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Kalyan @ Kallu vs The State Of M.P. on 15 March, 2018

1 CRA 81/2005

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
SB:- Hon’ble Shri Justice G. S. Ahluwalia

CRA 81/2005
Kalyan alias Kallu
Vs.
State of MP

Shri Brijesh Sharma, counsel for the appellant.
Shri Devendra Chaubey, Public Prosecutor for the
respondent/ State.

JUDGMENT

(Delivered on 15/03/2018)

This Criminal Appeal under Section 374(2) of CrPC has

been filed against the judgment and sentence dated 17 th

January, 2005 passed by Second Additional Sessions Judge,

Shivpuri in Sessions Trial No. 251/2004, by which the

appellant has been convicted under Section 376 of IPC and

sentenced to undergo the rigorous imprisonment of seven

years and fine of Rs.2,000/- with default imprisonment.

(2) The necessary facts for the disposal of the present

appeal in short are that on 27/09/2004 at about 11:00 am

the appellant forcibly committed rape on the prosecutrix

against her consent. According to the prosecution case, on

28/09/2004, the prosecutrix lodged a FIR in Police Station

Govardhan (Shivpuri) on the allegation that on 27/09/2004

at about 11:00 am, she had gone to her field to give water

to her cattle and at that time, the appellant came there and
2 CRA 81/2005

with an intention to do ”Burakam” took her at the side of a

hut, threw her on the ground and when she raised an alarm,

he gagged her mouth and committed rape on her. The

prosecutrix was, all times continuously shouting but since

the hut where the incident had taken place, was situated at

an isolated place, therefore, nobody came there to rescue

her. At that time, her mother-in-law Ajoodhi Bai came on

the spot, who saw the appellant committing rape on the

prosecutrix and, therefore, she abused him and pushed him,

as a result of which the appellant ran away after leaving

her. In the evening, her elder brother-in-law (Jeth) Hiraman

came back to the house and thereafter, she went to the

police station along with her brother-in-law (Jeth) and

lodged the FIR. After registering the case, the police sent

the prosecutrix for medical examination and the appellant

was arrested. Spot map was prepared and the police, after

completing the investigation, filed the charge sheet against

the appellant for offence under Section 376 of IPC.

(3) The trial Court by order dated 02/12/2004 framed the

charge under Section 376 of IPC.

(4) The appellant abjured his guilt and pleaded not guilty.

(5) The prosecution, in order to prove its case, examined

prosecutrix (PW1), Gayajit (PW2), Ajoodhi Bai (PW3),

Hariballav (PW4), Brijlal Sharma (PW5), Sitaram Rawat
3 CRA 81/2005

(PW6), Dr. Anjna Jain (PW7) and O.P. Jain (PW8). The

appellant did not examine any witness in his defence.

(6) The trial Court by judgment dated 17 th January, 2005,

convicted the appellant for offence under Section 376 of IPC

and sentenced him to undergo the rigorous imprisonment of

seven years and fine of Rs.2,000/- with default

imprisonment.

(7) Challenging the judgment and sentence passed by the

trial Court, it is submitted by the counsel for the appellant

that in fact, the prosecutrix herself was a consenting party

and since she was seen by her mother-in-law in

compromising position with the appellant and, therefore, a

false FIR was lodged. If the offence was committed by

throwing the prosecutrix on the rough surface, then the

prosecutrix herself should have sustained some external

injury but no injury was found by doctor on the body of the

prosecutrix. It is further submitted that the trial Court has

convicted the appellant by ignoring the material omissions

and contradictions in the evidence of the witnesses.

(8) Per contra, it is submitted by the counsel for the State

that the trial Court after considering the evidence in detail,

has rightly convicted the appellant for offence under Section

376 of IPC. The prosecutrix has specifically stated that she

was sexually violated by the appellant and it is well-

4 CRA 81/2005

established principle of law that the prosecutrix cannot be

treated as an accomplice and, therefore, if the evidence of

the prosecutrix is worth-reliance, looking for corroboration is

nothing, but it is adding an injury to her insult.

(9) Heard the learned counsel for the parties.

(10) Dr. Anjna Jain (PW7) has medically examined the

prosecutrix. She did not find any sign of injury over the

private part of the prosecutrix and hymen was found old

ruptured. No tenderness was found. Slides were prepared

and handed over to the Constable. The prosecutrix was

wearing Tobacco coloured petticoat at the time of

examination and it was having multiple white-stain areas,

therefore, it was sealed and handed over to the Police

Constable and this witness did not find any sign of injury or

violence on any part of the body of the prosecutrix. The MLC

report is Ex.P7.

(11) The prosecutrix (PW1) has stated that the appellant is

known to her. About three months back, she had gone to

her field for giving water to her cattle and it was around

12:00 noon. The moment, she entered into her hut situated

in the field, the appellant came there and caught hold of

her. She raised an alarm, but since nobody was there,

therefore, nobody came to rescue her. The appellant

thereafter forcibly committed sexual intercourse without
5 CRA 81/2005

her consent. The appellant before committing the offence,

had taken off his clothes and had also taken off her clothes.

Her mother-in-law came on the spot and abused the

appellant and thereafter, the appellant after pushing her

mother-in-law, ran away. Thereafter, in the night, her elder

brother-in-law (Jeth) came back to the house and then, she

went to the police station along with her elder brother-in-

law (Jeth) for lodging the report. The FIR was lodged and

the police prepared the spot map. The prosecutrix was sent

for medical examination and her statement was recorded.

(12) By referring to paragraph 7 of the cross-examination

of prosecutrix, it is submitted by the counsel for the

appellant that the prosecutrix has admitted that she got

married about 20 years back and the appellant resides in a

house situated in front of her house. She has further

admitted that her mother-in-law had a suspicion on her

character. She has further admitted that her mother-in-law

had a suspicion that the prosecutrix has illicit relations with

the appellant. By referring to the evidence of Ajoodhi Bai

(PW3), it is submitted by counsel for the appellant that

Ajoodhi Bai (PW3) has stated that the prosecutrix is her

daughter-in-law. It was around 12:00 noon. The prosecutrix

had gone to the field for giving water to her cattle and as

the ox was injured, therefore, this witness went to the field
6 CRA 81/2005

along with ointment for applying on the broken horn of the

ox. She saw that her daughter-in-law (prosecutrix) was on

the ground and the appellant was sitting over her and was

committing rape on her. Thereafter, she abused the

appellant and asked that what is he doing with her

daughter-in-law? The appellant thereafter ran away after

pushing her. Both her sons had gone to see a fete (mela).

The appellant had also come to her house and abused her.

When her son came back to the house in the evening, then

she and her daughter-in-law narrated the incident to him.

The police came to the village where her daughter-in-law

lodged the FIR. In cross-examination, this witness has

stated that her son had gone to see a fete (mela). At about

11:00- 12:00 pm, her daughter-in-law (prosecutrix) had

gone to the field and about half an hour thereafter, this

witness had gone to the field. She has stated that the hut,

where the offence was committed, is used for tying the

cattle. When she came from back the field, she did not

narrate the incident to any neighbourer.

(13) Gayajit (PW2), is the elder brother-in-law (Jeth) of the

prosecutrix. He has narrated this incident in the same

manner, in which Ajoodhi Bai (PW3) has deposed. He had

stated that when he came back to the house, he was

informed by his mother Ajoodhi Bai (PW3) about the
7 CRA 81/2005

incident and thereafter, on the next day, he went to the

police station with the prosecutrix to lodge the FIR.

(14) Hariballav (PW4) is the husband of the prosecutrix

(PW1). He has stated that he had gone to see a fete (mela)

and thereafter, he stayed back in the house of his sister,

therefore, he came to the house after a day. He was

informed by the prosecutrix (PW1) and his mother Ajoodi

Bai (PW3) about the incident.

(15) Brijlal Sharma (PW5) is the person, who had prepared

the spot map. In cross-examination, he has stated that the

place of incident is a charnoi land and the name of the

prosecutrix is not mentioned in the revenue record.

(16) Sitaram Rawat (PW6) has stated that the counter of

FIR is Ex.P3, which was sent to the concerning Magistrate

by dispatch no.2035. The copy of dispatch register is Ex.P4

and photocopy of the same is Ex.P4C. The copy of dak book

is Ex.P5C. The sealed packet containing clothes of the

prosecutrix was received from the Hospital on 29/09/2004,

which was seized by seizure memo Ex.P6.

(17) O.P. Jain (PW8) is the person, who had investigated

the matter. This witness has not stated that the seized

clothes or vaginal slide of the prosecutrix were ever sent to

FSL. Thus, the FSL report is not available on record.

(18) If the evidence of the prosecutrix (PW1) and Ajoodhi
8 CRA 81/2005

Bai (PW3) is considered, then it is clear that Ajoodhi Bai

(PW3) had a suspicion on the character of the prosecutrix

(PW1) and she had a suspicion that the prosecutrix (PW1)

had illicit relations with the appellant. On the date of

incident, Ajoodhi Bai (PW3) reached the spot and found that

the prosecutrix was on the ground and the appellant was

committing rape on her. Ajoodhi Bai (PW3) has not stated

that at the time when she reached the spot, any resistance

was being offered by the prosecutrix. Ajoodhi Bai (PW3) has

also not stated that the prosecutrix was shouting or raising

any alarm. The hut, where the incident is alleged to have

taken place, is situated at an isolated place, as admitted by

the prosecutrix. If the explanation given by the prosecutrix

of raising an alarm is accepted, then it was expected that

during the entire time of incident, she should have offered

her resistance to the physical violence by the appellant,

whereas Ajoodhi Bai (PW3) who reached the spot, has not

stated that any resistance was being offered by the

prosecutrix or she was shouting or raising an alarm. She

has also not stated that prior to reaching the spot, she

heard alarm or shouts raised by the prosecutrix. This

witness had admitted that the hut, where the incident is

alleged to have taken place, is used for tying the cattle.

Thus, it is clear that the place where the incident had taken

place, must be a rough place and under these
9 CRA 81/2005

circumstances, it was expected that the prosecutrix would

have suffered some external injury, but Dr. Anjna Jain

(PW7) has specifically stated that no sign of physical

violence was found on the body of the prosecutrix. Thus,

this Court is of the view that the evidence which has come

on record, indicates that the prosecutrix herself was a

consenting party, because when she went to a hut which is

situated at an isolated place, there was nobody around the

place of incident and possibility of inviting the appellant by

the prosecutrix herself is not ruled out. Ajoodhi Bai (PW3)

has specifically stated that when she reached the spot, she

found that the prosecutrix was lying on the ground and the

appellant was committing rape. However, there is no

allegation that the prosecutrix was offering any resistance.

Further, although the clothes and vaginal slide of the

prosecutrix were seized, but no FSL report is available on

record.

(19) The Supreme Court in the case of Narendra Kumar

vs. State (NCT of Delhi), reported in (2012) 7 SCC 171

has held as under:-

”29. However, even in a case of rape, the onus is
always on the prosecution to prove, affirmatively
each ingredient of the offence it seeks to establish
and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why
in a rape case the victim and other witness have
falsely implicated the accused. Prosecution case
has to stand on its own legs and cannot take
support from the weakness of the case of defence.

10 CRA 81/2005

However great the suspicion against the accused
and however strong the moral belief and
conviction of the court, unless the offence of the
accused is established beyond reasonable doubt
on the basis of legal evidence and material on the
record, he cannot be convicted for an offence.

There is an initial presumption of innocence of the
accused and the prosecution has to bring home
the offence against the accused by reliable
evidence. The accused is entitled to the benefit of
every reasonable doubt. (Vide: Tukaram Anr. v.
The State of Maharashtra,, AIR 1979 SC 185; and
Uday v. State of Karnataka, AIR 2003 SC 1639).

30. Prosecution has to prove its case beyond
reasonable doubt and cannot take support from
the weakness of the case of defence. There must
be proper legal evidence and material on record to
record the conviction of the accused. Conviction
can be based on sole testimony of the prosecutrix
provided it lends assurance of her testimony.
However, in case the court has reason not to
accept the version of prosecutrix on its face value,
it may look for corroboration. In case the evidence
is read in its totality and the story projected by
the prosecutrix is found to be improbable, the
prosecutrix case becomes liable to be rejected.

31. The court must act with sensitivity and
appreciate the evidence in totality of the
background of the entire case and not in the
isolation. Even if the prosecutrix is of easy
virtue/unchaste woman that itself cannot be a
determinative factor and the court is required to
adjudicate whether the accused committed rape
on the victim on the occasion complained of.

32. The instant case is required to be decided in
the light of the aforesaid settled legal
propositions. We have appreciated the evidence
on record and reached the conclusions mentioned
hereinabove. Even by any stretch of imagination it
cannot be held that the prosecutrix was not
knowing the appellant prior to the incident. The
given facts and circumstances, make it crystal
clear that if the evidence of the prosecutrix is read
and considered in totality of the circumstances
alongwith the other evidence on record, in which
the offence is alleged to have been committed, we
are of the view that her deposition does not
inspire confidence. The prosecution has not
disclosed the true genesis of the crime. In such a
fact-situation, the appellant becomes entitled to
the benefit of doubt.”
11 CRA 81/2005

In the case of Lalliram and Another vs. State of

Madhya Pradesh, reported in (2008) 10 SCC 69 has held

as under:-

”11.It is true that injury is not a sine qua non
for deciding 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 is necessary. But if the
prosecutrix’s version is not credible then there
would be need for corroboration. (See Aman
Kumar Ors. v. State of Haryana(2004 (4) SCC

379).

12. As rightly contended by learned counsel for
the appellants a decision has to be considered in
the background of the factual scenario. In
criminal cases the question of a precedent
particularly relating to appreciation 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
emotional. 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) This Court is of the view that in fact, the physical

relations between the appellant and the prosecutrix had

taken place with the consent of the prosecutrix. Since the

prosecutrix is a married and major woman, therefore, her

consent is of considerable importance. A consensus act of

physical relations between two major persons cannot be
12 CRA 81/2005

said to be a ”rape”. Accordingly, this Court is of the

considered opinion that the prosecution has failed to prove

beyond reasonable doubt that the appellant had committed

rape on the prosecutrix without her consent. Accordingly,

the appellant is acquitted of the charge under Section 376

of IPC.

(21) Consequently, the judgment of conviction and

sentence dated 17th January, 2005 passed by Second

Additional Sessions Judge, Shivpuri in Sessions Trial

No.251/2004 is hereby set aside.

(22) The appellant is on bail. His bail bonds and surety

bonds are discharged.

(23) The appeal is Allowed.

(G.S. Ahluwalia)
Judge

MKB

Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2018.03.16 18:38:32 +05’30’

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