LEEKCHAND Vs. STATE OF MP.

JUDGEMENT

(1.) ON the basis of this report, prosecutrix (PW 6) was sent to the hospital for medical examination. As per medical examination report (Exhibit P-7) no marks of external-internal injuries were present on her body. She being a married woman was habitual of sexual intercouse, as such no opinion as to the alleged sexual assault was recorded. Completing the investigation, appellant was charge sheeted.

(2.) APPEALLANT abjured the guilt and contended that from his grocery shop, Sagan (PW 7) husband of prosecutrix (PW 6) infact had taken Jwar on credit. He was required to pay an amount of Rs. 450/-. He was asked to make payment of the amount aforesaid. Instead of making payment he lodged the report exhibit P-5 falsely implicating him. The Court below on the basis of statement of prosecutrix PW 6 held that appellant forcibly committed sexual intercourse with her. As such, recording conviction under section 376 (1) IPC appellant has been sentenced to undergo RI for a period of 7 years. Prosecutrix PW 6 has stated that on back side of the house at about 9.00 p.m. she had been to ease. Appellant suddenly appeared and made her to lie on the ground. Thereafter, showing knife (Bichhua) forcibly committed sexual intercourse with her. After the appellant left she raised an alarm. On arrival of mother-in-law Govindi (PW 1), she narrated the incident. Husband Sagan had been to village Pandher. The next day on return, she could not narrate the incident to him. The third day the incident was narrated by her to husband Sagan. PW 7 Sagan has stated that on being told that prosecutrix (PW 6) was subjected to rape by the appellant he had been to the police station and lodged the report (Exhibit P-5). Prosecutrix (PW 6) has stated that so long appellant was indulged in sexual intercourse, she could not have raised alarm. After the appellant left, she raised an alarm and on arrival of mother-in-law Govindi (PW 1) narrated the incident of alleged rape by the appellant. Statement aforesaid of prosecutrix (PW 6) does not find support from the statement of PW 1 Govindi. This witness has stated that on hearing the cry, she had been towards the Badi where appellant was seen scuffling with the prosecutrix PW 6. In para 2 of her statement PW 1 Govindi has stated that prosecutrix PW 6 has stated that appellant had a scuffle with her. Apart from this, nothing has been told to her by the prosecutrix (PW 6). Prosecutrix (PW 6) has stated that the next day husband Sagan (PW 7) returned from Pandher, however, there was no occasion for her to narrate the incident of alleged sexual assault by the appellant. The incident was narrated to him on the third day. PW 7 Sagan has stated that on Tuesday night he returned from Pandher. Next day in the morning, he left the house to attend the pooja at khalihan of Sadaram Sahu (DW 1). DW 1 Sadaram Sahu has stated that PW 7 Sagan was neither invited nor attended the pooja at Kalihan on the said day and time. PW 7 Sagar lodged the report exhibit P-5 on 16.4.1987. As per this report, he ought to have returned on 14.4.1987, the date of alleged incident of sexual assault by the appellant. Prosecutrix (PW 6) and Sagan (PW 7) have stated that the prosecutrix did not narrate the incident to her husband. Statement of PW 1 Govindi, mother-in-law is also to the effect that incident of alleged sexual assault by appellant was not narrated to her by the prosecutrix. Instead she simply made a complaint that the appellant had a scuffle with her. Prosecutrix PW 6 has stated that she resisted to the alleged sexual intercourse by the appellant and sustained simple abrasions on back and other parts of her body. Admittedly prosecutrix PW 6 was sent to the hospital for medical examination. As per medical examination report (exhibit P-7) no marks of external-internal injuries were found on her body. Statement of prosecutrix (PW 6) is to the effect that only after the alleged sexual intercourse had been completed, appellant left. Thereafter, she made a cry and on arrival of mother-in-law Govindi (PW 1) narrated the incident to her. This part of her statement is also inconsistent with the statement of mother-in-law PW 1 Govindi. This witness has stated that the prosecutrix did not make a complaint of alleged sexual assault by the appellant. Instead told her that appellant had a scuffle with her. In State of Karnataka v. Mapilla P.P. Soopi AIR 2004 SC 85 on similar facts and in the circumstances it has been held that if at all prosecutrix raised an alarm it was only after respondent went away from the site of the incident. This coupled with the fact that there were no injuries on the body of prosecutrix to indicate any forceful assault on her, makes it clear that prosecution has failed to establish its case. Undue delay in lodging the report (exhibit P-5) without acceptable evidence also contributes doubt in the prosecution case.