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Balu vs The State Of Madhya Pradesh on 12 April, 2018

-: 1 :- Criminal Appeal No.1128 of 2012.

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Vivek Rusia )

Criminal Appeal No.1128 of 2012.

Balu s/o Kekdiya Bhil (Vasuniya)
VERSUS
State of Madhya Pradesh
*****
Shri R.S.Parmar, learned counsel for the appellant, though
Legal Aid.
Shri Swapnil Sharma, learned Govt. Advocate for the
Respondent/State.
*****

J U D G M E N T

( Delivered on this 12th day of April, 2018 )

THE appellant has filed the present appeal
being aggrieved by judgment dated 15.10.2011 passed by
First Additional Sessions Judge, Dhar in Sessions Trial
No.243/2010, by which he has been convicted under Section
376 of IPC and sentenced to undergo 7 years’ RI with fine of
Rs.500-00, with default stipulation.

[2] As per the prosecution story, the prosecutrix
(PW-3) lodged an FIR (Ex.P/4) in Police Station Kanwan,
District Dhar against the present appellant that he has
committed rape on her. FIR was registered under
Sections
376 and
506 of IPC. Thereafter she was medically examined
by Dr. Sangeeta Patidar (PW-1). Petticoat, vaginal slides and
pubic hair of the prosecutrix along with underwear and pubic

-: 2 :- Criminal Appeal No.1128 of 2012.

hair of accused were sent to FSL, Rau (Ex.P/10). The
accused was arrested on 17.06.2010 vide Ex.P/8. He was
also medically examined by the doctor and he was found
capable for sexual intercourse (Ex.P/9). Vide letter dated
12.08.2010 (Ex.P/11) the FSL report was received whereby
human semen was found over Articles A, B and D i.e.
Petticoat, slides of the prosecutrix and underwear of the
accused.

[3] After completing the usual investigation,
challan was filed and trial was committed to the Sessions
Court. The prosecution examined Dr. Sangeeta Patidar as
PW-1 who did not give any definite opinion about rape. She
has also not found any external or internal injury on the body
of the prosecutrix. Dr. B.R.Bansal (PW-2) who conducted
X-ray and ascertain the age of the prosecutrix 14 years. The
prosecutrix was examined as PW-3 in Camera proceedings.
According to her, she do not know the accused and do not
remember the date of the incident. According to her, on the
night of incident she was sleeping in the house of her uncle
Ramesh, and the accused came there and took her to his
house by showing the knife to her. Thereafter he committed
gruesome rape on her. She was not even permitted to shout.
Next day she narrated the entire story to her uncle who took
her to her father and mother and thereafter report was
lodged. Kailash i.e. father of the prosecutrix, was examined
as PW-4. Noori, mother of the prosecutrix was examined as
PW-5 they knew the accused. The prosecution also
examined Ramesh, uncle of the prosecutrix as PW-9 who
has turned hostile. He knew the accused as he used to work

-: 3 :- Criminal Appeal No.1128 of 2012.

along with accused in the house of Babu Sankhala. The
prosecution examined R.R. Patidar, Investigating Officer as
PW-10.

[4] The accused has recorded his statement
under
Section 364 of the Code of Criminal Procedure and
denied the usual questions asked by the Court. He has
specifically stated that he has been falsely implicated
because of the dispute in transaction of money.

[5] Vide judgment dated 15.10.2011, the
learned First Additional Sessions Judge, Dhar has acquitted
the accused under
Sections 342 and 506 Part-II of IPC but
convicted and sentenced him as stated above. Hence, the
present appeal before this Court.

[6] I have heard Shri R.S.Parmar, learned
counsel for the appellant engaged though Legal Aid, Shri
Swapnil Sharma, learned Govt. Advocate for the
Respondent/State and perused the record.

[7] As per the FIR recorded by the prosecutrix,
in the night of 27.05.2010, she was sleeping in the house of
her uncle Ramesh (PW-9) along with her brother and sisters,
then Balu, neighbour of her uncle, came and took her to his
house. When she asked why he brought her, then he said that
we will watch the TV then he started touching her on private
part of body and when she resisted then he said that he will
give you Sari and when she further resisted then he
threatened her to kill and thereafter committed gruesome
rape on her. She suffered pain and narrated the entire story to
her uncle Ramesh (PW-9) and aunty Urmila (PW-8) in the
morning. She was medically examined by the doctor in

-: 4 :- Criminal Appeal No.1128 of 2012.

which she has not found any injury on her internal or
external part of her body. No definite opinion of rape was
given. In the statement under
Section 161 of the Code of
Criminal Procedure, she has stated that accused Balu was
also sleeping along with his wife and his daughter was
sleeping with her in the same Courtyard.

[8] The prosecutrix in her statement before the
Court has improved her version and stated that the accused
shown her knife and took her to his house which was not
there in FIR or 161 statement. In cross-examination she has
admitted that she was not able to see anything in the night.
In the morning her uncle told her that Balu might have came
in the night. She has further admitted in the cross-
examination that in the police station she was sitting out side
and her uncle was talking to police and thereafter she was
called inside to put the thumb impression. In para 8 she has
further admitted that the actual dispute was that her father
and uncle left the job of Prahlad Pahalwan and he was not
giving money to them. Her father told the accused for the
money and had the account been settled then we would not
lodge the report against the accused. Thus, it is clear from
the aforesaid story that in the night she could not identified
the accused. Her uncle suggested the name of Balu. In the
Police Station she has not disclosed anything to the police
and her uncle had talked with the police and thereafter she
put the thumb impression only on the report. They lodged
the report against the accused because the money dispute
could not be settled as her father could not get the
remuneration from Prahlad Pahalwan.

-: 5 :- Criminal Appeal No.1128 of 2012.

[9] The mother of the prosecutrix has admitted

that Ramesh was working with accused and he took some
advance for ploughman (Hali). Yogendra Sharma, Head
Constable (PW-7) in cross-examination has admitted that the
prosecutrix has not disclosed that the accused has shown her
knife otherwise he would have mentioned the same in the
FIR. Urmila (PW-8) in her cross-examination has admitted
that in the night accused was sleeping there along with his
wife and children and the prosecutrix was sleeping with the
daughter of the accused. She came to know about the
incident in the morning.

[10] Ramesh (PW-9) in whose house the alleged
incident said to have taken place have turned hostile. In
cross-examination he has admitted that at the instance of
accused he was working as a ploughman (Hali) on a
payment of Rs.25,000-00 per year but he was paid only
Rs.10,000-00. It is clear that there was some dispute between
the father, uncle and accused Balu in respect of payment of
money. There is no evidence of rape committed by the
accused. There is no opinion of the doctor that hymen was
intact or ruptured. No external or internal injury was found
on the body of the prosecutrix. She has changed her version
thrice at three different occasion. She did not recognize the
accused in the night and her uncle has told her that Balu
must have came in the night. Her uncle has lodged the report
in which she has only put the thumb impression. She has
also admitted dispute of money transaction by stating that
had the money been paid, we would not have lodged the
report. It is clearly established from the aforesaid fact that

-: 6 :- Criminal Appeal No.1128 of 2012.

the appellant was falsely implicated in the case as there was
no definite opinion of rape. Hence, the accused appellant is
entitled for acquittal.

[11] In the result, this appeal is allowed. The
judgment dated 15.10.2011 passed in Sessions Trial
No.243/2010 is hereby set-aside and the appellant is
acquitted from the charge.

[ VIVEK RUSIA ]
JUDGE
Sharma AK/*

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