HIGH COURT OF MADHYA PRADESH
Division Bench : Hon’ble Shri Justice J.K.Maheshwari
Hon’ble Shri Justice Akhil Kumar Srivastava
Criminal Appeal No. 1274/2018
State of Madhya Pradesh
Shri Saurabh Bhushan Shrivastava, Advocate for the appellant.
Ms. Manjeet Chuckal, Panel Lawyer for the respondent/ State.
(Jabalpur, Dated 13/8/2018)
Per : J.K. Maheshwari, J.
1. This appeal under Section 374(2) of the Code of Criminal Procedure
(hereinafter to be referred as the Cr.P.C.) read with Section 14-A(1) of the
SC/ST (Prevention of Atrocities) Act has been filed by the appellant being
aggrieved by the judgment of conviction and order of sentence dated
31.1.2018 passed by Special Judge, SC/ST (Prevention of Atrocities) Act,
Narsinghpur in Special Case No. 34/2016 whereby the appellant has been
convicted for the charge under Section 376(1) of the IPC and Sections 3
(1)(xii), 3(2)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Atrocities
Act) and sentenced to R.I. for 7 years with fine of Rs.2000/-, R.I. for 5
years with fine of Rs.2000/- and life imprisonment with fine of Rs.2000/-
respectively with default stipulations. All the sentences are directed to run
2. As per prosecution’s case, the prosecutrix (PW-3) was a resident of
village Juwara and engaged in house-hold work. The husband of the
prosecutrix stored the Paddy after getting it thrashed in the go-down of the
house of Kabraji where the accused used to work as Bataidar. On
14.1.2016 at about 12:00 PM in the noon when the prosecutrix had gone to
the house of Kabraji to take Paddy bags, the accused caught hold the
hand of the prosecutrix, forcefully taken her in a room and committed rape
upon her and threatened her to kill, if disclosed to anyone. When the
husband of the prosecutrix came back from Gadarwara, she informed
about the incident to him as well as to her son Raghvendra and on
16.1.2016 i.e. after two days, the First Information Report was lodged at
Police Station Saikheda. Medical examination was conducted. The Police
has completed other investigations like preparation of the spot map,
collection of the Caste Certificate. The slide was sent for FSL examination.
After completion of investigation, Challan was filed before the competent
Court where the charges under Section 376(1), 506-II of the IPC and
Sections 3(1)(xii), 3(2)(v) of the Atrocities Act have been framed.
3. The accused abjured the guilt and demanded for trial taking defence
that he resides in a joint family at village Chandaun and his father has
been working with Kabra Seth for last about 20-25 years and looks after
his agriculture. He belongs to Rajpoot community, other villagers belong to
Gurjar community with whom the husband of the prosecutrix resides. The
people of Gurjar community intended that the father of the accused should
leave the work of Kabra Seth, therefore, the false report was lodged. It was
further said that the prosecutrix is 50 years of age and has two major sons.
At the relevant point of time, he was working in the field of Prakash Mehra
(DW-1), however, the accused has been falsely implicated in the case.
Learned trial Court relied upon the testimony of the prosecutrix (PW-3) to
convict the appellant without considering the defence of the accused,
however, this appeal has been preferred.
4. Learned counsel for the appellant contends that the appellant has
been falsely implicated in the case due to the enmity between the different
communities. The incident is alleged to have taken place on 14.1.2016 at
about 12:00 PM in the noon but the First Information Report was lodged on
16.1.2014 after two days, though the husband of the prosecutrix came
back on the same day along with his son. The testimony of the prosecutrix
is not of sterling character, which can be relied upon looking to various
omissions and contradictions. The allegation either with respect to external
injury on the person of the prosecutrix or on internal part of the body, is not
corroborated with the medical evidence. The slides were sent for FSL
examination but no FSL report is available on record. In addition, there is
no iota of evidence to convict the appellant for the charges under Section
3(1)(xii), 3(2)(v) of the Atrocities Act. Merely because the appellant is
convicted for the charge under Section 376 of the IPC, therefore, the
sentence of life imprisonment has been directed for the charge under
Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. In view of the
foregoing, it is urged that the conviction of the appellant is without any
basis, therefore, it is liable to be set aside.
5. On the other hand, learned Panel Lawyer for the State has
vehemently argued in support of the findings recorded by the trial Court
inter alia contending that the prosecutrix in her statement has specifically
stated against the appellant regarding commission of rape, therefore, the
trial Court has rightly relied upon the testimony of the prosecutrix while
convicting the appellant though it may not have any support looking to her
age, however, the testimony of the prosecutrix is sufficient to convict the
appellant, therefore, the trial court has not committed any error to convict
the appellant while passing the impugned judgment.
6. After hearing learned counsel for the parties at length and on perusal
of the statement of the prosecutrix (PW-3), it is apparent that the incident
took place on 14.1.2016 at about 12:00 PM in the noon in the broad day
light to which First Information Report was lodged on 16.1.2016 i.e. after
two days. The explanation put forth by the prosecutrix for delay in lodging
the FIR was that her husband was not available in the village, though as
per her own testimony, her husband came back in the evening on the
same day and he asked regarding lodging of the FIR. It is not the case of
the prosecutrix that when her husband came back, she disclosed about the
incident to him and thereafter the FIR was lodged. In addition, the
prosecutrix has two major sons, who were also available in the village and
we fail to understand, why she has not narrated about the incident to them.
In her testimony, she said that at the time of commission of rape, there
was manhandling, in which she received various injuries and her clothes
were completely torn but the aforesaid fact does not find support from the
evidence of Dr. Jyoti Puware (PW-1) because neither any external injury
nor any internal injury was found on the person of the prosecutrix.
Prosecutrix herself stated that she was not willing for the medical
examination but on insistence she agreed for the same. The theory of
commission of rape at the house of Kabra Seth where present appellant
used to work, is an omission from her statement Ex.D-1. Considering all
these aspects, it can safely be observed that the testimony of the
prosecutrix is not of sterling character, which can be relied upon to convict
the appellant for the charge under Section 376 of the IPC particularly when
there is no evidence available on record and defence put forth that there
was a dispute in the village whereby a particular community was intending
that the father of the accused should leave the work of Kabra Seth, thus,
we are of the considered view that the prosecution has failed to prove the
charge under Section 376 of the IPC beyond reasonable doubt against the
7. Apart from that, after perusal of the testimony of the prosecutrix
(PW-3), even there is no whisper regarding the charge under Section 3
(1)(xii) of the Atrocities Act. We are unable to understand, under what
circumstances, the trial Court has convicted the appellant for the charge
under Section 3(1)(xii) of the Atrocities Act in the absence of even a single
word uttered by the prosecutrix during commission of said offence. In that
view of the matter, the conviction of the appellant for the charge under
Section 3(1)(xii) of the Atrocities Act is without any basis, therefore, it is
liable to be set aside.
8. So far as the charge under Section 3(2)(v) of the Atrocities Act is
concerned, once main charge under Section 376 of the IPC has not been
found proved, the appellant cannot be convicted for the aforesaid charge.
9. In view of the aforesaid, in our considered opinion, the trial Court has
passed the impugned judgment without due application of mind and
without appreciating the evidence available on record in the right
perspective, therefore, the impugned judgment is liable to be set aside.
10. Accordingly, this appeal succeeds and is hereby allowed. Impugned
judgment is hereby set aside. The appellant is acquitted from the charge
under Section 376(1) of the IPC and Sections 3(1)(xii), 3(2)(v) of the
SC/ST (Prevention of Atrocities) Act.
11. The appellant is in jail, he be released immediately, if not required in
any other offence.
12. Let a copy of this judgment be sent by the Registry to the trial Court
concerned as well as the jail authorities for communication and
(J.K. Maheshwari) (Akhil Kumar Srivastava)
Digitally signed by