In Reference vs Ramesh

Subhash Kakade, J.—The present suo moto revision by the Court has been taken against the judgment dated 19/02/2008 passed by the First Additional Sessions Judge, Balaghat in S.T. No. 76/2007, in which, learned trial Court has acquitted the respondent for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code.

The prosecution case in brief is that on dated 16.06.2007 in village Choukhandi minor prosecutrix was at her home, her father was out for fishing and mother was out for cleaning of the clothes at village Pound, at about 5:30 p.m. respondent Ramesh entered into house of the prosecutrix and tried to commit rape on minor prosecutrix, meanwhile Moolchand father of the prosecutrix came to house and on seeing him at that point of time the respondent fled away from the spot. The prosecutrix informed entire incident to her father. It was Moolchand who informed this matter to the village Sarpanch, B.D.C. and his wife Ushabai also. Ultimately matter was reported at police station Katangi after due investigation the respondent charge-sheeted. Learned trial Court after receiving the case on transfer in his turn leveled charges for the offence punishable under Section 376 read with Section 511 of IPC against the respondent who abjured their guilt, therefore, they put for trial.

To prove its case the prosecution examined 09 witnesses and also exhibited documents (Exh. P/1 to Exh. P/14). The defence of the respondent was that he used to humour with Ushabai which heard Moolchand, therefore, he falsely reported the matter. The defence did not choose to examine any witness.

Learned trial Court after appreciation of prosecution witnesses acquitted the application for the above mentioned charges.

The prosecution State or complainant Moolchand had not come forward to take any action against the acquittal of respondent.

These proceedings are based on suo moto revision which has been taken on the ground that the findings of acquittal of the respondent from the charges punishable under Section 376 read with Section 511 of IPC by the Presiding Judge of the trial Court are not only patently wrong but also illegal and perverse. It is further observed that the evidence of minor prosecutrix, should not have been disbelieved by the trial Court and the trial Court deliberately twisted and disregarded the material piece of evidence and has further failed to see that at least case under Section 354 of IPC is clearly made out against the respondent. Finding of acquittal is wholly arbitrary and without proper reasoning.

Shri Pradeep Gupta, learned Panel Lawyer submitted that the statements of minor prosecutrix (PW/1) as well as her father (PW/2) are fully supporting the case of the prosecution and therefore, the acquittal recorded by the learned trial Court is erroneous, hence this suo moto revision deserves to be admitted.

Heard learned counsel for the State, perused the material available on record, particularly the impugned judgment.

Learned trial Court after appreciation of evidence of prosecutrix (PW/1), a child witness of five years old found that her statement creating doubtful situation because during examination-in-chief she stated that respondent tried to attempt to commit rape on her, but during cross-examination she admitted that after disrobing her, the respondent was trying to bring his private part to her private part, meanwhile, her father came over there, therefore, the respondent fled away from the place of accident. This contradictory statement definitely creating grave doubtful situation, therefore, learned trial Court as mentioned in para 8 of the impugned judgment observed that in such circumstances looking to the age of star witness, independent support is must as directed by the Apex Court in the case of Bhagwan Singh and Others Vs. State of M.P., AIR 2003 SC 1088 : (2003) CriLJ 1262 : (2003) 3 JT 599 : (2003) 1 SCALE 407 : (2003) 3 SCC 21 : (2003) 1 SCR 506 : (2003) AIRSCW 617 : (2003) 1 Supreme 698 .

In search of the supporting evidence learned trial Court observed that during his cross-examination as Moolchand (PW/2) also admitted these derogatory facts that when he found the respondent in his house, he did not try to caught him and also not raised alarm for help. Therefore, learned trial Court rightly pointed out that evidentiary value of the statement of Moolchand (PW/2) also not worth acceptance, therefore, his statement cannot be treated as independent source of support to the statement of child prosecutrix (PW/1).

This fact also found proved that the respondent used to make humour with Usha Bai (PW/3), mother of the prosecutrix and wife of Moolchand (PW/2) and Usha Bai (PW/3) frankly admitted this fact, but Moolchand (PW/2) completely denied and willfully suppressed this fact, therefore, learned trial Court found another reason not to believe the statement of Moolchand (PW/2) as he is not reliable witness.

Moolchand (PW/2) apprised not only her wife Usha Bai (PW/3), but also informed entire facts of incident to the village Sarpanch Surendra (PW/7). It is pertinent to note here that Usha Bai (PW/3), mother of the prosecutrix and wife of Moolchand was declared hostile because she did not support the statement of her daughter prosecutrix (PW/1) and case of the prosecution. This fact is also required to mention here that sole independent witness and responsible office bearer Sarpanch Surendra (PW/7) was also declared hostile.

Patwari Hemraj (PW/4), Constable Toshendra Kumar (PW/5), Doctor Bharti Surana (PW/6), village Kotwar Jitendra (PW/9) and A.L. Saiyam (PW/8) deposited the facts which were formal in nature and as per their capacity of public servants.

The respondent can be convicted for the offence punishable under Section 354 of IPC, because it is a lessor offence for the charge under Section 376 read with Section 511 of IPC, but when it is crystal clear on the basis of scrutiny of prosecution evidence that the offence under Section376 read with Section 511 of IPC is not proved as the statement of child prosecutrix (PW/1) is contradictory as well as not supported by any independent source of evidence even by her mother Ushabai (PW/3), therefore, there is no question arises for conviction of the respondent for the lessor offence punishable under Section 354 of IPC on the same set of the prosecution evidence.

The learned Panel Lawyer could not point out any illegality or perversity in the impugned judgment. It is a well settled principle of law that unless the judgment of acquittal is palpably wrong and grossly unreasonable, interference in a revision against acquittal is not called for.

Hence, this suo moto criminal revision being devoid of merit is hereby dismissed.