BHURA Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction under section 376 (1), sentencing the appellant to R.I. for 2 years by the Addl. Sessions Judge, Panna.

(2.) FACTO shortly sk1ted are that on June 6,1988 prosecutrix Nathhi Bai (P.W. 1) had gone to the court -yard for tieing cattle along with one Anil Kumari. While returning back, she happened to meet the accused -appellant who caught hold her hand and carried her to the room where cattle were tied. Anil Kumari came running towards her house. Having carried the prosecutrix where cattle of the accused were tied, it is alleged that he committed rape on Nathhi Bai who has been trying to defend herself. While defending herself, Nathhi Bai's bangles were broken. When the accused - appellant was committing rape, it is stated by the prosecution that Sahodrabai (P.W. 3) sister -in -law of the prosecutrix came to the spot. On seeing Sahodrabai, the accused -appellant fled away from the place. Raghuraj Saran and Sukhendra (not examined though their names appeared in the challan) are said to have been the accused running from the spot. On reaching home, Nathhi Bai (P.W. 1) narrated the incident and a report (Ex. P -1) was lodged by her. She was sent for medical examination. The police registered the case under section 376, IPC and after due investigation, a challan was filed against the appellant.

(3.) ADVERTING to the next question whether the sexual act committed on the prosecutrix was with her consent, the version of Sahodrabai (P.W. 3), who could see the accused committing the sexual act, is material. According to the version of Nathhibai (P.W. 1) when Sahodrabai (P.W. 3) reached the spot, the accused -appellant was above her committing the sexual act. This version has not been corroborated by Sahodrabai. But according to her statement (examination -in -chief para 2), Nathhibai was standing naked and her petti -coat was lying nearby. She has also stated that Nathhibai was trying to wrap up the saree. This witness in para 11 has further stated that Nathhibai was standing totally naked and on seeing her, she tried to wrap up the saree. Her petticoat was lying nearby and the blouse was open from which her breasts were visible. The prosecutrix has also stated in her examination -in -chief para 2 that the accused had undressed her totally. The prosecutrix has admitted in para 9 of her version that Nanhe, Rajmani, Govind Urmaliya have their house adjoining to the place where rape was committed on her by the accused, but none came to the spot though she was shouting for help. In para 13, she has admitted that when Sahodrabai (P.W. 3) reached the spot, she was totally naked and also when Sukhendra and Raghuraj Saran reached the spot. An young woman could not be made naked completely, against her consent, by one person, without her clothes being torn and buttons or hooks of blouse being detached. These circumstances sufficiently go to indicate that the prosecutrix was a consenting party to the sexual act. The prosecution has failed to prove even the prosecutrix had any external or internal injuries. As such from the version of Nathhibai (P.W. 1) and Sahodrabai (P.W. 3), it appears that the prosecutrix was a consenting party to the alleged sexual act. Since she has not been proved to be below the age of 16 years by the prosecution, the appellant -accused, in the circumstances, cannot be held guilty for the offence under section 376, IPC. For the foregoing reasons, the appeal succeeds and is allowed. Conviction and sentence of the appellant are set aside and he is acquitted of the charge. The appellant is in jail, he be set at liberty forthwith, if not required in connection with any other case.