@ i muuclmlgmouu|u|mn , » \ I T HIH OU OF UD ’ N HE G CRT JICA’I‘URE OF MADHYA PRADEéH AT JBALPUR A a ’ Crnal Apeal No.‘3e¢L /96 imi p . q PE IN AI : Mangaldev s/o. Mahkull Kanwar, age 30 years R/o. Village- Amarpur Ps- Kusmi, Distt-SarguJaJwo Ve s‘u s- -r RE§ONDT. PEN E V {RgMI APPEA Uls. 4 PRO : state of M.P° through PS- Kusmi, Distt- sargujaMP. CNAL L 37(2) OP PHE CODEJOF CRIMINAL CEDURE . a u l ‘ 1 ¢ 1 APLLANT ( i ( JL) a HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1302 of 1996 Mangaldev PPELLANT A VERSUS State of Madhya Pradesh. RESPbNDENT' i Shri Shakti Raj Sinha codnsel for the appellant. Shri Pravin Das Dy. GA for the respondent/State. V ‘ ‘ CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE i ‘ JUDGMENT (10.01.2011) This appeal is directed against the judgment dated 29.6.1996 passed by the Additional Sessions Judge Ambikapur (Sarguja) in ‘ Sessions Trial No. 12/1 994 convicting the appellant under Section 376 of the; Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. lCase of the prosecution in brief is that on 9.7.1993 a written report: Ex P 10 was lodged by the prosecutrix PW-8 a married lad aged about 25 years at the relevant time alleging that‘bn 6 7 1993 at about 5 a m when she had gone to collect dorl (a sort of seed , v commonly used by the Villagers for extracting orl) accused/appellant came there threw her on the field and after upturning her sari and petticoat committed forcrble sexual intercourse With her It is alleged ‘ ‘i-~ that after the inCIdent she had gone to lodge the report on 6 7 1993 itself but as no offence was~registered under Section 376 IPC she made a written report to the Superintendent of Police Based on this r written report, FIR Ex. P—12 was registered at police station Ambikapur and later on 11.7.1993 FIR Ex. P-5 was registered for the offence y i under s‘ection 376 IPC. After investigation, chaiian was filed on 22.9.1993 for an offence under Section 376 IPC. € 3. so as to hold the accused/appeiiant guilty, prosecution has examinegd as many as 13 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 Statements of three defence Witnesses including the accused/appellant were also recorded l t 4. After hearing the parties the trial Court has conVIcted and sentenced the accused7appellant as mentioned above 5. Hear counsel for the parties and perused the material available on record including the judgment impugned. Q; 6. Counsel for the appellant submits that a very improbable story has been put forth by the prosecution as it is literally impossible in the village where at 5 o’clock in the morning the life starts in full swing, 4 nobody has seen the incident or even heard the cry ‘of the prosecutrix j for help. He submits that as there existed some previous land dispute V between the father—in-law of the prosecutrix and the appellant, possibility of false implication of the accused in the case in hand a . :cannot be ruled out. He submits that medical report of thgprosecutrix also does not support the case of the prosecution and that apart there ‘is an unexplained inordinate delay on the part of the prosecutrix in lodging the report. He submits that the written report dated 9.7.1993 i EX. 'P—10 has also not been proved by the prosecution and the prosecutrix herself has categorically denied the contents of the same. ‘Hesabmits that the seizure Witnesses have also not supported the case of the prosecution and have been declared hostile. 7. On the other hand counsel for the respondent/State supports the l judgment impugned and submits that the delay in lodging the FIR has d " i *3_ beén sufficiently explained by the prosecutiOn in the term that on 6 7 1993 Itself the prosecutnx had gone to Iodge the FIR at pohce station Kusml but as the same was not registered for the offence under Section 376 IPC, under compelling Circumstances the prosecutrix maide a written report Ex. P-1O to the Superintendent of Police on 9 7:1993 and after getting the directions from the superior officer FIR was registered He submits that the medical report does not support the case of the prosecution for the reason that the prosecutrix was a married lady and that being so the question of injury on her private part does‘not arise He submits that the prosecutrix being a rustic Villager i bound to make inconSistent statement but looking to her background all these lacunae should be overlooked "" 8. g Prosecutrix (PW-8) has stated in her evidence that in relation the appellant happens to be her father-in-law. She has stated that her marriage was solemnized with Jageshwar (PW-9) and she has a son also. According to this witness, the appellant is residing just near her houSe and when she had gone to collect dori (a sort of seed commonly used by the villagers for extracting oil), he came there, threw her on the field and after upturning her sari and petticoat committed forcible sexual intercourse with her. She has stated that after the incident, she went to her house weeping and narrated the entire incident to her xe""kv‘:""1 husband Jageshwar (PW-9) and her father-in-Iaw Bituram According to this Witness she had gone to police station Kusmi for lodging the i report but as it was not registered she came back to Ambikapur and x made an application in writing to the Superintendent of Police. Thereafter, she was sent for medical examination and certain seizures were, made by the police. In cross examination, the prosecutrix has stated that her father-in-Iaw and the accused/appellant are residing on the property of their‘father‘in-Jaw. She has admitted the fact that their existed a dispute between her father—in:law and the accused in respect of the courtyard. This witness has stated that on the date of incident itself she had gone to lodge the report"Where certain questions were put to her~by the police and then she returned and when no action was taken by the police authorities, a written report was made by her. After s ...q_ 5-6 days of the incident she went to Ambikapur along with her husband where the report was lodged. Her father-in—law was not with her when he haa gone to Ambikapur for lodging the FIR. She has stated that written :report was prepared by her brother-in—Iaw Baijnath (PW-10), it‘ was heEwho got it typed and obtained her thumb impression. She has stated that she was not aware as to from where the said document was ot typed or even as to the contents of the said written report She has stated that the InCIdent was narrated by her to her father In law and ther Villagers but not to Nanku and Ratna In paragraph 8 of her deposrtidh she has admitted that normally the Villagers go to collect don (a sort of seed commonly used by the Villagers for extracting Oil), in the morning but at the relevant time no other villager was there. She has also stated that after about 2 months of the incident accused/appellant had left the Village and her father-in law also expired. She however has denied the suggestion of false implication of the acoused/appellant. Jageshwar (PW-9) — the husband of the prosecutrix has stated that on the date of incident the prosecutrix had informed him that when she ha‘d gone to collect dori (a sort of seed commonly used by the villagers for extracting oil), accused/appellant came there and committed forcible sexual intercourse with her and thereafter he also informed his father about the same. Subsequently, he and his father had gone to see the place of incident and then he along with his wife ‘ i.e. the prosecutrix had gone to police station Kusmi to lgdge the report but as only the minor offence was registered, they returned to the village; On the second day, he and the prosecutrix went to the house of the brother-in-law of the prosecutrix at Shankargarh. However, as [he l suffered from fever at Shankargarh, he asked one Baijnath to accompany the prosecutrixtQxAmbikapur to lodge the report. ln cross , examination this witness admits the existence of dispute between the accused/appellant and father-in-law of the prosecutrix. This witness has denied-the suggestion of lodging a false report against the l g V accused/appellant. He admits the fact that when he lodged the report, ‘s g o . . first of all the police had refused to register any offence but thereafter the FIR Mas registered. Beijnath (PW-10) —“the brother—in-law of the prosecutrix ha stated that the prosecutrix and her husband Jageshwar had come t his houise and on his request he accompanied the prosecutrix t Ambikabur. He has stated that as Jageshwar was not feeling well, h i w. s o o e did notiaccompany them to the polic_e station. According to him, at Ambikapur he and the prosecutrix met a lawyer and on instructions of the prosecutrix an application was typed and after obtaining her thumb i impression, same was handed over to the Superintendent of Police. Thereafter, they went to the office of Superintendent of Police to lodge the report. Thereafter the offence was registered at Ambikapur and the prosecutrix was medically examined. Dr. (Smt.) S. Sinha (PW—13) who had medically examined the prosecutrix and given her report Ex. P— 14A has stated that no injury whatsoever was found on the body of th prosecutrix including the private part and no definite opinion of recent intercourse with her could be given. Kunj Bihari (PW-1) the witness o seizure under Ex. P-1 and Ex. P—2 and Raghuvar Ram (PW-2) — witness of seizure under Ex. P-3 have not fully supported the case of the prosecution. Purshottam (PW-4) witness of seizure under Ex. P-3 and Mannu (PW—5) witness of seizure under Ex. P-4 have also not fully supported the case of the prosecution. Kabir Sai (PW-7) ASI is the 4 witness who had recorded the FIR Ex. P—6 and sent the accused for i medical examination vide Ex. P-7. Remish Kispotta (l5’t7V-11) SI who had obtained the consent of the prosecutrix and sent her for medical examination, has supported the case of the prosecution. R.P. Maurya (PW-12) is the witness who drafted the written report Ex. P—10. Defence witnesses have stated that there was an old land dispute betzween the accused/appellantand the father—in-law of the prosecutrix and made an attempt to say that no incident had taken place. 9. Having thus seen the evidence of the witnesses particularly that of the prosecutrix it appears that her statement is full of omissions and contradictions. The record shows the admission by the prosecutrix that e f ‘ ,g- written‘report was prepared by Baijnath (PW-10)'with the help of a advocate (PW-12) and that the prosecutnx was not aware of the contents of the same Prosecutuon has utterly falled to satisfactonly explaln the Inordlnate delay 1n Iodgmg the FIR as the Incudent had taken fplace on 6.7.1993 whereas the written report was made on 97.19953 which acCording to the prosecution has occurred as the police had reffused to register the FIR under Section 376 IPC. There is no concrete evidence on record to show that the police had refused to register the offence. Entire statement of the prosecutrix and that of her husband“ creates doubt in the mind of this Court whether the incident had at all taken place. Further there appears to have existed some land dispute between the accused and the father-in-Iaw of the prosecutrix. Keeping in view the facts and circumstances of the case possibility of false implication of the accused/appellant cannot be ruled out. This apart, the statement of the prosecutrix being full of inconsistencies, contradictions and omissions does not inspire full confidence of the Court and that being so the appellant is entitled to have the benefit of doubt. In the result, the appeal is allowed. Impugned judgment is set . aside. Appellant is acquitted of the charge levelled. against him and as he is reported to be on bail, his bail bonds stand discharged. 10. @ n g