t ::J—^J.^,<®.^.^ JitSSilSt^^ Sf^&'' S^^yS^ INTiiEHON'BLEHIGFLCOURT^FCHHAmSGARH AT BILASPUR CRIMINALAPPEAL^O, /48 OF 2009 APPELLANT (IN JAIL) Nandlal, Son of Vigan. Ram Viyar, aged about 24 years, Resident of Village ^c) Kesiaenr 01 vuiage ~ ...- • •xrlA'Tl^-t^< Bhadwahi, PoUce Station - v .R- ^•""""^"S^^^" ——, .-. .-.• ^w. ^^^^^ ^^'•- VERSUS RESPONDENT Udaipur, District : Surguja- (C.G.) State of Chhattisgarh Through fhe Police Station : Udaipur, Distt: Surguja (CG) MEMORANDUM OF APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. @ HI©MCOURT OF GHHATHS6ARH^t BILASPUR Singie Bench : Hon'bi®Mr. Jusfice PnttnRer Diwaker Cnmjnai ^oDeaJ No. 148 of 2009 4PPELLANT RESPONDENT NahdJal, S/Q Vigon Ram Versus State of Chhattisgarh Shri V.K. Pandey, counsel for the Gppellant. Shrj Vivek Sharma, PL for the State/respondent. CRZMINAL ^PPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JU O^M E NT (28.03.2011) This appeal is directed ogainst the impugned judgment and Qrde'rdo^wi ^.2.2009 possed by 3rd Additiond Sessions Judge (F.T.C,), Ambjkapur7 SorguJQ in Sessions TriGJ No. 434/2006 lconyicting the accused/appellant for the offences punishGble under Sections 342 and 376 (1) of the Indian PenaS Code and sentencing him to undergp rigorous irpprisonment fQr one year and. pay fjneof Rs. 500 uyfS 342, r'lgorous Jmprisonment for 8 yeors and pay fine of R$.l,000/- u/S 376(1) IPC,plus defayltstipulatjons. Both the sentences were ordered to mn concurrentjy. 2, Case of the proseeution in brief is that on 1.10.2006 F.I.R. (Ex.P-1) was lodged by the prosecutrix (PW-2), aged about 16 years, aljegingin it that on the previous day i.e. 30.9.2006 atabout 2 p.m. she had 9one to the house of the occused/appettant to wotch TV.. She has aileged that at about 4 p.m. when the Ijght of the house of the accused/appel io.nt went off as a resujt of power cut, other persons wotching TV. mcluding one Arvlnd ond 6aya had left his house whereas the prosecutrix was confined by the accused/appejlont inside the room ti{{ 7 a.m. ond dunng this period, •!1 ' ' ! she was subjected to rape by the accused/appeliQnt thrlce. Prosecutrix has furt'her olleged that after reaching her home, she narrated the entire jncident to her father and maternal aunt. Prosecutrix was medicolly examined on 1.10.2006 by Dr. 1-ata ^oya! (PW-3). After compietion of inve.stIgGtion, chailan was fijed on 13.11.2006 under Section 376 and 342 of the Indion Pend Code. 3. So as to hoid the accused/appeijant guilty, prosecution hos examined as many as ssven witnesses in support of its case. Statement of the accused/appeliant was oiso recorded under Section 313 of the Code of CrimJnd Procedure in which he denied the charge levejjed against hlm and pleaded his innocence and false implication in the cose. 4. After hearing the parties the trid Courl- has convicted and sentenced the accused/appellant for the offence as mentioned aboye. 5. Heard coun-se! for the parties and perused the material avaiiableon record including thejudgment impugned. 6. Counsel for the appellont submits that present oppears to be a case of consent where the prosecutrix remained with the accused/appeliant for th®entire night without rGising any protest. He furl-her submits that as per the statement of Shambhu Rom (PW-5), on the next day of the incident when the prosecutrlx returned to his house, she was scoided by him and then the prosecutrix disclosed the fact thotshe was m the house of the accused/appejjant in the entire n<9ht. He furt-her submits that when In the panchayat meeting, the accused/appeliont did not turn up; a declsion was taken to lodge the report. He further submJts thot medica! report (Ex.P-4) of the prosecutrix does not suppori- the prosecution eo.se. He QJSO submits that statement of the prosecutrix is inconslstent because in the |w^ F.I.R. she hos stated that she had gone to the house of the accused/apj^jjont for watching T.V. whereos in the court statement she hos stated that she had gone to the house of the accused/appeiiant for some work. He submits that prosecutrix and her fother have also filed their affidavits jn the court- cleorly stating that the prosecutrix was never subjected to sexual intereourse by the accused/appeilant, Lostly it has been argued that the appellant is In Jai! since 03.10.2006 i.e. about four years <& six months and, •therefore, hls sentence may be reduced to the period already undergone by him. 7. On the other hand, counsej for the State/respondent submits thot very prompt report was iodged by the prosecutrix and there is absoluteiy no reason for the prosecutrix to falsely impiicate the accused/Qppeijant. He further submits that merely on the basis of the statement of the father of the prosecutrix, Qccused/otppeilant cannot be acquitted. Accordlng to him, statement of the prosecutrix jnspires fuli confidence and, therefore, beiieving the same the convictson of the occused/appeliont may be mdntdned. He submits that as per the ossification test of the prosecutrix her age is in between 14-16 years which may corry the margin of two years on either side and on this ground o-Jso the convictjon of the accused/appelicuit is in accordance with low. 8. Heard counsei for th© pcrtles and perused the materiGJ avai!able on record incjuding thejudgment impugned. 9. Prosecutrix (PW-2) has stated in her evidence that she knew the accused/GppeHant and she is uneducated. She has stated that on the date of incident she had gone to the house of the accused/appellont to work as Labourer and when she wos returning ? • ;U : •-1. ^ !•• y^ 1 .r c ,.^ ^^^ ^N. %^€/ •^^"- 4 ^t: after completion of her work, accused/appellont caught hold of her hand, took her inside the house and she was subjected to sexual jntercourse by him after bojting the room from inside cnd, thereafter, she came back to her house and narroted the entire jncident to her maternaj aunt and her parents. Then on the next day the report WQS lodged and she was medicdly examined with her consent. She has furi-her stoted that the Qccused/appellont does not have T.V. in his house ond on the date of jncjdent he had brought the T.V. from somewhere. She hos further stated that when the light of the house of the accused/appejlant went off os Q result of power cut, other persons watching the T.V. hod ieft the ploce whereas she was caught hold of by the accused/appeilant. She has furt-her stated that in the house of the accused/appeIlGnt, about 10-12 members were residing and three rooms ore there in the said house. She hos stated that on the date of incident about 4-5 persons were watching T.V. jncluding Santosh, ArvJnd, Jai ond Ropen, She has furt-her stoted thoit at about 2 p.m. she reached her house and at that time the famiiy members of the accused/appeilant were cooking food. She has furl-her stoted that when she reached her house, her mother and fother hove scolded her by saying that as to why she had come so iate. In paro.graph 6 of her statement she has stated that accused/appetjant osked her that he wlil not permit the prosecutrix to go and he wil! keep her as his wife ond that he hod not done omything and, thereafter, when a question was put to her by the court about the rape on her, prosecutrix has stated thoit accused/appeliant had done the bad work with her. In paragraph 7 of her stotement she has stated that on the date of incident when she had gone to the house of the accused/QppeJlant, she was hQving her periods. She has denied the fact th.at she was subjected to physical relations by the Qccused/QppeHQnt wlth her consent. She has further stoted that she ^^sf //-% ^: ^-^:j 'K.^^' does not know her exact date of birt-h and she has discjosed her oge as 16 yeors on the basis of assumption. She has further odmitted the fact that she has engaged the counsel who had instructed her about the ©videnceto be 9Jven by her. Bhajram (PW-1) has stated in his evidence that on the date of incident father of the prosecutrix had informed him about the act of the accused/appellant and then on enquiry, the prosecutrix had narrated the entire incident to him. Dr. Lata Goyal (PW-3) who had medicaily exoimined the prosecutrix vide Ex.P-4 has stated that prosecutrix was fuiiy developed gir( ond on the dote of examination she hos not found any externai or internal injury on her private part. She has further stated that the prosecutrix was having her menstruation and her hymen was old torn. She has furl-her stated that no definite opinion can be given about the commission of sexuaj jntercourse. She has further stated that if a lady who is having her periods is subjected to sexual intercourse, every possibility of bjood spots on the clothing of the prosecutnx as well as of the accused/appellant. She hos furt-her stated that if a lady is subjected to forcible intercourse on the fjoor, she is bound to sustain some external injury on her body. K.P. ^upta (PW-4) is the Investigating Officer who had done part- of investigation. Shambhuram (PW-5) - father of the prosecutrix has stated that on the date of incident prosecutrix had gone to the house of the accused/appellont to wotch T.V. ond on the next morning when she came back to his house, she had informed thot the appellosnt confined her in the house for entire night and had committed rape on her thrice. He has furt-her stated that thereoifter the reporl' was lodged. In respect of the age of the prosecutrix he has stated that he does not know the exact dote of birl-h of the prosecutrix and on the ^•"'"'"^ ,r^-^ ^ ^^';^<.- ^ !4 ^^' basis of assumption he hos stated that her aged was about 16 years at the relevant time. He hos further admltted that as the accused/appeljant did not come in the Panchayat.meeting, the report was lodged. Dr. AA.K. Jain (PW-6) is the Radiotogist who had taken X-ray of the prosecutrix vide Ex.P-15. According to him, the age of the prosecutrix WQS 14 to 16 years which may carry the margin of two years on either side, Dr. D.K. Markom (PW-7) who had medically examined the accu^d/appellant and gjven his report" Ex.P-15 hos stoted that the he was capabie of performin9 sexuaj intercourse. 10. As per the F.I.R., the prosecutrix was confined by the accused/appellant in a room for the entire night and she was subjected to rape by him thrlce whereas in her court statement, she has nowhere stated that she was confined by the accused/appej!ant for the entire ni9ht and was subjected to rape by him three times. On the contrcry, father of the prosecutrix in his courl' statement has stated that the prosecutnx wo.s confined by the accused/appejlant for the entire night and subjected to rape thrice by him. Furl-her as per the statement of the prosecutrix about 10-15 members were residing in the house of the accused/appellant and when she reached his house the family members of the accused/appellant were cooking food. This appears to be littie improbable that the prosecutrix was subjected to rape by the accused/appellant in presence of other foroily members. Evidence of the prosecutrix a!so does not disclose that she offered any protest to come out from the cjutches of the accused/appellant. Statement of the prosecutrix has not been support'ed by the doctor, as no injury whatsoever hos been found on her privote part". Furt-hermore as per the statement of the prosecutrix ot the time of incident she was •-V •'\ •i>-^:-' having her periods and the other evidence does not disciose that any biood stain was found on the ciothes of the prosecutrix or the accused/appellant. Prosecution has not exoimined any of the persons who were present along with the prosecutrix when she was watching T.V. in the house of the Qccused/appelloint. As per F.I.R, prosecutrix had gone to the house of the accused/appeliant to wotch T.V. whereas as per her court statement she had Qor\e to the house of the accused/appellant to work as Labourer. If the entire evidence of the witnesses in particulor the statement of the prosecutrix ond her father is token as it is, the same does not inspire confidence of this Courl' ond on the basis of the same, it will not be safe for this Courl' to mdntain the conviction of the accused/appejlant under Section 376 osnd 342 of the Indian Penaj Code. That apart, befor®the court- beiow, the prosecutrix and her father had dso filed affidavits ciearly stating that the prosecutrix was never subjected to sexuol intercourse by the accused/appellant. Though cognizance of these offidavits cannot be taiken by this Court' at this stage but the facts remains that such affidavit were given by the prosecutrix and her father and their effect connot be ignored. 11. After going through the entire material available on record, this Courl' is of the considered opinion that as the prosecution has utterly failed to establish its case by leading cogent ond clinching eyidence, the benefit of doubt must go to the accused/appeliont. Accordingiy, the appeoj is allowed. Impugned judgment convicting and sentencing the occused/appellant is hereby set oside. Appellant is acquitted of the chorges levelled agoinst him. He be set free at once if not required in any other case. Sd/- Pritinker Diwaker Judge