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HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.372/1999
Rajesh Sharma and another
-Versus-
State of Madhya Pradesh
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CORAM :
Hon’ble Shri Justice Hemant Gupta, Chief Justice.
Hon’ble Shri Justice Vijay Kumar Shukla, Judge.
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Shri S.C.Datt,Senior Advocate with Shri Siddharth
Datt,Advocate for the appellants.
Ms. Namrata Agrawal, Government Advocate, for the State.
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JUDGMENT
(Jabalpur dt.: 09.08.2018)
Per : V.K. Shukla, J.-
In the present appeal filed under Section 374(2) of the
Code of Criminal Procedure, challenge has been made to the
order of conviction and sentence dated 18-01-1999, passed by
7th Additional Sessions Judge, Bhopal in S.T.No.90/1997,
whereby the appellants have been convicted and sentenced as
under :
APPELLANT NO.1 RAJESH SHARMA
Conviction Sentence
Under Section 376(2)(g) R.I. for life and fine of
of IPC. Rs.50,000/-,in default of
payment of fine, further
R.I. for 3 years.
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Under Section 366 of R.I. for 5 years and fine of
IPC Rs.2000/-, in default of
payment of fine, futher
R.I. for 1 year.
Under Section 506(II) of R.I. for one year and fine
IPC of Rs. 1000/-, in default of
payment of fine, further
R.I. for 3 months.
(Substantive sentence to run concurrently)
APPELLANT NO.2 NEHRULAL SHARMA
Conviction Sentence
Under Section 376(2)(g) R.I. for life and fine of
of IPC. Rs.50,000/-, in default of
payment of fine, further
R.I, for 3 years.
2. The prosecution case is that with respect to an offence
of rape committed on the prosecutrix (PW-4)(name is not being
mentioned), aged about 24 years, daughter of Teekaram. The
mother of the prosecutrix (PW-3) Poona Bai used to clean
utensils in the house of absconding accused Shailendra Paul.
The prosecutrix had passed her M.A. examination in Social
Science and was in search of employment. Shailendra Paul
together with appellant no.1 Rajesh Sharma went to her house
on 07-09-1995 and represented to her that he would sent her
to the house of his uncle at Bhopal, where she would get
service. On 08-09-1995, the prosecutrix left for Bhopal
alongwith appellant no.1 Rajesh Sharma and she was told that
she would stay at the house of appellant no.2 Nehrulal
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Sharma till she secures a service. Nehrulal Sharma was living
in that house alongwith his sister and his brother-in-law. On
09-09-1995, at about 8.00 p.m., appellant no.1 Rajesh
Sharma is alleged to have committed rape and thereafter the
absconding accused Shailendra Paul committed rape. After
that appellant no.2 Nehrulal Sharma also committed rape on
her. That was repeated on the next night also.
3. On 19-10-1995, a written report was submitted by the
prosecutrix to Police Inspector Jabalpur and the same was
forwarded to Mahila Police Station, Jabalpur. The same was
again produced before the C.S.P. Civil Lines, Jabalpur on
27-10-1995. On the basis of which, the case was registered
in Mahila Police Station Jabalpur. The prosecutrix was sent
for medical examination and the documents produced by her
were seized. Accused Rajesh and Nehrulal were arrested.
Handwriting of accused Rajesh was got examined by
handwriting expert and after investigation the charge sheet
was filed against three persons appellants and one more
Shailendra Paul, who had absconded and was not available for
the trial .
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4. The appellants denied the charges and submitted that
they have been falsely implicated as the prosecutrix, her
mother and sister demanded money from appellant no.2
Nehrulal Sharma and since it was not given, a false case has
been lodged. It is further submitted in defence that in
response to an advertisement in the news paper on 25-08-
1975 Ex.D-14, the prosecutrix had gone to Bhopal on her own
will and stayed there at the house of appellant no.2 Nehrulal’s
sister and brother-in-law. It is further submitted by the
learned counsel for the appellants that the affidavit and other
documents including photographs proves that she had
married appellant no.2 Nehrulal on her own free will. The
documents were seized by the Investigating Officer PW-11
M.S.Parihar. The seizure was done from the prosecutrix on
27-09-1995. An affidavit was also sworn by the prosecutrix
before DW-3 B.K.Sanghi, a notary who has also affirmed that
she made statement on her own free will after understanding
the contents thereof.
5. Learned counsel for the appellants submitted that no
case for forcible sexual intercourse falling within the definition
of rape under section 375 of IPC has been established by the
prosecution. It is contended that the contention of the
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prosecutrix that she was subjected to forcible sexual
intercourse on the false promise of employment cannot be
accepted in the present case as the prosecutrix was 24 years
old lady and highly educated. Further as per the testimony of
the evidence of the mother and sister of the prosecutrix, it has
come on record that they had also visited at Bhopal where the
prosecutrix was residing with appellant no.2 Nehrulal after
marriage. It is further submitted that upon perusal of the
photographs, it is evincible that there was no threat or any
undue force applied for the marriage. After marriage they had
also visited Bhedaghat in Jabalpur. Thus, the trial court has
committed an error convicting the appellants on the ground
that the consent of the prosecutrix was obtained by false
promise of employment, which amounts to rape.
6. Per contra, learned counsel for the State submitted that
the conviction of the appellants is based on proper
appreciation of the evidence. The prosecutrix was taken from
Jabalpur on the promise that she will be given a job and
thereafter she was exploited physically by the appellants and
she was fraudulently made to marry appellant no.2 Nehrulal
Sharma as he was already married.
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7. We have heard the learned counsel for the parties. In
order to appreciate, we apt to consider first the evidence of the
prosecutrix, who has been examined as PW-4. She stated that
she was residing at Jabalpur and Shailendra Kumar Patel
was residing close to her house. He used to come to her house.
He brought accused Rajesh Sharma to her house and he was
introduced by him. Appellant no.2 was made acquainted to
her by appellant Rajesh Sharma. She admitted that she is
aged about 24 years and possessed of Post Graduate degree
M.A. On 07-09-1995 abscond accused Shailendra brought
Rajesh to her house and said that his uncle is at Bhopal and
he will make all arrangements for her service at Bhopal and
therefore, she should go to Bhopal and can live there.
Thereafter, appellant Rajesh and Shailendra came to her
house to bring her from Jabalpur to Bhopal and Shailendra
stated that he will not go to Bhopal alognwith her and
therefore, she came to Bhopal alongwith accused Rajesh. She
came to Bhopal by bus. She was taken to the house of
Nehrulal Sharma where his sister and brother-in-law were also
staying. It is alleged that on 09-09-1995, appellant no.1
Rajesh Sharma first committed forcible sexual intercourse
with her and thereafter another accused Shailendra and
appellant no.2 Nehrulal violated her. It is alleged that on the
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next day also same was repeated. In para-8 she states that on
the next day she talked to her sister. Thereafter her sister had
come to Bhopal. She had gone to take her and came to the
house in Mini Bus. She had not disclosed the incident to her
sister. She alleges that again she was violated by the accused
persons. After her sister had gone back, the mother of
appellant no.2 Nehrulal Sharma came and thereafter they got
married. At the time of marriage, she came to know that
Nehrulal is already married and there are two children. The
photographs of the marriage were also taken. After marriage,
she was taken to Gwalior. From Gwalior, she came back to
Bhopal. Then she came to know that accused Rajesh had sold
her to Nehrulal Sharma. On 19-10-1995 she lodged the report.
8. The prosecutrix was examined by PW-10 Dr.Sulekha
Trivedi on 27-10-1995 but no injury was found on her person.
There was old rupture in her hymen and her private part
easily admitted two fingers and she was found used to sexual
intercourse. On assimilation of the testimony of the
prosecutrix, other witnesses and photographs, it is evincible
that she had married appellant no.2 Nehrulal on her own free
will. These photographs were seized by the Investigating
Officer PW-11 M.S.Parihar from the prosecutrix on 27-10-95.
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An affidavit was also sworn by her before DW-3 B.K.Sanghi,
who is a notary. He had affirmed that the prosecutrix had
stated before him that she was making affidavit on her own
will after understanding the contents thereof. PW-6 Harish
Chandra Vidya Wachispati stated that on 25-10-1995 the
prosecutrix had applied in writing that she wanted to get
married to Nehrulal Sharma. The witness asked the parties to
come after one month with an affidavit which was done by the
parties and thereafter he married them. In her cross-
examination, there is no suggestion that his evidence is not
correct. Another witness PW-5 Jai Kumar Jain, the landlord of
the house in which appellant no.2 Nehrulal Sharma lived with
his brother-in-law Raju and sister also stated that the
prosecutrix lived in the house and that the mother of the
prosecutrix had also come and stayed there. He further stated
that appellant no.2 Nehrulal Sharma had married prosecutrix
and stayed in his house for about two and half months. He
further stated that the sister of the prosecutrix had also come
and stayed in their house. During this period, the mother and
sister of the prosecutrix used to come and stay in that house.
PW-8 Videsh Kumar, who is married to the elder sister of the
prosecutrix had also come to Bhopal on 05-10-1995, where
he learnt that the prosecutrix had married appellant no.2
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Nehrulal Sharma and had gone to Gwalior. He met the
prosecutrix after about 25 days at Jabalpur. The story of the
prosecutrix that she was administered some drug was not
found to be established and the same was rejected by the trial
court in paragraph-23 of the judgment.
9. The defence of the accused persons is that they have
been falsely implicated as after the marriage, the mother and
sister of the prosecutrix demanded money from appellant no.2
Nehrulal Sharma and since it was not given, false report has
been lodged. The defence version is that in response to an
advertisement in the News Paper on 25-08-1995 Ex.D-14, the
prosecutrix had gone to Bhopal on her own will and stayed
there in the house of appellant no.2 Nehrulal’s sister and
brother-in-law.
10. Thus, on consideration of the testimony of the
prosecutrix and taking into consideration the fact that the
prosecutrix is aged about 24 years and is highly educated
possessing Post Graduate Degree of M.A. in Social Science, the
story of the prosecution is not plausible that the prosecutrix
was taken from Jabalpur to Bhopal on the promise of
employment and false promise of marriage. Ex.P-6 is a letter
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issued from the Indian International Rural Cultural Centre,
New Delhi addressed to the prosecutrix acknowledging an
application of the prosecutrix for appointment and further
giving appointment subject to the condition that she would
require to work in Delhi. PW-12 Sadhana Singh, Station
House Officer of the Mahila Thana, Bhopal had sent this letter
to the party concerned in Delhi and the letter was found to
be genuine. Thus, the prosecution could not establish that
there was any false promise of giving employment and
marriage given by the appellants to the prosecutrix. There was
no material to prove the allegation that appellant no.2
Nehrulal Sharma was already married and was having two
children barring the bald statement of the prosecutrix. Further
taking into consideration the testimony of PW-3 Poona Bai,
mother of the prosecutrix, PW-2 Somwati sister of the
prosecutrix and also statement of PW-8 Videsh Kumar, it
leaves no doubt that the prosecutrix was living with appellant
no.2 Nehrulal Sharma on her own will. Further a lady of 24
years old with the background of education of M.A. it is highly
improbable that she was taken from Jabalpur to Bhopal on
the pretext of promise of employment and there she stayed for
a long time with appellant no.2 Nehrulal Sharma without
making any complaint to any family member. It is also not
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believable that the prosecutrix was subjected to forcible
intercourse by the three persons in a rented house but she did
not raise any alarm at any stage. Thus, the testimony of
prosecutrix does not inspire the confidence of this court and
her testimony is not trustworthy.
11. In view of the aforesaid assimilation of the entire facts,
evidence and circumstances of the case, we find that the
prosecution could not prove its case beyond doubt and the
accused persons are entitled for the benefit of doubt.
Accordingly, the appeal is allowed. The order of conviction
and sentence is set aside. The appellants be set at liberty
forthwith, if not wanted in any other case.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
Hsp.
Digitally signed by
HARSAHAI PATERIYA
Date: 2018.08.10 10:23:07
+05’30’