Shivram vs State of Madhya Pradesh

Hon''ble Shri Justice Anil Kumar Sharma

Appellant has filed this appeal u/s 374 of the Criminal Procedure Code against judgment dated 28.11.1997 passed in Sessions Trial No. 137/1994 by the learned Additional Sessions Judge, Sendhwa, District Mandleshwar (West Nimar) (MP), whereby appellant has been convicted for the offence punishable u/s 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2 1/2 years and fine of Rs. 1,000/-has also been imposed upon him, with default stipulation. Brief facts of the case are that prosecutrix (PW-7) (name of the prosecutrix is not mentioned to hide her identity) was sleeping in front of her Chhapriin the night of 06.01.1994. It is alleged that appellant came there and committed rape with her. On her cry, her Bua (aunt) Budhibai came there. Thereafter, appellant ran away from the spot. After that, prosecutrix (PW-7) consumed poison. Thereafter, she has been admitted to hospital and First Information Report has been registered on the information received from the Compounder at Police Chowki, Ojhar, District Khargone (MP). After investigation, challan has been filed against appellant and learned trial Court, after trial of the appellant for charge of the offence punishable under Sections 376 and 506 IPC, convicted the appellant by the impugned judgment for the offence punishable u/s 376 IPC and sentenced him, as mentioned in para 1 of the judgment.

Being aggrieved by the impugned judgment, the appellant has filed this appeal on the ground that learned trial Court has failed to appreciate the evidence in proper perspective and further learned trial Court has failed to consider the fact that prosecutrix was the consenting party and no offence has been committed by the appellant.

Main question for consideration in this appeal is whether learned trial Court is justified in convicting the appellant by the impugned judgment.

Prosecutrix (PW-7) in her statement has narrated that appellant came in the night while she was sleeping. He removed the Godari and thereafter removed her cloths and his clothes and committed sexual intercourse by giving threat to kill her if she will cry. On hearing her cry, his Phui (aunt) Budhibai and Kakaji (uncle) Ghisalal came there and appellant has been forced to run away from there. Thereafter, she has consumed medicine used for sprinkle on cotton; due to which, she became unconscious. She became conscious in Rajpur Hospital.

Learned Counsel for the appellant has submitted that in cross-examination prosecutrix (PW-7) has stated that appellant said her to allow her to love and she has not said to the appellant that he is married. Therefore, she will not allow her to love. She has further stated that when Dudhibai came to her at that time, appellant was lying on her. No talks were held between Shivram and Budhibai. Shivram went to his house. It is true that on that night Budhibai has seen her with Shivram. Therefore, she consumed poison. Learned Counsel for the appellant has submitted that this admission of the prosecutrix (PW-7) shows that prosecutrix has been the consenting party for the sexual intercourse committed with her by the appellant.

Learned Counsel for the appellant has further drawn attention towards the statement of Budhibai (PW-3), in which she has stated in cross-examination that she has seen the appellant crossing the Diwal(wall) and removed his lungi and put it on the cot. Thereafter, appellant came on the cot and started Khotakam, which was not tolerated by her, and therefore, she dragged the appellant. Learned Counsel for the appellant has submitted that statement of Budhibai (PW-3) also shows that the prosecutrix did not resist the appellant and prosecutrix has admitted that appellant was involved in sexual intercourse, after removing cloths of his and prosecutrix. Further, admission of the prosecutrix that if she was not seen by Budhibai, she did not have consumed poison, shows that what has happened with her, was with her consent and that is why she has not resisted at the time of incident. Therefore, learned trial Court is not justified in convicting appellant for the offence punishable u/s 376 IPC, in absence of any resistance on the part of the prosecutrix and the evidence available on record shows that what has happened with her was with her consent. Prosecutrix is a major and married lady and no injury has been found on her body, therefore, learned trial Court is not justified in convicting the appellant for the offence punishable u/s 376 IPC. Therefore, appeal is allowed, setting aside the impugned judgment. The appellant is acquitted from the charge of offence punishable u/s 376 IPC. Fine amount, if deposited by the appellant, be refunded to him.