PAPPU Vs. STATE OF M P

JUDGEMENT

(1.) APPELLANT -accused has filed the appeal under section 374 of the CrPC against the judgment and order dated 14.8.2000 passed in S.T. No. 62/96 by learned Additional Sessions Judge Biaora District Rajgarh of his conviction and sentence under section 376 of the IPC for the rigorous imprisonment of 7 years and the fine of Rs. 2,000/- and in default of payment of fine further rigorous imprisonment for the period of 3 months. The prosecution case is that on 5.3.1996 in the evening at about 4:30 p.m. when prosecutrix Daryaobai aged about 14 years was going to the field with her friend Bhaggubai, the accused caught her on the road and dragged her to his house and inside his house, the accused threw her on the ground and forcibly committed the sexual intercourse. On hearing the cries of Daryaobai (PW 7) her mother Ayodhyabai (PW 5), Ghesalal (PW3) and Gokul (PW 4) reached on the spot and the accused ran away. The prosecutrix has disclosed the incident to her mother and the persons who have reached on the spot. The FIR Ex. P-7 was lodged by the prosecutrix on 5.3.1996 at about 5:30 p.m. and she was medically examined by Dr. (Smt.) Chaya Joshi (PW 1) who has opined that the definite opinion about the commission of the rape cannot be given. After the usual investigation, K.V. Upadhyaya (PW11) has filed the charge sheet against the accused under section 376 of the IPC. The accused has abjured the guilt and denied the prosecution allegations and pleaded false implication on account of the enmity with the husband of prosecutrix Daryaobai. The learned trial Court after recording the statement of 11 prosecution witnesses and one witness in defence has held that the prosecution has established the case and the accused was convicted and sentenced as above. The appellant has challenged the conviction on the ground that the learned trial Court has erred in believing the un-corroborated statement of Daryaobai (PW 7) and as such, the appellant accused should be acquitted. Prosecutrix Daryaobai (PW 7) has stated that in the evening when she was going to the field, the accused caught her and dragged her to his house and after throwing her on the ground committed the rape with her. Daryaobai (PW 7) has further stated that the FIR Ex. P-7 was lodged by her and she was medically examined by the Doctor in the Government Hospital. Daryaobai (PW 7) has further stated that on hearing her cries, her mother Ayodhyabai (PW 5) and Phoolsingh (PW 9) have along with other have reached and she had disclosed the incident to her mother and other persons. Ayodhyabai (PW 5) has stated that her daughter Daryaobai (PW 7) has not said a single word against the accused to her. Ayodhyabai (PW 5) was declared hostile by the prosecution and she has denied the police statement Ex. P-5.

(2.) THE case of the prosecution is that Ghisaji (PW 3), Gokul (PW 4), Ayodhyabai (PW 5), Gopal (PW 8) and Phoolsingh (PW 9) were also apprised by the prosecutrix just after the incident about the commission of the rape by the accused when they happen to reach on the spot on hearing the cries of the prosecutrix. Ghisaji (PW 3) and Gokul (PW 4) have stated that they have not seen any incident and prosecutrix has not told them about the rape by the accused. Prosecution has declared them as hostile witness. Gopal (PW 8) and Phoolsingh (PW 9) have stated that on hearing the cries of Daryaobai told prosecutrix that accused has mis-behaved. From the aforesaid discussion, it is clear, that the statement of prosecutrix Daryaobai (PW 7) are not corroborated by the evidence of her mother Ayodhyabai (PW 5) nor any other witness has supported her statement. The prosecutrix was examined on 6.3.1996 by Dr. (Smt.) Chaya Joshi (PW 1) but she has also stated that there is no mark of injury on her body and she cannot give the definite opinion about the rape with her. The allegation against the accused is that prosecutrix Daryaobai (PW 7) was dragged and thrown on the ground. The absence of the injury on the back or any part of the body of the prosecutrix belies the prosecution story of throwing the prosecutrix on the ground or dragging her to the house of the accused. In these circumstances, it will not be safe to rely on the statement of Daryaobai (PW 7). No doubt sexual offence is dam humanizing act and it is unlawful encroachment into right to privacy and sanctity to the women. It is observed in case of Vimal Suresh Kamble v. Chaluverapinake Apal S.P. AIR 2003 SC 818 = 2003 CrLJ 910 it is true that the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. That in the facts and circumstances stated above the accused deserves the benefit of doubt. The conviction is hereby set-aside. The accused is acquitted. The accused be set at liberty, if not, required in any other case.