3ff^i5;r{%;riq? 'aT sn^i ^qra- 3:eer ^i<iirt^, a-rfl'M'ifi, f5j"i'l^^< 2-^ 3n^?r isw (.'vSyiyi) 'reiw ^rfro sn^T '^N?pft:T ^rp^f^l^^ TH'r1^i' ^•3?fim3n^r -CRIMINAL-4P Ab-Na69/2Q02. APPELLANT Accused (In Jail) RESPONDENT Cha|naru son of Guruwaru, Occupation Agrjculture, resident of Village Karjriari, Police Chowki- Bastar, P.5.- Jag|dalpur, bistt.-Bastar (C.6.) Vs Stat] Cityi Jagc ^ of Chhattisgarh Through the P.5. Kotwali, Jagdalpur, Distt.-Bastar ilpur(C.6.) da Present: Mr. Manoj Mishra, Advocate fo Mr.Sushil Dubey,6ovt. the appeltant. Advoca|fe for the respondent-State. OKA L (31st Per Ohirendra Mishra. J; This appeal is directed order of sentence dated 26 ds No.82/01 whereby learned Sj Jagdalpur has convicted the c|pf IPC & Section 3 (1) (XII) ofl Tribes (Prevention of Atroci-tfes) undergo R.I. for 7years and t(} LJUbSMENT ^ugust, 2007) kgainst the judgment of conviction and 'ecember, 2001 passed in Sessions Trial lecial Judge (SC ST Act) Bastar at )pellant under Section 376 (1) of the the Scheduled Caste and Scheduled ), Act 1989 and sentenced him to pay a fine of Rs.2,000/-, in default of "^As! tf^ -^yis' XI-HC—78 %ns;iw ?tqr SIRW a?E|w 3^? •^ww^, (STfl'H'ie, Rcsi'yy an^r iaw Cpf58?w^ ^giw^tei sii^i <*llfi'l<i)-< IWcfl^^Zt'TN^R ^3lfilH3]I^( payment of fine additional R.I. a fine of Rs.1,000/-, in default months respectively. Case of the prosecutio^, prosecutrix, who is a lady age|J Tribe, lodged FIR of Ex.P-1 ii^ therein that her family membej' she was awake, the appellant called her husband, whereupon ^t demanded by the accused she| closed the door and slept. Th4 entered in her room by intercourse with her as a result appellant. She called her appellant fled from there. On convened in the village and thejr potice station. The prosecutri)<j Maharani Hospital, Jagdalpur w| report is Ex.P-2. After completing investij)o Court of Chief Judicial For 1 year & R.I. for 2 years and to pay )f payment of fine additional R.I. for 4 (, in brief, is that on 23.7.1999 the 27 years and belongs to Scheduled the Police Station Bastar mentioning ^•s were sleeping in the house, however c^me to her house at about 10 p.m. and ^he cameout of the house and on being Igave tobacco to him, thereafter she appellant again came at about 11 pm, the door and committed sexual of which she woke up and saw the h|jsband, however, by that time the |the following day the panchayat was le^eafter The report was lodged in the was sent for medical examination to Ihere she uvas examined and her MLC remo^mg investijjation, charge sheet was filed in the Magisjtrate, Jagdalpur and the same was ir r' :—78 sn^i^f l<-(iqi ^^T •3?s^T %i^i^ S'eer ^i^irt-i), siTfl'y'ifi, fsf^wy TTOCT tbMI* sn^yr tiira; (iyf-|<K<ti) ^iiWBisa sii^i ^ chs<i^T<ili Tm^f '^,'fe1^ <|^|<^H received on transfer for prosecution examined 5 statement of accused was r^i After hearing learned counsej Special Judge convicted and herein above. I have heard tearned record. Conviction of the appe| prosecutrix (PW- 1), Budhru (P] Bai (PW-3), mother of The prosecutrix (PW-1) she was sleeping in her hon^ Thereafter, on the same night she was cooking, he caught holc| Accused committed rape with her, therefore, she thought her, then who is this person appellant. She chased the app4 narrated the incident to her village and thereafter she ttial thht lodg4d <Si ajRn 311^1 by learned Special Judge. The witn^sses during trial and thereafter the rdcorded under Section 313 of Cr.P.C. 1 for the respective parties, learned ientenced the appellant as mentioned co|unset for the parties and perused the llant is based on the statement of yv-2), husband of prosecutrix & Budhri prosecut^ix. Ikas stated that on the date of incident homle. Chamru came once and returned. ^e again came to her house, at hat time of her hand. We had consumed liquor. |her. Her husband was sleeping beside when her husband is sleeping beside ^ind therefore, she woke and saw the app411ant for a distance. Thereafter, she m<tther. A panchayat was convened in the the report in the police station. x^:—-^—. ^S^.^W—^- -.1 ^ • :-. ,3st^ I-HC—78 ?w an^r shiiqi 3^? -^W^, tftfl'y'iti, Ric'ii'My 3»r^?r TBI% C^f^s^a) TOIIW ^lfttT 3iI^T \- Budhri Bai (PW-3) has daughter, the prosecutrix at time she was suffering from raped her. Thereafter, she had ] house of Chamru, however, he w{ Budhru (PW-2). husband 4 sleeping in his house,his uvife house and raped his wife. 1-lis w| sleep, therefore, he could not Chamru for a distance and in t| incident. The court below relying further considering that the prc a distance has held that stal conduct is reliable. From perusal of the FIR) has not stated in the said repoi the accused for a distance. statement of prosecutrix it is that when accused entered her breath she claims that she wai <t>wic('sil-< 'W^ it'fest TiSR^K ^••affimair^f jstated that the prosecutrix is her a^out 12.00 came to her house, at that fever, and told her that Chamru had |dccompanied the prosecutrix upto the is not there. (f prosecutrix, has stated that he was |i/as also sleeping. Chamru came to his ife wake-up him. Since he was in cfeep )et up promptly. His wife had chased |»e morning his wife narrated him the u()on the statement of prosecutrix and Isecutrix had chased the appellant for fement of the prosecutrix and her it is observed that the prosecutrix )t that after the incident she chased [ven otherwise, from perusal of the jvident that at one breath she claims (ouse she was cooking and at the same ^ asleep. The overatt conduct of the -B_l ?.-i33EiS3Sa=s="T »3t"=*'^-*'i . -.i •A..: »«.8^-«^.w'="^^-"-'fi"'"'t''^^ XI-HG—78 ~5v^ •^!<<lrt<), (OTily'16, Rtril^^i 3^1 y K;1W 'BsiiSiK^I aiiit) ao^?r iRq; (ipf^g^ti^ TOiRR'HfCTSII^T —^ prn'sp.nitriK nnfl thff. fpnnnpp ii^ occurred appears to be high] confidence. It is highly impr<] *lli<'!41-i *i[*«t("?.feA <i»ltt;l< ^; ssRm sn^r u/hirh +hff inrirlcnt nllfffjprl tn have y improbable and does not inspire ibable that a lady, who is sleeping between two children and her jiusband is also sleeping nearby, could be raped by any other person |ind her husband would come to know about the incident only in th^ next morning. The trial court has committed illegality in placing e the prosecutrix as also on the therefore, the impugned judgmejnt of conviction cannot be sustained. In the result, the appeal| of the appellant under Sectioni (XII) of the Scheduled Caste Atrocities), Act and sentence; Kplicit reliance upon the statement of 'statement of her mother & husband, of the appellant succeeds. Conviction 376 (1) of the IPC & Section 3 (1) tand Scheduled Tribes (Prevention of imposed under those sections are hereby set aside. The appetlarjt be set at tiberty forthwith, if not required in any other case. '^5'S^W'Sl ^?tT':'^^''sf^sA~'*^ \:-.::t ^^ni ad»t"^