^ HIGH COURT OFCHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKARJ. J Criminal Appeal No. 1196 of2001 Appellant Balu @ Balswarup Vs. ResBondente TheState ofChhattisgarh through Police Station Lakhanpur, Dist. Sarguja (CG). POSTFORPRONOUNCEMENTOF JUDGMENT Sd/- R.N. Chandrakar Judge '-~~t~"--'^-f- Sd/-__ 1 i-.- ... JUDGE 19-8-2009 ^ ADpellant HIGH COURTOFCHHARTTISGARH AT BILASPUR Criminal Appeal No. 1196 of 2001 Balu @ Balswarup, s/o. Jhimit Gond, aged about 26 yeare, occupation Agriculture, resident of village Kesma, Police Statioh Lakhanpur, Distt.Sarguja (CG). Versus Respondent State of Chhattisgarh through Police Station Lakhanpur, Distt. Sarguja (CG). Criminal appeal u/S. 374(2) oftheCriminalProcedureCode (SB: Hon'ble Mr. Ranganath Chandrakar, J.) Present: Shri D.N.Prajapati, counsel for theappellant. Shri RakeshJha, Deputy Advocate General fortheState. JUDGMENT (Deliveredon thisAo^kday ofAugust, 2009) 1) The appellant has preferred this appeal being aggrieved by the judgment of conviction and order of sentence dated 6-11-2001 passed by Ist Additional Sessions Judge, Ambikapur, Dist. Sarguja in Sessions Trial No. 264 of 2000, whereby the accused/appellant has been convicted under Section 376 (1) ofthe Indian Penal Code (forshort, "IPC") andsentenced to undergo R.l. forseven years and to pay fine,of Rs.1000/-, in defaultof payment of fine to further undergo R.l. for six months. 2) Briefly stated facts of the case are that Sriram, the husband of prosecutrix Hiramati Bai (PW/8) used to graze his cattle in the forest constructing a hut and acattle shed in the jungle where Sriram and hiswife Hiramati Bai used to take shelter along with cattle. On16-4- 2000, Sriram along with Negi and Jagdishwenton the hillfor grazing .>*"« :ISk.. •' 3) his cattle. At about 1 1.00 a.m. while the prosecutrix was feeding herthree years old child in theshed, the accused/appellant came there and asked whereSbouts ofher husband. The prosecutrix told the accused/appellant that her husband had gone to forest to graze the cattle and then, the accused/appellant asked for water to drink. While she was brining Water, the accused/appellant caught hold of her right hand, pushed her on the floor ahd committed rape on her. When the prosecutrix tried tg raise alarm, the accused/appellant gagged hermouth byputting her-saree. Theaccused/appellant got up after committing the offence, at that time her husband, Jagdish Mahto and Negi Korwa were returning to home and heard the noise. On seeing them, the aceused/appellant fled away from the scene of occurrence. ThereaftQr, thehusband of the prosecutrix asked herwhytheaccused/appellantwas running, then she narrated the whole incidentto her tiusband. The friends ofthe husband ofthe prosecutrix chased, caught the accused/appellant and enquired him. The husband of the prosecutrix committed "marpit" with the accused/appellant. The prosecutrix could not get the FIR lodged in time due to sicknessof her three years old child. On 26-6-2000 the prosecutrix, reported the matter at Police Station, Lakhanpur, whereupon First Information Report (Ex.P/6) was registered by the Station House Officer, Subhash Das (PW/7). Thereafter, the prosecutrix was sent to hospital for medical examination where Doctor Pratibha Jain (PW/4) examined the prosecutrix and prepared slides and thesamewas seized vide Ex.P/8 which was sent to FSL, Sagar, for chemical examination vide Ex.P/11. The Station House Offieer, Subhash Das (PW.7) arrested the accused/appellant vide Ex.P/9. p& . X 1 W i -^^^' :1 III :s 1-li. ; 4) After completion of investigation, charge sheet was filed competent court which, in turn committed thecase to the Court of Sessions Judge, Ambik^pur. The trial Judge framed charge under Section 376 (1) of the IPC against the accused/appellant. The accused/appellant abjured the guilt and pleaded his innocence and false implication. After reT;ording of evidence of the witnesses;the statement of the accused/appellantwas recorded under Section 313 of the Cr.P.C., in which he dqnied the charge leveled against him. The trial Court, afterappreciation ofthe evidence, convicted and sentenced the accused/appellant as mentioned in para1 of the judgment. , 5) Learned counsel appearing for the appellant submits that the trial Court erred seriously by not taking cognizanee of the fact that the report was lodged after'2 % months of the ineident which is fatal to the prosecution. Thetrialcourtfailedto considerthat independent witnesshas nQtsupportedthe case of the prosecution; Thetrial court also failed to see that no case is made out against the appellant in absence ofthe medical evidenceinasmuch asthesolitary statement of the prosecutrix gets ho corroboration. Learned counsel further submits that the trial Court erred seriously in believing the contradictory statements ofthe prosecutrix. The trial Cburt also failed to consider the plausible explanation of the appellant that the prosecutrix atthe instance of her husband falsely reported the matter simply with a view to take a revenge against the appellant. The trial court has committed grave error in holding the appellant guilty for the alleged offence u/s. 376 (1)ofthelPG. Lastly, he submjts that looking to the entire facts and-circumstancesofthe case, the prqsecution story is an after thought, tainted, cooked up and , concocted and. assuGhthejudgmentandsentenceofconvictionis •3 ^ 'i'%.s. •ytr. '..«. '"^ : ';1 ' ."' i) • :. .—'"'/:<1>' '>-.'•• " ^-" surrounded by surmises and conjectures, therefore, the judgment of 1 . conviction and order of sentence passed by the trial court be set asideand the appellant be acquitted ofthe charge. 6) Per contra, learned counsel appearing for the respondent/State argued the matter in support of the judgment and findings arrived at bythe trial Court. 7) I have heard learned counsel for the parties, perused the record as well as the impugned judgme.ht of the trial court. The prosecution in order to provethe guilt of.the accused/appellant examined eight witnesses. 8) PW/8 Hiramati Bai, the prosecutrix stated in herdeposition that she knew the accused/appellant about one year back. On Sunday at 12.00 noon whenshe was in her house, theaccused/appellant came there andasked for waterto drink and thereafter he caught hold of her hands, pushed her on the floor and committed rape on her. At the time of incident she wom saree and petticoat. The accused/appellant after undressing the prosecutrix and himself penetrated his penis in hervagina. She further stated that at the time of incident the accused/appellant gagged her mouth by putting "gamcha". At thetime of commission of offence, she raised alarm, and then her husband, who had gone to graze the cattle came there. She furtherstated that at the timeof incident her husband came along with Negi and Jagdish to the place of occurrence. On seeing them, the accused/appellant fled away from the spot after committing rape on her. Though-her husband and friends chased the accused/appellant but they failed to catch him. Thereafter, she went to outpost, Lakhanpur and lodg-ed the FIR (Ex.P/6) on which her thumb impression was obtained. She was sent to Hospital, Ambikpur for medical examination. She alsostated that due to sickness ofher three years oldchild, she could not go to Police Stationimmediately to lodge the report. In her cross examination she has admitted that she did not produce any medical certificate regarding illness of her child. She also admitted that the fact of removing the clothes of the prosecutrix and accused/appellant, gagging her mouth arid the manner in which the offence wascommitted are being disclosed before the court for the flrst time. Thus, the statement of the prosecutrix is incredible gnd bfelies thewhole story. 9) PW/6 -Sriram, husband of.the'prosecutrix stated in his deposition that he knew the accused/appellant present in the court. Last yearin the month of Baisakh, in the morning at 11.00 a.m. he went to the forest to graze the cattle and while hewas returning to his house he saw the accused/appellant Balu coming out from his house and running away. He and Jagdish Ram chased the accused/appellant, but he had hiddensomewhere. On being asked by Sriram, the prosecutrix stated that Balu, the accused/appellant asked for water to drink, caughthold of her hands and forcibly committed rape on her. Thereafter, his wife went to Outpost, Lakhanpur and lodged the FIR. The prosecutrixwas sent to hospital for medical examination. This witness in his cross examination stated thaton Sundayi.e., 16-4- 2000 the accused/appellant lodged the report against him regarding "marpit" and the case was pending before CJM. He also stated that the Police did not take hisstatement. He was stating this fact for the fist time. At the time of incident hewas grazing the cattle on hill. He also stated that he did not see the accused/appellant committing the offence. He also stated that he did not see the accused/appellant running from his house. He adfflitted that it is true that in order to save himselffromthe report lodged by Balu ( accused/appellant) the reportwas lodged. Thus, his statement is self contradictoryi and he .^ .^-.^ifess has not corroborated thestatemeht of the prosecutrix. Thus, his statement is incredible. 10) PW/2, Jagdish, stated in his deposition that he knew the accused/appellant present in the court. 8-10 months back nothing was happened in front of him and he did not see any incident. He also stated that neither Hiramati and Sriram nor the accused/appellant told anything to him and even the Police did not enquire anything fron hirrf'. Therefore, this witness was declared hbstile and notsupported the caseof the prosecution. 11) PW/3,NegihasalsocorrQboratedtheversionofPW/2and declared hostile. 12) PW/7, Subhash Das, Station House Officer, stated in his deposition that on 27-6-2000 on the basis ofreported lodged by the prosecutrix; Hiramati Bai, he registered the FIR (Ex.P/6) against the accused/appellant under Section 376of the IPC and the same was read over and explained to her onwhich herthumb impressionwas obtained. Thereafter, he sent the prosecutrix to hospital for medical examination and seized packet received from the hospital vide Ex.P/8 inwhich headmitted hissignatures from "A toA" part. He arrested the accused/appellanton 4-7-2000 vide Ex.P/9. The seized artieles were sent to FSL, Sarguja for chemicalexamination vide Ex.P/11 and a report thereof has been received vide Ex.P/13. 13) Lady Doctor Ms. Pratibha Jain (PW/4), who examined the prosecutrix (PW/8) on 27-6-20003tated that two fingers could easily be admitted in the vagina of the prosecutrix. As per her opinion the prosecutrix was accustomed to sexual intercourse, therefore, no definite opinion can be given regarding recent sexual intercourse and definite opinion can be gjven after chemical afld microscppic 'i 1 ' i T—-" ...^ss, ii% examination of the slide, She also suggested for chemlcal examination for definite opinion. She gave her report vide Ex.P/4. 14) Having considered 'all the facts and circumstances of the case and on perusal of the record, it is crystal clear that almost all the witnesses of the prosecution have turned hostile and have not supported the case of fhe prosecution. The prosecutrix has admitted in her cross examination that the material facts were narrated for the first time before the court. <,Her husband has also not corroborated the version of the prosecutnx. The FIR was lodged after 2 % months of the incident and the delayhas not been satisfaetorily explained by the prosecutrix. The report of the Dbctor who medically examined the prosecutrix and also the report of FSL in which the report was found negative. Thus, on the basis of such incredible, inconsistent statements of the prosecutrix as well as her husband, an innocent person cannot be punished specifically in yiew of the admission of the husband of the prosecutrix that the appellant had lodged a report against the husband prior to lodging the reportagainst the appellant which was pending before the CJM. 15) Considering all the facts and circumstances ofthecase and in view of the foregoing, the conviction of the accused/appellant under Section 376 (1) of the IPC and the sentence awarded to him by the trial Court is not sustainable in the eyes of law. 16) Accordingly,thisappeal is allowed. Theimpugnedconvictionand sentence are set aside and the appellant is acquitted. He shall be set at liberty forthwith, if not required in any other case. His bail bonds shall also stand discharged and the fine amount, if paid, be refunded to him forthwith. . - | Sd^ ^ R.N. Chandrak.ar ; Judge | ^o. §-^'} !ff • 1