However, as rightly observed by him, the coitus, though not covered under the definition of rape, did amount to the offence of adultery, which is punishable with imprisonment for a term which may extend upto 5 years. Thus, the entry with the intention of committing adultery was culpable u/s 451 of the IPC. This view is fortified by the pronouncement of a Division Bench of this Court in State of M.P. v. Thakur Prasad 1976 M.P.L.J. 433 wherein the principle stated by Asutosh Mookerjee, J. in the leading case of Karali Prasad Guru v. Emperor AIR 1917 Cal 824 was quoted with approval. Accordingly, the conviction in question deserves to be affirmed as well-merited.

Coming to the question of sentence, it may be noted that a considerable period of more than 15 years has elapsed after the incident. Taking into consideration the social impact of the crime and other relevant circumstances of the case including that delay in disposal of appeal is contributorily attributable to frequent violations of conditions of bail by the appellant, interests of justice would be met that if the term of custodial sentence is reduced to 3 months.

In the result, the appeal is allowed in part. The impugned conviction and consequent sentence of fine are hereby maintained. However, the term of sentence of imprisonment is reduced from 6 months to 3 months.

Appeal partly allowed.