{"id":427,"date":"2010-06-25T00:00:00","date_gmt":"2010-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagdish-vs-the-state-of-m-p-on-25-june-2010"},"modified":"2018-09-12T05:23:21","modified_gmt":"2018-09-11T23:53:21","slug":"jagdish-vs-the-state-of-m-p-on-25-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagdish-vs-the-state-of-m-p-on-25-june-2010","title":{"rendered":"Jagdish vs The State Of M.P on 25 June, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Madhya Pradesh High Court<\/div>\n<div class=\"doc_title\">Jagdish vs The State Of M.P on 25 June, 2010<\/div>\n<pre>                                                     1\n\n                       HIGH COURT OF MADHYA PRADESH,\n                             PRINCIPAL SEAT, JABALPUR\n                                          SINGLE BENCH\n              PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA\n                        CRIMINAL APPEAL NO.1416\/1995.\n                                                Jagdish\n                                                   Vs.\n                                   State of Madhya Pradesh\n............................................................................................................\nFor the appellant :                              Shri J.A.Shah, Advocate\nFor the respondent:                              Shri J. K. Jain, learned Deputy Advocate\n                                                   General.\n............................................................................................................\n                               Date of hearing :              21.5.2010\n                              Date of judgment :              25.6.2010\n............................................................................................................\n                                             JUDGMENT\n<\/pre>\n<p>        The appellant has preferred this appeal against the judgment dated<br \/>\n10-10-1995, passed by Sessions Judge, Tikamgarh, in S.T. No. 109\/1992<br \/>\nby which he was convicted for offence under Section 376 read with<br \/>\nSec.511 I.P.C. and inflicted sentence of rigorous imprisonment for two<br \/>\nyears with fine of Rs. 500\/-. In default he has to undergo six months<br \/>\nrigorous imprisonment.\n<\/p>\n<p>2.      In short the prosecution story is that on 20-3-1992, the prosecutrix<br \/>\n(PW2) was all alone in her house at village Gova, district Tikamgarh. At<br \/>\nabout 7:00 pm accused suddenly entered the house and threw the<br \/>\nprosecutrix on earth, unwrapped the saree worn by her and committed<br \/>\nrape. Witnesses Lakhan, Ganesh (PW1) and Vijay (PW3) had seen the<br \/>\naccused when he was entering                         the house of the prosecutrix. The<br \/>\nprosecutrix on 21-3-1992 at about 4:40 pm lodged FIR regarding the<br \/>\nincident. Ultimately Police A.J.K. had submitted challan. J.M.F.C. Jatara<br \/>\n<span class=\"hidden_text\">                                      2<\/span><\/p>\n<p>committed the case for sessions trial to Sessions Judge, Tikamgarh.\n<\/p>\n<p>3.   After due trial learned Sessions Judge passed the Judgment dated<br \/>\n10-10-95 of conviction with aforesaid punishment order.\n<\/p>\n<p>4.   The prosecutrix (PW2) has stated that the appellant\/accused<br \/>\ncommitted rape with her when she was in her house. She has further<br \/>\nstated that at that time her husband had already gone to beat drums in a<br \/>\nfestival. On her shouting witness Ganesh (PW1) and witness Vijay (PW3)<br \/>\ncame and they saw the accused leaving her house.        Ganesh (PW1) has<br \/>\nsupported the version of the prosecutrix in his evidence but it seems that<br \/>\nhe has exaggerated the entire story.     There is material contradiction in<br \/>\nhis statement and case diary statement Ex.D-1. Witness Vijay (PW3) did<br \/>\nnot support the prosecution story.   He was declared hostile.    However,<br \/>\nhe accepted having seen the prosecutrix abusing the accused when the<br \/>\naccused was standing in front of the house of the prosecutrix.         The<br \/>\nprosecutrix has lodged an FIR Ex.P-1 in which she has narrated the story<br \/>\nin a very short manner.         FIR Ex.P-1 was delayed by 21 hours<br \/>\napproximately.   Incident took place at 7.00 p.m on 20.3.1992 whereas<br \/>\nF.I.R was lodged at about 4.40 p.m on 21.3.1992.      No sufficient reason<br \/>\nhas been shown for that delay. The prosecutrix stated that her husband<br \/>\nwas out and he came in the evening at about 8.00 p.m, accused and his<br \/>\nbrother Rajaram came and started assaulting her husband and, therefore,<br \/>\nher husband left his house and went to his parents house only to return<br \/>\nthe next day in the morning. Such allegation against the accused and his<br \/>\nbrothers is neither made in FIR Ex.P-1 nor in case diary statement Ex.D-2.<br \/>\nTherefore, story of her husband&#8217;s moving to his parents house at about<br \/>\n8.00 p.m in the evening seems to be cooked one.\n<\/p>\n<p>5.   Husband of the prosecutrix when came at 8.00 p.m in the evening<br \/>\nthen he could take the prosecutrix to the Police Station, Jatara in the<br \/>\nnight or at the most next day in the morning.    There was no reason for<br \/>\n<span class=\"hidden_text\">                                        3<\/span><\/p>\n<p>him to have left his house on that day unless he had found his wife to be<br \/>\nguilty.     However, explanation given for delay in lodging FIR seems to be<br \/>\nafter thought and is not acceptable.       Secondly in Ex.P-1 it is mentioned<br \/>\nthat village Gova comes in jurisdiction of Police Station, Jatara but the<br \/>\nprosecutrix has not lodged the FIR in Police Station, Jatara which was<br \/>\nnearest but she lodged the report in Kotwali, Tikamgarh which was far<br \/>\naway.     Such selection of Police Station creates a grave doubt that she or<br \/>\nher husband could not record a cooked report in Police Station Jatara.\n<\/p>\n<p>6.    The evidence given by witness Vijay (PW3) shows that the<br \/>\nprosecutrix was abusing the accused and the accused was standing in<br \/>\nfront of her door.    If he was guilty of some crime then certainly he could<br \/>\nnot stand to hear her abuses.      He being guilty conscious must have left<br \/>\nthe spot immediately. The circumstances as stated by the prosecutrix do<br \/>\nnot seem to be natural.       The prosecutrix has not said anything about<br \/>\nprevious relations of accused and her husband.        It is not possible for a<br \/>\nstranger to go inside any house and do such crime.         If the prosecutrix<br \/>\nwas not known to the accused, accused could not dare to enter in the<br \/>\nhouse in broad day light when the house was situated on the main road<br \/>\nof the village.     Similarly the prosecutrix has admitted that she has five<br \/>\nchildren.     Out of them eldest daughter was of 8-9 years of age and<br \/>\nyoungest daughter was 1 \u00bd years of age but she did not explain the<br \/>\nabsence of all the five kids at the time of incident, where as the accused<br \/>\nwould not have done such a crime in presence of five children.            Her<br \/>\nconduct for not explaining the absence of those five kids creates a great<br \/>\ndoubt in the prosecution story.       The prosecutrix has tried to give an<br \/>\nexplanation regarding absence of her husband, but she did not tell<br \/>\nanything about her children.\n<\/p>\n<p>7.    Apparently it seems that witness Ganesh (PW1) supports the version<br \/>\nof the prosecutrix. He was believed by the trial court only because he has<br \/>\nstated that the accused assaulted him two months prior to his statements<br \/>\n<span class=\"hidden_text\">                                      4<\/span><\/p>\n<p>before the Court, whereas he has stated such version without asking. He<br \/>\nwas suggested that he was in party of one Mahendra Pratap Singh a rival<br \/>\nof the accused but he denied. Though he has denied the suggestion, but<br \/>\nhis evidence seems to be prepared one. In case diary statement Ex.D-1<br \/>\nhe has informed that at the time of incident he was sitting in his shop<br \/>\nwith Vijay and Lakhan, whereas in the Court he claims to reach the spot<br \/>\nearlier than other two witnesses. He said that he was sitting in the shop<br \/>\nall alone whereas he has admitted that in those festival days he was<br \/>\nextremely busy in his shop. He has denied the presence of other two<br \/>\nwitnesses at the shop only because he was aware that his story would not<br \/>\nbe supported by other two witnesses. It is clear that Vijay does not<br \/>\nsupport his story whereas Lakhan was not examined by the prosecution.<br \/>\nLearned A.P.P. on 24-9-1993 expressed before trial court that he does not<br \/>\nwish to examine him and no summons be issued to him.\n<\/p>\n<p>8.   In the circumstances witness Ganesh being busy in the shop neither<br \/>\nhe could see the accused entering in the house of the prosecutrix nor he<br \/>\nhas seen anything. And therefore his confirmation of the version of the<br \/>\nprosecutrix against his own previous statement indicates that he is an<br \/>\ninterested witness telling falsehood before the court.\n<\/p>\n<p>9.   As discussed above, conduct of prosecutrix and her husband makes<br \/>\nthem disbelievable. In present case entire merits depend upon the<br \/>\ntestimony of the prosecutrix. If she is believable then appeal shall be<br \/>\ndismissed. The learned Sessions Judge erred in disbelieving the<br \/>\nprosecutrix in part. He believed the prosecutrix and held that incident<br \/>\ntook place but he did not hold the appellant guilty for offence under sec.<br \/>\n376 of IPC by disbelieving the prosecutrix. Such an approach can not be<br \/>\nsaid to be legal. He found that there was no injury on any external or<br \/>\ninternal part of her body. Police has not placed F.S.L. Report before the<br \/>\ntrial Court. If F.S.L. Report was not produced, that part of evidence may<br \/>\nnot be available but no adverse inference could be drawn. It is not<br \/>\n<span class=\"hidden_text\">                                             5<\/span><\/p>\n<p>       necessary that a grown up woman who is mother of five children may get<br \/>\n       injury in such an act though done against her wish. Similarly, due to<br \/>\n       washing and bathing nothing could be obtained from her vaginal swab<br \/>\n       prepared after more than 24 hours.\n<\/p>\n<p>       10.       If prosecutrix is believable then fact of penetration must be<br \/>\n       accepted and the offence made out would be rape and not just attempt.<br \/>\n       Unfortunately learned Sessions judge took a wrong decision on this point.<br \/>\n       Since the State has not preferred any counter appeal for this purpose, this<br \/>\n       Court can not interfere in this matter. It is now held that the prosecution<br \/>\n       story seems to be unreasonable, F.I.R. is         highly delayed and no<br \/>\n       acceptable reason has been shown, F.I.R. has not been lodged in nearest<br \/>\n       police station, the prosecutrix has not explained the absence of her five<br \/>\n       children at the time of occurrence and no witness supports her version<br \/>\n       accept witness Ganesh who is not at all believable, the prosecutrix can<br \/>\n       not be believed. Hence the accused can not be convicted for offence<br \/>\n       punishable under sec. 376 I.P.C. or for offence punishable under sec. 376<br \/>\n       read with 511 I.P.C.\n<\/p>\n<p>       11.    On the basis of above discussion appeal can be accepted.     Hence<br \/>\n       appeal is hereby allowed. Impugned conviction and sentence is quashed.<br \/>\n       The appellant is acquitted from the charges appended against him. He will<br \/>\n       get fine amount back if he has deposited.\n<\/p>\n<p>       12.    Appeal is disposed off accordingly.\n<\/p>\n<p>                                                    (N. K. GUPTA)<br \/>\n                                                       JUDGE<\/p>\n<p>bina\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madhya Pradesh High Court Jagdish vs The State Of M.P on 25 June, 2010 1 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT, JABALPUR SINGLE BENCH PRESENT: HON&#8217;BLE JUSTICE SHRI N. K. GUPTA CRIMINAL APPEAL NO.1416\/1995. Jagdish Vs. State of Madhya Pradesh &#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230; For the appellant : Shri J.A.Shah, Advocate For the respondent: Shri J. K. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-427","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.4 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jagdish vs The State Of M.P on 25 June, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagdish-vs-the-state-of-m-p-on-25-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagdish vs The State Of M.P on 25 June, 2010 - Free Judgements of Supreme Court &amp; 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