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Rajesh Sharma & Anr. vs The State Of M.P. on 9 August, 2018

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HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.372/1999

Rajesh Sharma and another

-Versus-

State of Madhya Pradesh

————————————————————————————————
CORAM :
Hon’ble Shri Justice Hemant Gupta, Chief Justice.
Hon’ble Shri Justice Vijay Kumar Shukla, Judge.
————————————————————————————-
Shri S.C.Datt,Senior Advocate with Shri Siddharth
Datt,Advocate for the appellants.

Ms. Namrata Agrawal, Government Advocate, for the State.
—————————————————————————–

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.

2

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.

6

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.
8

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
10

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’

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