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Kaluram vs The State Of M.P. on 17 October, 2019

1
CRA No.1397/1999
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: Hon’ble Shri Justice S.K. Awasthi
Criminal Appeal No.1397/1999
(Kaluram s/o Mangilal Balai
Versus
The State of Madhya Pradesh
through Police Station Moman Barodiya, District Shajapur MP)

*****
Mr. Tousif Warsi, learned counsel for the appellant / accused.
Mr. Yogesh Kumar Gupta, learned Public Prosecutor for the respon-
dent / State of Madhya Pradesh.
*****
JUDGMENT

(Pronounced on this 17th day of October, 2019)

The appellant / accused has filed this appeal
under Section 374 (2) of the Code of Criminal Procedure,
1973 (for short, the Code) against impugned judgment
dated 13.10.1999 passed by 2nd Additional Sessions
Judge, Shajapur, District Shajapur (MP) in Sessions Trial
No.45/1999, whereby the appellant has been convicted
for commission of offence punishable under Sections 366
and 376 of Indian Penal Code, 1860 and sentenced to un-
dergo five years rigorous imprisonment with fine of
Rs.500/- and seven years rigorous imprisonment with
fine of Rs.1,000/- respectively along with default stipula-
tion.

2. The prosecution story, in short, is that on
08.06.1998 at about 11.00 AM, the prosecutrix aged
about 17 years, went near to ‘Well’ for taking bath. When
she did not return to home, her parents searched her, but
when she could not be traced, then on 10.06.1998 Ex.P/4
they lodged a report at Police Station, Moman Barodiya,
District Shajapur (MP) about missing of minor daughter,
2
CRA No.1397/1999

which was registered as Missing Person No.04/1998.
During the inquiry, on 27.07.1998 Ex.P/3, the Police re-
covered the victim / prosecutrix from Waiting Room, Bus
Stand, Sarangpur, District Shajapur (MP); and recorded
her statement in which she informed that when she was
taking bath near the ‘Well’, the appellant / accused came
there and he gave prasad – sweet edible thing (izlkn) to
her. After consuming the food article, she felt uneasi-
ness. Thereafter, the appellant / accused allured her to
live in Biaora City on the pretext to marry with her. On
refusal to the said proposal, the appellant / accused
threatened to kill her. Thereafter, he took her forcefully
on the point of knife to Sarangpur by tempo. Thereafter,
he took her to Biaora and kept her in a room where in
night he committed rape twice and also threatened to kill
her. In next morning, he took her to Vidisha and kept
her in a room for a period of one month and twenty days;
during which, he made forcefully physical relationship
with her by threatening to kill. When it came to the
knowledge of the appellant / accused that Momam Baro-
diya Police was surrounding him in Vidisha, then he took
her Biaora via Narsingarh by bus, but when they could
not get a bus from Biaora to go to Indore, then they come
to Sarangpur by Mini Bus at about 03.00 to 04.00 AM;
and at Bus Stand Sarangpur, when they were waiting for
a Bus to go to Indore, the Police came there with her un-
cle and after seeing the Police, the appellant / accused
fled away leaving her alone. On the basis of the aforesaid
3
CRA No.1397/1999

statement, on 27.07.1998, the Police registered FIR bear-
ing Crime No.74/1998 against the appellant for commis-
sion of offence punishable under Sections 363, 366, 376
and 506 of the Indian Penal Code, 1860; and sent the
prosecutrix for medical examination and also for ossifi-
cation test for determination of her age. The Police vis-
ited the spot and prepared spot map, recorded statement
of the witnesses, arrested the accused person and sent
him for medical examination. The police also collected
clothes, pubic hair and vaginal / semen / sperm slide of
the prosecutrix and accused; and sent it to Regional
Forensic Science Laboratory, Indore for chemical analy-
sis. After completion of the investigation, charge sheet
was filed before the Court of Judicial Magistrate First
Class, Shajapur, District Shajapur (MP), who committed
the case to the Sessions Court, which was finally trans-
ferred to the Court of 2nd Additional Sessions Judge, Sha-
japur, District Shajapur (MP) for its trial.

3. On 07.06.1999, the trial Court framed the
charge against the appellant / accused for offence pun-
ishable under Sections 363, 366 and 376 of the Indian
Penal Code, 1860. He abjured his guilt; pleaded false im-
plication and prayed for trial. In defence, he examined
Dr. Ramesh Shiva (DW-1) on the point of age of the pros-
ecutrix.

4. The prosecution, in order to prove its case
against the appellant / accused, examined Hari Narayan
(PW-1), Bal Chand (PW-2), Dr. M.L. Gar (PW-3), Dr.
4
CRA No.1397/1999

(Smt.) Aruna Vyas (PW-4), Munshilal (PW-5), Assistant
Sub Inspector B.S. Parmar (PW-6), Police Constable
Tarachand (PW-7), prosecutrix (PW-8), Shiv Narayan
(PW-9) and Investigating Officer Prakash Batham (PW-

10).

5. The trial Court, after appreciating the evidence
produced by the prosecution, acquitted the appellant /
accused for offence punishable under Section 363 of the
Indian Penal Code, 1860, however, convicted him for the
offence punishable under Sections 366 and 376 of the In-
dian Penal Code, 1860 and sentenced him to undergo
five years rigorous imprisonment with fine of Rs.500/-
and seven years rigorous imprisonment with fine of
Rs.1,000/- respectively along with default stipulation.
Both the custodial sentence has been directed to run con-
currently.

6. Being aggrieved by the aforesaid conviction
and sentence, the appellant / accused has preferred this
appeal.

7. It is admitted by the learned counsel for the
appellant that the prosecutrix was a major lady aged
around 19 years at the time of alleged incident. He sub-
mitted that the prosecutrix visited various places with
the appellant / accused by mode of public transport and
remained in his company for a period of more than forty
days, during which, neither she raised any alarm nor
made complaint to any one, who met her during the visit
to various places with the appellant when the appellant /
5
CRA No.1397/1999

accused took her forcibly. In these circumstances, it
would be clear that the prosecutrix was the consenting
party, but in spite of that the trial Court has not properly
appreciated the evidence and committed legal error in
convicting the appellant for the aforesaid offence. Under
these circumstances, learned counsel for the appellant
prayed for setting aside of the impugned judgment of
conviction and sentence passed by the trial Court; and
the appellant / accused is entitled to be acquitted.

8. On the other hand, learned Public Prosecutor
for the respondent / State of Madhya Pradesh has sup-
ported the findings of conviction recorded by the trial
Court and submitted that there is nothing on record to
suggest that the prosecutrix was having any motive to
falsely implicate the appellant in the present crime.
Therefore, from the statement of the prosecutrix, it is
clear that the appellant took her forcefully by threatening
her life. In these circumstances, if she did not raise any
alarm, then inference cannot be drawn for presumption
that she was the consenting party. Therefore, trial Court
has not committed any error in convicting the appellant
and sentencing him to undergo five years rigorous im-
prisonment with fine of Rs.500/- under Section 366 of
IPC and seven years rigorous imprisonment with fine of
Rs.1,000/- under Section 376 of IPC. Therefore, the trial
Court has committed no error whatsoever in passing the
judgment / order of conviction and sentence imposed on
6
CRA No.1397/1999

the appellant. Hence, the present appeal is liable to be
dismissed.

9. I have heard the learned counsel for the parties
at length and perused the impugned judgment and
record of the trial Court.

10. The prosecutrix (PW-8) testified that she was
married to one Mohanlal resident of Machalpur Pipliya,
however, since last one year and six months she was re-
siding in her parental house. One year and three months
ago at about 11.00 AM to 12.00 Noon, when she had gone
near to ‘Well’ for taking bath and while she was alone
there, appellant / accused Kaluram came there and gave
prasad (izlkn) [sweet food article] to her. After taking it,
she felt uneasiness. Thereafter, the accused asked her to
come with him and he will marry with her. When she re-
fused, then the accused took out a knife and threatened
her to kill. Thereafter, he took her forcefully to Sarang-
pur by tempo. Thereafter, he took her to Biaora by bus.
In Biaora, he took her in a room where in night, twice he
committed rape. Then, he took her to Vidisha where he
took a room on rent and kept her in a room for a period
of one month and twenty days; during this period, he
also committed upon her. He also joined service in Tent
House and when he went to his duty, he put a lock on the
room from outside. He stated that Moman Barodiya Po-
lice is searching them in the surrounding area; therefore,
they will go to Indore. However, Indore Bus was missed
therefore he took her to Sarangpur by Mini Bus. At
7
CRA No.1397/1999

about 02.00 to 03.00 AM when they were waiting at Bus
Stand Sarangpur for a Bus to go to Indore, the Police
came there along with her uncle and after seeing them,
the accused run away from the spot leaving her alone.
Then, the Police took her to Police Station Moman Baro-
diya, District Shajapur (MP) and sent her to Shajapur
Hospital for medical examination. The Police also vis-
ited the spot and sketched the spot map at her instance.

11. Shiv Narayan (PW-9) stated that the pros-
ecutrix is her daughter. She was married to Mohanlal
resident of village Piplya Kulmi, however, prior to three
months of the incident, she is residing in his house. Be-
fore one and half year at about 11.00 AM, the prosecutrix
went to ‘Well’ for taking bath. When she did not come
back, then he went to search her, but could not found
her. Therefore, he lodged her missing person report
Ex.P/4. After one and half month, the Police recovered
the prosecutrix and took her to the Police Station. After
receiving the information, he reached to Police Station
Barodiya, where the prosecutrix told him that the ac-
cused on the point of knife took her to Biaora and allured
that he will marry with her. Thereafter, he took her to
Vidisha where he took a room on rent and kept her there
and committed rape upon her. When accused was taking
her to Indore, then at Sarangpur, Police intercepted
them and after seeing the Police, the accused fled away
from the spot.

8

CRA No.1397/1999

12. Hari Narayan (PW-1) uncle of the prosecutrix
and Balchand (PW-2) cousin of the prosecutrix also sup-
ported the statement of the Shiv Narayan.

13. Dr. (Smt.) Aruna Vyas (PW-4) deposed that on
28.07.1998 she medically examined the prosecutrix at
District Hospital, Shajapur and no internal or external
injuries were found on the body of the prosecutrix. Her
hymen was torn and two fingers were easily admitted in
her vagina. She prepared two vaginal slides; got col-
lected pubic hairs and petticoat of the prosecutrix; and
handed over all these articles in sealed packet to Police
Constable. According to Dr. Aruna Vyas, the prosecutrix
was habitual for sexual intercourse and no definite opin-
ion can be given regarding rape with her.

14. Although the prosecutrix claimed that at the
time of incident, she was aged about 15 years, however,
no document is available on record to establish the afore-
said contention of the prosecutrix. From perusal of the
statement of the prosecutrix, it is clear that she was al-
ready married and according to the ossification test re-
port, the age of the prosecutrix was found to be more
than nineteen years. Therefore, the trial Court has held
that at the time of incident, the prosecutrix was a major
lady. The accused was acquitted of the offence punish-
able under Section 363 of the Indian Penal Code, 1860.

15. The entire prosecution case is based on the evi-
dence of prosecutrix (PW-8).

9

CRA No.1397/1999

16. It is well settled law that the prosecutrix can-
not be treated as an accomplice to the crime and her evi-
dence should be treated as an evidence of sole testimony
and the evidence of prosecutrix is sufficient to convict
the accused, provided that her evidence inspires confi-
dence of the Court. If the Court is of the opinion that the
conviction cannot be recorded on the sole testimony of
the prosecutrix, then it can look for corroboration and if
the Court comes to a conclusion that the evidence of the
prosecutrix is not reliable, then the accused cannot be
convicted.

17. The Hon’ble Supreme Court in the case of
Kuldeep K. Mahato v. State of Bihar reported in
(1998) 6 SCC 420 has held in paragraph No.11, as un-
der: –

“11. Then coming to the conviction of the appellant
under Section 376 IPC, although both the courts below
have held after accepting the evidence of prosecutrix
being truthful held that the appellant has forcibly com-
mitted the rape, we are of the opinion that the said fin-
ing is unsustainable. The prosecutrix had sufficient op-
portunity not only to run away from the house at Ram-
garh but she could have also taken the help of neigh-
bours from the said village. The medical evidence of
Dr. Maya shankar Thakur – P.W.2 also indicates that
there were no injuries on the person of the prosecutrix
including her private part. her entire conduct clearly
shows that she was a consenting party to the sexual in-
tercourse and if this be so, the conviction of the appel-
lant under Section 376 IPC cannot be sustained. there
is one more additional factor which we must mention
that it is not the case of the prosecutrix that she was
put in physical restraint in the house at Ramgarh, with
the result her movements were restricted. This circum-
stance also goes to negative the case of forcible inter-
course with the prosecutrix by the appellant.”

10

CRA No.1397/1999

18. In the case of Mohammad Ali @ Guddu v.

State of Uttar Pradesh reported in (2015) 7 SCC
272, the Supreme Court has held in paragraph No.29, as
under: –

“29. Be it noted, there can be no iota of doubt that on
the basis of the sole testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a conviction can
be based. In the case at hand, the learned trial Judge
as well as the High Court have persuaded themselves
away with this principle without appreciating the ac-
ceptability and reliability of the testimony of the wit-
ness. In fact, it would not be inappropriate to say that
whatever the analysis in the impugned judgment, it
would only indicate an impropriety of approach. The
prosecutrix has deposed that she was taken from one
place to the other and remained at various houses for
almost two months. The only explanation given by her
is that she was threatened by the accused persons. It is
not in her testimony that she was confined to one
place. In fact, it has been borne out from the material
on record that she had travelled from place to place
and she was ravished number of times. Under these
circumstances, the medical evidence gains signifi-
cance, for the examining doctor has categorically de-
posed that there are no injuries on the private parts.
The delay in FIR, the non- examination of the wit-
nesses, the testimony of the prosecutrix, the associated
circumstances and the medical evidence, leave a mark
of doubt to treat the testimony of the prosecutrix as so
natural and truthful to inspire confidence. It can be
stated with certitude that the evidence of the pros-
ecutrix is not of such quality which can be placed re-
liance upon.”

19. In the case of Lalliram v. State of Uttar
Pradesh reported in (2008) 10 SCC 69, the Supreme
Court has observed in paragraphs No.11 and 12, as un-
der: –

“11. It is true that injury is not a sine qua non for de-
ciding whether rape has been committed. But it has to
be decided on the factual matrix of each case. As was
observed by this Court in Pratap Misra and Ors. v.
State of Orissa (1977 (3) SCC 41) where allegation is of
rape by many persons and several times but no injury
is noticed that certainly is an important factor if the
prosecutrix’s version is credible, then no corroboration
11
CRA No.1397/1999
is necessary. But if the prosecutrix’s version is not
credible then Lalliram Anr vs State Of M.P on 15
September, 2008 there would be need for corrobora-
tion. (See Aman Kumar Ors. v. State of
Haryana [2004 (4) SCC 379].

12. As rightly contended by learned counsel for the ap-
pellants a decision has to be considered in the back-
ground of the factual scenario. In criminal cases the
question of a precedent particularly relating to appre-
ciation of evidence is really of no consequence. In
Aman Kumar’s case (supra) it was observed that a
prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice. There is no rule of
law that her testimony cannot be acted upon without
corroboration in material particulars. She stands on a
higher pedestal then the injured witness. In the latter
case there is injury in the physical form while in the
former both physical as well as psychological and emo-
tional. However, if the court finds it difficult to accept
the version of a prosecutrix on the face value it may
search for evidence direct or circumstantial.”

20. From perusal of the statement of the pros-
ecutrix, it appears that she was taken from one place to
another by public transport, but she did not raise any
alarm. She travelled with the appellant by public tempo
and bus and she was having opportunity to make com-
plaint to co-passenger, that the accused took her force-
fully, but she did not make complaint to any body against
the acts of the accused. She also remained in the com-
pany of the accused for a period of more than forty five
days and during which also, neither she tried to escape
from his custody nor she took help of any person to save
her. According to medical report also, no internal or ex-
ternal injuries were found on the person of the pros-
ecutrix, which clearly indicates that the prosecutrix was
the consenting party. Therefore, the accused cannot be
convicted of the offence punishable under Sections 366
and 376 of the Indian Penal Code, 1860.

12

CRA No.1397/1999

21. In these circumstances, this Court is of the
considered view that the prosecution has failed to prove
that the prosecutrix was abducted and raped by the ap-
pellant / accused. The trial Court has not properly ap-
preciated the evidence available on record and wrongly
convicted the appellant / accused for the aforesaid of-
fence. Hence, the trial Court has committed a legal error
in convicting the appellant / accused for offence punish-
able under Sections 366 and 376 of the Indian Penal
Code, 1860 and sentencing him to concurrently undergo
five years rigorous imprisonment and seven years rigor-
ous imprisonment.

22. Consequently, Criminal Appeal No.1397/1999
is allowed and impugned judgment dated 13.10.1999
passed by 2nd Additional Sessions Judge, Shajapur, Dis-
trict Shajapur (MP) in Sessions Trial No.45/1999 is here-
by set aside; and the appellant is acquitted from offence
under Sections 366 and 376 of Indian Penal Code, 1860.
The appellant is on bail. His bail bond and personal
bond are hereby discharged.

23. Let a copy of this judgment along with record
of the trial Court be sent to the concerned trial Court for
information and necessary compliance.

(S.K. Awasthi)
Judge
Pithawe RC

Digitally signed by Ramesh Chandra Pithawe
Date: 2019.10.18 17:02:55 +05’30’

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