s: CF0000061119 'suagte SsNft IN THE HIGH COURT OF MADHYA PRADESH-AT JABALPUR Cr.A.Mo. & '^-^ of 1996 Apgellant ^-" RameshwQ^^allas Ybgeshwar,aged 19 yearaji Accused ^ (In Jail) son of Bfaagat R^r^Qond^resident of vlllage Kar-glkala,^<S.Ko^S, District ?€laspur,M.P. versus w ^ ^^ ^{ \ Respond^xt: .;-•.—. State of M.P. ^ CRIMIHAL APPSAL TOTDSR SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDTmE,1973 a "/ ^^ / \" HIGH COURTOF CHHATTISGARH ATBILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 633 of 1996 APPELLANT RESPONDENT VERSUS Rameshwar alias Yogeshwar State of Madhya Pradesh Shri Arun Kochar counsel for the appellant. Shri Neeraj Mehta PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (01.03.2011) This appeal is directed against the judgment and order dated 25.3.1996 passed by Additional Sessions Judge, Bilaspur, in Sessions Trial No. 347/1990 convicting the accused/appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for ten years. 2. Case of the prosecution in brief is that on 16.8.1988 at about 8.15 p.m. FIR (Ex. P-1) was iodged by the prosecutrix(PW-l) aged about 16 years alleging that on that day at about 4 p.m. when she was returning from the field, accused/appellant who happens to be her brother in relation stopped her, took her near the brook, threw her on the ground and after upturning her sari and petticoat committed forcible sexual intercourse with her. It is alleged that when she tried to raise alarm, the accused/appellant had gagged her mouth. Based on this FIR, offences under Sections 341 and 376 IPC were registered against him and then she was medically examined on 17.4.1988 by Dr. (Smt) Anjali Gupta (PW-7). After completion of investigation, challan was filed by the police on 21.11.1988. However, the charge was framed against the accused/appellant under Section 376 IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code .V te^rf^ -'2.— of Criminal Procedure in which he denied the charges 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. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that the accused/appellant has been falsely implicated in the case and even the medical report of the prosecutrix does not support the case of the prosecution. He submits that in the case diary statement the prosecutrix has stated that she was subjected to bad work by the accused/appellant and one Jaipal (PW-6) whereas in the court statement she has not made any allegation against said Jai Pal and that being so her entire statement is rendered untrustworthy to be relied upon. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the statement of the prosecutrix appears to be highly trustworthy and that the defence has not brought on record even a single piece of evidence as to why the prosecutrix would falsely implicate the accused/appellant. He submits that injuries have been found on the private part of the prosecutrix and she was complaining pain on touch. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident while she was returning from the field, accused/appellant came there, felled her down, mounted on her and committed forcible sexual intercourse after upturning her sari and petticoat. According to her, though she was crying, nobody came to her rescue. When this witness told theaccused/appellant that she regarded him as her brother, he asked him to keep quiet. This witness has stated that while going home, she met her neighbour and narrated the incident to her and then the report was lodged. According tothis witness, as a result of being felled down by the accused/appellant, her bangles were broken. In cross examination, she has stated that accused/appellant happened to be her brother in relation and she •''••::<^1 I^:^SSSife. 1 .^' --2- used to visit his house which is situated near the house of her own. She has however denied of having any affair with him prior to the date of incident. According to her, alt along the incident she kept crying. As a result of the incident, she is said to have felt pain on her chest. She has denied the fact that on account of being seen by Jaipal (PW-6) in compromising position with the accused/appellant she has lodged a false report against him. She has also denied the fact that said Jaipal had also subjected her to sexual intercourse and if it is written in her case diary statement, it is incorrect. Toran Singh (PW-2) has stated in his evidence that when he was passing by the house of the prosecutrix, her family members had informed him that accused/appellant had raped her. Ganga Bai (PW-3) - the mother of the prosecutrix has stated that on the date of incident when she returned home from her workplace, prosecutrix was weeping and narrated the entire incident to her. According to her, the prosecutrix used to visit the house of the accused/appellant to meet his sisters. She has denied of existence of any prior affair between the accused/appellant and the prosecutrix. Santram (PW-4) has stated that on the date of incident mother of the prosecutrix had informed him of the prosecutrix being raped by the accused/appellant. Lakhanlal (PW-5) has stated that when he was passing by the house of the prosecutrix, her mother was weeping in front of her house and a huge crowed had gathered there. According to him, when he went inside the house of the prosecutrix, prosecutrix was also found weeping and informed as to the manner in which she was subjected to rape by the accused/appellant. Jaipal (PW-6) has stated that when he had gone to his field, he saw the accused/appellant holding the hand of the prosecutrix and having seen this he disappeared from the scene. In cross examination this witness has stated that the accused/appellant and the prosecutrix used to visit the house of each other but he expressed his ignorance about the existence of any affair between them. Dr. (Smt.) Anjali Gupta (PW-7) who had medically examined the prosecutrix and given her report Ex. P-4 has stated that she had not noticed any external injury on her body though her hymen was torn and swelling was found on her private part where she was complaining pain on touch. According to her, the '^"t —^ duration of the said injury was within 24-26 hours. Dr. C.S. Sharma (PW-8) is the witness who had radiologically examined the prosecutrix and given his report Ex. P-6 has stated that at the relevant time she was aged about 17 years which may have the margin of two years on either side. Niyatram (PW-9) is the witness to the seizure of ctothes made under Ex. P-7. Dr. V.K. Khetrapal (PW-10) who had medically examined the accused/appellant and given his report Ex. P-8 has stated that he was capable of performing sexual intercourse. Sub Inspector R.K. Tiwari (PW-11) is the investigating officer who has supported the case of the prosecution. Santosh Kumar Chandra (PW-12) is the Patwari who had prepared the spot map. 9. Close scrutiny of the factual background of thecase and the evidence adduced by the prosecution reveals that on the fateful day while the prosecutrix was returning from her field, the accused/appellant took her to the brook and made the victim of his lust. Statement of the prosecutrix has been duly supported by the doctor (PW-7) who had medically examined her and noticed swelling coupled with pain on her private part. Jaipal (PW-6) has also supported the case of the prosecution who had seen the accused/appellant holding the hand ofthe prosecutrix and on seeing this he left the spot. Minor contradictions if any in the statement of the prosecutrix being of indecisive nature are always to be overlooked while deciding the cases of like nature. In the last four lines of the case diary statement though the prosecutrix has stated that she had informed the Panchayat of the village of being subjected to rape by Jaipal (PW-6), ifthe same is seen in its entirety, it is clear that after seeing the accused/appellant holding the hand of the prosecutrix he ran away from the spot. Statement of the prosecutrix thus appears to be fully consistent and duly supported by the medical evidence. This Court does not see any reason to disbelieve and discard the same. 10. Consequently, the conviction part of the judgment impugned is hereby set aside. As regards sentence, in the facts and circumstances of the case and considering the fact that the incident - v .^,. ^ -s~- had taken place in the year 1988, the sentence of imprisonment awarded by the Court below is reduced to the imprisonment for seven years from that of 10 years. Accused/appellant who is on bail be sent to jail forthwith. His bail bonds stand cancelled. 11. Appeal thus succeeds in part. Sd/- Pritinker Diwaker Judge