HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. Criminal Appeal No.2040/1999 Ram Kumar VERSES State of Madhya Pradesh -------------------------------------------------------------------------------------------------- Shri Sanjay Patel, Advocate for the appellant. Shri Akshay Namdeo, G.A. for the respondent/State. -------------------------------------------------------------------------------------------------- J U D G M E N T 25/11/2011 1. The appellant has filed this criminal appeal under Section 374(2) of Cr.P.C. being aggrieved by the judgment dated 01.07.1999 passed by Sessions Judge, Mandla in S.T. No.145/1998, whereby the appellant has been convicted under Section 376(1) and 506(B) of I.P.C. and sentenced to R.I. for 7 years with fine of Rs.2000/- in default S.I. for 3 months and R.I. for 1 year respectively with the direction to run both the sentence concurrently. 2. The facts of the case in short are that prosecutrix PW-1 lodged the report Ex.P-1 to the effect that on 10.04.1998 at about 4:00 p.m. when she was grazing cattle, meanwhile appellant came there and asked her for sexual intercourse. Prosecutrix threatened to cry but appellant thrown her on the field and removed her Sari and committed sexual intercourse. Prosecutrix started crying but nobody came to rescue her. Appellant also threatened her that if she will intimate this matter to her parents then he will kill her. After rape when prosecutrix was going to her house she saw that Chamarin Bai was also grazing her cattle. She narrated the whole incident to her and went to her house and narrated the incident to her parents. On the basis of report Ex.P-1 prosecutrix was sent for medical examination. Dr. Keerti Singh (PW-7) examined prosecutrix on 12.04.1998 and found that she was habitual of intercourse and her vagina admits two fingers. Hymn was also ruptured earlier. During investigation N.S. Rajput (PW-8) investigating officer seized Ex.P-4 mark-sheet of prosecutrix of class 5th where her date of birth is shown as 24.08.1982. Further PW-8 seized school register from primary school from PW-9 Bhadulal and as per entries in the register her date of birth was 24.08.1982. Dr. Keerti Jain (PW-7) has prepared the slides of liquid from vagina and handed over to the concerned police station. These articles were sent to F.S.L. Completing the investigation, the appellant was charge sheeted. Appellant abjured the guilt. 3. The court below relying on the statements of PW-1 Jira Bai, PW-2 Chamarin Bai, PW-3 Fundo Bai, PW-4 Sabbbal Singh, PW-5 Dr. U.S. Kadopa, PW-6 Kunwariya Bai, PW-7 Dr. Keerti Singh, PW-8 N.S. Rajput and PW-9 Bhadulal held that though prosecutrix was more than 18 years of age and appellant forcibly committed sexual intercourse with her. 4. Prosecutrix PW-1 has stated that on the date of incident while she was grazing the cattle appellant came from backside and caught her mouth and committed rape and thereafter threatened her that if she will narrate the incident to her parents then she will kill her. She has further stated in para 2 of the statement that when appellant has committed rape with her and she was crying PW-2 Chamarin Bai saw the incident but prosecutrix did not narrate the incident to her. Whereas PW-2 Chamarin Bai has stated that she heard that prosecutrix was weeping and when she inquired she saw that appellant ran away from the spot. 2 5. Prosecutrix has admitted in para 6 of the cross examination that appellant was also studying in Ghutas. She has further stated that appellant came from the backside and caught her and opened her Sari from both of his hands but neither she assaulted appellant nor she scratched him from hands nor she caught his heirs. She further improves her version in para 8 of her examination-in-chief that when appellant was committing rape with her Chamarin Bai PW-2 came and fired him then appellant ran away. 6. Dr. Keerti Singh (PW-7) has stated that on examination of prosecutrix no marks of external injuries on her body have been noted, hymn was old torn, vagina was admitting two fingers. No opinion of act of committing sexual intercourse could have been given because she was habitual of intercourse. 7. Ex.P-1 F.I.R. was lodged by the prosecutrix where she has narrated that when she was grazing the cattle appellant came and inquired about his cattle. Thereafter appellant asked for sexual intercourse but prosecutrix threatened him that if he will commit such act then she will cry and thereafter appellant thrown her on the field and committed rape but in her court statement prosecutrix has stated that while she was sitting in the shadow of tree suddenly appellant came from the backside and hold her mouth, removed her Sari and committed rape. 8. Apart from this as per Ex.P-1 F.I.R. after rape prosecutrix went to Chamarin Bai a lady aged about 50 years of her village and complained about the incident whereas as per the court statement of Chamarin Bai when heard the hue and cry of prosecutrix, she went there and fired appellant, thereafter appellant ran away from the spot. 9. Apart from this appellant has specifically stated in his cross examination that father of the prosecutrix pressurized him 3 to marry with his daughter but he refused to marry her, therefore, this false report was lodged. In this respect defence witnesses DW-1 Ratan singh, DW-2 Paltu and DW-3 Sukhlal have also appeared as a witnesses and specifically stated that the father of the prosecutrix came to his house and asked him to solemnize the appellant's marriage with his daughter (prosecutrix) and as appellant was not of marriageable age, therefore, he refused. 10. Ex.P-1 F.I.R. lodged by prosecutrix and her court statement are contradictory. Further as per version of Chamarin Bai PW-2 she fired appellant thereafter he ran away but as per version of prosecutrix when the rape was committed with her and she was going to her house Chamarin Bai met her on the way and narrated the whole incident to her. 11. In background of these contradictory statements, court below ought not to have held that appellant forcibly committed sexual intercourse with the prosecutrix who was already not less than 18 years of age on the date of incident as the court below has already held in para 16 of the impugned judgment that prosecutrix was not less than 18 years of age. There is no cogent evidence that appellant threatened her and committed rape with her. On the contrary, it seems that prosecutrix was a consenting party. The appellant is therefore entitled for benefit of doubt. 12. Consequently, the appeal is allowed. Setting aside the judgment of conviction and sentence dated 01.07.1999 passed by court below in S.T. No.145/1998, appellant stands acquitted of the charge under sections 376(1) and 506(B) of I.P.C. Appellant is on bail. His bail bonds are discharged. Fine amount, if deposited, be refunded to him. (S.C. Sinho) Judge psm 4