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Judgment
Ashok Kumar Joshi, J
This appeal has been filed by the appellant/State of M.P. against judgment dated 7.7. 2005 passed by the First Additional Sessions Judge, Ashok
Nagar, District Guna in S.T. No. 177/2002, whereby each of the present respondents no. 1, 2 and 3 was acquitted from the charge of Sec. 366, 376
(2) (g) and Sec. 384/34 of the IPC.
Undisputedly, Prosecutrix (PW-2) filed a private complaint before the Court of JMFC, Ashoknagar which was registered and arisen criminal case
was committed to Sessions Judge, Guna, who transferred the relating sessions trial to Additional Sessions Judge, Ashoknagar.
Prosecution's case in brief is that married complainant aged about 19 years filed private complaint before JMFC Ashoknagar alleging that
complainant belongs to scheduled cast and prior to the incident she was married with Kalyan resident of village Bakspur, but before the date of
incident 31.12. 2000 complainant came to her father's house in village Raipura from her matrimonial house and in the mid-night at about 1:30 or 2:00
am when complainant came out from the house for answering the call of nature, then she was caught hold by respondents Ramesh and Ravindra, who
pressed her mouth and thereafter both these respondents got complainant seated on motor-cycle driven by respondent Ramesh and at that time
respondent Ravindra get her mouth pressed from behind and after giving life threat to her after showing knife. By motor-cycle she was taken to
village Isri Chowki where other respondent was also present and complainant was locked in a room wherein each of the respondents 1, 2 and 3
committed gang rape with her one after another. On next date complainant was threatened by relating respondents that she should marry with
respondent Ramesh and got attested an affidavit in the court campus Kolaras regarding marriage with Ramesh otherwise she and her father would be
killed. Thereafter complainant got much puzzled and she was taken by the respondents to Kolaras Court premises, where her thumb impressions were
taken on some papers, and being an illiterate person complainant was not aware that what was written in relating papers. On that day respondents
were armed with Ballam, Farsa and they also gave life threat to complainant and thereby false affidavit regarding forceful marriage or natra with
Ramesh were prepared.
As complainant's father lodged her missing report at Police Station Nai Sarai and thereafter at Harijan Prakosht, Guna, so she was taken from
Kolaras to unknown village where she was kept in a room for a period of 15 days, where each respondent committed rape with her, and thereafter
she was aken to village Kalabagh, where she was kept for a period of 20 days and there also she was being subjected to gang rape by each of the
respondents and thereafter she was brought to village Bhora where her rape remain continued. On 25.3. 2001 when complainant's in-laws and her
parents got information that complainant is kept in village Kala Bagh, then complainant's father-in-law and other family members gave intimation at
Police Station Nai Sarai, but police did not pay any heed to the intimation, so her family members reached to village Kala Bagh for getting her free and
they got complainant freed from abduction, but at that time respondents attacked on the family members of complainant and respondents lodged a
false report at police station and got a criminal case registered against her family members. Complainant gave written applications dated 16.4. 2001 to
Superintendent of Police, Guna, S.H.O, Police Station Nai Sarai and Harijan Prakosht, Guna but police not proceeded against respondents, theerafter
she filed private complaint which later on got registered and arisen criminal case was committed to Sessins Court.
Tried respondents Ravindra, Ramesh and Sitaram abjurfed guilt. Before the trial court seven prosecution witnesses were examined. It was defence
of present respondents no. 1 to 3 that they have been falsely implicated and at the time of cutting of crop at Kalabagh an incident had occurred,
wherein family members of respondents received injuries and in relating case, some prosecution witnesses and their family members were convicted
and sentenced and only for creating pressure to compel them for compromise, false private complaint got lodged after pressurising complainant.
Ramcharan (DW-1) was examined before the trial court, who deposed that for the last 5 to 6 years complainant is living with respondent Ramesh as
her wife.
After hearing, the trial court acquitted each of the present respondents from charges framed against them. Hence this criminal appeal against
acquittal.
Appering learned public prosecutor on behalf of appellant/State vehementaly contends that it was proved from the evidence of
prosecutrix/complainant (PW-2), which was corroborated by the evidence of complainant's husband Kalyan (PW-3) and Suresh (PW-4) that
complainant was abducted on the date of incident by Ravindra and Ramesh to compel her to marry with Ramesh against her will or to seduce herself
to have illicit intercourse with Ramesh and other respondents and thereafter she was gang raped by respondetns but learned trial court erred in
acquitting the relating respondents from the charged offence. Therefore, it is prayed that respondents be convicted and adequately sentenced for
charged offence.
Complainant/ prosecutrix (PW-2) deposed that in the night on the date of incident she was in her father's house, though prior to it she was married
to Kalyan resident of village Bakspur, but in the night when she came out from her father's house for answring the call of nature, then respondents
Ravindra and Ramesh took her through a motor cycle to Isri Chowki and after her lifting Ramesh was driving motor-cycle and Ravindra pressed her
mouth, so she was unable to call anyone. In village Isri Chowki she was kept in a separate room, where Ramesh and Ravindra committed rape with
her one after another and in village Isri Chowki she was raped by other persons also. Complainant (PW-2) deposed that after keeping her in village
Isri Chowki for two days, she was taken to Kolaras and in the way she was threatened after showing knife and her signatures were taken on papers
that in future she would reside with Ramesh as her wife and thereafter she was firstly taken to village Chamarpura, where she was raped for a period
of about 20 days and rape was committed with her by Ramesh as any husband commits with her wife and thereafter she was taken to village
Kalabagh by Ramesh and Ravindra, where in house of Ramesh she was being kept and she was not permitted to come out from the house.
Complainant (PW-2) deposed that during period of her stay at village Kala Bagh one day when she had gone for answering the call of nature, then
he intimated to her nephew who incidentally met her, that her father be informend that she was being taken for cutting wheat crop and thereafter on
one day when she was cutting crop in a field of Kala Bagh then her brother Devilal, her husband Kalyan , her father-in- law Tulsiram and Kashiram
and some other persons came there and she told Ramesh that now she is going with her brothers, then Ramesh inflicted Farsa blows to her brother
Devilal and later on she went to village Bakspur with her husband Kalyan and and thereafter she reached to police station Naisarai for reporting, but
police did not write her report then she intimated S.P., Guna and thereafter filed private complaint.
Suresh (PW-4) resident of village Kalaripura deposed that complainant is her neighbourer and respondents also reside in his village and about two
years ago when in the night at 1:30 or 2 :00 am she came out from the house for answering call of nature then he saw that by a motorcycle, which
was being driven by respondent Ramesh, complainant was being taken and pillion rider respondent Ravindra had pressed the mouth of complainant
and in the same night he informed complainant's father about this incident.
Kalyan (PW-3) deposed that complainant is her wife and respondents are residents of adjoining village of her in-laws village and prior to incident
her wife complainant (PW-2) was taken by her father to village Raipura and about 8 days after complainant's brother Devilal informed him that
complainant has been abducted by Ravindra and Ramesh and after the release of his wife, complainant intimated him that she was abducted by
Ramesh and in total 8 to 9 persons committed rape with her in village Isri Chowki. Kalyan (PW-3) also deposed that after abduction of his wife
Devilal informed that complainant is in village Kala Bagh then he with his father and other relatives went to Kala bagh and found that his wife
(complainant) was cutting wheat crop in a village and respondent Ravindra, Ramesh and Sitaram were with her and after looking them complainant
came in their side, thereafter Ramesh gave a pharsa injury by blunt side on waist of the complainant and thereafter complainant was taken by him and
his father to their house Bakspur.
Kalyan also deposed that his father-in-law and his father have reported the matter at Police Station Naisarai but relating police gave no heed to it
as respondents have given money to the polcie. Kalyan (PW-3) clearly admited in his cross-examination that he and his relatives have been convicted
and sentenced in relating criminal case lodged on the report of respondents for causing injuries to them, but he deposed that relating respondents
lodged false report. Complainant /prosecutrix (PW-2) firstly deposed in paragraph 16 before trial court that she is having no knowledge about trial of
her husband Kalyan, father-in-law and her father for causing injuries to the present respondents, but in next breath she deposed that her brother Tulsi,
husband Kalyan have been bailed out and seven other persons are detained in jail for a period of one and half years.
In relating trial, complainant (PW-2) was examined on 25. 11. 2002, wherein she was confronted with her prior deposition given by her in sessions
trial no. 242/2001 before first ASJ, Ashoknagar on 11.12. 2001 wherein in first para's marked portion as A to A of certified copy of her deposition
(Ex. D-1), she deposed that on the date of incident in vaishakh month when crop of wheat was being cut, then she was taken to village Kala Bagh for
cutting of wheat crop by Ramesh and in relating agricultural land and she was cutting wheat with Ramesh, Sitaram and Latoori and prior to it she was
living with Ramesh for past three months. Present complainant's previous deposition (Ex. D-1) dated 11.12. 2001 was recorded in relating court as
PW-13. Though in cross-examination on 25.11. 2002 after confronting on the prior deposition she refused to depose A to A marked above mentioned
portion in her earlier deposition (Ex. D-1), but it is clear from her total evidence and even by her conduct before the trial court after recording of her
statement that she was regularly changing her version and some time she was deposing in favour of her first husband Kalyan and at another time she
was deposing in favour of Ramesh.
The prosecution version regarding on the date of incident 31.12. 2002, it could not be expected by respondents Ramesh and Ravindra or any other
person that complainant would come out of her father's house in mid-night at 1:30 or 2 pm for answering call of nature, then she would be abducted by
motor-cycle. Such eventualities could be hapenned only after pre-arrangment and prior consent.
It is clear from the record of trial court that trial court on 23.6. 2009 decided an application dated 26. 6. 2004  filed by theÂ
accused persons/present respondents filed u/s. 311 of the Cr.P.C for re-examination of complainant, and by the same order another application filed
by the complainant PW-dated 24.3. 2003 filed u/s. 311 of the Cr.P.C was also decided and in the application dated 24.3. 2003 complainant has
revealed that her prior deposition before the trial court was given by her under pressure and compulsion of her prior husband Kalyan and her father
and mother and her evidence recorded on 25. 11. 2002 is totally false and now she is willing to reveal real facts. Though the trial court dismissed
complainant's application filed u/s. 311 of the Cr.P.C vide its order dated 23. 6. 2005, but it is clear that it has been observed by the trial court that it
was clear that after recording of her depostion before trial court she has comprosmised the matter with the present respondents and now she is
desiring to change his evidence.
It is clear that in the incident, which occurred on 26.3. 2001 wherein complainant (PW-2) was got freed after alleged abduction, an incident
occurred in relation to which on report of the respondents or their family members criminal case was registered against family members parents, and
husband of the complainant and they got convicted and it appears that only after initiation of criminal case on report of respondents a written
application (Ex. P-2) dated 16.6. 2001 was sent by complainant to S.P., Guna, S.H.O, Police Station Nai Sarai and other police officials and private
complaint was presented by the complainant on 17.5. 2001, whereas she was allegedely got freed on 26.3. 2001. In these facts and circumstances,
this possibility could not be ruled out that married complainant (PW-2) went with Ramesh voluntarity and resided with him as his wife for sufficient
period and when another criminal incident occurred on 26.3. 2001, wherein she was taken or she went with her first husband Kalyan and his family
members. She did not submit any timely report or application or private complaint against present respondents and as Ramcharan (defence witness no.
1) has clearly deposed that for the last five to six years complainant (PW-2) is residing and living with respondent Ramesh as his wife and Ramesh
resides in Kala Bagh though he admitted in cross-examination that complainant is not married wife of Ramesh.
The facts deposed by Ramcharan (PW-1) and the conduct of the complainant in the shape of filing application u/s. 311 of the Cr.P.C after
recording of her deposition before the trial court provide corroboration of the defence raised by respondent Ramesh in his examination conducted by
the tiral court u/s. 313 of the Cr.P.C that complainant had volutarily resided with him because her husband Kalyan was drunkard and he gave beating
to her, hence complainant started living with him and in another criminal case occurred on the date of cutting of wheat crop. Complainant's husband
Kalyan, father- in- law and her brothers were convicted and sentenced. Therefore, the possibility could not be ruled out that after initiation of criminal
case against the husband and other family members of complainant, private complaint by complainant was lodged for pressurising the present
respondents for getting ready to compromise after cooking a story of gang rape by two real brothers respondents Ramesh and Sitaram with same
lady, which prima facie, appears to be unnatural and unbelievable, whereas it is alleged that complainant was being compelled to marry respondent
Ramesh.
The trial court has observed in para numbers 20 and 21 of its judgment the facts in detail and it was clear from the application dated 24.3. 2004
filed by the complainant before the trial court that at that time she was living with respondent Ramesh as his wife. In such facts and circumstances,
prima facie, it appears that on the date of incident being a major and married lady she had voluntarily gone with respondent Ramesh for living with
him. In such situation, all the findings recorded by the trial court appears to be just and proper.
We are of the considered opinion that the sessions judge has properly and legally analysed and appreciated the entire evidence available on record
and did not err in acquitting the respondents from the charged offences. It is clear that State's Appeal against judgment of acquittal is without any
substance and is liable to be dismissed.
Consequently, the appeal filed by the appellant/State u/s. 378 of the Cr.P.C against the impugned judgment of acquittal is hereby dismissed. With a
copy of this judgment, the record of trial court be sent back immediately.