Ramsahay vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta

The appellant has preferred this appeal against the judgment dated 9.8.1996 passed by the learned Sessions Judge, Chhatarpur in S.T. No.32/94, whereby the appellant was convicted for the offence punishable u/s 376 read with Section 511 of IPC and sentenced for seven years'' R.I. with fine of Rs. 1,000/-. In default of payment of fine, he was to undergo for six months'' R.I. in addition. Prosecution''s case in short is that on 28.9.1993, the prosecutrix aged about 14 years, went to graze the cattle of one Raju Soni in the jungle of village Satai. In the noon, some buffalo of the prosecutrix went inside the Beda (closed field) of the appellant and when, the prosecutrix went inside the field to fetch her buffalo then, the appellant tied her hands and legs by a rope and threw her on the earth. Thereafter, one cloth was pushed in her mouth by the appellant and ultimately, he pushed his penis into her vagina. The prosecutrix gave a kick to the appellant and removed the cloth plugged in her mouth and she shouted for the help. After hearing her hue and cry, her aunt Benibai and cousin Durjana (PW-4) came to the spot and saw that the appellant was lying on the prosecutrix. The prosecutrix narrated about the incident to Benibai and Durjana. When she took her cattle back to her home, she also narrated the story to her uncle Halke (PW-6) and Raju Soni (PW-7). Thereafter, she was taken to the Police Station Satai, District Chhatarpur, where she lodged an FIR Ex. P/3. She was sent for her medico legal examination. Dr. Usha Khare (PW-5) found that, there was no external or internal injury on her person but there was an old rapture of hymen in the shape of "3 o''clock'''' position. After due investigation, a charge sheet was filed before the J.M.F.C. Bijawar, who committed the case to the Sessions Court, Chhatarpur for the trial.

The appellant abjured his guilt. He took a plea that he was falsely implicated in the matter. Since he gave slaps to the prosecutrix because she pushed her cattle inside his field and therefore, to take the revenge, the prosecutrix had lodged an FIR. However, no defence evidence was adduced.

After considering the evidence adduced by the prosecution, learned Sessions Judge, Chhatarpur acquitted the appellant from the charge of offence punishable u/s 376 of IPC but convicted him for the offence punishable u/s 376 read with Section 511 of IPC and sentenced him as mentioned above.

I have heard the learned counsel for both the parties at length.

Learned counsel for the appellant has submitted that the statement of the prosecutrix (PW-3) may be read carefully, by which it would be clear that no offence was done by the appellant. He was falsely implicated in the matter. The alleged incident took place in the noon, whereas FIR was lodged at about 8:30 p.m. in the night. The prosecutrix had not shown any hurry in reaching to her house and to inform her parents etc. Actually, the prosecutrix was grazing the cattle of one Raju Soni in the field of Harnarayan and there was enmity between Harnarayan and the appellant, hence due to the instigation of Harnarayan, a false report was lodged against the appellant. In alternate, learned counsel for the appellant has also submitted that at the most, the offence committed by the appellant may be constituted within the purview of Section 354 of IPC, which is not so grave. The appellant remained in the custody from 29.9.1993 to 23.5.1994 during the trial and thereafter, he remained in the custody for 9.8.1996 to 14.11.1996. Hence, he remained in the custody for 11 months approximately. Also he has faced the trial and appeal for last 16 years, therefore, it is prayed that he may not be sent to the jail again.

On the other hand, learned Panel Lawyer for the State has submitted that the conviction and sentence passed by the trial Court appears to be correct and therefore, no interference is required to be done in the judgment passed by the trial Court.

After considering the submissions made by learned counsel for the parties and looking to the prosecution''s evidence, it is to be deduced that whether the appellant attempted to commit rape with the prosecutrix? and; whether his sentence can be reduced to the period, which he has already undergone in the custody.

In the present case, the prosecutrix (PW-3), Durjana (PW-4) and Benibai could be the eyewitnesses. However, the witness Benibai was not examined before the trial Court. She appeared before the trial Court on 10.8.1994 and she was given up. Durjana (PW-4) had admitted in para 4 of his statement that, he did not go inside the Beda of the appellant. When the prosecutrix came out of that Beda, she stated the story. Under such circumstances, except the prosecutrix, no one remains as an eyewitness. The prosecutrix was shown to be a small girl of 14 years of age and she had alleged that the appellant threw her on the earth and pulled her clothes and after removing her panty, he pushed his penis in her vagina, though she had not stated about the complete ejaculation, whereas she had stated that the appellant pushed his penis in her vagina. Looking to the age of the prosecutrix, there must be some injuries on her private part due to that insertion, but it is strange that Dr. Usha Khare did not find any external or internal injury to the prosecutrix, whereas her hymen was found torn in the shape of "3 o''clock" position, but that was an old rupture and it had no connection with the present event and therefore, the story to the fact that the appellant pushed his penis in her vagina appears to be incorrect. Her vaginal swab was taken by Dr. Usha Khare on a slide and her underwear was also taken and sent them to the Forensic Science Laboratory for the analysis, but no report of the Forensic Science Laboratory was submitted before the trial Court during the disposal of the case. In the present case, where the prosecutrix had not alleged about the ejaculation then still some blood could be found on her underwear because it would have oozed due to that insertion of the penis. However, the trial Court found that no penetration was done by the appellant and therefore, the appellant was acquitted from the charge of offence punishable u/s 376 of IPC.

One more lacuna is visible in the case that such a grave offence committed with the prosecutrix, and when she came out from the Beda of the appellant after the incident, she continued to graze her cattle and she came back to her house in the evening as usual. Such conduct of the prosecutrix appears to be unnatural. The prosecutrix had accepted in para 6 of her statement that as soon as, her cattle went inside the Beda of the appellant, the appellant shouted that whose cattle entered in his field and thereafter, when the prosecutrix went inside the Beda to take out the cattle then, the appellant came and gave two slaps to the prosecutrix. She had also accepted that when the appellant gave her two slaps then, she made a hue and cry and started weeping. When she shouted after getting two slaps, Durjana and Benibai immediately came to the spot. Durjana asked the appellant as to why he slapped the prosecutrix and thereafter, Durjana took the prosecutrix with him from the spot. If such an admission done by the prosecutrix is considered then, it would be apparent that no such type of alleged attempt was committed upon the prosecutrix by the appellant. The incident would have taken place in such a manner that the appellant gave two slaps to the prosecutrix because of some cattle, who entered into his Beda to spoil his crops and when he gave two slaps to the prosecutrix, then on her shouting, her cousin Durjana and Benibai came at the spot and took her, then the appellant had no opportunity to do any intercourse with the prosecutrix or use any criminal force to outrage her modesty. Under such circumstances, if the consequential conduct of the prosecutrix is seen that after the incident, she remained there and continued to graze her cattle till the evening, then it would be apparent that no such grave incident took place with her.

After the incident, which was done by the appellant with the prosecutrix, her cousin Durjana was informed about the incident immediately then, certainly she should have taken to her house soon after the incident and an FIR must have been lodged thereafter but, it is apparent that she went to her house at 6:00 p.m. in the evening and thereafter, she informed her parents and also to one Raju Soni, owner of the cattle. Halke (PW-6), uncle of the prosecutrix and Raju Soni (PW-7) have stated that they were informed by the prosecutrix about the incident and therefore, Halke went with the prosecutrix to the Police Station, Satai and lodged an FIR. In the cross-examination, Halke has accepted that he was also in the forest to fetch some wood and when he came to his house in the evening, he was informed about the incident. Under such circumstances, it appears that the story told by the prosecutrix to her uncle at about 6:00 p.m. in the evening, whereas FIR was lodged at 8:30 p.m. in the night. It is pertinent to note that the concerned Police Station was hardly 3 kms. away from the spot. Under such circumstances, it is apparent that FIR was lodged with the delay of at least 11/2 hours.

It is apparent that the prosecutrix had cried after getting the slaps from the appellant and thereafter, her cousin took her from the spot and therefore, there was no opportunity to the appellant to do any intercourse or insert his penis in her vagina. No injury either external or internal was found on her person. As per her allegation, she remained to graze her cattle in the field upto the evening. Her conduct appears to be unnatural. Thereafter, when she informed the incident to her uncle Halke and Raju Soni, owner of the cattle then still the FIR was lodged with the delay of at least 11/2 hours. Under such circumstances, it is possible that the appellant had not done anything with the prosecutrix of such nature and he was falsely implicated in the matter because of the rival group. He simply slapped the prosecutrix in the noon. The entire prosecution story comes in the clouds of the doubt and therefore, the appellant cannot be convicted for the offence punishable u/s 376/511 of IPC or Section 354 of IPC even.

On the basis of aforesaid discussion, the appeal filed by the appellant appears to be acceptable. He cannot be convicted either for the offences punishable under Sections 376 or 354 of IPC or for any inferior offence of the same nature, therefore, the appeal filed by him is hereby accepted. The conviction as well as the sentence directed by the trial Court for the offence punishable u/s 376 read with Section 511 of IPC is hereby set aside. The appellant is acquitted from all the charges. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

The presence of the appellant is no more required and therefore, it is directed that his bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.