RAM RATAN KEWAT Vs. STATE OF M P

JUDGEMENT

(1.) The appellants/accused have directed this appeal under Section 374 (2) of Cr. P. C. being aggrieved by the judgment dated 8.7.1996 passed by Sessions Judge, Sidhi in S. T. No.63/95, convicting and sentencing to each of them under Section 450 and 376 (2) (g) of IPC for RI three years and for RI ten years with fine of Rs. 1,000/-, respectively under such sections.

(2.) The facts giving rise to this appeal in short are that on 23.11.1994 at about 4.00 p. m. the prosecutrix Anarkali was pestling the paddy in her home, her father was gone to Kardhua and her mother was gone to pluck leafy vegetables, at the same time the appellants by committing the criminal trespass entered in her house and out of them appellant No.2 Ramcharan caught hold the pestle of the prosecutrix from her hand and after laying her on the flour, contrary to her will and wish committed the rape on her. At the time of such incident the appellant No.1 Ramratan was standing on the door of such house. The aforesaid incident was reported to the police Chitrangi on 29.11.1994, on which FIR (Ex.P.7) was registered against the appellants for the offence of Section 376/34 of IPC. The cause of lodging the FIR at the belated stage was mentioned that the father of the prosecutrix was not available at home on the date of the incident. After registration of the offence, the appellants were arrested, interrogatory statements of the witnesses were recorded and the prosecutrix as well as the appellant No.2 were medically examined. On completion of the investigation they were charge sheeted for their prosecution under the above mentioned offence. On evaluation of the papers of the charge sheet on framing the charge of section 450 and 376/34 of IPC by the trial Court against the appellants, each of them abjured the guilt, on which the trial was held. After recording the evidence on appreciation of the same after holding guilty to the appellants under the aforesaid sections, each of them were convicted and sentenced with the above mentioned punishment. Being dissatisfied with such conviction and sentence the appellants have come to this Court.

(3.) Appellant's counsel Shri G. S. Baghel, after taking me through the record of the trial Court along with the impugned judgment argued that on proper appreciation of evidence the appellants ought to have been acquitted by the trial Court, as such the appellants were convicted under the wrong premises on false pretext. Lodging the FIR at very belated stage itself made the case and the story of the prosecution suspicious and in such premises, the expert /FSL report of the vagina fluid and the cloths could not be considered against the appellants as the same is based on the basis of slide vagina fluid prepared near about after 6 days from the date of incident. As such fluid could not be said to be consequence of the intercourse committed by the appellant No.2 Ramcharan. In any case, after sixseven days such fluid could not be found in the vagina. The story put forth by the prosecution regarding seized clothes of the prosecutrix as she did not wash such clothes in this period, could not be believed. FSL report in this regard could not be foundation to hold the conviction against the appellants. He further argued that in any case keeping in view the fact that the appellant and prosecutrix family since long had good relations and in that premises, the prosecutrix and appellant Ramcharan were very close and in such premises only the inference could be drawn that such alleged intercourse was committed by the appellant no.2 Ramcharan with the consent of prosecutrix and pursuant to it, the appellant No.2 Ramcharan, deserves to extend the benefit of acquittal, as on ossification test carried out by the radiologist, the prosecutrix was found to be major of more than 18 years of the age. He also said that in the lack of any support from the testimony of independent witnesses to the testimony of the prosecutrix mere on her deposition the appellants could not be convicted. He further argued that in case on re-appreciation of evidence if the Court comes to the conclusion that appellant No.2 has committed the rape against her will and hold him guilty for the same, even then in view of the specific averments in the deposition of prosecutrix that appellant No.1 Ramratan although came with the appellant No.2 Ramcharan to her resident but he remained outside of the house and did not enter in her house. So it could not be deemed that Ramratan came with the appellant No.2 Ramcharan with intention to commit rape on the prosecutrix or he has committed any act in furtherance of their common intention to commit rape on the prosecutrix. In such premises, the appellant no.1 Ramratan mere on account of standing outside the house of the prosecutrix at the time of committing the alleged rape by the appellant no.2 Ramcharan with the prosecutrix could not be convicted for the alleged offence of gang rape. He also said that as per deposition of the prosecutrix herself appellant Ramratan did not enter in the house of the prosecutrix, therefore, his conviction under Section 450 of IPC is also not sustainable. With these arguments he prayed to extend the benefit of acquittal to the appellants or in any case to extend the benefit of acquittal to appellant No.1 Ramratan and modify the conviction and sentence of the appellant No.2 Ramcharan from Section 376 (2) (g) and 450 of IPC to Section 376 (1) and 450 of IPC., by allowing this appeal.