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Lekhram Rajput vs The State Of Madhya Pradesh on 13 August, 2018

(1)

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
Lekhram Rajput
-Versus-
State of Madhya Pradesh
**************
Shri Saurabh Bhushan Shrivastava, Advocate for the appellant.

Ms. Manjeet Chuckal, Panel Lawyer for the respondent/ State.
**************
JUDGMENT

(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

concurrently.

(2)

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
(3)

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.

(4)

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
(5)

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

appellant.

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.

(6)

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

compliance.

(J.K. Maheshwari) (Akhil Kumar Srivastava)
Judge Judge

PB

Digitally signed by
PRADYUMNA BARVE
Date: 2018.08.13
17:51:28 +05’30’

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