,^,^l»•.'^^-^^^^^-^^rsy^iM^^^^^^.^^'.-f^^-^^^;^ ^.^v^^i^-^^,.-"".. '•.:•'- •••h 3X1 VBB HX6H COTOT OE' tTBBICATBRE 0T WKBIBZK. PBADESB &T 3KBWPVR. Crimlnal ^>peal "8@i& 1996 s ^^..^..^---- ^ ' RES?OHBBBT illlillliH CF0000059382 -».•••••-•-*•° |g tessit ys ^' / Shlv .Prasael 3/0 &als;hraJ a^ed 18 yeair's» B/er'^.tlage Loffl»l ^^ P»S. SItaBkargafch Bistt» Surgaja M«»*/ Versas State e£ M»P«tbroa^i V»S» SbaaJtarGiarh, SJlstt* Sarguja M.p» eRIMIHAIiAPPEAL U/S 374(2)@,E'1'SE C@BE CT^3lt3miH PB©Ca)HRB •• / '•><-. ;i:ii'li":11~:" liiiw-i—r"-31-1"•-" •—»» ^ c-yx iE; ; HIGH COURTOF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'bJ^ShrLJusticeRadhe Shvam Sharma Criminal Appeal No.1522 oU996 Bti' Shivprasad versus State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT ». / v>w, Postfor 11-) -12-2011 Sd/- R.S. Sharma Judge ./.,£.I^^!ia ^J^ •.^uL^At^-i*»l'*^1F- j ~ ^aS^ «»s^:^s^ V, t '[SE£»sSi%j ^ ' ^ -• . ^ .-J /. ^ ' '^.^ K' .„-?' HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Jystice^Radhe^hyam Sharma Criminal Appeal No.1522 of 1996 Appellant versus Respondent Shivprasad, S/o Lakhraj Yadav, aged 18 years, R/o Village Lodhi, P.S. Shankargarh, District Surguja (MP) (Now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) thrpugh Station House Officer, Police Station Shankargarh, District Surguja Present: Shri Shakti Raj Sinha, counsel for the appellant. Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondent. Criminal Appeal underSection 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on \1-1 December, 2011) This appeal is directed against judgment dated 6-9-1996 passed by 2 Additiorial Sessions Judge/Special Judge, Ambikapur in Special Case No.34/1992. By the impugned judgment, accused/appellant Shivprasad has been convicted under Sections 3(1)(ii) and 3(1)(xi) of the Scheduted Castes and the Scheduled TFifces (Prevention of Atrocities) Act, 1989 (henceforth 'the Act, 1989') and 9'entenced to undergo rigorous imprisonment for six '• / ' months ah<i ;to pay fine of^Rs.100/-, in default thereof, to further updergo rigorous imprisonment for fifteen days and rigorous imprisonment for one year and to pay fine of Rs.400/-, in default thereof, to further undergo rigorous imprisonment for two months, 2i;^"-lT^,|Jtt-|a;£[|l •i» '> 9 respectively. Both the sentences of rigorous imprisonment for six months and one year are directed to run concurrently. 2. Case of the prosecution, in brief, is as under: On 13-5-1992, at about 8 P.M., prosecutrix (PW-1) came out of her house along with a Dakchi (a utensil) filled with water. At that time, some person, catching her neck, gagged her mouth and began to drag her out of the village. On her shouting, he threatened her of killing. She recognised the assailant to be the appellant. The appellant dragged her to Mahuwar-Tokari. He said that he will commit rape with her. On being refused by her, the appellant suddenly assaulted below her right eye with some unknown article. Blood started oozing out of the injury. She also sustained scratches on her neck and lips. Thereafter, on her being shouted, the appellant fled from there. On account of Marpeet committed by the appellant with her, she remained lying down there. On the next morning, she got up and went to the house of Gahanu (PW-2) in the village. Becoming unconscious again, she fell down there. Her maternal uncle Sukhna (PW-3) and Chowkidar Bindhudas (PW-5) lifted her up and took to her house. On the next day, when she became conscious, she narrated the incident to Sukhna (PW-3). She'went to Police Station Shankargarh along with Sukhna (PW-3) and Bindhuda9/(PW-5) and lodged First Information Report (Ex.P-1) •• / thereon 15-5-t992. After completion ofthe investigation, charge sheet was filed against the appellant in the Court of Special Judge, Ambikapur, who ^l 'H wea conducted the trial, convicted and sentenced the appellant as mentioned above. 3. Shri Shakti Raj Sinha, learned counsel for the appellant argued that the First Information Report (Ex.P-1) was lodged at belated stage. In absence of proper explanation therefor, the conviction and sentence awarded to the appellant cannot be sustained. He further submitt^d that evidence of the prosecutrix is notsupported by indeFiendent witnesses. It is not safe to rely on single testimony of the prosecutrix. Therefore, the appellant deservesto be acqyitted ofthe charges framed against him. 4. On the contrary, Shri M.P.S.Bhatia, learned Deputy Government Advocate fo.r the-State/respondent, supporting the impugned judgment, submitted that the impugned judgment of conviction and sentence passed by the learned Special Judge is impeccable and does not warrant'any interi'erence by this Court. 5. I have heard learned counsel for the parties at length and have perused the material available on record with utmost circumspection. G. The prosecutrix Jalso (PW-1) deposed that she did ndt know the appellant' lncross-examination, she further deposed that she did not know the appellant QQ^the date of incident. She had never rtiet with the appellant befbre the date of incident. She deposed that she .belongs to (i/raon Caste. 7. , The evidence of the prosecutrix shows that she did not know .the appellantbefore the date ofjncident. The prosecution did not 'i • ''•-^.^--"-^ f? sl« ^-^J '^. '^s'-:-^''' ^ produce caste certificate of prosecutrix Jalso (PW-1). Itappears that the appellant was not acquainted with prosecutrix Jalso (PW-1) prior to the incident and he was also not aware of the fact that she belongs to Uraon Caste. 8. Clauses (ii) and (xi) of sub-section (1) of Section 3 of the Act, 1989 runthus: "3. Punishments for offences of atrocities.—(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— xxxxx xxxxx xxxxx (ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises-Orneighbourhood; xxxxx xxxxx xxxxx (xi) assaults or uses forfce to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;" 9. After perusal of the evidence of the prosecutrix, it is not proved that the appellant was aware of the fact that the prosecutrix belongs to Uraon Scheduled-Tribe. ?' 10. Jalsp (P-W-1) deposed that she had gone from her matrimonial viltag&.Eiohana to.the house of her maternal uncle at Village Lodhi. -^ . When she had gone to workas labourer there, at that time, the appellant came from her behind, gagged her mouth and attempted to outrage her modesty. When she told that she will narrate the .incident to her maternal uncle, the appellant assaulted her. She Ui sustained injuries on mouth and became unconscious. The appellant fled from there. She further deposed that she lodged report(Ex.P-l). 11. Now, l shall examine whether the report (Ex.P-1) was lodged belatedly and the prosecution has given proper explanation therefor. 12. Delay in lodging FIR in rape cases cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case, if the prosecution fails to satisfactorily explain the delay and there is possibility of.-embetiishments or exaggerations in the prosecution version on accouht of such delay, it is relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the pleapffalse implication. 13. In the instant case, the incident took place on 13-5-1992 at about 8 P.M. andthe FIR (Ex.P-1) was lodged on 15-5-1992 at about 7:30 P.M., i.e., aftertwo days ofthe incident. 14. Jalso (PW-1) deposed that she was unconscious, therefore, she coL|ld/hot lodge the FIR at an earlier point of time. She deposed thatafter'theineident, she»(emainedunconscious till 12 midnight- 1 A.M. After getting conscious, she went to the house of Gahanu (PW-2) and'narrated the incident to his wife. Gahanu (PW-2) deposed that'Jatso (PW-1) had come to his house at about 4 A.M. and had asked forWater. She had sustained injuries on her face. ^-:s-"—,' . " She did not narrate him anything about the incident. He further deposed that he had asked Jalso (PW-1) about the injuries sustained by her, but she did not tell him anything. 15. Sukhana (PW-3) deposed that Jalso (PW-1) is his niece. Jalso (PW-1) did not narrate him anything about the incident. He further deposed that at the time of lodging of the FIR (Ex.P-1), Jalso (PW-1) did not know name of ttie appellant. Bindhudas (PW-5) deposed that he had advised Sukhana (PW-3) that if Jalso (PW-1) will die, anoffence would be registered againstthem, therefore, they should lodge a report in police. 16. Perusal of the above evidence reveals that FIR (Ex.P-1) was lodged belatedly and properand plausible explanation has not been given by the prosecution th'erefor, which is fatal to the case of the prosecution. Thisalso renders the caseofthe prosecution doubtful. * 17. It is well settled that a prosecutrix complaining of having been avictim of the offence of rape or outraging of modesty is not in good state of mind after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. The prosecutrix. stands at a higher pedestal than an Injured witness. In the later'case, there is injuryon thfe physical form, whil^the formerit is both physical aswell as psychological and '• / emotional. 18. In the instance case, it is to be seen whetherthe sole- testimony of the^prosecutrix is reliable and can be based for conviction? imll -=_._-_:.^ABtrf^'ABi; ^•i.'.ft 7 19. Jalso (PW-1) deposed that the appellant came from her behind, gagged her mouth and attempted to outrage her modesty. When she told that she will narrate the incident to her maternal uncle, the appellant assaulted her. She sustained injuries on mouth and became unconscious. She further deposed that she had sustained injuries while the appellant had dragged her. She did not know about the article with which the appellant assaulted her. When she became conscious, she found herself to be lying in Mahua-Tikra. Thereafter, she went to the house of Gahanu (PW-2) and narrated the incident to hiswife. 20. Gahanu (PW-2) and Sukhana (PW-3) deposed that Jalso (PW-1) did not narrate them about the incident. Bhinsari(PW-4), wife of Sukhana (PW-3) and maternal aunt of prosecutrix Jalso (PW- 1), deposed thatVillage Chowkidar ihadcome to her house and told that her niece (the prosecutrix)was at the house of Gahanu (PW-2). Then, she had gone t6 the house of Gahanu (PW-2) to take her niece. She further deposedthat her niece (Jalso - PW-1) did not narrate her anything a^out the incident. She did not know about the injury sustained by Jalso (PW-1) on her mouth. She further deposed that it is wrong to say that Jalso (PW-1) had told her that the appellant had dragged her to outrage her modesty. ../ 21. . Bindhudas (PW-5) deposed that he is Village Chowkidar. It is wrong to say thatSukhana (PW-3) had told him that the appellant had dragged hts niece (Jalso - PW-1) to outrage her modesty. He further deposedthat it is true that at the house of Gahanu (PW-2), ./" Sukhana (PW-3) and Bhinsari (PW-4) had asked Jalso (PW-1) about the incident, but she did not narrate them anything. He further deposed that since Jalso (PW-1) had come their village to work as a labourer, therefore, they had advised her to lodge a report in police. 22. It appears that Jalso (PW-1) did not disclose the incident to her maternal uncle and aunt and wife of Gahanu (PW-2). Had any incident taken place with Jalso (PW-1), she would have narrated the same to her maternal uncle and aunt, wife of Gahanu (PW-2) and Village Chowkidar Bindhudas (PW-5). 23. The FIR (Ex.P-1) was lodged belatedly and the prosecution has not given any plausible explanation therefor. The evidence of prosecutrix Jalso (PW-T) is not cogent and trustworthy, therefore, her sole-testimony carinot be basedfor conviction. ; 24. I am af the view that in the above facts and circumstances of tfy^ case, the prosecution haSiUtterly failed to prove the charges against the appellant. For the reasons aforementioned, the impugned judgment cannot be sustained. 25. In the result, the appeal is allowed. The conviction and senteriGe awarded to the appellant under Sections 3(1)(ii) and 3(1)(xi) of the --Scheduled Castes and the Scheduled Tribes ..- /.... .... .;.. .—. .. ... (Preventiori ofAtrocities) Act, 1989 are set aside. The appellant is .N^ aGquitted 6f the charge^\framed against him. His bail bonds are cancelled and sureties stand discharged. Gopal Sd/- R.S.Sharma Judge