JLwL/Q HIGH COURT OF CHHATTISGARH, BILABPUR Cr_.Appea.l No.532 of 1990 Ramkumar Versus State of Chhattisgarh JUDGMENT Post for : 11.06.2007 sd/f Sunil Kumar Sinha Judge HIGH COURT OF CHHATTIsGARH, BILASPUR € Cr.Appea.l No.532 of 1Q90 APPELLANT Ramkumar s/o Bhuwanlal Dewangan, aged about 20 years RIO ’I‘ikrapara, Raipur(CG) Versus “RESPONDENT State of Chhattisgarh Through RS. Amanaka, Raipur (C.G.) A . Appearance: Shri Shyam Tekchandam', counsel for the appellant. Shri Arun Sao, Government Advocate for the State. JUDGMENT (11.06.2007) SUNIL KUMAR SINHA, J. 1 . This appeal is dinected against the judgment of conviction and order of sentence dated 2.3. 1990, passed in Sessions Tn'al No. 1 19/ 1987 by the Second Additional Sessions Judge, Raipur, whereby, the appellant has been convicted under Section 376 i‘ IPC and sentenced to undergo RJ. for 7 years and to pay a fine of Rs.1000/ -, in default of payment of fine to further undergo RJ. for 6 months. However, he was acquitted under Section 394 IPC. 2. This appellant was charged with Sections 394 and 876 IPC. The case of the prosecution is that at about 9.00 am on 17.12.t9%5, the prosecunix namely-Geeta Bai, a deserted lady \\'Ka\ged about 24 years, met the appellant at Phoolchowk, Raipur. \\l\\ ,\¥ Cr‘A‘ No. 532 of 1990 She was in search of some labour work. On the pretext that the appellant would manage for work, she aocompanie‘cf the appellant and went to vi]1age~Bhatagaon, which is at some distance mm Raipur. The further case of the prosecution is that in the vicinity of village Bhatagaon, the appellant took the prosecutn'x to an agn‘cultural held and thereafter, at the point of kni@,‘ he committed forcihle intercourse against her. It is also the case of the prosecution that after commission of the sexual intercourse for one time, they remained there for about half an hour and again the appellant committed sexual intercourse for the second time and thereafter, he snatched some silver ornaments h‘om the prosecutrix and he also caused injuries to her. The prosecutrix alleges that at the time of commission of sexual intercourses, the appellant had put a rope around her neck and thereafter, forcible sexual intercourses were committed by him. The prosecutrix lodged a first information report (EX.P/ 1) at 4.45 p.m., on the same day in Chowki Tikrapara, RS. Purani Basti, Raipur. During the course at; investigation, she was sent for medical examination, and for her injuries, she was examined hy Dr. Rajendra Kumar (PW-5), who prepared his report Ex.P/ 8-A. According to his report, there was swelling on .\ the eyes of the pmsecutrix and there was abrasion On the front side of the neck; He opined that both the injuries were caused by hard and blunt object and injury No.2 was simple in nature. and for injury No.1, he referred the prosecutrix to an Eye Surgeon, who after examination gave his report Ex.-P/5. It t\ @ Cr.A. No. 532 af 1990 appears that thereafter, the pmsecutrix was also examined by G the Gynecologist. namely— S.Ranganna, R.M.O. Matexnity Section, D.K.Hospita1, Raipur, who found no mark of injury over the private parts of the prosecutrix. There was no matting of pubic hairs and no semen like stains etc. were found. No vaginal discharge was seen and no Gynecological pmblem was npticed. The appellant was arrested and was examined by Dr. P.L. Yadu (P.W-4), who gave his Ieport EX.P[9-A. According to this report, no external injun'es were found on the body of the appellant and among other usual characteristic, the appellant was found capable to perform sexual intercourse. After completion of usual investigation, charge sheet was hled. 3. The leamed Sessions Judge acquitted the appellant under Section 394 IPC. He recorded the linding vide Pam 14 to 16 of the impugned judgment that since no property was seized from the possession of the appellant and even the appellant was not asked about such property by the Investigating Omcer, whereas, he was arrested within 2 days of the said repoft, therefore, the said ofence was not made out against him. However, he recorded the hnding of conviction under Section 376 IPC, solely on the basis of evidence of the prosecutrix. He believed the story set forth by the pmsecunix so far as it relates to commission of forceful sexual intercourse again st her. 4. Learned counsel for the appellant argued that the conviction based upon the sole testimony of the prosecutrix, is \ s: n.“ 4 @ CLA. No. 5&0!’ 1990 not in acconiance with law and the same deserves to be set € - aside. 5. On the other hand, learned counsel for the State opposed these arguments. He supported the judgment of conviction and order of sentence passed by the Sessions Court. 6. I have heard the learned counsel for the palh'es at length and have also perused the records of the sessions case. 7. Admittedly, the prosecutn‘x- Geeta Bai (P.W.-1) was aged about 23-24 years on the date of incident and the appellant was previously known to her. She deposed that the appelhnt took her with him towards Bhatapara and she was taken to an open held, where she was subjected to forceful sexual intercourse. She deposed, at that time, the appellant had put a rope around V her neck and he had also tied her eyes by a tepa (a piece of small clothes). She also indicated that in which manner he committed sexual intercourse. She deposed that in performing sexual intercourse, they consumed half an hour. The appellant got her hid down on the held and after remotging her saree & petticoat, he committed sexual intercourse. Shé‘ further deposed that after the first intercourse, after one hour, the appellant again committed sexual intercourse with her for the second time and that also consumed half an hour. She further deposed vide para-2 that after all this, the appellant took her silver ornaments, which shevwas wearing, and fled away from the place of occurrence. In the cross—examination, vide para- 10, she admitted that after commission of sexual intercourse for the hrst \, Q t\\ \ Cr.A. Nu’ 532 of 1990 ;Ag time, both of them silently sat in the &1d for half an hour and € theraafter, the second intercourse had taken place. Her such admissionintht: cross-examinationisas follows: “us? ER W am 2km uvé ark: Wmwm Immwww WWW#WW#%@ Imaéi w %llm’§a€i&wmalwa%%l m%wéaa$a%am% r 8. In View of this evidence and further in View of the medical mport of the prosecutrix, it is clear that she voluntan'ly accompanied the appellant from Raipur to Bhatagaon, both went there on foot and in the vicinity of village Bhatagaon (mentioned as Bhatagaon in the F.I.R. but deposed as Bhatapara in the deposition) they went towanls a neld, Where the appellant got the prosecutrix laid down on the held and after removing her saree 8s petiioom committed sexual intercourse with her. 0n the admission of the prosecutrix, atter performing the hrst intercourse, they silently sat on the iield for haflf an hour and thereafter the second intercourse was performed. The prosecutn‘x is not saying that either the appellant had forcibly taken her or he had forcibly restrained her after the commission of first intercourse and then only, the second intercourse was committed. She only vinakes allegation that at the time of commission of sexual intercourse a rope was put around her ' neck and in the hrst intercourse, her eyes were tied by tepa (clothes). The version of the pmsecutrix, so far as it relates to ® Cr.A. No. 532 0f 1990 putting of rope and tying clothes over the eyes docs not appear £ to be true. Much weightage cannot be given to such evidence of the pmsccutrix, particularly in the circumstance, when her stoxy ertaining to snatching of the orents hy force has heen p nam disbelieved by the Sessions Court and to that extent, she was held to be unreliable. / 9‘.“ ‘ Learned counsel for the appella argued that despit nt e su$cient opportunity, the prosecunix neither ran away horn the seen of occurrene or she took help of any other person, there were no injuries on r back or thigh including her private part he and the injuries sustd were explained by herself aying that aine s these were injuries of assault and further that she sat silently with the appellant in the hld for half an hour and thereaft the e er exual intercourse was performed for the second time, refore, s the her entire conduct shows tt she was a consenting pty. ha ar 10. There is force in arguments advanced by the learned counsel for the appellant and on the conduct of the prosecuuix, a possibility of her being a consenting party cannot be fully ruled out in this case. 11. The testimony of the prosecutn'x regarding commission of forceful sexual intercourse against her does not inspire the coniidence of the CourLso as to rest a conviction on her such testimony, particularly in the circumstance when her story \ setforth regarding snatching of the ornaments was completely disbelieved by the Sessions Court and the appellant was c n 7 Cr.A. No. 532 of 1990 acquitted u/s 394 I.P.C. meaning theirby she waS not treated to be a reliable witness for that part of allegations made‘ by bar. Therefom, a possibility of her being a consenn'ng party can not be fully ruled out in this case. 12. In the facts and cilcnmstances, the conviction and sentence awalded to the appellant, deserves to be set aside and I is‘é‘ccordmgly set aside. He is acquitted of the charges framed u/s 376 I.P.C. It is reported that the appellant is in jail. Hebe E rao Q set at liberty férthwith, if not required in any other case. 13. The appeal stands allowed, sal— S'm‘” m“ 7”» fi/r:1 $““‘\\K“ége ’ /' vatn‘ / /V