CHHATRAPAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellant challenges his conviction under section 376 I.P.C. and sentence of R.I. for three years.

(2.) THE prosecution alleges that on 13 -3 -83 prosecutrix Sunderbai (P.W. 5) went to collect gross from the embankment of Hardayal's field. The accused came there and after lifting her bodily, carried her to the adjacent field of wheat and committed forcible intercourse with her. It is alleged that the appellant possessed a country -made pistol, one cubit in length, which placed on the side to terrorise her. In order to prevent her from weeping the appellant wrapped a towel on her mouth. Having completed the and the appellant warned her not to divulge the incident to anyone in the village, else he would shoot her and throw her body in a well. Sunderbai on reaching the vil1age narrated the incident to her father Channa, who went to the village chief. Brindawan Pujari (P.W. 8) was also present there, Channa (P. W. 6). Brijgopal (P.W. 3) and two others went to verify on the snot and found that the wheat crop was trampled and also noticed semen on the ground. Therefore, they decided to report the matter to the police station. The report (Ex P/8) was loged in police station Harpalpur on 14 -3 -83 at 11.30 a.m Lady Dr. Smt. Shakuntala Choubey (P. W. 9) found no injury external or internal on her person. She prepared her slides and handed them over to the police. The hymen had an old tear. Dr. Khare (P.W. 10) performed ossification test vide X -ray Ex. P/14 and 15 and gave report Ex. P/13 that Sunderbai was between 11.18 years of age. The dhoti seized on 15.3 83 from Sunderbai vide Ex. P/3 and underwear seized from the accused as also the slides were sent to Chemical Examiner, vide report Ex P/7 he confirmed presence of blood, seminal stains and human spermatozoa on dholi of the prosecutrix. Eventually, the challan was filed against the accused.

(3.) AFTER hearing learned counsel for both the parties and on going through the record, I am of the opinion that the appellant's conviction cannot be sustained. Sunderbai's statement does not inspire confidence. Before physically lifting her, the accused had lengthy dislogues with her ending with a proposal for the sexual intercourse. The appellant did not use the fire -arm possessed by him to create any terror in her mind. The appellant is aged about 22 years while the prosecutrix 17 years. It is not possible to accept that the accused could conveniently lift her and carry to a nearby field in wheat crop unless Sunderbai would have been passive Sunderbai stated that the fire -arm of one cubit in length was carried by the accused hidden in the Payjama which was taken out only when he lifted her lower garments. Had the accused really carried this weapon, he could not have lifted her without tearing his Payjama. The prosecutrix attempted to cry but the accused, allegedly wrapped her mouth with a towel and thereafter consoled her by assuring that he was not likely to consume her. She further states that after completing the act, the accused sat by her side and. started issuing threat, by Inviting her attention to the weapon. The prosecutrix had then asked what kind of weapon it was, whereupon the accused told her that it was a gun. All these clearly show that Sunderbai was a consenting party.