;ifciitiiii6£;ati CFOOOOOSOWI' ^^^^s IN THS HIGH Cr>U&T OF JUDICATURE AT JABALPH-R Cr.A.No \-?-l-j of 1996 Appellants Accused <In Jail) Saghuvir,aged about 28 years, son of Raainatfa Gajpal. resident of Viaayakpur, P.S. Dis-trict Durg,H.P. versus Sespondenti Ibe State of Madbya Pradesb \^ ^ o CRmiN&U APPEAI._U EB.._SECII9N_374 _(_2_) OF THE OQDE OF.CKtMINAL PRQCS32URE._l9^7_3_ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1777/1996 APPELLANT Raghuvir Versus RESPONDENT State of Madhya Pradesh Shri Arun Kochar counsel for the appellant. Smt. Smita Ghai PL for the State. CRIMINAL APPEAL UNDER SECTION 374 (1)OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (11.04.2011) This appeal is directed against the judgment and order dated 28.9.1996 passed by Additional Sessions Judge, Durg in Sessions Trial No. 393/1995 convicting the accused/appellant for the offence punishable under Seetion 376 (1) IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500 in default of payment offine to further undergo imprisonment for six months. 2. Facts of the case in brief are that on 5.1.1995 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) a married lady aged about 19 years alleging that on 27.12.1994 at about 8 p.m. she had gone to the house of the accused/appellant to work as labourer and when she was shifting the paddy from one place to another and as the wife of the accused/appellant had gone back to her house to take meals, taking advantage of her loneliness, he caught hold of her, threw her on the field, inserted a piece of cloth in her mouth and after upturning her sari and petticoat committed rape on her. After commission of the offence, the accused/appellant threatened her to kill if she disclosed the incident to anyone. After completing her work at about 4 p.m. she returned to her house but as her husband and father-in-law were not in the village and she was scared, she did not disclose the incident to anyone. However, on 3.1.1995 after her husband and father-in-law returned, she narrated the incident to her husband on 4.1.1995 on which as her husband had told her not to keep her, the report was lodged. Based on this FIR, offence under Section 376 —^- ~^ '^ ^ ^i '" ''^ ?1 '^"- i; ^. y~!f" ^y "•<&Saa£'SS's y -2- IPC was registered against the accused/appellant, she was sent for medical examination on 6.1.1995 vide Ex. P-5A and after completion of investigation, challan was filed by the police on 25.1.1995 for the said offence. 3. So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that there is inordinate delay of 10 days in lodging the FIR which has not been satisfactorily explained by the prosecution. He submits that medical report of the prosecutrix does not support the case of the prosecution and the statement of the prosecutrix also appears to be very improbable. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that delay has been explained by the prosecution saying that firstly husband and father-in-law of the prosecutrix were not in the village and secondly after their arrival a Panchayat meeting was convened in which a decision to lodge the report was taken. He submits that the statement of the prosecutrix is very natural and there is no reason for her to implicate the accused/appellant in a false case. 7. Prosecutrix (PW-1) aged about 20 years at the relevant time has stated in her evidence that she knew the accused/appellant as both of them were working in the house of one Gayaram (PW-8). According to her, on the date of incident when she along with the accused/appellant was shifting paddy from the room to the loft, at about 1.30 p.m. the appellant caught hold of her hand and after upturning her sari and petticoat committed forcible sexual intercourse with her and when raised '"'y(9 an alarm, he inserted a piece of cloth in her mouth. According to this witness, after completion of the entire act, he had threatened her not to disclose the incident to anyone or else he would kill her. This witness has further stated that at about 3 p.m. when she returned home, her husband and father-in-law were not there and after their arrival in the evening she disclosed the incident to them and then after the village meeting being called, the matter was reported to the police, she was sent for medieal examination and her clothes were seized by the police. In cross examination this witness has stated that her husband and the appellant are good friends and they used to visit the house of each other and that even prior to the date of incident she used to work in the house of Gayaram. In paragraph No. 17 of her deposition she has sated that on the date of incident only she and the accused/appellant were working in the house of Gayaram and that on that day she worked there till 3 p.m. She has however denied that on the date of incident wife of the appellant was also working with them and if the same is recorded in the FIR, she could not tell the reason thereof. She has stated that she had protested against the act of the accused/appellant and that she sustained injuries on her elbow and waist and her bangles were also broken. According to her all these things were disclosed to the doctor medically examining her. According to her, number of houses are there near the house of Gayaram but she did not disclose the incident to anyone. She has however denied that for 7-8 days she had not informed the incident to anyone including her husband and father-in-law. She has stated that two-three days after the incident village meeting was called but she has denied the fact that in the said meetingshe had disclosed that the physical relation made with her by the accused/appellant was consensual. Nand Kumar (PW-2) is the witness to seizure of the articles made under Ex. P-4 has not supported the case of the prosecution and has been declared hostile. Parmanand (PW-3) - the husband of the prosecutrix has stated that on the date of incident when he returned from his workplace in the evening, the prosecutrix had informed him that she was subjected to rape by the accused/appellant. He has further stated that even after coming to know about the incident, he kept quiet for 3-4 days and on third-forth day the village meeting was called where a > decision to lodge the report with the police was taken. Lakhan Lal (PW-4) - the father-in-law of the prosecutrix has stated in his evidence that four days after the date of incident when he returned home from some other village, the prosecutrix had disclosed the incident to him and at that time she was weeping. Thereafter, according to this witness, the Panchayat meeting was called where a decision was taken that if the matter was not reported to the police he would be boycotted from the society. Retired ASI namely S.R. Yadav (PW-5) is the witness who had done part of the investigation in the case. Dr. R.N. Pandey (PW-6) is the witness who had medically examined the accused/appellant and given his report Ex. P-7A opining that he was capable of performing sexual intercourse. Dr. (Smt.) S. Rajput (PW-7) is the witness who had medically examined the prosecutrix and given her report Ex. P-5A stating that she was habitual to sexual intercourse. Gayaram Satnami (PW-8) has stated in his evidence that the accused/appellant was working in his house and he was informed by the villagers that he had committed rape on the prosecutrix. Inspector namely M.L. Daharia (PW-9) is the investigating officer who has supported the case ofthe prosecution. 8. Minute examination of the evidence of the prosecutrix, her husband and father-in-law shows that there are material contradictions in their statements recorded by the police and in the Court. As per the FIR, on the date of incident, husband and father-in-law of the prosecutrix were not in the village and they returned only on 3.1.1995 whereas as per her Court statement her father-in-law and the husband had returned home on the date of incident itself and after their arrival, she had disclosed the entire incident to them. This apart, as per the FIR, when she narrated the incident to her husband, he told her to lodge the report otherwise he would not keep her whereas no such statement has been made be her in the Court statement nor in the statement of her husband. Keeping this apart, other major contradictions are also there in the statements of the prosecutrix, her husband and father-in-law. Material available on record also reflects that though number of houses are there near the house of Gayaram where the incident is said to have taken place, it was not disclosed to anyone nor did she offer any serious resistance to come out of the clutches of the accused/appellant. Moreover, there is inordinate -^- delay of nine days in lodging the FIR which has not been satisfactorily explained by the prosecution. Mere statement of the prosecutrix that she was threatened by the accused/appellant not to disclose the matter to anyone, is not a sufficient explanation for lodging the report with such an inordinate delay. Even the husband of the prosecutrix has stated that even after coming to know about the incident, he kept quiet for 3-4 days. 9. Thus in view of such inconsistent statement made by the prosecutrix herself, her father-in-law and the husband, according to the considered opinion of this Court the findings recorded by the Court below convicting the accused/appellant under Section 376 (1) IPC are not sustainable in the eye of law. 10. In the result, the appeal is allowed. Judgment impugned is hereby set aside. Appellant stands acquittedof the charge levelled against him. Accused/appellant is on bail. His bail bonds stand discharged. "L. Sd/- Pritinker Diwaker Judge '?;b