KRIPAN SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal is directed against the order dated 25 -9 -1989 passed by Shri Shambhu Singh, the then Sessions Judge, Guna, whereby the appellant has been convicted u/s 354 I.P.C. and he was released on probation and he was further directed to pay compensation of Rs. 1,000/ - to Mst. Sugrabai u/s. 5 of the Probation of offenders Act, 1958.

(2.) THE facts leading to the prosecution of the appellant shortly narrated are that the prosecute P.W. 2 Sugrabai claimed that on 26 -3 -1989 at 12 hours she was returning after giving food to her grandson when appellant Kripan Singh met her. She lodged an F.I.R. initially wherein she alleged that when the appellant met her he asked her where she was going whereupon the prosecutrix told as to who was he to put that question. The appellant thereafter pushed her and she sustained injury. It is claimed by the prosecution that on 30 -3 -1989 a written report Ex. P -2 was given by the prosecutrix to the S.P. Guna alleging that on the aforesaid date i.e. 26 -3 -198.9 at about 2 P.M. in the noon when she was going to give food to her grant son the accused Kripan met her and caught hold of her with evil intention. He committed rape upon he whereby Mishrya Adiwasi who was going to Sonkhara reached there and then the appellant escaped. She went to Sirsi for lodging report after the report was lodged the officer -in -charge went to the spot but she was not medically go examined. She waited for the action being taken but when action was not taken she moved this application. On this application a case was registered at No; 0/89 u/s. 376 I.P.C. and she was got medically examined by Dr. Sneh Agrawal. Usual investigation look place and ultimately charge - sheet was submitted against the appellant. The accused denied the charge and alleged that he was falsely implicated. He had paid Rs. 200/ - but when he demanded from Sugrabai she did not return. Hence he was prosecuted. The prosecution examined the prosecutrix. PW. 2. PW 1 Dr. Agrawal, PW 3 Banshi, Dr. Kushwah, PW 5 Sardar, PW 6 Fosu, PW 7 D.K. Chhari. Officer -in -charge P.S. Sirsi and P.W. 8 Chandrapal Singh, Bride these witnesses documents Ex. P -14 to P -11 have also been relied upon. The accused - 2 also entered upon his defence and filed documents. The accused was tried u/s 376 but the learned trial Court convicted him u/s 354 I.P.C. Instead of imposing any sentence he was given benefit of the Probation of offenders Act. The learned Court also imposed a fine of Rs. 1.000/ - under the Probation Act which was directed to be paid to Sugrabai. Hence this appeal.

(3.) I have considered the contentions raised before me. It does not appear necessary to detail the evidence adduced by the prosecution. Suffice it to say that the prosecutrix admittedly alleged in the F.I.R., Ex. D -1. In her statement the had given up her previous statements as pointed out by the learned court below. In, the earlier F.I.R. Ex. D -1, the only allegation was that the appellant had pushed her. Later on in the Written F.I.R. which was addressed to the S.P. Ex. P -2 she changed the time of occurrence and asserted that the time was 2 P.M. Apart from it allegation of rape was also made. It can, therefore safely be said that it was an after -thought. The learned court below rightly discarded the story of commission of rape by the, appellant. As far as the offence u/s 354 I.P.C. is concerned, may be mentioned that in view of averments made in F.I.R. Ex D1, it cannot he said that the essential ingredients of the offence u/s 354 are made out. The only allegation is that the accused had pushed her. Under Section 354 I.P.C. it must be shown that the use of criminal force to any woman must be with the intention to outrage or knowing it to be likely that he will there they outrage the modesty' of the lady. There is no such averment in the F.I.R. Ex. D -1 which was earliest document written by the prosecution on the report of the prosecutrix. As the statement of the prosecutrix appears to have been developed and she did not come with clean hands and concocted the case in the latter F.I.R. her statement cannot be believed even for a moment. I have already said above that essential ingredients of S, 354 are also not made. In view of the fact that her statement has been disbelieved and I find that no reliance can be placed her testimony. I am of the view that the 'appellant cannot be convicted' u/s 354 I.P.C. or u/s 323 I.P.C. as no reliance can be placed upon her testimony.