"sS^f'VKSKSSSSSi! ^SK^^SK"SSs-:i:~"'^: ••£ •^i;^.;'S^^f/'^'^^^/.^ '•'^-''^'^^'•^'t <''/:-/^.?s?.:i?^';::' ^^^s^^-:' ^^'^ CF000005936S^^SSKKS^'SWSS 8E?>^i'fc-^Be^«^ii ^NtaE'HisB' ^ ^2M H^ifiB^^-.^;,<3^BAEPB&. CBIMINAL APPEAI. 3«' OF 1996 sm'u.mr, 1n. Jall) /" l.akhaalal S/& §araclarlal Halwa ^ aged2i years/resi.dent ef wi.llage Bhujgahari.'BalgA Distriet Dueg, (MP]. ^" V_E_H_S_U_S: 233 feitli !ai»-n»,».; RESPONiDENT The State af Tbrsugh Police St.aiion Balod< District Durg, 2EA UKDEB SECTIOy 374 _(3f__mDE_OT__CRIM3XM. PBSCECUBE 1213 l''I:^2.^MA-fi^a& ';?' . Mr. Jystio Laxnani SII^'*^ yr . State of Madhya Pradesh i, counsei for ths appeflant Smt. Smita Ghai, PL for the respondent/State CODE OF CRIMINAL JJJ_B_GN.E NT (06 .04.2011} This appeai is djrected against ited 06.02.1996 passed by Secor Durg, in Sessions Trial No, 297 iccused/appeilant for the offence under sentencjng hjm to underoo rigorous impnsonment for seven years. 2. Case of the prosecution in brief is that on 01.02.1992, report Ex.P-l was'lodged by the prosecutrix (PW-l), a 25 vears atleaing In jt that at about the nouse of Md, Hanif (PW-5) to literacy examination and returned back to her ?out ll p.m. It is alieged ffiat when she went towards the wet! of her house for cleansina her teeth, the appellant after crosslng the fence' came there, threw the ground by catching her hand and committed intercourse •with her. Thereafter she stood for heSo and uDon hearina the same her husb< (PW-2) rushed there, caught hofd the appel then some villagers were called by her father-in-taw but on bejng asked she dic$ not say anything before them because \ ri- ?- |i£i'^ :'Ei3 9 9 3 (S -'2- of shame. On next morning also she diti not narrate anythinc to anyone but the report was lodged, Based on thls written report, FIR Ex. P-2 accused/appellant After completlon 30.03.1992 for the whereas the Court &e)< Section 376 of IPC. registered on 0.1.02.1992 agal the offence under Section 376 ofJPC, investigation, Ctisilan was filed on aifss^if, io as 1 has examined 08 witnesses in support of its case. Statement recorded under section 31; Procedure in which he denied tha charge ieveltecl against him and pleaded his innocence and false implication in the case, After hearlng the parties the tria! Court sentenced the accused/appeltant for the offencs under ection 376ofIPC, hence, the present appeai. ..•??{* 'l BlNS^g" "r/ of the learned counsei for appears to be a case of the prosecutrix and the appet that is w appeflant is 'nt where seen by submits sustained has not deposed anything about the same as she was subjected to forcible sexuat intercourse by the appetlant, hand supportlng the impugned judgment it )y the State counset that the statement of the prosecutrix has been duly supported by Dr. Smt. Shashi prosecutrix to faisely imj -3- that had it been a case of consent.. have suffered any injury on her body, 7. Heard se! for the parties and perused the materiai jncjuding the 8. The prosecutrix (PW-1), a married lady aged about 2' years has stated that she knows the appellant who is resident of her viiiage, On the date of incident at about 8 p.m, she had gone to the house of Md. Hanif (PW-5) to study under the iiteracy programme. At about 11 house and the cSoor was opened has stated that when she went towar garden, the appetlant came there caught hold of her hand, threw her on the ground and in spjte by her father-jr ?ards the wetl of afte.r crossina ie f< of her protest commftted After commissjon of the offence,, she pushed the appellant and got herself free. She has stated that when she was going towards her house, her husband Khorbshra (PW-2) came out of the house, caught hold the appellant and brought him jn the house. Thereafter her mother-in-law and fiather-in-taw called other villagers and upon their advice the appel'iant was set free. On the next day, panchayat meeting was called where the entire inadeRt was informed to the villagers ana then a report was lodged. She was sent for medical examination and her broken bangles were ssized by the poiice. She has also stated that as she was subjected to forcible sexual intercourse by the appellant, she sustained scratch marks on her body. in cross-examination she has stated that she used to go to the house of the appeltant to take education under Siterac^ programme in the evening at about 7 p.m. and studied there for 2-3 her on the date of jnddent her husband her and she had not seen the appellant in the house of -4- Manif. She returned to her house atong with Shanti and Bhagi who are her next door neiahbourers. The house of Shanti is one house next to her house whereas the house of Bhaai is just near to the door of her house. She has further stated that the iight of her house was swltched off at the time.she had gone to clean her teeth, According to her she had not disclosed anything to Dhanu Singh and other villagers who were catied tn the night and she narrated the entire incident to her husband after departure of them, In the village meetina also neither she nor her husband had stated anything about the incident. She has admitted the fact that when she was caught hold by the appetlant, she did not ralse any cry. She has admjtted the fact tdat as she spent jot of time near the well, her husband was coming to see her, ;^l"^fe^:g8!T;f :-'^^^^Sgl! (PW-2), husband of the prosecutrjx has stated that on the date of inddent when Sie vvas lying in his house, the prosecutrix returned at about 11 p.m, after studylng under the literacy programme, The door of hjs house was opened by his father but he got annoyed because of the same. Thereafter the prosecutrix went towarcts the well of his kitchen garden and came back runnina and Uien he went towards the wslt and saw the appeliant standing near the well. He caught hoid the appellant and asked him as to why he had come bufr the appellant kept quiet. Some viilagers were called and even before them the appellant kept quiet, therefore he was set free in the night, After departure of the appellant.. the prosecutrlx informed him that sha was subjected to sexual intercourse by the appellant He has stated that on the second day,. the appejlant was eallecj and enquired and thereafter this wltness has himself staled th he could not get the appeilant In his house on search. In cross-examjnation hs has stated that he used to go study along with his wife under the literacy programma but on the ^' t- -s' date of jncident he was not feejing well therefore his wife had gone to appear in the examination along with other 4-5 village women. When his wife returned to his house, he was awaken and after 15-20 minutes he saw the door of his fence was opened then he went to the kitchen garden and saw the prosecutrix who was returning quletly, Me has admitted the fact that he had oone to the kitchen garden to attend the catl of nature. He has further admitted the fact that when he enauired the Drosecutrix and the appellant, they did not sav prosecutrix even in the e nusoa said fact, prosecutnx the commission i Smt. Shashi i which certain clothes of the prosecutrix were seized. He has appetlant he was called by when he asked the rape, he hact denied the tious (PW-4) who had ide Ex.P-5 has not found ltes si Md. Hanif is regarding recent rape on the She has further ctarified that isecutrix could be cause of fail. on ths date of incident the to take the examination 10,30-11 p.m. On the second day; father-in-law of the prosecutrix had informed hlm that the prosecutrlx was subjected to sexual intercourse by the ippellant. He has stated that the village panchayat was calted but the same was not attended by the appellant then a decision was taken to lodge the report. Dr. B. R. Sahu (PW- 6) who had medscally examined tha appetlant has stated that ^77' E- he was capable of ps (PW-7) is the Patwari who had prepared the 10. S. K. Bisen (PW-8) - the Investigatlng Offlcer has supported prosecution case. 10, Minute examinatSon of the evidence m particutar that of revsais' that the prosecutrix and the appellant were seen by qarden of his r when she wa; anv alarm and 'ix in the Witdl kitchen 'ix nas ce the aopel 1.1il :, she dii raise rree oy pusning consent cannot returninq from serefore ttie inq to her, wt the we'i, her husband came out of th in her IV 31 sne and in the She has not stated anything about the incident to anyone. In her examination- her father-in-law, mother-in-law and othervillag< nig'nt, the appellant was altowed to go by everyone admitted that even in the vil incident she had gone to the house of one Md. Hanlf for study under the literacy programme whereas in cross-examination to the house of the appellant for study and on the date of to study along with her husband and " 2-3 hours whereas accordina to her house. The prosecutrix nas acimitted the fact that the house of Shanti and Bhagi are just never made any attempt to tlme of her. She has further etime near the well, her and at that time shs was v '^ 'l- coming back to her house. As per the statement of the husband of the prosecutrix (PW-2)^ when he went to the kltchen gsrden of his house, he saw the appellant standing near the weil, he caught hold of him and asked him as to why he had come t.here but e appellant kept quiet. AccQrding to him, even before the viilagers neither the prosecutrix nor e appeilant had disclosed anything to them and sfter departure of everyone, the prosecutrix had mformed him that she was iius .appear contradictions in the statement of this witness, Though in the medical examtnation injuries have been found on the body of the prosecutrix but according to the Dr. Smt. Shashi Cladious (PW-4) the sam< the entire .case of the untrustworthy, the statement inspire the confidence of thls Court and in these clrcumstances benefit of doubt must oo to the 11. In the result, the appeal ts allowed. impugned judgment eliant is acqultted of the charge tevetled against him, App< furnished stand discharged. Sd/- Pritinker Diwaker Judge