MOHANLAL S/O DHANNA JI AGE 30 YEARS, R/O. GRAM - PADLI, DISTT. AND TEHSIL SHAJAPUR (M.P.) Vs. STATE OF M.P. THROUGH DISTT. MAGISTRATE, SHAJAPUR

JUDGEMENT

(1.) THIS appeal has been filed under Section 374 of the Cr.P.C. being aggrieved by the judgment dated 27/11/1996 passed by the learned Sessions Judge, District Shajapur in Sessions Trial No. 241/1995; whereby the appellant was convicted for offence punishable u/S.376(1) of the IPC and sentenced to seven years rigorous imprisonment with fine of Rs. 1000/ -; in case of default of payment of fine he was to undergo additional six months of simple imprisonment and u/S.506 part -II of the IPC and sentenced to one year rigorous imprisonment.

(2.) Both the sentences was directed to run concurrently. Brief facts necessary for elucidation are that on 16.05.1995 at 7 p.m. Sitabai had gone to fill the water at the well belonging to Jalamsingh Patidar and there was nobody around the well. When she was near the well accused caught hold the prosecutrix, fell her down to the ground and on threatening to the point of knife, he has committed sexual intercourse forcibly with her. He also threatened her not to tell anything to anybody about the incident, otherwise he would kill her. Thereafter her husband Radhesyam P.W.2 came there to give drinking water to the cattle and at that time upon hearing the shouts of the prosecutrix her husband came with the stick and on seeing him the accused fled away from the place of occurrence and threatened to kill her if she says the matter to anybody. Thereafter Sitabai reported the matter on the same day at 11:30 p.m. at police station. On the basis of report F.I.R. Ex -P1 was registered and the prosecutrix was sent for medical examination early on the day of morning. Dr. Smt. Asha Pandit examined her in the District Hospital and did not find any external injury on her body and nothing was found on internal examination also. The investigating officer Mr. Chauhan P.W.7 prepared the spot map and investigated the matter. The clothes of the prosecutrix were also seized and the F.S.L. Report (Ex.P/ 9) and the report indicates that there was semen found on the clothes of the prosecutrix. The accused was duly charged and committed to his trial.

(3.) COUNSEL for the appellant has vehemently urged the fact that there were material omissions and contradictions in the testimony of the complainant Sitabai which have not been considered by the Trial Court. The prosecutrix herself first stated that the accused has committed sexual intercourse near the well and thereafter she stated that in few feet away from the well near the culvert her husband was taking the bullock for drinking water and on seeing Mohan with her; Mohan had at first run away but later the accused came to their house to beat her husband with farsa and threatened them; if, they filed any report at police station; he would kill them. She also narrated the incident to her mother -in -law Bhuribai (P.W.4) and showed that her bangles had broken down and she had sustained injury on her wrist. Counsel submitted that no other external injury was found. The FIR was lodged in the said night and no fixed medical opinion was given by Dr. Asha Pandit (P.W.6). Moreover Counsel stated that the prosecutrix did not know the name of the accused at the time of the filing of the FIR. It was filed by her husband. Thereby making clear it was a case of false implication due to previous enmity and the entire prosecution was concocted and manipulated. P.W.4 Bhuribai stated that at 7 pm in the evening this witness had seen the accused Mohanlal and Radheshyam along with his wife Sitabai. Prosecutrix was going to the well belonging to Jalamsingh Patidar. Her husband Radhesyam was giving the water to the cattle and under these circumstances the entire prosecution was concocted. Counsel stated that it would be crucial to convict the accused on such scanty evidence. The appellant was 30 years of age at the time of incident and now more than 18 years have elapsed therefore no fruitful purpose would be served to keep the appellant in prison. He prayed that the appeal deserves to be allowed and the impugned judgment of the trial Court be set aside.