IGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 68 of 1995 APPELLANT Chandra Prakash VERSUS RESPONDENT State of Madhya Pradesh Criminal Appeal No. 97 of 1995 Chandel counsel for the K Shri AWédh Tri’pa'‘th'i”& S. . appeiiants. Shri Akhil Mishra Dy. G.A. for respondent/State. CRIMINAL APPEALS UNDER SECTION 74 12) OF THE CODE OF CRIMINAL PROCEDUF‘E ‘JUDGMENT (1 8.06 201 0) Since the aforesaid two appeals arise out of the same judgment dated 09.01.1995 passed by Sessions Judge, Bilaspur in Sessions Trial No. 36/91, they are disposed ofby this common judgment. 2. By the judgment impugned the appellants have been conwcted under sections 450 & 376 IPC and sentenced to undergo rigorous imprisonment for three years With fine ofRs. 100 under section 450 and to undergo rigorous imprisonment for ten years with fine of Rs. 100 under section 376 IPC each, with defaultstipulations. 3. Case of the prosecution in brief is that on 02.07.1990 FIR EXP—10 was lodged by the prosecutrix (PW 9) aged about 28 years alleging that in ‘the intervening night of 1st/2nd July, 1990 when she was sleeping in her house along With her daughter Lata aged about Six years and nephew Arun as her husband was not at home accused/appellants knocked the door of her house and when the door was opened accused/appellants had asked her that they were to go towards the well Thereafter when her x . APPELLANT VERSUS RESPONDENT State of Madhya Pradesh _.2- nephew Arun accompanied them towards the well, they had pushed him in the mud and when Arun got back to the house, the accused/appellants also came there and asked the prosecutrix to light the lamp. It is the further case of the prosecution that despite her request they did n0t teat/e her house and sat on the cot lying there. Thereafter, it is alleged that accused/appellant Ram Ratan caught hold of her hand, pressed her breasts, threw her on the cot and committed forcible sexual intercourse with her. it is alleged that while accused/appellant Ram Ratan was committing the offence, accused/appellant Chandra Prakash was holding her hands. 4. So as to hold the accused/appellants guilty, prosecution has examined 11 witnesses in support of its case Statements of the accused/appellants 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. In support of its case, the defence has also examined one Gopi Chand as DW-1. 5. After hearing the parties the trial Court has conVIcted and sentenced the accused/appellants as mentioned above '6. Heard counsel for the parties and perused the material available on record including the judgment impugned. 7. Counsel for the accused/appellants submit that it is a case of false implication as when the appellants had gone to clean the choked drain situated near the house of the prosecutrix, she has implicated them in a false case. According to the counsel for the appellants, even the medical report of the prosecutrix does not support the case of the prosecution and most importantly the daughter of the prosecutrix who was present in the house at the time of incident has not been examined by the prosecution. .8. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that as the statements of the prosecutrix and that of her nephew Arun appear’to be wholly realistic, the findings of the trial Court convicting and sentencing the accused/appellants by the judgment impugned are correct. He submits that as the prosecutrix is‘a . z —‘3._ married lady, absence of injury on her person cannot benefit the accused in any manner whatsoever. 9. Prosecutrix (PW—9) has stated in her evidence that on the date of incident at about 12 in the night when she was sleeping in her house aiong with her daughter and nephew, accused/appellants had knocked the door and on being asked the reason there-for by her nephew Arun, they had told that they wanted to see the choked drain. On this, the prosecutrix had asked them to’ come on the next day in the presence of her husband. Thereafter, the aCcused/appellants‘ along with her nephew went to see the drain and when her nephew Arun came got back home, he was drenched with mud. On being asked, he told her that accused/appellant Ram Ratan had pushed him in the drain. When the accused/appellants also came back, she was standing near the door of her verandah. Thereafter, she was thrown on the ground by accused/appellant Ram Ratan and accused/appellant Chandra Prakash had held her hands and then after pressmg her breasts accused Ram Ratan committed forcrble sexual intercourse With her She has stated that when she was thrown by accused/appellant Ram Ratan on the ground, her nephew had left the place on account of fear and after hearing her'voice her daughter Lata had also woken up but she did not see the incident. She has stated that on arrival of Prabhu (PW-4) and her elder brother-in-law Ramphal (PW-8), the accused/appellants had fled away from the spot. Thereafter, village Kotwar was called and the incident was disclosed to him. On the next day after arrival of her husband, the report was lodged and she was sent for medical examination. ln cross examination, this witness has admitted that on the date of incident itwas raining and the rain water flows by the side of her house. She has stated that if someone is required to go to thekitchen garden for cleaning the drain, he has to cross her courtyardfln paragraph 15 she has stated that the accused/appellants had never sat on her cot and if it is mentioned in the report she is not aware of the same She has stated that after being subjected to rape she had become unconSCIous She has stated that on account ofshame, she had not disclosed the incident to Arun, his father and Prabhu (PW-4). For calling her husband, she ha‘d however ‘dis’‘Cl'o'sed ‘the”i'ncident' to One Shatrughan. From paragraph 22 of her statement, it appears that there was some altercation w\ “q“ between the prosecutrix and the appetlants over cutting of a Munga tree and on an abuse being hurled by her, accused/appellant Ram Ratan had even slapped her. The prosecutrix has admitted that the accused/appellants used to visit her house frequently. Ramphal (PW-8f— the other important witness of the prosecution has stated that on the date of incident while he was participating in the Ramayan function, Arun came to him and informed that the accused/appellants had entered the house of Jagdish and when he reached there, one Bhagatwat who used to reside in the vicinity, came out of his house and then he told him that the accused/appellants had entered the house of Jagdish. This witness has also stated that when he went/inside the house of the prosecutrix, she informed him that accused/appellants had subjected her to sexual intercourse. In cross examination this witness has stated that he had seen the accused/appellants running away from the house of the prosecutrix. Statement of this witness is contrary to the statement of the prosecutrix as he has stated that when he reached the house of the prosecutrix she had informed htm about the commissmn of the offence whereas the prosecutrix has stated that on account of shame she did not disclose the inCident to him and for the first time she made its disclosure to her husband on the next day. In these circumstances, it is difficult for this Court to believe the statement of this witness. Statement of Arun (PW-7) who happens to be the nephew of the prosecutrix has stated in his evidence that when he had returned after calling his father, the accused/appellants Were in the house of the prosecutrix and the door was bolted from inside and that after hearing the cries raised by the prosecutrix, his sister Lata also ran away from the spot. Statement of this witness reflects that on thedate of incident accused/appellants might have gone to the house of the prosecutrix but it is not at all reflected from the same that she was subjected to rape by the accused/appellants. This witness has stated in his evidence‘that he was slapped by accused/appellant Ram Ratan whereas at earlier point of time — he has not made any such statement nor any other Witness has deposed to this effect Even the medical report of the prosecutrix does not indicate any injury on her body as is clear from the eVIdence of Dr R Dahire (PW- 1) who had medically examined her Dr VN Dubey (PW—2) who had medically examined the prosecutrix has stated that he was capable of aw @1 ‘ *S’. performing sexual intercourse. Kotwar Sohan Das (PW-3) has also not deposed anything in respect of the fact that he was calied by one Shatrughan and he had reached the spot immediately after the incident as is deposed by the prosecutrix. Prabhu Lal (PW-4) has also not supported the case of the prosecution. 10. Having thus minutely examined the statements of the witnesses particularly that of ”the prosecutrix (PW-9) it appears that the accused/appellants might have gone to the house of the prosecutrix but the same does nOt spell about their involvement in the commission of rape with her. This apart, there are material contradictions and omissions in the statements of the prosecutrix and that her version is. not consistent if compared to that of otherwitnesses examined by the prosecution. In the FIR she has stated that while knocking the door the accused/appellants had told her- that they wanted to go to the well whereas in the court statement she has stated that they had told that they wanted to see the choked drain Further‘rl'inmthe'MFIR 'she' has‘stated that the accused/appellants sat on the cot and thereafter committed rape on her whereas In the Court statement she has stated that she was thrown on the floor and then was subjected to rape by accused/appellant Ram Ratan Moreover, record also shows that there was some dispute between the family of the prosecutrikand that'of the accused/appellants over cutting of a Mung'a tree and it has been admitted by the prosecutrix’that she had abused the accused Ram Ratan and he had slapped her and in these circumstances possibility of false implication can also notbe lost sight of. When the prosecutrix herself remains inconsistent in her statement and that it does not get corroboration-ffom any other evidence adduced by the prosecution accused/appellants must get benefit of doubt Prosecution has not even been able to prove its case under Section 450 IPC by adducmg any credit-worthy eVidence. 1 Aforesaid discussion thus does net satisfy the conscience of this Court to approve the approach of the Court below recorded in the Judgment impugned Judgment impugned being not based on due appreCIation of the eVIdence on record loses its eXIstence and is thus set 1 @ ”é- aside. Acquittal of the appellants of all the charges is recorded accordingly. They are already on bail. Bail bonds so executed stand discharged. ll Sd/—, l Pritinker Diwaker Judges ‘