Bheru vs State of Madhya Pradesh

Hon''ble Shri Justice Anil Kumar Sharma

Appellant has filed this appeal against judgment dated 25.05.1998 passed in Sessions Trial No.35/1998 by the learned Sessions Judge, Ratlam (MP), whereby he has been convicted for the offence punishable u/s 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and fine of Rs.500/-, with default stipulation. Brief facts of the case are that on 14.10.1997 prosecutrix (PW-3) (name of the prosecutrix is not mentioned to hide her identity) while coming back to house after showing her daughter to the doctor, it is alleged that near Undikhal, appellant stopped her and committed rape with her. On listening her cry, Madan and Badri came and followed the appellant, but failed to catch him. She narrated the incident to her husband and thereafter next day, she lodged report in Police Station, Bilpank. On filing of challan, learned trial Court, after trial of the appellant for the offence punishable u/s 376 IPC, convicted him for the same and sentenced him as mentioned in paragraph No.1 of this judgment.

Being aggrieved by the impugned judgment, appellant has filed this appeal on the ground that learned trial Court is not justified in convicting the appellant on unreliable testimony of prosecutrix and other witnesses, which is not corroborated by any medical evidence.

Main point for consideration in this appeal is whether learned trial Court is justified in convicting the appellant by the impugned judgment.

Learned Counsel for the appellant has submitted that the statement of prosecutrix (PW-3) regarding sexual intercourse and injuries sustained by her at the time of incident, which include bleeding from nose, has not been corroborated by the medical evidence. Further, prosecutrix has admitted that the appellant is in inimical terms with her brother-in-law and husband. Further, she has admitted that before lodging report, she was sleeping with her husband in the night. Therefore, presence of spermatozoa on clothes or slide of vaginal smear of the prosecutrix does not confirm commission of sexual intercourse by the appellant. Learned trial Court, although considered this aspect of the matter in paragraphs No.11, 13 and 18 of the impugned judgment, but convicted the appellant on the ground that simply on the basis of inimical terms or dispute, no lady will make allegations, which affects her character. But, learned trial Court has failed to consider the fact that after the incident and before lodging of report, prosecutrix (PW-3) was sleeping with her husband in the night and this behaviour of the prosecutrix and her husband cannot be said to be natural, as husband with whose wife, rape has been committed by another person, is not expected to sleep with her wife on the same night. Therefore, false implication of the appellant cannot be overruled, because no injury has been found on the body of the prosecutrix. Even eye witnesses Badri (PW-4) and Madanlal (PW-7), who reached the spot, have not corroborated the statement of the prosecutrix regarding bleeding from her nose. Badri (PW-4) has admitted that he could not see the face of man, whom he tried to catch. Madanlal (PW-7) has turned hostile, but he did not confirm the fact that prosecutrix told him about committal of rape by appellant.

Learned Counsel for the appellant has cited judgment of Hon''ble Apex Court in the matter of Lalliram and another v. State of Madhya Pradesh reported in [(2009) 1 SCC (Cri) 17], in which it has been held that where testimony of the prosecutrix found to be self-contradictory and also inconsistent with the testimony of other prosecution witnesses as well as with medical evidence. The accused cannot be convicted on the basis of her version for the offence punishable u/s 376 (2) (g) IPC.

Considering the fact that the statement of prosecutrix has not been corroborated by the medical evidence, even eye witnesses, who reached the spot, did not found any injury, as mentioned by her on her body and further considering the unnatural act of sleeping with her husband before lodging of the report, appellant cannot be held guilty for the offence of rape. Therefore, learned trial Court is not justified in convicting the appellant for the offence of rape by the impugned judgment. Therefore, appeal is allowed. Appellant is acquitted from the charge of offence punishable u/s 376 IPC, setting aside the impugned judgment. Fine amount, if deposited by the appellant, be refunded to him. Bail bonds of the appellant are discharged.