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State Of M.P. vs Mahesh Singh on 10 August, 2018

Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh


Hon’ble Mr. Justice Sanjay Yadav.
Hon’ble Mr. Justice Ashok Kumar Joshi.

Criminal Appeal No.659/2006

State of Madhya Pradesh
Mahesh Singh S/o Pancham Singh

For appellant/State :- Shri J.M.Sahni, learned Public
For respondent :- Shri Mehmood Khan, learned

(Pronounced on the 10th day of August, 2018)

Per A.K.Joshi, J.-

In this appeal filed by the appellant/State of M.P.
under Section 378 of Cr.P.C., challenge is to the judgment
dated 17.06.2005 passed by Sessions Judge, Gwalior in
S.T.No.96/2005, whereby present respondent/accused
was acquitted from the charge of offence punishable
under Section 376(1) and Section 506 part-II of the IPC.

2- Undesputedly, on the date of incident
16.01.2005 in the day time, Prosecutrix (PW-3) came
with Sunita (PW-7) in the agricultural field of Rambabu
for cutting grass, however, present respondent was
arrested by the Police on 27.01.2005.


Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

3- Prosecution story, in brief, is that on the date
of incident, i.e., 16.01.2005, when Prosecutrix (PW-3) a
married lady aged about 26 years went to the agricultural
field of Rambabu for cutting grass with Sunita (PW-7)
then respondent Mahesh Singh was present in that field.
Mahesh Singh talked with Sunita (PW-7) for some time
and, thereafter, Sunita went outside from that field, then
after getting a chance, Mahesh Singh came nearer to
Prosecutrix (PW-3) and gave her greed of Rs.150/- and
asked her for making physical relation with him, then
Prosecutrix (PW-3) told the respondent that he should be
ashamed of this because she is his aunt in relation,
thereafter, Mahesh Singh started scuffling with the
Prosecutrix (PW-3) and caught hold Prosecutrix ‘s both
hands and threw her on the soil and, thereafter, Mahesh
Singh removed his pant and underwear and after lifting
the worn sari and petticoat of the Prosecutrix (PW-3), he
forcefully committed rape with the Prosecutrix and after
committing rape, Mahesh Singh threatened the
Prosecutrix (PW-3) that if this fact is disclosed by her to
anyone, she would be killed. Thereafter, Mahesh Singh
fled away towards path of village Madanpura and,
thereafter, Prosecutrix (PW-3) shouted, then Sunita (PW-

7) came nearer to her. The Prosecutrix (PW-3) narrated
the said incident to Sunita and after reaching her house,
Prosecutrix (PW-3) intimated her family members about
the incident and when her husband Hakim Singh came
back to house at 05:00 PM, then he was also intimated
and on the same day, in the night at 09:00 PM, she
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

reached with her husband at the Police Station Purani
Chhawani, which is about 12 KM away, and lodged the
FIR (Ex.P-4), which was inscribed by G.S.Tomar (PW-8),
SHO, Police Station Purani Chhawani.

4- After recording of the FIR, Prosecutrix (PW-3)
was sent to J.A. Group of Hospitals, Gwalior, where, on
the same day, Dr. Urmila Tripathi (PW-1) physically and
sexually examined the Prosecutrix and recorded her
report (Ex.P-1). Dr. Urmila Tomar also seized the
Prosecutrix worn petticoat in a sealed packet and also
prepared slides of vaginal smear of Prosecutrix and sent
the sealed material to relating police station through
constable. Investigating Officer, G.S.Tomar (PW-8) on
17.01.2005, prepared the spot map (Ex.P-5) at the
instance of Prosecutrix and arrested the respondent on
27.01.2005 vide arrest memo (Ex.P-7). After arrest of
the respondent, he was sent to Civil Dispensary,
Janakganj regarding examination of his sexual capacity,
where Dr. Kamlesh Sharma (PW-8) examined the present
respondent and recorded his report as Ex.P-3. The sealed
material of the case were sent for Chemical Examination
to Regional F.S.L. Gwalior with a letter dated 24.04.2005
sent by Superintendent of Police, Gwalior. Later on, report
(Ex.P-8) of above-mentioned laboratory was received.
After completing the formalities of the investigation,
charge-sheet was filed in the Court of JMFC, Gwalior, who
committed arisen criminal case to the Sessions Judge,


Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

5- The above-mentioned charge framed by the
Sessions Judge, Gwalior was denied by the present
respondent. During trial, respondent’s medical report
(Ex.P-3) and F.S.L. report were admitted by the
respondent, therefore, they were admitted in evidence as
Ex.P-3 and Ex.P-8 respectively. Nine prosecution
witnesses were examined before the trial Court. It was
defence of the accused that he has been falsely
implicated in the crime as he was having a previous
enmity with elder brother of husband of the Prosecutrix
(Shrikishna), as respondent was desirous to make the
matrimonial relation of his sister-in-law with Shrikrishna,
which could not be happened. No defence witness was
examined. After hearing, the Sessions Judge Gwalior, vide
impugned judgment acquitted the present respondent
from both the charged offences. Hence, this criminal

6- Appearing Public Prosecutor on behalf of
appellant/State of M.P. vehemently contended that the
evidence of Prosecutrix (PW-3) was corroborated by the
FSL report (Ex.P-8), as spots of semen and human sperm
were found on the sealed petticoat and prepared slide of
vaginal smear by the lady doctor. Husband of the
Prosecutrix -Hakim Singh (PW-6) and other family
members Kamlesh (PW-5) and her Jethani Vimla (PW-4)
have corroborated the evidence of Prosecutrix (PW-3) on
the point that after returning to the house, Prosecutrix
has intimated them about the incident and evidence of
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

Prosecutrix (PW-3) was materially corroborated by her
FIR (PW-4). It is also argued that the learned Sessions
Judge, erred in acquitting the present respondent,
therefore, it is prayed that appeal be allowed and
respondent be convicted for charged offences and be
adequately punished.

7- Per contra, learned Counsel for the respondent
contends that the evidence of Prosecutrix (PW-3) was
not corroborated by Sunita (PW-7) and there were
material contradictions and inconsistencies between the
evidence of Prosecutrix and her FIR (Ex.P-4) regarding
the manner, wherein, alleged rape was committed with
her and the absence of any injury over the body and
private parts of the Prosecutrix indicates that she did not
offer any protest at the time of alleged incident. It is also
argued that as perosecutrix was a married lady, the FSL
report (Ex.P-8) is not enough to connect only respondent
with the incident. Therefore, dismissal of the criminal
appeal is prayed for.

8- It is clear from the evidence of Dr. Urmila
Tripathi (PW-1) and her medical report (Ex.P-1) that on
17.01.2005 at 01:00AM at J.A. Hospital Gwalior, she
medically examined about 26 years old married lady
Prosecutrix , but she did not find any mark of injury over
her body and private parts and, therefore, she was
unable to give any definite opinion regarding recent
sexual intercourse with the Prosecutrix and she also
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

sealed the petticoat worn by the Prosecutrix and
prepared slides of vaginal smear of the Prosecutrix and
sent the sealed material to the relating police station
through the constable, who brought the Prosecutrix for
medical examination. Dr. Urmila (PW-1) deposed in her
cross-examination that at the time of her examination,
Prosecutrix did not make complaint regarding any injury
received by her or regarding pain and she did not find
any stain on the sealed petticoat and the clothes worn by
the prosecutrix. Lady doctor also opined in her cross-
examination that if a lady is raped on a hard surface then
the elbows, hands and back of the lady could receive
marks of injuries.

9- Prosecutrix (PW-3) deposed that Mahesh
Singh is resident of village Susera and witness Sunita
(PW-7) is her aunt and at about 02:30 or 03:00PM on
the date of incident she went with Sunita for taking grass
from the field of Rambabu and at that time Mahesh came
there and talked with Sunita for a long period and,
thereafter, Sunita went outside from that field, then after
getting chance, Mahesh came nearer to her and offered
that she should take Rs.150/- from him and should have
sexual relation with him, then she replied to the accused
that she is his aunt and he should not have such obscene
talk with her. Prosecutrix deposed that she made three or
four calls to Sunita but Sunita did not come because she
was far away from them, thereafter, Mahesh started
scuffling with her for a longtime and therein she kicked
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

Mahesh, but Mahesh forcefully committed rape with her.
Prosecutrix gave details of the incident that Mahesh lifted
her sari and petticoat and, thereafter, zipped his pant and
took out his male organ from his underwear and entered
his male organ in her private parts and during rape, she
was still crying, then Mahesh threatened that on her
shouting he would kill her and after completion of his
work, Mahesh fled away towards the path of village
Madanpura. The detail regarding the manner in which
respondent committed rape with her as deposed by
Prosecutrix is totally different from the facts disclosed in
her FIR (Ex.P-4) wherein she disclosed the facts that
after throwing herself on soil, Mahesh removed his pant
and underwear from his body and, thereafter, sat her sari
and petticoat upwards, forcefully lifted on her body and
committed rape. Prosecutrix in her cross-examination in
Para-14 clearly deposed the fact that “after removing his
pant and underwear by Mahesh Singh”, was not
mentioned by her at the time of recording of FIR, but the
SHO, G.S.Tomar (PW-8) who recorded the FIR (Ex.P-4)
deposed that “B” to “B” marked portion of FIR was
recorded by him, as it was disclosed by the Prosecutrix.
Therefore, material contradictions and inconsistencies are
appearing in the evidence of Prosecutrix (PW-3)
regarding the manner in which present respondent
committed rape with her.

10- Prosecutrix (PW-3) deposed that after
Mahesh’s fleeing away, she came to the farmyard, but at
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

that time Sunita herself came nearer to her, then she
narrated the entire incident to Sunita, thereafter Sunita
advised her that she should not disclose the incident to
her family members otherwise Prosecutrix would be
defamed. Prosecutrix deposed that she immediately
returned to her house, where her sister-in-law Kamlesh
(PW-5) met her and after some time, elder brother of her
husband Shrikrishna came to the house, then she
intimated the incident to both of them. She also
intimated her another jeth Pancham Singh who is a
resident of Gwalior. On the date of incident, her husband
had gone outside, who returned in night, then she
intimated her husband about the incident and after
narrating the incident to all of them, she went to Police
Station, Purani Chhawani on same day at 08:30PM,
where she lodged FIR (Ex.P-4) which is bearing her
signature and later on, she was medically examined in
the late night.

11- Though the Prosecutrix ‘s sister-in-law Kamlesh
(PW-5), Jethani Vimla (PW-4) and her husband Hakim
Singh (PW-6) have corroborated the evidence given by
Prosecutrix that on the same day, when they reached
their house, Prosecutrix intimated them about the
incident of rape committed by Mahesh Singh, but
surprisingly Sunita (PW-7) has not corroborated the
evidence given by the Prosecutrix . Sunita (PW-7) was
declared hostile by the prosecution. Sunita (PW-7)
deposed that on the date of incident, Prosecutrix PW-3
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

had gone for taking grass from the agricultural land of
Mahesh’s brother and when she advised the Prosecutrix
that she should take grass from her own agriculture land,
then Prosecutrix (PW-3) told her that they should go to
Mahesh’s agriculture land for taking grass and when they
both were taking grass from the Mahesh’s agricultural
land, then Mahesh came there, but Mahesh did not talk
with her and did not commit any act in her presence.
Sunita also deposed that she had not left Mahesh and
Prosecutrix in that agricultural land and Prosecutrix did
not intimate her about any incident of rape. She clearly
deposed in cross-examination that she had gone with the
Prosecutrix to the relating agriculture land and in relating
field both of them cut the grass nearer to each other and
both of them returned to their houses jointly. After
declaring Sunita hostile, she denied from giving her police
statement (Ex.P-6) to the Investigating Officer.

12- It is well settled that conviction could be based
only on the evidence of Prosecutrix regarding offence of
rape, provided her evidence is found totally trustworthy.
Prosecutrix deposed in her evidence that before
committing the rape by Mahesh, there occurred a long
scuffle between her and respondent, wherein she kicked
respondent repeatedly. At the time of incident,
Prosecutrix was a married lady of 26 years of age. She
herself has deposed that she kicked before rape on
respondent to indicate her resistance or protest prior to
the rape. She also deposed that thereafter, she was
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

forcefully raped by present respondent, but surprisingly
despite such heavy resistance by the Prosecutrix during
alleged forcefully committed rape, she did not receive any
injury over her body including her private parts. It is clear
from the evidence of Dr. Urmila Tripathi (PW-1) that in
the late night and at the time of medical examination of
Prosecutrix, she did not give complaint about any pain
over any organ or part of her body and even her cloths
were not stained with mud or soil whereas Prosecutrix
(PW-3) deposed in her cross-examination (para-13) that
when she was being thrown on the ground, then she
received blunt injuries on her back and both elbows and
her bangles also got broken and thereby she received
injuries over her wrists. In the same para, she also
deposed that later on when she reached on the spot with
Investigating Officer, then she had given pieces of her
broken bangles to the Investigating Officer, but on this
point, her evidence is not supported by the evidence of
Investigating Officer, G.S.Tomar (PW-8) who prepared the
spot map (Ex.P-5) in the presence of Prosecutrix .
Investigating Officer clearly deposed in his cross-
examination that Prosecutrix did not mention pieces of
her broken bangles and he did not seize broken bangle
and at the time of evidence, Prosecutrix has not deposed
regarding receiving any injury by her or getting her cloths
torn therefore, it is clear that Prosecutrix has introduced
much variation, improvement and exaggeration in her
evidence in comparison to her FIR and her police
statement (Ex.D-1).


Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

13- Procecutrix deposed that at the time of lodging
of FIR and recording of her police statement, she
disclosed the fact that before committing rape, Mahesh
made scuffle with her for a long time wherein, she kicked
on Mahesh repeatedly, but all these significant facts are
totally missing in her FIR (Ex.P-4) and police statement.
In para-15, she deposed that before rape, when Mahesh
offered her Rs.150/- then she repeatedly tried to save
herself and later on when she was thrown on ground and
Mahesh pressed his hands over her neck then she also
cried and all these facts were disclosed by her in her FIR
and Police statement, but all these facts are missing in
her report and police statement.

14- Prosecutrix (PW-3) clearly deposed that in her
report and police statement, she had disclosed that
without removing his pant and underwear, respondent
committed rape only by zipping his pant and took out his
male organ from the worn underwear and pant and in
this position rape was committed by respondent whereas
the facts mentioned in her FIR, shows that respondent
had removed his pant and underwear from his body prior
to committing rape with her.

15- Prosecutrix (PW-3) herself has deposed that
after fleeing away of Mahesh, when she intimated Sunita
aunty about the incident, then Sunita advised her for not
disclosing the fact regarding alleged rape at her house,
otherwise she would be defamed. This fact clearly
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

indicates that actually at the time of alleged rape, no
resistance or protest was offered by the Prosecutrix and
the absence of external injuries, pieces of allegedly
broken bangles and alleged greed of Rs.150/- offered by
the respondent before rape indicates that she was a
consenting party to the alleged sexual activities happened
at the scene of occurrence. Prosecutrix deposed that she
had gone for taking grass with Sunita (PW-7) and it is
common experience that during the cutting grass a sickle
is kept by the person who cut the grass. Therefore, if
Prosecutrix had gone for cutting grass, naturally she
would be having a sickle in her hand and in such situation
during alleged scuffle or her heavy protest, non-use of
sickle appears to the unnatural or surprising. Prosecutrix
deposed in para-16 that when Mahesh was committing
rape with her, even at that time she kicked on Mahesh
several times and she also scratched on the face of
Mahesh by her nails of finger but she was not aware
whether any injury on the face of Mahesh occurred by her
scratching. Allegedly the incident occurred at 03:00PM
and according to evidence of Prosecutrix , after this
incident, she immediately returned back to her house,
but she deposed in cross-examination in para-18 that till
05:00 PM she did not disclose the incident to her family
members because her family members were returning
back to their house slowly and separately and as elder
brother of her husband, had gone for bringing diesel who
returned at about 05:30 PM or 06:00 PM, then she
disclosed the relating facts. All the above-mentioned
Cr.A. No.659/2006
State of M.P. Vs. Mahesh Singh

conduct of the Prosecutrix falsify her evidence that she
disclosed the incident to her family members, just after
returning to house.

16- It is well settled that the scope of interference
in criminal appeal against judgment of acquittal is limited
and in absence of any perversity in the finding recorded
by the trial Court, such judgment of acquittal could not
be interfered.

17- We are of the considered opinion that the trial
Court has properly and legally analyzed and appreciated
the entire evidence available on record and did not err in
acquitting the present respondent from the charged
offences. The appeal filed by the State/appellant appears
to be devoid of any substance.

18- Consequently, this appeal filed by the appellant
fails and is hereby dismissed. With a copy of this
judgment, the record of the trial Court be immediately
sent back.

(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
10/08/2018 10/08/2018


Digitally signed by
Date: 2018.08.13
10:33:15 +05’30’

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