GANGA SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This is an appeal by way of special leave under Article 136 of the Constitution against the judgment dated 26.06.2003 of the Madhya Pradesh High Court, Gwalior Bench, in Criminal Appeal No.92 of 1990.

(2.) The facts very briefly are that the informant lodged an oral complaint on 22.12.1987 at 6.00 P.M. at Mangraoul Police Station, alleging that on 21.12.1987 at 6.30 P.M. in the evening when she had gone to the field of Tilak Singh at Naya Kunwa to answer her natural call and was coming out from the field, the appellant came and caught hold of her and fell her down, gagged her mouth, lifted her petticoat and committed rape. She returned home and told her mother-inlaw about the incident and on 22.12.1987 when her husband, who works on a truck, returned home, she has come to lodge the report in the police station. The police registered the complaint as an FIR, got the informant medically examined at 7.15 P.M. on the same day. Dr. (Mrs.) Kusumlata of Government Hospital, Seondha, opined that as the informant is a married lady and was habitual to intercourse, no definite opinion could be given on whether she was subjected to any sexual intercourse. The petticoat and vaginal smear slides (which were prepared and sealed) were sent for further examination. The police then undertook the investigation, went to the place of occurrence on 23.12.1987 and seized a blouse and a dhoti and got prepared the map of the site of occurrence and after recording statements of witnesses and completing the investigation, submitted a charge-sheet against the appellant under Section 376 of Indian Penal Code (for short 'IPC').

(3.) The appellant denied the charge and Session Trial No.9/1988 was conducted by the Sessions Judge, Datia. At the trial, the informant was examined as PW-5, who stood by her story in her complaint, the seizure witness was examined as PW-1, the mother-in-law was examined as PW-2, Dr. Kusumlata was examined as PW-9 and the Investigating Officer was examined as PW-10. The Sessions Judge, after considering the evidence on record held that as PW-5 did not obstruct or resist the appellant from doing the indecent act and no injury was caused on her person, PW-5 appears to have given her consent for the sexual intercourse and acquitted the appellant of the offence under Section 376, IPC, by judgment dated 30.11.1988.