Hari Singh vs State

Hon''ble Shri. Justice A.K. Shrivastava

Feeling aggrieved by the judgment of conviction and order dt. 2.9.1997 passed by learned Special Judge Rajgarh (Biaora), in Special Case No. 92/1993 convicting the appellant u/s 376 IPC and thereby sentencing him to suffer 5 years RI and fine of Rs. 500/-in default further RI of 3 months, the appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. In brief, the case of prosecution is that on 8.9.1993 at 4 PM the prosecutrix along with her parens was residing in her house. Although she got married 5 years prior to the date of incident i.e. 8.9.1993 but her Gauna (a custom in which the bride do not go to her nuptial house but stays at her parents house and after a function she is allowed to go to her nuptial house) but her Gauna did not take place and thus she was residing with her parents. On the date of incident 8.9.1993 appellant came to the house of her father and made a demand of empty liquor bottle upon which the father told that he is not having any bottle. Thereafter her father asked the prosecutrix to search a bottle and give it to the appellant. After some time, appellant again arrived and asked the prosecutrix to bring the bottle from his house which was given by her to the appellant, but the prosecutrix did not accept the said offer. Thereafter appellant told her that he is going to his house by carrying the bundle of grass and the prosecutrix should also accompany him so that the bottle may be given back to her. Under this pretext the prosecutrix went to the house of appellant. It is said that after the arrival of prosecutrix at the house of appellant he closed the door and bolted from inside. Thereafter by handkerchief appellant gagged her mouth and after putting off her clothes and his own clothes he committed sexual intercourse with the prosecutrix without her consent and willingness for half an hour. On account of the sexual intercourse committed by him, blood started oozing from the private part of the prosecutrix. Thereafter, the appellant by releasing her mouth went away from his house. The prosecutrix thereafter came back to her home and narrated the incident to her elder sister Basantibai.

The FIR was lodged on 2.4.1995 by the prosecutrix on the same day at 7 PM mentioning the time of incident to be 4 PM. On lodging of the FIR the criminal law was set in motion. A case was registered u/s 342 and 376 IPC and also u/s 3(i)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short the Act of 1989).

After investigation was over a charge sheet was submitted before the Special Court who framed charges punishable u/s 376 of IPC also u/s 3(2)(v) of the Act of 1989 which the appellant denied.

The prosecution thereafter examined its witnesses and also proved the documents Ex.P/1 to Ex.P/7.

The defence of appellant is of false implication and further that no incident of committing rape was occurred but only marpeet took place between the complainant party and the appellant and in support of his defence he examined 3 witnesses viz. Mangilal (DW-1), Rameshchand Sharma (DW-2) and Lalchand (DW-3).

The learned Trial Judge on the basis of evidence placed on record came to hold that charge u/s 3(2)(v) of Act of 1989 is not proved and eventually acquitted the appellant from the said charge. However, the charge u/s 376 IPC was found to be proved, resultantly, the appellant has been convicted and has been sentenced to suffer 5 years RI. The reasons which are assigned by learned Trial Court in passing the later sentence is that on the date of incident only the appellant was assaulted by the complainant party and he sustained injuries. No explanation has been given by the prosecution in regard to the injury sustained by the appellant.

In this manner, this appeal has been filed by the accused assailing the judgment of conviction and order of sentence.

The contention of learned Counsel for the appellant is that looking to the cross-examination of the prosecutrix it is luminously clear like a noon day that the incident of marpeet took place between the complainant side and the appellant and nothing more and if that would be the position, the learned trial Court has erred in convicting the appellant u/s 376 IPC.

On the other hand, Shri Parmar, learned Public Prosecutor argued in support of the impugned judgment.

Having heard learned Counsel for the parties I am of the view that this appeal deserves to be allowed.

The FIR Ex. P/2 lodged by the prosecutrix reveals that the incident had occurred on 8.9.1993 at 16 hrs. while the FIR has been lodged on the same day at 19 hrs. A case u/s 342 and 376 of IPC and also u/s 3(i) (xi) of the Act of 1989 was registered against the appellant. However, if the averments made in the FIR is tested on the touchstone and anvil of the statement of proxecutrix and particularly her cross examination it would reveal that the commission of the offence of rape did not take place and indeed, at the time of incident, some marpeet took place between the appellant''s party and the family members of the prosecutrix and immediately thereafter they had gone to lodge the FIR. In this context, if the cross examination para 5 onwards of the prosecutrix is considered in true perspective, it would reveal that specifically she has admitted that at the time of incident quarrel took place between her father Mangilal, mother Ganga Bai and aunt Sardarbai with the family members of the appellant Chhotelal, Purji, his wife and appellant himself. In the quarrel, family members of both the families received injuries. However, large number of injuries were sustained by her family members and comparatively the family members of the accused sustained lesser injuries. This incident took place on the public way of Biaora and not in the Village. Specifically in para 6 of her cross examination the prosecutirx is admitting and saying that her parents as well as appellant and his wife and sister were quarrellings with each other and they were also causing marpeet with each other. On hearing hue and cry, she arrived at the spot and at that juncture near about 100 to 200 persons assembled there. Thereafter the prosecutrix came back to her home and from where they went to lodge the report. Although she has stated that she narrated the incident of causing marpeet to the police but why it has not been written in FIR Ex. P/2 she cannot say. Further in para 7 of her cross examination she is saying that the report of causing marpeet and the report of rape were lodged separately and upon both the reports she put her signature. However, despite the opportunity was provided to the Public Prosecutor and the prosecution no other FIR was filed and adduced in evidence and resultantly the cross-examination further took place.

Thus, if the testimony of the prosecutrix is considered in its proper perspective and by paying heed to the alleged incident of rape, it becomes luminously clear that the appellant has been falsely implicated. On the other hand, the defence of accused appears to be quite probable and has also been proved on the basis of evidence of the defence witnesses that indeed the incident of causing marpeet took place between the family of the appellant and the family of the prosecutrix. The prosecutrix has admitted that her family members received more injuries in comparison to that of appellant and his family members. In this view of the matter, the lodging of the FIR involving the appellant in committing offence u/s 376 IPC becomes highly doubtful and the defence appears to be more probable that in order to rope the appellant falsely in a case of rape the FIR Ex. P/2 has been lodged. In the FIR Ex. P/2, there is no iota of the narration of the fact that any marpeet took place between the parties. On the other hand, in this document altogether a different story has been put forth which I have already narrated hereinabove in para 2 of the judgment and the same is not being reproduced here again.

Despite the prosecutrix stated herself to be a minor but the learned Trial Court in para 12 of the impugned judgment has found her age to be 19 years and nothing has been said by the lady doctor in order to infer that any recent sexual intercourse was committed with her. True, it has come in the testimony of lady doctor Smt. Shashi Gupta (PW1) that the prosecutrix was habitual of sexual intercourse but simply by saying it the said statement would not infer any possibility of even remote extent that appellant committed such an incident. For the reasons stated hereinabove, I am of the view that learned Trial Court has committed a grave error in convicting the appellant u/s 376 IPC. Accordingly, the conviction of appellant for the said offence is hereby set aside and he is acquitted from the said charge. The appeal is accordingly allowed. The amount of fine, if deposited by appellant be refunded to him. The appellant is on bail. His bail bond shall stand discharged.