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2013 Supreme(MP) 17
HIGH COURT OF MADHYA PRADESH
N.K. Gupta, J.
Komal Prasad Dhimolay v. State of M.P.
Criminal Appeals No.561 and 589 of 2001 (Jabalpur) : against the judgment of Additional Sessions Judge, Gadarwara, District Narsinghpur, passed in S.T. No.5 of 2000; Decided on 3.1.2013.
H.S. Dubey for appellants;
Ajay Tamrakar, Panel Lawyer for respondent/State.
Headnote:Penal Code, 1860 -- S.376 r/w Ss.34 and 498A -- allegation of gang-rape against husband along with his companions -- age of one accused about 60-70 years -- delay in lodging FIR not explained well -- spot map not prepared by Investigation Officer -- FIR suffers from various infirmities -- witness appears to be concocted -- statement of prosecutrix not believable -- offence not proved.
Held : On the basis of the aforesaid discussion, it would be apparent that the appellant Jai Prakash husband of the prosecutrix entered in a compromise and he took his wife to his house. He has not done anything which may amount to a harassment with his wife. There is no allegation upon him that he asked for any money or any dowry from the prosecutrix or he assaulted the prosecutrix for fulfilment of such demand. Allegation of gang-rape was alleged against the appellant Jai Prakash, which is not proved beyond doubt. Except of that allegation there is no allegation against the appellant Jai Prakash relating to harassment of the prosecutrix and such allegation of gang-rape was not proved beyond doubt. The appellant Jai Prakash could not be convicted for the offence punishable under section 498A of IPC because no harassment is proved which was done by the appellant Jai Prakash with the prosecutrix.
naM lafgrk] 1860 && /kkjk 376 lgifBr /kkjk 34 rFkk 498d && ifr ds fo:) vius lkfFk;ksa lfgr lkewfgd cykRlax dk vfHkdFku && ,d vfHk;qDr dh vk;q yxHkx 60&70 o"kZ && izFke bfRryk fjiksVZ nkf[ky djus esa foyac dk Hkyh izdkj Li"Vhdj.k ugha && vUos"k.k vf/kdkjh }kjk LFky&uD'kk rS;kj ugha fd;k x;k && izFke bfRryk fjiksVZ esa vusd 'kSfFkY;rk,a && lk{kh x<+k x;k izrhr && vfHk;ksD=h dk dFku fo'oluh; ugha && vijk/k lkfcr ughaA
vfHkfu/kkZfjr % iwoksZDr foospu ds vk/kkj ij] ;g Li"V gksrk gS fd vfHk;ksD=h ds ifr vihykFkhZ t; izdk'k us le>kSrk fd;k rFkk viuh iRuh dks vius ?kj yk;kA mlus ,slk dqN ugha fd;k tks mldh iRuh dh izrkM+uk dh dksfV esa vk ldsA ml ij ,slk dksbZ vfHkdFku ugha gS fd mlus vfHk;ksD=h ls fdlh /ku ;k fdlh ngst ds fy, dgk ;k mlus ml ekax dks iw.kZ djus ds fy, vfHk;ksD=h ij geyk fd;kA vihykFkhZ t; izdk'k ds fo:) lkewfgd cykRlax dk vfHkdFku fd;k x;k tks lansg ds ijs lkfcr ugha gqvkA ml vfHkdFku ds flok; vihykFkhZ t; izdk'k ds fo:) vfHk;ksD=h dh izrkM+uk ls lacaf/kr dksbZ vfHkdFku ugha gS rFkk lkewfgd cykRlax dk og vfHkdFku lansg ds ijs lkfcr ugha gqvkA vihykFkhZ t; izdk'k dks naM lafgrk dh /kkjk 498d ds v/khu naMuh; vijk/k ds fy, fl)nks"k ugha Bgjk;k tk ldrk Fkk D;ksafd ,slh dksbZ izrkM+uk lkfcr ugha gqbZ tks vihykFkhZ t; izdk'k }kjk vfHk;ksD=h dks nh xbZ FkhA ¼iSjk 2
1. Since both the appeals are related with the common judgment dated 30.3.2001 passed by Additional Sessions Judge, Gadarwara, District Narsinghpur in S.T. No.5/2000, therefore, both the appeals are hereby decided by this common judgment.
2. The appellants have preferred this appeal against the aforesaid judgment passed by the learned Additional Sessions Judge, Gadarwara, District Narsinghpur, whereby the appellants Jaiprakash, Satish Verma and Komal Prasad were convicted for the offence punishable under section 376 read with section 34 of IPC and sentenced for 10 years rigorous imprisonment with fine of Rs.500/-, whereas remaining appellants and the appellant Jai Prakash were convicted for the offence punishable under section 498A of IPC and sentenced for 2 years rigorous imprisonment with fine of Rs.500/- and in each default of payment of fine, 3 months’ rigorous imprisonment was also directed as default sentence.
3. The prosecution’s case, in short, is that, the prosecutrix (PW1) was the wife of the appellant Jai Prakash. A matrimonial dispute was initiated between them but, ultimately, it was resolved in the Court with a compromise and, therefore, on 17.11.1998, the appellant Jai Prakash took the prosecutrix to his house. The prosecutrix was kept in the house of the appellant Jai Prakash situated in the field at village Aamgaon Chhota (Police Station Gadarwara, District Narsinghpur). She was harassed by so many methods. She was directed to work in the fields. In the month of December, 1998, the appellant Pyari Bai, mother-in-law of the prosecutrix assaulted her by slaps and fists and other appellants, except Komal and Satish asked her to bring a sum of Rs.1,50,000/- otherwise, directed her to leave the house. In the end of December, 1998, the appellant JaiPrakash sent his parents and relatives to the house situated in the village and thereafter, at about 10 p.m. in the night, he came to the house along with the appellants Komal and Satish Verma. The prosecutrix was taken to the bedroom of the house and thereafter, the appellant JaiPrakash assaulted her by kicks and fists and shown a knife to her and directed her to undress. The appellant Satish Verma was taking photographs while the prosecutrix was removing her clothes. Thereafter, the appellant Komal Dhimole pressed her breasts and tried to insert his penis in her vagina but, he could not complete the intercourse. Satish Verma took the photographs of the entire incident. Thereafter, the appellant Jai Prakash took the camera with him and the appellant Komal shown a knife to the prosecutrix and thereafter, the appellant Satish committed rape upon her. The photographs were taken by the appellant Jai Prakash during the incident. Thereafter, the appellant Jai Prakash during the incident.Thereafter, the appellant Jai Prakash also committed rape with the prosecutrix in front of other appellants. Thereafter, they threatened her not to tell anyone about the incident. After the incident, the prosecutrix was kept in watch and she was not permitted to talk with anyone. During this period, she was harassed by several methods. On 14.1.1999, at about 4 a.m. in the morning, the prosecutrix could escape from the house along with her daughter aged 2 years and by taking a bus, she went to her parents house at village Sahaban. She told the entire story to her father, brother Ganesh and other relatives Bhairo Prasad Verma and Jagdish Patel. On 15.1.1999, she had lodged a written report to SHO, Police Station Gadarwara, in which she had mentioned the entire story and also mentioned that she could not lodge report on 14.1.1999 because she was of the view that defamation could be caused in lodging such an FIR. The prosecutrix was sent to the District Hospital, Narsinghpur for her medico legal examination, where Preeti Singhai (PW6) examined her and gave a report, Ex.P-13. The appellants Jai Prakash, Komal and Satish were also sent for their medico legal examination. After due investigation
