GOHIL, J. - (1.)IN Sessions Trial No. 236/05, the respondent was tried under section 450, 376 (1), 323, 325, IPC. The Additional Sessions Judge Mungaoli District Guna vide judgment dated 1st December 2006 acquitted the respondent from the charges, against which State has preferred this MCrC for grant of leave.
(2.)WE have heard Shri C.S. Dixit, learned Public Prosecutor and perused the judgment and finding recorded by the trial Court.
As per prosecution story, the incident took place on 30.6.2005 at about 6 a.m. in the morning in the house of the prosecutrix. She was at home and was sleeping with her three sons and one daughter, out of which one is of marriageable age, another is aged about 7 years and the third son is of six years and her daughter is aged about 10 years. As per prosecution, the respondent, who is the neighbour residing opposite the house of the complainant, entered into the house at 6 a.m. At that time husband of the complainant was at his shop and she was sleeping in the home. He took the complainant in an adjoining room where she was thrown on the floor and thereafter he committed rape and when he tried to run away she caught his legs and thereafter he assaulted her by wooden stick. The incident was also seen by her daughter Shevkali (PW 2) aged about 10 years. Thereafter the husband of the complainant came from the shop and he caught hold the respondent, who was beaten and thereafter he ran away. Hariram lodged the report first that he was beaten by them, on which Crime No. 116/05 was registered and thereafter the complainant lodged the report of rape, on which Crime No. 118/05 was registered at P.S. Bahadurpur District Ashok Nagar. The complainant was referred for medical examination. Some injuries were found on her body, but no injury was found on her private parts. In the X-ray report bony injury in the right elbow in ulna bone was found. After investigation, charge sheet was filed in both the cases against both the parties,

(3.)IN the trial defence of the respondent was that some money was due on the husband of the prosecutrix. He has gone to take that money and there some dispute took place and he was beaten by the complainant party and he lodged the report and thereafter complainant party has also lodged the report of rape. Respondent Hariram was also medically examined. His medical report is Ex. P-3. On the basis of his report matter was investigated and charge sheet was also filed against the complainant party in this case. Trial Court has found that the statement of prosecutrix (PW 1) and her daughter Shevkali (PW 2) and her husband Gudda (PW 4) is not consistent and is not reliable at all as the same does not inspire confidence. Trial Court has found that the prosecutrix (PW 1) as well as Shevkali (PW 2) and Gudda (PW 3) all have denied their case diary statement recorded under section 161, CrPC (Ex. D-1, D-2 and D-3). The Court has found that all the three witnesses have not stated the true story before the Court and in their statement under section 161, their contention was that the respondent was caught hold at the place of occurrence and he was beaten but all the three witnesses have suppressed this material fact before the Court. Prosecutrix was medically examined by Dr. Sudha Bhargava on the next day in the Ashok Nagar Hospital. Prosecution has not explained that when the incident took place on 30.6.2005 at about 6 in the morning, then why she was medically examined on the next day i.e. on 1.7.2005. Doctor has found that she has received injury on her left eye, left thigh, left leg and right tibia and on left forearm and right forearm including scapula, but the doctor has not found any injury on the private parts of the complainant and the doctor was unable to give any report about the forceful intercourse with her and the Court has found that it is not a case of any forceful intercourse or committing rape with her. On the contrary in the examination, prosecutrix has made an exaggerated statement that blood oozed from her vagina, her undergarments were stained with blood and bangles were broken, the blood was also fell on earth, but the doctor and investigation officer has not corroborated the said statement. The Court has also found that looking to the four children, the age of the prosecutrix was around 38 years and she was a fully developed lady and had not received any injury on her private parts and in presence of all family members incident cannot take place. Investigation Officer has neither recovered any broken bangle pieces from the spot, nor has made any statement to that effect in the Court. Shevkali (PW 2) in the cross examination para 5 has admitted that she had not seen the respondent entering into her house. Her grandmother was also sleeping in nearby courtyard, whereas the prosecutrix has stated that she was not sleeping in the courtyard, but she used to reside in a separate room. Gudda (PW 4) has stated that she is residing in a separate room. Court has also found that prosecutrix has made exaggerated statement about the intercourse which was performed for half an hour and in the same room her daughter was sleeping and she was crying. Gudda (PW 4) has admitted that his two sons were also sleeping in the same room, but they had not woke up and Shevkali (PW 2) has admitted that she has not gone to the shop to call her father and found that there are material contradictions and omissions in the evidence of all the three witnesses and their evidence is not at all reliable and does not inspire confidence. The Court has found that it was improbable that in the morning at 6 O'clock the husband would be at shop, the grandmother, elder son and all the children were sleeping in the house and in their presence, the respondent will commit any such offence and nobody will cry and nobody will come to help the complainant. In fact, prosecution witnesses have not disclosed the true version of the incident before the Court. Court has found that the prosecution has failed to prove the allegations by producing the evidence beyond reasonable doubt and the statements are exaggerated and it was difficult to find out the element of truth therein and acquitted the respondent.