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Dummilal @ Khawasi vs The State Of M.P. on 15 November, 2018

1

Cri.A.No. 1653/1998

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No. 1653/1998

Dummilal @ Khawasi
Vs.
The State of Madhya Pradesh

Shri Narendra Nikhare, learned counsel for the appellant.
Shri Deependra Mishra, learned G.A. for the respondent/State.

JUDGMENT

(15/11/2018)

The appellant has preferred this appeal being aggrieved by
the judgment dated 27/07/1998 passed by the Additional Sessions
Judge, Lakhanadon, District Seoni in S.T. No. 34/1998 whereby the ap-
pellant has been convicted for the offence under Section 376 of the IPC
and sentenced to undergo RI for 7 years with fine of Rs. 250/-, with de-
fault stipulation as mentioned in the impugned judgment.

2. In brief the facts of the prosecution case are that on
10/02/1998 the prosecutrix, aged below 16 years (PW-3) told by her fa-
ther Jahadulal (PW-5) to go and keep wheat in the field. While she was
going to the field through the applicant’s field, the applicant asked for
tabacco, then she said she does not chew tabacco, thereafter the appli-
cant caught her and forcibly committed sexual intercourse with her.
That on 11/02/1998 the FIR (Ex.P-5) was lodged by the prosecutrix in the
police station Duma, District Seoni at Crime No.12/1998 under section
376 of IPC. Thereafter, the prosecutrix as well as the appellant/ accused
after arrest were medically examined and after completion of the inves-
tigation, charge sheet was filed before the trial court and the case was
committed to the Court of Session for trial.

2

Cri.A.No. 1653/1998

3. During trial, the trial Court framed charges under Section
376 of IPC against the appellant, who abjured his guilt and claimed to be
tried.

4. Learned trial court after considering the evidence adduced
by the parties and on the basis of the material available on record con-
victed and sentenced the appellant as mentioned earlier.

5. The learned trial court has arrived at the conclusion that al-
though the prosecution has failed to prove beyond the reasonable
doubt that of the age of the prosecutrix was below 16 years at the time
of incident but it is established beyond the reasonable doubt that the
applicant committed sexual intercourse with the prosecutrix without
her consent or will.

6. The aforesaid finding has been assailed in this appeal on the
ground that in this case the testimony of the prosecutrix (PW-3) is not
trustworthy. She has claimed to be near about 15 to 16 years old and the
applicant committed sexual intercourse with her first time while Dr. In-
dra Bande (PW-1) has opined that the prosecutrix was habitual of sexual
intercourse and there was no injury on her person showing any resis-
tance at the time of commission of rape. The prosecution has also not
produced FSL report, therefore adverse inference will be drawn against
the prosecution that if the same had been produced would not have
corroborated the prosecution version. In the circumstance, it can’t be
held that the prosecution has succeeded to establish it’s case beyond
the reasonable doubt. Learned counsel for the applicant has placed re-
liance on the judgment of the Apex Court in the case of Bibhishan Vs.
State of Maharashtra reported in (2007) 12 SCC 390 in which relevant
para 6, which is as under:-

6. We have gone through the judgment of both
the Courts below and also perused the necessary
record. As per the evidence of the doctor, there
was no injury on the body of the prosecutrix Anita.

3

Cri.A.No. 1653/1998

There was no sign of semen on the private part of
the body. Neither her clothes were torn nor there
was any presence of hair of the accused on the
private part of the prosecutrix. The doctor after
examining the prosecutrix deposed that the girl
was habituated to sexual intercourse. In view of
this evidence, we are of the opinion that the High
Court as well as the Trial Court has not correctly
appreciated the evidence and has wrongly
convicted the accused-appellant.

In the light of aforesaid judgment, learned counsel for the
applicant has prayed that the appeal be allowed and the appellant/ ac-
cused be acquitted of the aforesaid offence.

6. Learned GA has argued in support of the aforesaid judg-
ment of the trial court and stated that in this case the applicant has
failed to point out any cogent reason about false implication and prayed
that the appeal be dismissed.

7. Having heard the learned counsel for both the parties and
perusal of the record it is found that the prosecutrix (PW-3) has stated
that when she was coming back from the agricultural field in the way
the applicant met her and asked for tobacco for chewing. She replied
that she does not chew tobacco then the applicant caught hold her and
led her in the field and lifted her sari and committed sexual intercourse
with her. She cried during the incident but none have come to help her
then the applicant left her and she came back to her house and nar-
rated the incident to her mother and father Jahadulal (PW-5) was not at
home at that time and when he came back in evening, she also dis-
closed him about the incident and on the next day they lodged the FIR
at police station Lakhandon, District Seoni and she was sent for medical
examination and her sari was also seized. During the cross-examination
she had admitted that the incident was her first occasion of sexual in-
tercourse. Dr. Indra Bande (PW-1) has stated that on 11/02/1998 she ex-
amined the prosecutrix and according to her the prosecutrix was habit-

4

Cri.A.No. 1653/1998

ual of sexual intercourse and no definite opinion can be given about the
commission of rape with the prosecutrix. There was no mark of injury
on her person and she prepared report Ex.P-2. The mother of pros-
ecutrix has not been examined. Father of prosecutrix, Jahadulal (PW-5)
has been examined, who repeated the story as narrated by the pros-
ecutrix that he got information about the incident from his wife to
whom the prosecutrix narrated the story and then he inquired the mat-
ter with the prosecutrix. In absence of the evidence of mother of pros-
ecutrix, statement of father Jahadulal (PW-5) hardly have corroboratory
value. There is no FSL report on the record. Therefore there is no rele-
vant corroboratory piece of evidence establishing the surrounding cir-
cumstance relevant to indicate commission of the offence by the appli-
cant. In other word there is on evidence of commission of sexual inter-
course without consent or will of the prosecutrix or commission of sex-
ual intercourse at the time of incident.

8. The aforesaid fact and circumstance of the present case are
similar as that of the judgment of the Hon’ble Apex Court in the case of
Bibhishan Vs. State of Maharashtra (supra) and the Hon’ble Apex Court
in the similar circumstance came to the conclusion that it can’t be said
that the prosecution has established beyond the reasonable doubt that
the applicant committed sexual assault on the prosecutrix. Undoubt-
edly the fact of rape can be proved by the sole statement of the pros –
ecutrix if the statement inspire confidence about the truthfulness of the
testimony of the prosecutrix. In the present case considering the other
surrounding circumstance, in view of this Court it is not a case in which
it can be said that the prosecution has established the charges beyond
the reasonable doubt as there is a reasonable possibility that the act
was committed with the consent and will of the prosecutrix. Hence the
finding of the learned trial court with regard to commission of rape by
the applicant can’t be upheld. Therefore, applicant conviction and sen-
tence under section under section 376 of the IPC is set aside and he is
5

Cri.A.No. 1653/1998

acquitted of the aforesaid charge. Accordingly, this appeal is allowed.
The appellant is on bail, his bail bonds be discharged and fine amount, if
paid, be returned.

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

(J.P.GUPTA)
JUDGE
TARUN
Digitally signed by TARUN

tarun/-

KUMAR SALUNKE
DN: cIN, oHigh Court of
Madhya Pradesh,

KUMAR
ouAdministration,
postalCode482002,
stMadhya Pradesh,
2.5.4.2019a265290eb7f6307d4

SALUN
a64122959af56e05e3d1d609e0
fd1051d7f6331251f99,
serialNumber0e7afab970b523
fc5e1fd370da00347dabfa96b26

KE
cbffd08773a847c03d3115c,
cnTARUN KUMAR SALUNKE
Date: 2018.11.16 16:33:01
+05’30’

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