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1995 Supreme(MP) 461
High Court Of Madhya Pradesh
D. M. DHARMADHIKARI, FAIZAN UDDIN
STATE OF M.P. - Appellant
Versus
UDHE LAL - Respondents
Criminal Appeal 255 Of 1981
Decided On : 04/07/1995
M.M.Qureshi, S.N.BHAGVAT
The main legal point established in the judgment is that the trial judge's findings were considered wholly perverse and unreasonable, and the prosecution had proved the case beyond reasonable doubt, leading to the accused being held guilty for the offence under Section 376/511 of the Indian Penal Code.
Headnote:
RAPE - Criminal Law - Indian Penal Code, Section 376/511 - The court discussed the evidence of the prosecutrix, the medical evidence, and the corroboration by other witnesses. It found that the trial judge had ignored the facts and circumstances as well as the prosecution evidence, and the findings were wholly perverse and unreasonable. The accused was held guilty for the offence under Section 376/511 of the Indian Penal Code.
Fact of the Case:
The case involved an appeal against the acquittal of the accused for an offence under Section 376/511 of the Indian Penal Code. The prosecution's case was that the accused attempted to commit rape on a minor girl while she was alone in the house.
Finding of the Court:
The court found that the trial judge had ignored the facts and circumstances as well as the prosecution evidence, and the findings were wholly perverse and unreasonable. The accused was held guilty for the offence under Section 376/511 of the Indian Penal Code.
Issues: The main issue was whether the accused attempted to commit rape on the minor girl, and whether the trial judge's acquittal was justified.
Ratio Decidendi: The court held that the trial judge had committed grave illegality in discarding the prosecution version and that the prosecution had proved the case beyond reasonable doubt. The findings recorded by the trial judge were set aside, and the accused was held guilty for the offence under Section 376/511.
Final Decision: The accused was sentenced to undergo 2 years R. I. and a fine of Rs. 5,000/-, which shall be paid as compensation to the prosecutrix. Failure to deposit the fine would result in a further 18 months imprisonment. The accused was ordered to surrender himself for undergoing the sentence.
( 1 ) STATE has preferred this appeal against the Order of acquittal of the respondent for offence punishable under Section 376/511 I. P. C. recorded by Shri R. K. Bajpai, Sessions Judge Shivpuri.
( 2 ) PROSECUTION story, in brief, is that on 8-3-1980, Kammod Singh (PW-1) resident of Gram Narvar had gone to his well along with his wife Jamuna Bai (PW-3) since earlier a theft had taken place in his house, he left his daughter Harkunwar (PW-2) in the house, Harkunwar was then aged about 8-10 years. At 1 O' clock during the day when his wife Jamuna Bai came to-the house for taking food, she saw that accused Udhe had over-powered her daughter. She was lying down and accused was over her in a position preparatory to sexual assault. As soon as Jamuna Bai entered the house, seeing her the accused ran away and in so doing only pushed her. Jamuna Bai enquired from her daughter, who told her that she was preparing meal then accused came in the house and brought her to this place, undressed himself and undressed her as well as tried to insert his male organ into her private part. She shouted but accused slapped her and also shut her mouth. Jamuna Bai told this incident to Pandit Ramcharan (PW-8) and Laxman (PW-4) and also to her husband who was called. Kammod Singh along with his daughter went to the police station Narvar, lodged a report Ex. P-8, on the same day at about 1. 30 p. m. S. O. , P. S. Narvar, G. D. Dubey (PW-10) registered an offence under S. 376/511 vide Crime No. 22/80. During the investigation G. D. Dubey (PW-10) reached the spot and prepared spot map (Ex. P-2), recorded statement of Kammod Singh (PW-1), Harkunwar (PW-2), Jamuna Bai (PW-3), Laxman Singh (PW-4) and Ramcharan (PW-8 ). Harkunwar (PW-2) was sent to hospital at Shivpuri for medical examination. Further investigation, in the case was carried on by Hakim Singh Yadav (PW-11) who sent accused for medical examination to Dr. M. P. Barua as per memo Ex. P-9 who gave the medical report Ex. P-10. Accused was arrested and challan was filed against him in the Court of JMFC, Ist Class, Karera. The case was committed to the Sessions Court, who charged him for the offence. The accused abjured the guilt and contended that he has been falsely implicated due to enmity.
( 3 ) PROSECUTION examined witnesses Kammod Singh (PW-1), Harkunwar (PW-2), Jamuna Bai (PW-3), Laxman (PW-4), Bholaram (PW-5), Dr. Mrs. Chopra (PW-8), Dharnidhar (PW-7)1ramcharan (PW-8), D. S. Hardikar (PW-9), G. D. Dubey (PW-10) and Hakim Singh (PW-11 ).
( 4 ) THE Trial Court in para 6 of his judgment held that Harkunwar was aged between 8-12 years. Even from the material on record, it is clear that at the time of incident Harkunwar (PW-2) was aged between 8-12 years.
( 5 ) LEARNED Trial Court in paragraph 7 considered as to whether the accused attempted to commit rape on Harkunwar (PW-2) and held it not proved. The learned Sessions Judge discarded the evidence of Harkunwar (PW-2), on the ground that in paragraph 10 she had stated "he tried to insert his male organ into her private part," whereas in the Court she stated that "the accused Udhe had penetrated his male organ into her private part. " Another factor weighed heavily was the evidence of Dr. Mrs. Chopra (PW 6) who gave statement in paragraph 8 that :-"if a fully grown man like accused Udhe aged about 25 years (present in Court) thrusts his penis even a little into the vagina of a girl aged about 8 to 10 years like Ms. Harkunwar then there will be present inflammation, slight redness and if the force is more it may also rupture the hymen. "
( 6 ) THE Trial Judge found the evidence not sufficient and thus acquitted the accused and recorded finding of acquittal on the ground that there are contradictions in the evidence of prosecutrix.
( 7 ) THE State has challenged the acquittal on the ground that there is overwhelming legal and reliable evidence on record. It is contended by the State that minor variation here and there make the prosecut
