Sitaram Vs. State of Madhya Pradesh - Court Judgment

P.N.S. Chauhan, J.

1. The appellant challenges his conviction under Sections 376 and 457 of the Indian Penal Code and sentence of 7 years R.I. and R.I. for 1 year respectively with direction for concurrent running of sentences, recorded vide judgment dated 5-12-86 passed in S.T. No. 157 of 1986 of Raipur Sessions Division.

2. Prosecutrix Kumari Bai (PW 1), a married woman was all alone in her house on 23-3-86 in the afternoon. The appellant then aged 19 years entered inside and committed rape on her. Her husband's younger brother Aagar Singh (PW 2) came and saw the appellant mounted on the prosecutrix. It is said that the appellant got up and gave a push to Aagar Singh and ran away. At that time Itwari, a neighbour, had also come who was told of the incident by the prosecutrix. The husband of the prosecutrix was out. He returned late in the night. The next day village Panchayat was convened and the appellant denied his guilt. A decision was taken to inform the police. Accordingly, the First Information Report was lodged two days' later. The distance of Police Station from the village is only 8 Kins. After registering crime, the prosecutrix was sent for medical examination. The Doctor did not find any external or internal injury on her. The Doctor could not give any definite opinion on the question of recent intercourse as Kumari Bai was used to sexual intercourse. Though the defence did not specifically urge consent, suggestion to that effect was made in the cross-examination of the prosecution witnesses. The learned trial Judge accepted the prosecution evidence and held that under Section 114A of the Evidence Act in view of Kumari Bai's denial of consent, it had to be held that the set was without her consent.

3. It is admitted by both sides that since it was a case of simple rape Under Section 376(1), I.P.C, the presumption aforesaid was not applicable which is attracted only in case of offences Under Section 376(2) Clauses (a) to (e) or (g) of the Indian Penal Code (45 of 1860).

4. The submission is that the evidence of the prosecutrix and her Dewar, Aagar Singh clearly indicates that the prosecutrix was a consenting party. Had not the learned trial Judge resorted to the statutory presumption Under Section 114A of the Evidence Act, the accused may not have been convicted. The prosecutrix has stated that she had received bleeding injuries on her wrist and back and had shown them to the Doctor, who examined her, but the report of the said Doctor Ex. P 5 shows that the prosecutrix did not have any external or internal injury. It is, therefore, reasonable to hold that the prosecutrix has resorted to deliberate falsehood in this behalf. We were taken through the evidence of PWs 1 and 2. Evidence of the prosecutrix shows that the appellant committed the act for an hour and during all this time she kept screaming, but no one came to her rescue. We find it strange that no one including her neighbour Itwari was attracted by her screams which lasted for an hour, whereas Itwari immediately came on the scene of incident when Aagar Singh arrived home and shouted. This is clear from the evidence of 'Aagar Singh that hearing his alarm Itwari came there, but by that time the appellant had made good his escape. From this we infer that Itwari must have been near about. In such circumstances, the fact that he did not hear the screaming of the prosecutrix which lasted for. an hour belies the version of the prosecutrix in this behalf. The observation of the learned trial Judge that the prosecutrix is to be believed because no married woman will lay such a false charge which was likely to stigmatise her in society appears to be misconceived. The evidence of Aagar Singh shows that when he entered the room he found the prosecutrix in a compromising posture with the appellant and then the appellant ran away after pushing him aside. His evidence during cross-examination in para 2 is quoted below.

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This, in our opinion, is clear indication of the fact that Aagar Singh happened to enter the room suddenly and found the prosecutrix and the appellant in a compromising position. Had the story of rape been true, the natural impulse of the miscreant would have been to run away without caring for his pant. The fact that he got down from the prosecutrix and then picked up his pant and put it on before running away and the prosecutrix asked him to go away unmistakably shows that it was a consented act and the prosecutrix was left with no option but to present it as a case of rape as she was caught unawares by her Dewar who raised alarm and the matter became known to Itwari. There are other indications in the evidence of prosecutrix to show that it was a consented act. The prosecutrix has given the description of her-house from which it appears that there is an outer veranda, then an Aangan, then an inner veranda touching the three rooms. She claims that the appellant had come in the outer veranda and demanded lire to light his Bidi then after smoking there he caught hold of her hand and committed rape. In para 6 during cross-examination she admitted that the appellant had caught hold of her hand not in the outer veranda but in the inner veranda. When she was asked as to how the appellant had reached the inner veranda, she stated that she was not aware as to how he came there. From this also we infer that the appellant was there by invitation. Once we hold it to be a consented act, since the presumption Under Section 114A is not attracted, it has to be held that the charge of rape is not made out.

5. In result, this appeal is allowed. Appellant's conviction and sentence as aforesaid are hereby set aside and he is acquitted of the charges. He is already on bail. His bail bonds are cancelled.