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JUDGIWENT (09.02.2010) This appeal is directed against the judgment dated 30.9.1992 passed by AdditionalSessions Judge, Raipur, in Sessions Trial No. 43/1991 convicting the accused/appellant for the offence punishable under Section 376 of the Indian Penal code and sentencing him to undergo rigorous imprisonment for 5 years and pay fine of Rs.1000, in default of payment of fine to further undergo rigorous imprisonment for five months. 2. Case of the prosecution in brief is that on 9.6.1990 F.I.R. (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 22 years alleging that on 7.6.1990, when she had gone to light the lamp in the temple situated on the first floor of the house accused/appetlant who happens to be her brother in law (Devar) came from behind, caught hoJd of her, ma^e her lie on the ground and after removing her sari committed forcible sexual intercourse with her. It is alleged that when she informed the incident to her husband Prahtad, father-in- law namely Harakhram and mother-in-law namely Devkibai, disbetieving the same they started abusing her saying that she was telling lie. It is alleged in the FIR that in the night she had gone asleep.without taking food. Thereafter, on the next day at about 2 p.nt she went to -the house of her maternal aunt namely Ghasanbai "'l1"^.. i^a-i!. ss.aSi^ j t^y/ '». .ii,,.,.^' A' B'firfflKU and narrated the incident to her who in turn called the brother of the prosecutrix namely Ratan and then they both took her to the house of the accused persons where her father in law Harakhram refused to keep her asking her to call her father and five other persons of the village. After completion of investigation charge sheet was filed against the appellant under Section 376 IPC and that against other accused persons under sections 201/34 IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 15 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe Code of Criminal Procedure in which he denied the charges leveiled against him and pleaded his innocence and false implication in the case. This apart, one Latabai has also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offence as mentioned above. By the same judgment, other accused persons have been acquitted ofthe charge undersection 201/34 IPC. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that statement of the prosecutrix (PW-1) being full of contradictions and omissions which remains uncorroborated even by the medical evidence cannot be relied upon for convicting the accused under section 376 IPC. She has/stated that as the accused/appellant and his other family members were not -ready to keep the prosecutrix in their house, a Talse report -has been lodged by her which she herself has admitted in pafagraphs 22 to 25 of her evidence. 7. • On the other hand counsel forthe respondenVState supports the judgment impugned and submits that there was no occasion for the prosecutrix to falsely implicate the accused/appellant putting at stake her entire life. He submits that the statement ofthe prosecutrix •is.duly supported. by Latel (PW-3), Ratanlal (PW-4), Ghasin Bai '""^ '^ SQ;>. 1 ^A ''^,. 3 — (PW-5) and Gopal (PW-6) and the defence has not brought anything to discredit their version. 8. Prosecutrix (PW-1) has stated in her Court statement that her marriage was solemnized with co-accused Prahlad about 7-8 years back and all the accused persons used to live jointly in a three storied building. She has further stated that on the first floor a small Shiv temple is situated and when on the date of incident at about 6 p.m. she had gone to light the lamp, accused/appellant came from behind and said that he liked her and should be permitted to have sex with her. She has further stated that thereafter she was thrown on the floor and after removing her sari was subjected to sexual intercourse by the accused/appellant. She has stated that after commission of the offence she had abused the appellant and thereafter she and the accused came to the ground floor and entire incident was narrated by her to her husband, mother-in-law and father-in-law but they had disbelieved her statement saying that she was telling lie. She has stated that she was not provided food on that day and was locked in a room and in the next morning after getting an opportunity she rushed to the house of her maternal aunt. She has stated that she narrated the entire incident to her maternal aunt and then her brother was called by her, the matter was disclosed to him and then all of them went to the house of the accused persons to drop her. She has alleged that when they reached the matrimonial house of the prosecutrix, her father-in-law had asked her to get five persons of the village and only then she would be kept in the house. Sh& tias further stated that on the second day she took five persons of the village to the house of the accused persons and in their presence alsa she was abused. She has stated that thereafter she had'gone to her parents' hoy^e, her jewelry was snatched by the accused persons and then the report was lodged. She has stated that she was medically examined and her undergarments were also seized by the Police. She has stated that when she was being subjected to forcible sexual intercourse, her bangles were broken which were also seized by the police. In the cross examination this witness has stated that her brother Ratan was having a betel shop '":e^. •^. "k -</- near her matrimonial house. She has also stated that on the date of incident the entire family was on the ground floor and the place where the incident had taken place was a densely populated one. She has stated that as a routine, she used to light the lamp in the Shiv temple. She has stated that when accused/appellant had caught hold of her, she cried for help but if that is not written in the FIR, she cannot say. She has stated that her sari was not removed but it was only up-turned by the accused/appellant. She has stated that she had informed the police about her sari and petticoat being upturned by the accused/appellant and her breast being pressed by him. She has stated that the accused after removing his underwear and towel, he had kept the same 3-4 ft. away and then committed sexual intercourse with her for one hour. She has stated that while the intercourse was being committed, she did not say anything to the accused/appellant. She has stated that as a result of her subjection to sexual intercourse she had sustained scratch injury in her back and also the injury on her hand, chest and stomach and some bleeding was also there. She has further stated that when she took five persons to her matrimonial house, number of persons were already standing there. She has stated that when the Panchas had asked her father-in-law to keep the prosecutrix as she was having a small child, he refused to keep her and then the Panchas left her there and went away. She has stated that when she was not kept in her matrimonial house, at about 12 in the noon, she came back to her brother's house and then a decision was taken to lodge the repqrt. She has stated that initially in the police station the report was lodged regarding marpeet but when some higher police officials -cameto theppfice station, other report Ex. P-1 was lodged. She has stated that the second report was lodged by her at the behest of the Panchas of the village and as the aceused persons were not keeping her in their house, she had lodged the report against all the family members. In paragraph 26 of her cross examination she has further stated that when initially she had gone to the police station, the.police people had asked her that as 7-8 years of marriage had gffeady gone by, no case would be made out. She has stated that if •^''. •!^^ ^ --? the accused persons were ready to keep her, she would have gone to live with them. There appears to be contradictions and omissions in the statement of the prosecutrix as in the FIR she has stated that she was asked by the accused to light the lamp in the temple but in the Court statement she has stated that she had gone to the first floor to light the lamp at her own and then the accused/appellant also came there and committed the offence. In the FIR she has stated that on the date of incident she went asleep without taking food but in the Court statement she has stated that she was tocked in a room and was not provided food by the accused persons. In addition to this, there are other material contradictions and omissions in her statement which has not been supported by the medical evidence as Dr. Divya Tiwari (PW-15) who had medically examined the prosecutrix has stated that no external or internal injury was found on the person of the prosecutrix. Most important aspect of the matter is that she had lodged the report falsely implicating the accused persons as she was not kept by them in their house. Statement of the prosecutrix that on her initial report it was told by the police officer that no case would be made out and then she lodged the second report, makes it clear that she has not stated the truth before the Court and has lodged the report because of some dispute between her and the accused persons. Entire statement of the prosecutrix thus does not inspire confidence of the Court so as to base the conviction ofthe accused/appellant under Section 376 IPC. 9. Though the statement of the prosecutrix has been supported by Latel (PW-3), Ratanlal (PW-4), Ghasin Bai (PW-5) and Gopal (PW-6), these witnesses bein^ closely related to the prosecutrix cannot be jmplicitly relied upon unless their version is corroborated by some independent witnesses. Moreover, there are material contradictions and omission in their statements too. Gopal (PW-4) has categorically stated that as in the first report the police had infQFrned the prosecutrix that no ease would be made out, only then the second repqrt was lodged by her. Dr. Divya Tiwari (PW-15) has ^ —c>— also stated in her evidence that she had not found any injury on the person of the prosecutrix and thus the statement of the prosecutrix that she sustained abrasions on her back and injury on various parts of her body stands belied. 10. Having gone through the material available on record this Court finds that the statement of the prosecutrix is full of contradictions and omissions and she has lodged the report falsely implicating the accused/appellant when she was not permitted to live in the house of the accused persons. Even the medical evidence does not corroborate the statement of the prosecutrix. From the record it also appears that had the accused persons kept the prosecutrix, she would not have lodged the report implicating them in a false case. Accordingly, the Court below appears to have fallen in a grave error in not properly appreciating the evidence available on record and thereby convicting the accused/appellant under Section 376 IPC. 11. In the result, the appeal is allowed. Impugned judgment convicting and sentencing the accused/appellant as mentioned above is set aside. Appellant is acquitted of the charge levelled against him. Fine amount deposited by him be also refunded. Sd/- Pritinker Diwakar Judge