AMBARAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed by the appellant against the judgment and order dated 4.12.1990 passed by the First Additional Sessions Judge, Ujjain, in ST No. 61/90 whereby he was convicted for offence u/Ss. 366 and 376 IPC and sentenced to 3 years RI for offence u/s 366 IPC and 7 years RI u/s 376 IPC and to pay fine of . Rs. 3,000/ -, in default of payment of fine to further undergo one year RI. Prosecution case, in brief, is that Gendubai (PW1) is resident of Mehi Nagar, West Bengal, where she was living with her brother Banku Mehoo (PW 3) as her father and husband had died. In April 1989 some quarrel took place between Gendubai and her Bhabhi, therefore, she left the house of her brother and from there she reached Ahmedabad and stayed in a temple where the appellant met her and told her that he was serving in Police, his wife had died and he was having two children. He told her that she should lookafter his children and she will feel no inconvenience there. Prosecutrix Gendubai believed the version of the appellant and went with him to his village, when she reached the house of the appellant she found that his wife Shantibai was living with their children. The appellant committed rape on her in the night and thereafter she went to PS and lodged the FIR Ex. P -1. She was sent to Civil Hospital Mahidpur where Dr. Madhu Nagar (PW 7) examined her and found no injury on her private part or body. She took the Petticoat of Gendubai and also prepared slides of her vaginal smear. The doctor gave no information about the rape. The appellant was arrested. He was examined by Dr. Kaluram Patidar (PW 2), who found him capable of committing sexual intercourse, vide report Ex. P -3. After completion of investigation, challan was filed against the appellant, Badrilal and Shantibai. Accused persons pleaded not guilty. The learned trial Judge on appreciation of evidence acquitted the two co -accused and convicted the appellant u/Ss. 366 and 376 IPC and sentenced as stated above.

(2.) SHRI Manoj Soni, L/c for the appellant submitted that the learned trial Judge committed error on putting reliance on the solitary testimony of the prosecutrix Gendubai and convicted him. He submitted that Gendubai was a consenting party. He, therefore, prays for acquittal of the appellant. Miss Sonali Gupta, Learned Panel Lawyer for the State vehemently argued that from the evidence of Gendubai it is proved beyond reasonable doubt that the appellant induced her by making false representation to her that his wife had died and he was having two kids and he needed her services for looking after them and she would have no inconvenience there and used her to come to his home, therefore, offence u/s 366 was made out against the appellant.

(3.) NOW question for consideration is whether the appellant abducted Gendubai and committed rape on her. It has come in the evidence of Gendubai (PW 1) that her father and husband had died, therefore, she was living with his brother in Mohi Nagar, but there some quarrel took place with her Bhabhi and, therefore, she left her brother's house and came to Ahmedabad. When she was returning from Ahmedabad and going to Bhagalpur at Bhathiya Station, the appellant met her, he told her that his wife had died and he needed her services for looking after his children. Believing this she accompanied the appellant and went to his house but there she found wife of the appellant alive. She denied the suggestion that she voluntarily came with the appellant. She stated that if the appellant had not told her that his wife had died and he needed her services to lookafter his children she would have never come to the house of the appellant. Her statement stands corroborated with the FIR, Ex. P -1 which has been proved by the Sub -Inspector K.N. Sharma (PW 2) and Jeevan Singh (PW 4) also supported her to some extent. Jeevan Singh deposed that Gendubai told him that the appellant had married her and brought her to his house and there the wife of the appellant quarrelled. She requested him to take her to police station, therefore, he took her to police station, where she lodged the report. This witness was declared hostile and was confronted with his police statement. However, from the evidence of Gendubai it is clear that the appellant made false representation that his wife had died and he needed her services for looking after his children and on believing the statement made by the appellant, she accompanied him and came to his house but when she saw that wife of the appellant was there, she left the house of the appellant and went to Police Station and lodged the report. True it is that some contradictions have occurred in her evidence. She deposed that she was returning to Bhagalpur and at Bathiya Station the appellant met her but in the FIR the stated that the appellant met her in a temple. The trial Court held that the prosecutrix was a Bengali speaking lady having little knowledge of Hindi due to language difficulty contradictions had occurred. However, the evidence of the prosecutrix that she accompanied with the appellant on his false representation is proved by her statement which is corroborated by her FIR Ex. P -1 and to some extent by evidence of Jeevanlal. From this evidence it is proved that the appellant by deceitful means induced the prosecutrix to accompany him and thereby he committed offence u/s 366 IPC.