GULAB JHARIA Vs. STATE OF M P

JUDGEMENT

(1.) ASJ, Jabalpur in S. T. No. 152/2003 vide impugned judgment dated 30-4-2004, recording conviction of appellants under Section 376 (2) (g), IPC sentenced them to undergo R. I. for a period of 10 years and to pay fine Rs. 3,000/-, in default to suffer further imprisonment for a period of three months. Being aggrieved, appellants have preferred this appeal under Section 374 (2), Cr. PC.

(2.) PROSECUTRIX aged about 25 years on 10-11-2002, at 4. 35 P. M. lodged the report (Ex. P-1) at Police Station, Kundam, to the effect that on 4-11-2002, at about 8 P. M. , on way back to her house, she was apprehended by appellants Gulab Jharia, Ashwani Kumar and one Tejilal. All the three have taken her to the deserted house of Munnulal Choudhary. Tejilal remained at the outer door of the house. Inside of the room, appellants Gulab and Ashwani forcibly committed sexual intercourse with her. After the incident, all the three rushed away from the place of incident and she narrated the story to her husband. On the report, the police registering Crime No. 182/2002 under Section 376 (2) (g), IPC, sent the prosecutrix for medical examination. As per report (Ex. P-6), no marks of internal-external injuries were found on the body of the prosecutrix. Completing the investigation, appellants were chargesheeted under Section 376 (2) (g), IPC. Appellants abjured the guilt, however, the Court below vide impugned judgment on the basis of statement of prosecutrix (P. W. 1) held that appellants forcibly committed sexual intercourse with her. As such recording conviction, the appellants have been sentenced to undergo R. I. for a period of 10 years and to pay fine Rs. 3,000/- in default to suffer further imprisonment for a period of three months. Being aggrieved, appellants have preferred this appeal under Section 374 (2) of the Cr. PC.

(3.) PROSECUTRIX (P. W. 1) has stated that at about 8 P. M. , she had been to the field to ease. On way, she was apprehended by appellants Gulab and Ashwani. The appellants having taken her to the house of one Lalla, forcibly committed sexual intercourse with her. On return, she narrated the story to her husband Ghanshyam Prasad (P. W. 2 ). Ghanshyam Prasad (P. W. 2) has stated that his wife prosecutrix (P. W. 1) told him that she was taken by appellants to the house of one Lalla where both of them forcibly committed sexual intercourse with her. Apart from this, there is no other piece of evidence to suggest that appellants in fact forcibly committed sexual intercourse with the prosecutrix (P. W. 1), wife of Ghanshyam. The date of incident, as told is 4-11-2002 at 8 P. M. The report (Ex. P-1) was lodged by the prosecutrix on 10-11-2002 at 4. 35 P. M. In this report, she had stated that appellants and one Tejilal apprehended her on way and appellants took her to the room where they forcibly committed sexual intercourse with her. Tejilal remained standing outside of the house. As against this, prosecutrix (P. W. 1) in Para 3 has stated that being apprehended by the appellants, she cried. Tejilal, son of her material uncle rushed to her husband and narrated the incident to him. She has further in Para 6 has stated that the very next day, she went to her parents. Prosecutrix (P. W. 1) in Paras 20 and 25 of the cross-examination has admitted that on the date of incident, she had been to village market Bichhiya. She returned with appellants on their scooter. In cross-examination Para 23, prosecutrix (P. W. 1) has stated that during the alleged incident, there was complete darkness and she did not identify persons said to have forcibly committed sexual intercourse with her. On being asked, persons committing sexual intercourse told her that by name they were Gulab and Ashwani. Ghanshyam Prasad (P. W. 2) in cross-examination Para 2 has admitted that prosecutrix (P. W. 1) is not his married wife. She was married to Jamna, r/o Village Saraiya. Ishwarilal (P. W. 6) in cross-examination Para 4 has stated that prosecutrix (P. W. 1) never told that on way she was apprehended by appellants Gulab and Ashwani and she was taken to the house of Munnulal Choudhary, where appellants forcibly committed sexual intercourse with her. Prosecutrix (P. W. 1) was sent for medical examination. As per medical examination report (Ex. P-6), no visible marks of external-internal injury were found on her body. On facts, it is difficult to believe the testimony of prosecutrix (P. W. 1) that appellants taking her to the house of Lalla, forcibly committed sexual intercourse with her. The Apex Court in Dilip and Anr. v. State of M. P. , 2001 (4) Crimes 105 (SC), held that where the Court is not satisfied generally of the correctness of story as told by the prosecutrix, the conviction for alleged offence of sexual assault must not be based on the sole testimony of the prosecutrix alone. There is no other evidence on record to judge the correctness of version of prosecutrix (P. W. 1 ). On facts and circumstances, sole testimony ought not to have been accepted for purpose of recording conviction of appellants under Section 376 (2) (g), IPC. Therefore, the Court below erred in holding the appellants guilty of charge and sentencing them to undergo R. I. for a period of 10 years and to pay fine Rs. 3,000/- in default to suffer further imprisonment for a period of three months.