Haridas vs State of Madhya Pradesh

Tarun Kumar Kaushal, J.—Present appeal is directed against the judgment dated 19.8.2011 passed by Addl. Sessions Judge, Amarwada, District-Chhindwara in Sessions Trial No. 155/10, convicting the appellant under Section 363/ 366 of IPC and sentenced to 7 years R.I. with fine of Rs. 1000/- and also convicted under Section 376 of IPC and sentenced to 7 years R.I. with fine of Rs. 1000/-.

Necessary facts of the case in short are that, on 26.2.2010, prosecutrix aged about 17 years (PW-3), left the house at 8 AM for school but did not come back at schedule time. Aatmaram (PW-2) father of the prosecutrix, lodged gumshudgi report Ex.P/1 at Police Station Chourai. On 6.3.2010, appellant and prosecutrix appeared at Police Station Chourai and prosecutrix lodged the F.I.R. Ex.P/13 against the petitioner making allegations of kidnapping and rape. Dr.N.K. Chourasiya (PW-11) examined the potency of the appellant and prepared report Ex.P/9. Dr. Ms. Archana Kethvas examined the prosecutrix and prepared MLC report Ex.P/12 giving no definite opinion of rape and prepared slides of vagina swab to be examined in the laboratory. After completing the investigation, Police submitted charge sheet in the court of concerned JMFC who committed the case to the Sessions Court for trial.

Trial Court framed the charges under Sections 363, 366 and 376 of IPC. Appellant abjured guilt and pleaded innocence. To substantiate the charge, statements of Kumba Bai (PW-1) mother of the prosecutrix, Aatmaram (PW-2) father of the prosecutrix, Prosecutrix (PW-3) aged about 17 years, Ramesh Chandra, Head Constable (PW-4), Ravi Kumar, Constable (PW-5), Ghanshyam (PW-6), Rajaram (PW-7), Ramlal, Head Constable (PW-8), Mehtar (PW-9), Munna (PW-10), Dr. N.K. Chourasiya (PW-11), Brijmohan (PW-12), Suresh Sharma, Patwari (PW-13), Ramprasad Thakur, ASI (PW-14), Vilasram Sainik (PW-15), Dr. Archana Kethwas (PW-16), Harikesh Sainik (PW-17) and Sanjay, Head Constable (PW-18) were recorded in the trial Court.

Defence of the appellant in trial Court was that the prosecutrix and family members were interested in marriage of PW-3 with son of the petitioner but it could not be materialized hence false report has been lodged against the petitioner. After appreciating aforesaid evidence, trial Court convicted and sentenced the appellant has aforesaid.

Appellant has assailed aforesaid conviction and sentence on the grounds that in trial Court did not appreciate the evidence of prosecutrix in right perspective. Trial Court failed to give proper weightage to the delay in lodging of F.I.R., absence of corroboration by medical evidence. Trial Court failed to examine the aspect that in fact prosecutrix was interested and engaged with the son of the petitioner and leveled allegations of rape on him, a person like father. On the other hand, learned Govt. Advocate supported the findings of the conviction and sentence.

Record perused.

Prosecutrix (PW-3) stated that appellant met her on the way to school, standing below the tree, and took her on his bike saying that his son is in Parasiya. Prosecutrix was interested in marriage with him but at that time she was minor. Appellant took the prosecutrix in house of a lady and stayed there in separate rooms for two nights. On second night, all of a sudden, appellant came in the room and committed rape on her and did not pay any heed on the request of the prosecutrix that he is like her father and she is interested in marriage with his son.

In cross examination, it has come on record that prosecutrix and son of the appellant Pawan both were thinking for marriage and even both families are agreed for it. Prosecutrix left the house on her own along with some jewellery and items for the purpose of her marriage with son of the petitioner.

Fact that in second night, appellant committed rape under threat is missing in police statement Ex.D/3, hence and this is an improvement. During aforesaid period of about 5-6 days, prosecutrix visited Bhopal and Parasiya repeatedly. During aforesaid period of about 6 days, prosecutrix stayed in house of two families amongst various persons but did not disclose the fact of rape to any one.

In evidence of parents PW-1 and PW-2 respectively, there had been some difference of opinion regarding date and time of proposed marriage between the prosecutrix and son of the appellant. Otherwise every thing was fine.

In view of the aforesaid, it appears that prosecution has come with an unnatural story and it does not find corroboration from medical evidence as well as from F.S.L. report. Nothing came on record to show that prosecutrix has expressed her disapproval and opposition at the first available occasion. Prosecutrix did not leave the hope of her marriage with the son of the appellant for long time. This possibility also cannot be ruled out that prosecutrix left the house with full preparation for marriage with son of the appellant and for after 9-10 days, after becoming hopeless of the affairs, lodged aforesaid F.I.R. Ingredients of Section 375 of IPC are not established beyond doubt from the evidence of the prosecutrix. In view of the aforesaid, appellant deserves benefit of doubt on this account.

Accordingly, conviction under Sections 363, 366 and 376 of IPC are set aside. Appellant is acquitted of aforesaid charges. Appellant be released from the custody, if not required in any other case.

Appeal is allowed.