CF0000059053 -i^.,—-. lnmma ILJ@Ejm^GaJRT_,_OF_MAMZAFRAOESii_ A2 J'&3ALPUE., /V UMJS iii^-Appeal No. IOT2-'. of 1992 APPa^AHT (AGCUSBJ) IH •Hi.II, Goferan Kanwar , son Patiram aged 56 yeara,-, Bhoyeena Par,^^^, •fcahsil and (3istrict Durg. Vs B.ESPOl&ENT. State o£ H.P. through the'police Balod of distriet Bure.- lu-nttia— &PP2&L UH)Hi 330'FIOM 57^ O? TSE CCDS GF caniIHAL PROGEDORS. r ''y"% Slfc)SB!!».. ^t f'. ^•>...^&' ir.&iEliEiSi3 \T;-:.f^%:^"i"" HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1021 of 1992 APPELLANT RESPONDENT VERSUS Gokaran Kanwar. State of Madhya Pradesh. Shri Shivendu Pandya counsel for appellant. Shri Vaibhav Goverdhan PL for respondenVState. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGWIENT (16.03.2010) This appeal is directed against the judgment dated 08.10.1992 passed by Additional Sessions Judge, Durg, in Sessions Trial No. 351/1991 convicting the accused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 9.6.1991 FIR (Ex. P- 24) was lodged by the prosecutrix (PW-9) aged about 35 years alleging that on 8.6.1991 when she was sleeping in the verandah of her house along with her husband and two children, at about 9 p.m. when dark was prevailing, she felt as if someone was committing sexual intercourse with her but she being under the impression that the person doing so must be her mentally challenged husband, did notoppose the same. Meanwhile, the person committing the offence uttered that "Bhabhi Mein Galat KaamKar Raha Hoon" and thus on hearing his voice, she came to know that it was the accused/appellant. Thereafter, she protested against the act of the accused/appellant raising her cries and when he was running away from the spot, she also followed him and succeeded in catching hold of him near the pond but as on hearing her cries her elder brother-in- law (Jeth) also reached near the pond, on seeing him, the ^v,/ f-^ J-jt 'ltf. .s- ^ -2.- accused/appellant fled away having himself freed from the grip of the prosecutrix. 3. So as to hold the accused/appellant guilty, prosecution has examined 13 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe Code of Criminal Procedure in which he denied the charge 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 for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record induding thejudgment impugned. 6. Counsel for the accused/appellant. submits that avery unnatural story has been given by the prosecutrix that though she was subjected to sexual intercourse by the accused/appellant for half an hour, she could not realize that it was not her husband. Apart from this, according to the counsel for the appellant, there are many contradictions in the statement of the prosecutrix which go to show that an entirely false story has been created to implicate the accused/appellant in the case in hand. 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the prosecutrix being a rustic villagerwas under the impression that the person doing sexual intercourse with her must be her husband and for this reason first she did not oppose the same but as soon as after hearing his voice, she realized that it was not her husband but the accused/appellant, resistance was offered by her raising cry and when he tried to run away from the spot, she also followed him up to the pond. He submits that as taking advantage of mental condition of the husband of the prosecutrix who could not even speak properly, the appellant has sexually exploited her, the findings recorded by the Court below being just and proper do not call for any interference in this appeal. 8. Prosecutrix (PW-9) has stated in her evidence that on the date of incident at about 9 p.m. when she was sleeping in the verandah of her house along with her mentally retarded husband and two % ^. % s«! ^ -•:>— children, the accused/appellant had committed sexual intercourse with her. First she was under the impression that it might be her husband but when he uttered the words "Bhauji Mein Tumhare Saath Galat Kaam Kar Raha Hoon" she realized that he was not her husband but the accused/appellant. Thereafter, on hearing her cries, her elder brother-in-law Kanhaiya (PW-10) came there but on seeing him the accused/appellant ran away towards the pond with no cloths on his body. She has stated that though her elder brother-in-law had chased the accused/appellant, he hid himself and could not be caught by him. In cross examination she has stated that the people of vicinity had also come there and she had told them that the accused/appellant had run away leaving his underwear, vest, Lungi and slippers there itself. According to this witness, she never keeps the doors closed as her mentally challenged husband used to remove the same. She has stated that her husband never chews betel but as the appellant had come to her after chewing betel, she had realized that he was not her husband. She has stated that while the accused was committing sexual intercourse with her, she was asleep. She has further stated that she had not recognized the appellant by his voice but it was on account of his chewing betel, she had recognized him. She has stated that accused committed sexual intercourse with her for about half an hour. She has further stated that had the accused/appellant not chewed betel, she could not have recognized him. Kanhaiyaram (PW-10) has stated in his evidence that after hearing the cries of the prosecutrix he came out of his house but before he could reach her house, she had already reached near the pond in order to catoh hold of the accused/appellant. Though this witness had also made an effort to catch hold of the accused, he could not succeed in it as he had managed to flee away. According to this witness, when he saw the accused/appellant near the pond, he was not wearing anything on his body. Thereafter, the prosecutrix told him that the accused/appellant had insulted her and his cloths were lying in her house. He has stated that in his presence the underwear, vest and Lungi of the accused/appellant were seized vide Ex. P-15. According to this witness, when he had gone near the pond it was dark and on -Q- being told by the prosecutrix he came to know that the person present there was the accused/appellant. He has stated that before they could reach the police station to lodge the report, accused/appellant was already present there. He has stated that his brother (husband ofthe prosecutrix) is not dumb but he does not talk to others and keeps murmuring with himself. Dr. (Smt.) Gladius (PW- 1) who had medically examined the prosecutrix has stated that she had not found any injury on the body of the prosecutrix and no definite opinion regarding recent sexual intercourse could be given by her. Dr. C.S. More (PW-2) who had examined the accused/appellant has stated in his evidence that he was capable of performing sexual intercourse and that at the time of examination one injury was there on his right hand. F.S.L. report Ex. P-21 confirms the presence of spermatozoa on the underwear of the accused and petticoat of the prosecLtrix. Independent witness namely Banshiram (PW-4) has not supported the case of the prosecution and has been declared hostile. Johanram (PW-5) has stated in his evidence that on hearing the hue and cry emanating from the house of the prosecutrix when he went there, the prosecutrix had informed him that after commission of rape on her, the accused/appellant had run away. Dr. B.R. Sahu (PW-8) who examined the accused on the basis of report lodged by him against the prosecutrix alleging to have beaten by her, had noticed two injuries on his body appearing to have been caused by hard and blunt object. Dashrath Singh (PW-13), the Investigating Officer has supported the case ofthe prosecution. 9. Having taken note of the aforesaid background of the facts and the evidence adduced by the prosecution, the story put forth by the prosecutrix that while she was sleeping in her house along with her husband and two children, accused committed sexual intercourse with her for half an hour but she permitted him to do so under the impression that it was none else but her husband and when he made some utterances to her, she came to realize due to the smell of betel that it was not her husband, sounds quite unnatural and untrustworthy. This, prima facie does not appear to be a natural human conduct on the part of the prosecutrix. Moreover, in ," the FIR the prosecutrix has stated that she had recognized the appellant on the basis of his voice but in her Court statement she has stated that if the appellant had not chewed betel, she could not have recognized him. This apart, the evidence ofthe prosecutrix and that of her elder brother-in-law (PW-10) do not match with each other on material particulars. The evidence of the prosecutrix if read in toto makes this Court to reach an irresistible conclusion not to rule out the possibility of her being a consenting party and when nothing pinpointed has been placed on record against fhe accused/appellant, benefit of doubt has to go to him. 10. Consequently, the appeal is allowed. Impugned judgment dated 8.10.1992 is hereby set aside. Appellant is acquitted of the charge levelled against him. He is on bail. Bail bonds furnished by him stand discharged. g^_ Pritinker Diwaker Judge c^.