iihwié mu ‘ ¢§W ‘ aw A IN TE H HIGH COURT OF MADHYA PRADESH AT JABALPURa l Priminal Appeal’Noa K /969 I. / I J 1.. ‘Chittéwar @ Anéritram S/o. Sudhu ‘ Cherwa,» age 2O yearso W C eth residents of Village- Gangatri 32.59 Jhilmili Dist£— Sarguja, MP9 APPELLANTS . (IN JAIL) . u 2. Dongaglt Ea)\~i§gmoh§n S/o Sukhal herwa, aged ab®ut~ 20 ’yeag‘so ‘E 3g smt, Rodhi @phulbasia w/o.La1ai Cherwa; aged 16 years, R/o village Mathar, pisc Jhilmili Dist‘g—Sarguja, M9 P , NO (2‘ gANaM/ve Added: Q9 pep : RESPONDEN a T ’trndgn a m are”; Eggmg & gr-“ kqw ‘er SU. S" :0) Si}ate of M'a_v,§-r through PMS. Jhi‘lmiJi/f‘ Dlstt— Sargujal MP @ku Q/QfVHI‘QW' Rmm @%?MQWRI‘, ' CRIMINAL APPEAL _U/s., 374 (2} OF THE CODE OF CRIMINAL Wa PROCEDURE. f VMK / V f O w a g I’ mf ‘% . u F p _ (Hon. r. Justice Prinker Diwaker) Va rimina Appeal No. 22 of 1996 Cl ar am ad oth Chittaw @ Anantr n ers LA stat of Mahya Pradesh " ‘ Shri A. K. Pr, ccunl for the appant. Shri Niraj Mehta P.L. ar the Stae H AE E l NA ' v JUDGMENT (19.04.201 This appeal is irected against the pugned udgment nd order dated 13.12.1995 passed. Firs Additial essions Judge, Ambikapur in Session Trial N 14186 nvicting the ppeliant Nos. 1 & for the offence uner . Sections 376 2) g)/511 of IPC d ppeiant 3 under , ectios 09 ead with Section 376 2) g/Sll f PC d Sn 1 r ( (g o I: an etcing ch of them to ndgo gooous prioen r five years and pay fe of Rs.500, defauit o aymen of f g nt 2. Brief facts of the case are that on 01.04.1996, FIR (not exhibited) was lodged gby the prosecutrix (PW-8) aged about 15 years alleging inmit that on 29.03.1996 at about 7 p.m. when she was returning from viiiage Kuppa along with the appeliants and three other persons, appellant No.1 Chittawar . and appellant No.2 Dongait caoght hold her, threw hereon the grOund and after removing her clothes appellant No.1 committed forcible sexual intercourse with her. It is alleged snen ea uer ri imsnmt fo in in f pt ine to further undero rigorous imprisonment for six mohs. M it 1 AI?PELM$ VERSUS R§SPONg$NT e d asad se eNs , f t: V‘ § QRIMINLAPPAL UNDER §QIQN 379 (Z) Qfrm : CQDE m: QEIMIkPBOCED§R%” v 1) d im j a by t on S s o. 9 cp a 2 d _ ( ( an ai No, -Q, that when she raised atarm, appenant No.2. gagged her moUth by a piece of cloth. The allegation against the appellant Nu 3 is that she had intentionally detained the prosecutrlx and after getting It dark she ran away Based on thls FIR offence under Sections 376 read wuth sectlon 34 and 109 of IPC was registered against the appellants. The prosecutnx was medically examined on 01 04 1986 vude Ex P~ 6 & 7 by Dr Smt AnJll Chlpde (PW—11) After completion of mve§tigatlon Chailan was flled on 26 U5 1995 for the offence under Section 109 read with section 376 (2) (g)/34 of IPC against the appellants However the Court below framed charge against appellant Nos 1 & 2 under section 376 (2) (g) and against appellant No.3 under sections 109 read with section 376 (2) (g) of IPC. a 3. So as to hold the accused/respondents guilty, prosecution has examined 11 Witnesses in support of its case Statements of the accused/respondents were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case; 4. After hearing the parties the trial Court has cohVicted and sentenced the appellants as mentioned in paragraph 1 of this Judgment 5, Heard counsel for the parties and perused the material available on record including the judgment impugned. I, 6. Contention of Shri Prasad, learned counsel for the appellants is that the prosecutrix and her tether Dev Prasad (PW-9) have not supported the prosecution case and turned hostile, therefore under no Circumstances the appellants can tie conVicted for any offence. He submits that the medical report of the proseeutrix does not support the prosecution '7 ‘t.7\ ' @ -3w case and as per the doctor Smt Anjli Chipde (PW—11), hymen f the prosecutnx was found Intact and there was nu external or Internal mJury on her person In respect of the statement of Sukhsagar (PW-1), it has been argued that once the prosecutnx herself has not supported the proeecution ca$e the statement of this Wttness becomes Insignificant and even otherwrse thrs Witness has nowhere stated that he saw the appeliant No 1 committing rape on the prosecutrix. t‘ . 7, r On the other hand supporting the impugned judgment it has, been argued by Shri Mehta, learned counsel for the State hat the conviction of the appellants is strictlyt‘in accordance t with law and there is no infirmity in the same. 8. Prosecutrix (PW-8) in her evidence has stated that on he date of incident at about 7 p.m. when she was retuming along with the appellants from village Kuppa, on the way, she was detainedby the appellants and thereafter appellant Nos. ,1 & 2 caught hold her and wanted to commit bad work with hers She has stated that at that time her younger sister Jagmaniya (Pw~10) was also present there and both started weeping and when she requested the appellants, she was set free According to her appellant No 1 did not commit any bad work With her. After returning house she narrated the entire incident tosher parents and then the report was lodged. When the prosecutrix was confronted with the FIR she has tated that she had not informed the police about the commission of rape on her by appellant No 1 and at this stage the prosecutrix was declared hostile. In cross-examination, she has categorically deposed that she has eompromtsed the , matter wrth the appellants and wants to save them, She has further stated that the appellants merely caught hold her and even for thus, she has compromised the matter With them. o t 44, The prosecutrix has not made any ailegétion against appeuant No.3. a 9. Dev Prasad (PW 9), father 0f the prosecutnx has also not supported the prosecution case and has been deciared hostile. He too has categoncally deposed that he had not Inform the police that his daughter was subJected to sexua! Intercourse by appellant No 1 According to him, the matter has been compromsed between him and the appellants and he wants to save them. Dr. Smt AnJll Chlpde (PW~11) who medically examined the prosecutnx vide Ex P-6 & 7 has categorically stated that there was no tnJury on the external or Internal part of her body. She has opined that hymen of the prosecutrix was intact and no deflnlte opinion regarding recent sexual intercourse on her could be given Sukhsagar (PW 1) who Is said to be the eye witness of the Incident in his examination in chief has stated that after hearing cries of the prosecutnx he reached near the spot and saw appellant No 1... committing rape on the prosecutrlx and thereafter he took apart appellant No 1 from the prosecutnx However If the case diary statement of this witness is taken into consideration, there appears to be material contradictions in his court statement from that of his case dtarwstatement. It appears that this Witness has improved his verSion while deposing in the court and has leveled several allegations against the appellants. Shiv Prasad (PW—2), a Witness of Panchat meeting has not stated anything aga‘i’ist the appellants Bholaram (PW-3) is also a Witness of Panchayat meeting has not supported the prosecution case and turned hostile SiraJuddin (PW-5) is a seizure Witness of Exs P-2 to P 4 by which undergarments of appellant No 1 and prosecutrix were seized Sowran (PW 5), the seizure Witness has not supported the prosecution case l vb’v and turned hastile Dr. Sum! Singh (Pw~6) who medicatiy exammed appeilant NO 1 vide Ex P-S'has stated that the appellant was capable of performing sexual intercourse. The ‘Constable Bhubaneswar Prasad (PW—7) has clone the nvestigation. Jagmamya (PW-10), the younger Sister of the prosecutnx though m her exammation m—chief has stated that he saw the appellant committing rape on the prosecutnx but n oross-exammatron she has stated that as lt was dark she could mot see anything. Further she was about 200 yards away from the place of occurrence and when after hearing cries of the prosecutrlx, she began to proceed towards her, appellant No 3 prevented her from 90mg there. In Paragraph 3 she has stated that whatever she has stated m her examination-In chlef against the appellants that has been stated as she was tutored. 10 Mlnute Examlnatlcn Of the evidenC§ mak€5 it CIEar-that the prosecutnx and her father Dev Prasad (PW—9) have not supported the prosecution case and have been declared hostile. The medical report also does not support the prosecution case According to the doctor, hymen of the prosecutrlx was found intact and there was no injury on the external or internal part of her body Furtheethere are lots of: contradictions in the statements of Jagmamya (PW—10), the youngersrster of the prosecutrix and Sukhsagar (PW—1) whor are said to be the eye Witness of the inCIdent whrch create doubt in the mind of this Court to believe their statements Since the prosecutrneand her father Dev Prasad (PW-9) have not supported the prosecution case and have been declared: hostile and also the medical report does notesupport meg; prosecution case, there remains nothing on whichebasis the 1; appellants can be conVicted for the charges leveled against thems i s l ; ? 11. In view of the above factual background, this Gourt is of the View that the Court beiow has erred in appregiating the évidence availablé on record while recording the findings convrctmg and sentencmg the accused/appellants for the offence mentioned above. Accordingly, the appeal is allowed and the impugned judgment dated 13.12.1995 being contrary to the evidence available on record is set aside Appellants are acquitted of the charges levelled against them. Since the appellants are on bail their bail bonds stand discharged / r/sai— _ L)ii a f P 'r'it'mker D‘wake . r Judge 4 A