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Vinod vs The State Of Madhya Pradesh on 24 August, 2018

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HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P GUPTA)

Criminal Appeal No. 1087 /2013
Vinod
Vs.
State of Madhya Pradesh

Shri Mukesh Pandey, learned counsel for the appellant.
Shri B.P Pandey, learned G.A for the respondent/State.

JUDGMENT

{ 24/08/2018 }

Per J.P.Gupta, J :

This appeal has been preferred assailing the
judgment dated 29/04/2013 passed by the 1 st Additional Session
Judge, Chhindwara, in Session Trial No.264/2012 whereby the
appellant has been convicted under section 376(1), 307 and 506
Part-I of IPC and sentenced to undergo R.I. for 10 years, R.I for 10
years and R.I for 2 years along with fine with default
stipulations .

2. The facts giving rise to this appeal are that as per
prosecution case on 23/07/2012 near about 10 PM prosecutrix
aged about 16 years, went to answer call of nature out of her
house, suddenly appellant came over there and squeezed mouth
of the prosecutrix and dragged her towards near the well and
under the threat of killing her he committed sexual intercourse
with her. When the prosecutrix told that she would disclose the
incident to her mother, the appellant pushed her into the well.

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She fell down into the well, which was deep and dry and
sustained injuries on her head, hand and waist and became
unconscious. In the morning time she regained consciousness
and cried then villagers and her parents gathered on the place of
incident and brought her out from the well and was taken for
treatment to Govt. Hospital Pandurna and thereafter to Nagpur
and after treatment at Nagpur, she revealed the incident to her
parents and then lodged the FIR Ex.P-3 on 23/07/2012 at police
station Pandurna, District Chhindwara where Crime No.357/2012
under section 376, 506, 307 of IPC was registered and
prosecutrix was examined by medical expert and
appellant/accused was also arrested and medically examined
and after completion of the formalities of investigation, the
charge sheet was filed before the Judicial Magistrate First Class,
Pandurna, District Chhindwara and case was committed to
Session Court where the case was tried by 1 st Additional Session
Judge, Chhindwara.

3. The learned Trial court framed aforesaid charges against
the appellant and the appellant abjured his guilt and claimed to
be tried. His defence was that he is innocent and prosecutrix
accidentally fallen into the well and later on under the influence
of her parents the false report has been lodged against the
appellant and after completion of the trial, the learned trial court
convicted and sentenced the appellant as mentioned earlier.

4. The findings of the learned trial court has been assailed in
this appeal on the ground that the case is mainly based on the
evidence of the prosecutrix and admittedly on the date of
incident after regaining consciousness, she did not stated that
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appellant committed rape with her and pushed her into the well
and she has also not disclosed this fact to the doctor who
treated her and also not disclose to her parents and after 14 days
of the incident, FIR has been lodged stating that on account of
fear she did not disclose the fact to any body, which is not
creditable explanation and there is also no medical evidence to
corroborate the fact about commission of forcible sexual
intercourse with the prosecutrix. In such circumstance, merely
on the basis of the suspicious statement of the prosecutrix, the
appellant can’t be convicted for such heinous offence. Thus the
conviction and sentence of the appellant be set aside and he be
acquitted.

5. Learned G.A has supported the findings of the learned
trial court and opposed the aforesaid contentions of the learned
counsel for the appellant stating that the findings of the learned
trial court are based on sound evidence. Hence no interference is
required in the findings of the trial court and prayed for rejection
of this appeal.

6. Having considered the contention of learned counsel for
the parties and on perusal of the record, on the date of alleged
incident 23/07/2012 age of the prosecutrix was more than 16
years as learned trial court has given its finding in paragraph 17
and 18 of the judgment, which is not under challenge by any
party and same is found to be uninterferable.

7. Prosecutrix (PW-1) in her statement has stated that on the
fateful night when she went to answer the call of nature out her
house, the appellant squeeze her mouth and dragged her
towards the well and under the threat of killing her he
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committed sexual intercourse with her and when she stated that
she will disclose the incident to her parent, the appellant pushed
her towards the well and she fell down in the well and sustained
injuries on her head, hand and waist and became unconscious. In
the morning about 4 o’clock on regaining consciousness, she
cried then villagers and her parent gathered and took out her
from the well and then she was taken to Govt. Hospital
Pandurna and thereafter to Nagpur Hospital where she admitted
for 3 days and came back to her house and narrated the incident
to her parent and lodged report Ex.P-3.

8. However, the mother of the prosecutrix Yashodha Kavarati
(PW-4) and father Gorakh Rao Kavarati (PW-5) have stated that
when the prosecutrix was taken out of the well she disclose that
she went to answer the call of nature and slipped near the well
and fallen down in the well and she remained unconscious for 2
days and after 3 days she narrated the incident. They have also
narrated that soon after the incident press photographer and
video-grapher took interview of the prosecutrix and prosecutrix
disclosed them that she fell down accidentally. Father of the
prosecutrix Gorakh Rao Kavarati (PW-5) has also stated that he
was informed by the prosecutrix after 10-15 days of the incident.
Aforesaid statement of parents of the prosecutrix show that
initially prosecutrix disclosed different version of the incident.

9. Dr. Ravindra Kumar Pal (PW-9) also stated that on
24/07/2012 in Community Health Centre, Pandurna he examined
the prosecutrix, who fallen down into the well at the time of
examination she did not narrated that she was pushed into the
well by somebody or rape was committed with her and she was
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conscious and talking and she was brought by Sub Inspector
Mukesh Yadav. This fact show that incident was reported to the
police. Later on 09/08/2012 prosecutrix was examined by Dr.
Chaya Chouhan (PW-2) at Community Health Centre, Pandurna
she opined that there was no sign of struggle on the person of
prosecutrix. She was habitual of sexual intercourse, hence the
medical evidence also not support the version of the
prosecutrix.

10. Prosecutrix has also stated that after committing sexual
intercouse by the appellant, she was pushed towards the well
and fell down into the well. She was completely naked and the
clothes were also thrown into the well by the appellant. She also
sustained injury, and her private part was bleeding and there
was blood stain on her clothes but the parents of the prosecutrix
have not stated that at the time when prosecutrix was taken out
from the well she was naked or having blood stain on her
clothes. Doctor who initially examined her has also not noticed
blood stain on her cloth and she has not stated having injury on
her private part. Even Dr. Chaya Chouhan (PW-2) also not stated
that there was any mark of injury on her private part.

11. In view of the aforesaid contradictory and inconsistent
statement of the prosecutrix, she can’t be considered to be
truthful, creditable and reliable witness. There is no
corroboration of her statement from any other material and
contrary to it the statement of other witnesses impeach the
creditably of the prosecutrix. Considering this aspect of
evidence, it is considered view of this Court that it can’t be said
that the prosecution has succeeded to prove the charges
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beyond the reasonable doubt, therefore the appellant’s
conviction can’t be upheld. Hence the appeal is allowed and
appellant conviction and sentence is set aside and appellant is
acquitted of the offences. Appellant is in custody, if he is not
required in any other case he be released forthwith.

A copy of this judgment be sent to the concerned trial court
and jail authorities for information and necessary action.

Certified copy as per rules.

(J.P Gupta)
JUDGE
Digitally
tarunsigned
by TARUN
KUMAR
SALUNKE
Date: 2018.08.27
13:56:47 +05’30’
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HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P GUPTA)

Criminal Appeal No. 1087 /2013
Vinod
Vs.

State of Madhya Pradesh

JUDGMENT

Post for : __/08/2018

(J.P.Gupta)
Judge
__/08/2018

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