16^~- 5'^'-|^ HIGH COURT OF CHHATTISGARH. BILASPUR (Single Bench: Hon'ble ShriSunil KumarSinha, J) Criminal Appeal No. 1056 of 1991 Jagram Vs. State ofM.P. (Now State of Chhattisgarh) JUDGMENT Post for Judgment : ^, /10/2010 1—~~— - . Sd/- ': i SunilKumar Sinha Judge iii;:t!»;3!..,;=3 K^=5fc."-7^-^>,r-^t-si^l^ J>-^^.- ilii^: ^- & T^n HIGH COURTOF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri SunilKumarSinha. J) APPELLANT Criminal Apoeal No. 1056 of 1991 Jagram S/o Shyamjee Kurmi, aged about 27 years, R/o Village Lenjakhar, Thana Bodla, District Rajnandgaon (M.P.) (Now Chhattisgarh) Versus RESPONDENT StateofM.P. (Now State of Chhattisgarh) Through Police Station District Rajnandgaon Bodla, (Appeal under Section 374 (2) ofThe Code of Criminal Procedure. 1973) ApDearance: Mrs. Anju Ahuja, Advocate for the appellant. Mr. Rajendra Tripathi, Panel Lawyer for theState. JUDGMENT (5'.10.2010) Synil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 23 November, 1991 passed in Sessions Trial No. 18/90, by the Additional Sessions Judge, Khairagarh, Camp Kawardha. (2) By the impugned judgment, the appellant has been convicted u/ss 456 & 376 IPC and sentenced to undergoR.I. for 1 year and R.l. for 3 years respectively, with a further direction to run the sentenoes concurren*' fc /? t!i:';:-!n: •:"-:"f ..h^^, ^ 'ia! 3 ^•SlSS- Criminal Appeal No. 1056 of 1991 (3) The fact, briefly stated, are as under:- Prosecutrix (PW-1) was a married lady aged about 25 years. She was residing with her husband and in-laws in village Lenjakhar. Appellant- Jagram was their neighbour. On 1.9.90 at about 1.00 a.m., the prosecutrix and her husband returned to their house after watching video-show which was going on in front oftheir house. Many villagers were watching video-show. After returning to tTie house, the husband went for sleeping and the prosecutrix came out from the house for washing her hands. The allegations are that theappellant forcibly caught the prosecutrix in front of room of their house, threw her on the ground, put a cloth (panchha) in her mouth, and thereafter committed forcible sexual intercourse against the prosecutrix in the front room of their house known as kotha. The husband of the prosecutrix, Bholaram (PW-2), noticed some sound. He came out from his bed-room, went in the kotha and saw that the appellant was performing sexual intercourse against his wife. He made hue and cry on which many villagers including his father Dhansai (PW-6) and Shiv Kumar (PW-5)came there. Thereafter the matter was reported to the police station by the prosecutrix and the First Information Report (Ex.-P/1) was lodged. The prosecutrix was sent for her medical examination. Her MLC report is Ex.P/8-A. No external or internal injuries were found on the personofthe / prosecutrix. No opinion was given by lady Doctor who suggested that definite opinion will be given after analysis of sealed materials, which were two slides of vaginal swab and cloths ofthe prosecutrix>. Appellant- Jagram was also sent for medical examination. He was examined at about 11.00a.m. on 1.9.90. His medical report is Ex.-P/10-A. No external injurieswere , - •foundon the person of theappellant. No marks of struggle '•S - . ^ ^< "•^a' tS i'9 B X ,i -a^rf- ^ f^ 'v Crimmal Appeal No. 1056 of 1991 were found. There were no scratches or laceration on the penis. Smegma were absent around the corona glandis. (4) The learned Sessions Judge relied on the testimony of the prosecutrix (PW-1) and held that the appellant committed forcible sexual intercourse against her. (5) Mrs. Anju Ahuja, learned counsel appearing on behalf of the appellant, argued that the video-show was going on in front of the house of theprosecutrix; many villagers were watching the show; the husband and in-laws of the prosecutrix were sleeping in different rooms in their house; the prosecutrix alleges that the appellant forcibly performed sexual intercourse against her, but looking to the surrounding circumstances as also the evidence of father-in-law, Dhansai (PW-6) andShiv Kumar (PW-5), it would appear that the present was a case of consent. Therefore, the conviction and sentences awarded to the appellant under the aforementioned Sectionsof IPC cannot be sustained. (6) On the otherhand, Mr. Rajendra Tripathi, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thej.udgment passed by the Sessions Court. f (7) -I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Prosecutrix (PW-1) deposed that when she was returning inside her house from the front-yard after washing her hands, the '•^.'-'.. SN ';Y ,<' x: ^ A;^ -°s«j SfK Criminal Aopeal No. 1056 ofl991 appeltant caught her in the front room (kotha) and forcibly threw her on the ground. Thereafter he put a cloth (panchha) in her mouth and committed forcible intercourse against her. If, in fact, the appellant had caught her, she had arftple opportunity to make hue and cry and the villagers watching the 'yideo-show would have noticed it. At least her husband and in-laws, whowere sleeping in different rooms in the same house, would certainly have noticed it, but nothing was done like that. According to the prosecutrix, the appellant put the cloth in her mouth after throwing her on the ground. Therefore, she cannot say that she could not raise alarm at the time when shewas caught by the appellant and theappellant over powered her and forcibly threw her on the ground, because if the version of the prosecutrix is taken to be correct that the cloth at all was put in her mouth, that was put after throwing her on the ground. The prosecutrix has also admitted that the appellant committed sexual intercourse with full force and it took about 10 minutes, but she did not receive any external injury either on her back or on any other part of her body. She admitted in Para-10 of her cross-examination that when she did not return to her bed-room for about 10 minutes, then her husban* came there and saw that the appellant was lying > . ' over her. According to the prosecutrix, her husband took up the appellant who was lying over her. -~x_ (9) Shiv Kumar (PW-5) is a person who reached to the place of occyrrence on thecries made by husband of the prosecutrix, '?-, Criminal ApoealNo. 1056 of 1991 Bholaram. Bholaram (PW-2)also admits his presence. He deposes that when he made cries, Jairam, Moti, Shriram, Shiv Kumar (PW- 5), Kotwar, Shukladas and Patel Fulusram came to their house. Shiv Kumar (PW-5) deposed in' Para-3 of his cross-examination that when he reached to the house of the prosecutrix, Bholaram (PW-2) told him that he has caught his wife and the appellant red handed while performing sexual intercourse. He clearly deposed that Bholaram told him that the door of the room, in which the incident took place, was closed. When the villagers came there then the door was opened and the prosecutrix and the appellant were taken out. Accordingly to his evidence the door of kotha was closed from inside. The appellant and the prosecutrix were inside the kotha and the door was opened when the villagers came there. (10) Dhansai (PW-6) is father-in-law of the prosecutrix. He admitted in Para-3 of his cross-examination that when the prosecutrix and the appellant were performing sexual intercourse in kotha, his son Bholaram (PW-2) caught them and got the door of kotha opened. He further admitted that he had scolded hjs daughter-in-law(prosecutrix). (11) Tulsiram (PW-10) is village Patel. He was called by the villagers. He reached to the place of occurrence where the villagers had detained the appellant. He asked to the appellant, on which the appetlant stated that a mistake has been Committedby him. In the ^cross-examination.he admitted that he had askedthe prosecutrix, Crimmal Aoceal No. 1056 of 1991 but the prosecutrix toldhim nothing and she simply put down her head. 'Al iigs* (12) On appreciation of evidence on record, it does not appear that it was a case of commission of rape by the appellant against the prosecutrix. The version of the prosecutrix does not inspire confidence of the Court so as to rest the conviction of the appellant for commission of rape against her. Looking to the entire evidence available on record including the medical report of the prosecutrix (PW-1) in which no external injurieswere found by the Doctor, l am of the opinion that present was not a case of commission of forcible sexual intercourse by the appellant against the prosecutrix and a possibility of the prosecutrix being a consenting party cannot be fully ruled out in this case and it was not safe to rest the conviction on the testimony of the prosecutrix (PW-1). (13) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 456 & 376 IPC are set-aside. The appellant is acquittedof the charges framed against him. It is stated that the appellant ison bail. His bail bonds U!i are cancelled and syrety stands discharged. Sd/- Sunii Kiiaiar Siuha Judge CT vatfi