Vinod vs State Of Madhya Pradesh

J.P.Gupta, J

This appeal has been preferred assailing the judgment dated 29/04/2013 passed by the 1st Additional Session Judge, Chhindwara, in Session Trial

No.264/2012 whereby the appellant has been convicted under section 376(1), 307 and 506 Part-I of IPC and sentenced to undergo R.I. for 10 years,

R.I for 10 years and R.I for 2 years along with fine with default stipulations .

The facts giving rise to this appeal are that as per prosecution case on 23/07/2012 near about 10 PM prosecutrix aged about 16 years, went to

answer call of nature out of her house, suddenly appellant came over there and squeezed mouth of the prosecutrix and dragged her towards near the

well and under the threat of killing her he committed sexual intercourse with her. When the prosecutrix told that she would disclose the incident to her

mother, the appellant pushed her into the well.

She fell down into the well, which was deep and dry and sustained injuries on her head, hand and waist and became unconscious. In the morning time

she regained consciousness and cried then villagers and her parents gathered on the place of incident and brought her out from the well and was taken

for treatment to Govt. Hospital Pandurna and thereafter to Nagpur and after treatment at Nagpur, she revealed the incident to her parents and then

lodged the FIR Ex.P-3 on 23/07/2012 at police station Pandurna, District Chhindwara where Crime No.357/2012 under section 376, 506, 307 of IPC

was registered and prosecutrix was examined by medical expert and appellant/accused was also arrested and medically examined and after

completion of the formalities of investigation, the charge sheet was filed before the Judicial Magistrate First Class, Pandurna, District Chhindwara and

case was committed to Session Court where the case was tried by 1st Additional Session Judge, Chhindwara.

The learned Trial court framed aforesaid charges against the appellant and the appellant abjured his guilt and claimed to be tried. His defence was

that he is innocent and prosecutrix accidentally fallen into the well and later on under the influence of her parents the false report has been lodged

against the appellant and after completion of the trial, the learned trial court convicted and sentenced the appellant as mentioned earlier.

The findings of the learned trial court has been assailed in this appeal on the ground that the case is mainly based on the evidence of the prosecutrix

and admittedly on the date of incident after regaining consciousness, she did not stated that appellant committed rape with her and pushed her into the

well and she has also not disclosed this fact to the doctor who treated her and also not disclose to her parents and after 14 days of the incident, FIR

has been lodged stating that on account of fear she did not disclose the fact to any body, which is not creditable explanation and there is also no

medical evidence to corroborate the fact about commission of forcible sexual intercourse with the prosecutrix. In such circumstance, merely on the

basis of the suspicious statement of the prosecutrix, the appellant can’t be convicted for such heinous offence. Thus the conviction and sentence

of the appellant be set aside and he be acquitted.

Learned G.A has supported the findings of the learned trial court and opposed the aforesaid contentions of the learned counsel for the appellant

stating that the findings of the learned trial court are based on sound evidence. Hence no interference is required in the findings of the trial court and

prayed for rejection of this appeal.

Having considered the contention of learned counsel for the parties and on perusal of the record, on the date of alleged incident 23/07/2012 age of

the prosecutrix was more than 16 years as learned trial court has given its finding in paragraph 17 and 18 of the judgment, which is not under

challenge by any party and same is found to be uninterferable.

Prosecutrix (PW-1) in her statement has stated that on the fateful night when she went to answer the call of nature out her house, the appellant

squeeze her mouth and dragged her towards the well and under the threat of killing her he committed sexual intercourse with her and when she stated

that she will disclose the incident to her parent, the appellant pushed her towards the well and she fell down in the well and sustained injuries on her

head, hand and waist and became unconscious. In the morning about 4 o’clock on regaining consciousness, she cried then villagers and her parent

gathered and took out her from the well and then she was taken to Govt. Hospital Pandurna and thereafter to Nagpur Hospital where she admitted for

3 days and came back to her house and narrated the incident to her parent and lodged report Ex.P-3.

However, the mother of the prosecutrix Yashodha Kavarati (PW-4) and father Gorakh Rao Kavarati (PW-5) have stated that when the

prosecutrix was taken out of the well she disclose that she went to answer the call of nature and slipped near the well and fallen down in the well and

she remained unconscious for 2 days and after 3 days she narrated the incident. They have also narrated that soon after the incident press

photographer and video-grapher took interview of the prosecutrix and prosecutrix disclosed them that she fell down accidentally. Father of the

prosecutrix Gorakh Rao Kavarati (PW-5) has also stated that he was informed by the prosecutrix after 10-15 days of the incident. Aforesaid

statement of parents of the prosecutrix show that initially prosecutrix disclosed different version of the incident.

Dr. Ravindra Kumar Pal (PW-9) also stated that on 24/07/2012 in Community Health Centre, Pandurna he examined the prosecutrix, who fallen

down into the well at the time of examination she did not narrated that she was pushed into the well by somebody or rape was committed with her and

she was conscious and talking and she was brought by Sub Inspector Mukesh Yadav. This fact show that incident was reported to the police. Later

on 09/08/2012 prosecutrix was examined by Dr. Chaya Chouhan (PW-2) at Community Health Centre, Pandurna she opined that there was no sign of

struggle on the person of prosecutrix. She was habitual of sexual intercourse, hence the medical evidence also not support the version of the

prosecutrix.

Prosecutrix has also stated that after committing sexual intercouse by the appellant, she was pushed towards the well and fell down into the well.

She was completely naked and the clothes were also thrown into the well by the appellant. She also sustained injury, and her private part was bleeding

and there was blood stain on her clothes but the parents of the prosecutrix have not stated that at the time when prosecutrix was taken out from the

well she was naked or having blood stain on her clothes. Doctor who initially examined her has also not noticed blood stain on her cloth and she has

not stated having injury on her private part. Even Dr. Chaya Chouhan (PW-2) also not stated that there was any mark of injury on her private part.

In view of the aforesaid contradictory and inconsistent statement of the prosecutrix, she can’t be considered to be truthful, creditable and

reliable witness. There is no corroboration of her statement from any other material and contrary to it the statement of other witnesses impeach the

creditably of the prosecutrix. Considering this aspect of evidence, it is considered view of this Court that it can’t be said that the prosecution has

succeeded to prove the charges beyond the reasonable doubt, therefore the appellant’s conviction can’t be upheld. Hence the appeal is

allowed and appellant conviction and sentence is set aside and appellant is acquitted of the offences. Appellant is in custody, if he is not required in

any other case he be released forthwith.

A copy of this judgment be sent to the concerned trial court and jail authorities for information and necessary action.

Certified copy as per rules.