•» IN THE HIGH COURT OE GHHATTISSARH s BILASPUS Crlmlnal Appeal No.__ feO /2 000 Appell.ant '3:M9'<M' Panria.lal S/o ShaHKarlat Mouwar, aged about 40 yeara, resldent of' vlllage Sakral.t. Arakshi Kendra Damra.BJ.stt. Janjglr Champa. a: Versus Respohdent State p£ Chftattlsgarh tteroug]i ' Reservea Genter ( AFaksli!!. Keriiara, ) Damra, Distt. JanjgiE Champa» CRIMTNAL APPEAL UNDER/SBCTION 374 (2) OF TBE CODE OF CRIMINAX, PRQCEDURE. i^s'- m^ i 1<1 l~n...RSMW'"»'^i3;^ APPELLANT In Jail RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 60 of 2000 Pannalgl VERSUS State of Chhattisgarh CRIMINAI. ftRPEALUNDERSECTION 374(2»OF THeGODE OF CRlMINAI.PRiiEEDURE Present: Shri H.S. Patel, counsel Torthe appeltant. Shri Vaibhav A. Goverdhan, PL fbr the respondent/State. JUDGiytENT (28^6.2011) This appeat arises out of the judgment and order dated 29.11.^)00 (Mssed by the Additional Sessions Judge, Sakti in Sessions Trial No.108/2000 convicting the accused/appeltant under Section 376 of IPC sentencing him to undergo R.l. for 7 yearsand to pay fine of Rs.2,000/-, in default of payment of flne to further undergo R.l. for 6 months. 2. Brief facts of the case are thaton 12.10.1999, typedwritten report Ex.P-1 was lodged by the prosecutrix (PW-1), a mamed lady, aged about 30 years alleging in it that on 29.09.1999whenshehad gone to her field, ttie accysed/appellant caught hold of her and committed fbrcefut sexuat intercourse with her. She ha6 further stated that upon hearing her cries, tshwari Prasad (PW-3) and Ramnarayan (PW^ have come to know about ffie inoidenf. She has furtherstated tfiaton accountofshame,sheeould|notlodge e report immedi^ely for whieh, she is apologizing, but astshie was feeting guilty, she ftas todged the report later on. Based |6n this typed written report, F.I.R. Ex.P-2 was Ibdgedi agaiinst thie accused/appellanton 12.10^9^ itsetfunderSeetion 376 of^^^^W s&^t'-.: \~ ..^.'. "'%. :r^^fe- ".. -'"'"'"'t^ ^. ^y After investigation, challan was filed on 03.03.2000 under Section 376oflPC. 3. So as to prove ttie guilt of the accused/appellant, prosecution has examined 17witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which, he der^ied the charges levelled against him and pleaded his innocence and false impllcation in the case.. 4. After hearing the parties, leamed trial Court has convieted and sentenced theaceused/appellant as mentioned in para-1. 5. Contention of leamed counsel for the appellant is that totallya false case has been registered against him. He submits that X ,, _' ._ . ; . inordinate delay of 13 days in lodging the F.I.R. has not been explained by the prosecutrix as required under the law. He further submits that as the accused/appellant had lodged report against the husband ofthe prosecutrix, the accused/appellant has been falsely impticated in the present case. He further submits that no one has seen the incident as alleged by the prosecutrbc. 6. On the other hand, supporting the impugned judgment, it has been argued by Shri Goverdhan, leamed counsel for the State that conviction of the accused/appetlant is in accordance with law. He submits that the delay in lodging the F.1.R has been explained by the prosecutrix byaverting that a Panchayat meeting was convened in which the accused/appellant has admitted his guilt, he was fined and thereafter it is the accused/appellant who lodged the false report against the proseoutrix and ultimately, the prosecutrix came forward to lodge the report against the accused/appellant. 7. The prosecutrix (PW-1) in her Court statement hasstated that she knew the accused/appettant and on the dateof incident when she had gone to the field to collect foidder for feedino her cattle, the ^ accused/appeltant came from behind, caught hold of her, threw her on the floor and after upturning her ctothes, committed forceful sexual intercourse with her. She has alleged that when she raised her cries, her mouth was gagged by the accused/appellant. She has alleged that after committing the offence, it is the accused/appellant who first gotup and thereafter she came backto her house. According to the prosecutrix, upon hearing her cries, Ishwari Prasad (RA/-3) and Ramnarayan (PW-5) also reached there and then she narrated the entire incident to them. She has further alleged that after reaching her home, she narrated the entire story to her husband but thereafter she is not aware as to what her husband has done. She has further stated that she had not gone to lodge the report and it is her brother-in-taw who lodged the report. She has furtherreiterated that she had not gone to the Police Station nor she had disclosed anything to the Police and all the things have been done by her brother-in-law. According to her, her signatures were obtained on some papers. 8. In paragraph-6 of her Court statement, the prosecutrix has admitted the fact that the report was lodged after 12-13 days and the Police enquired from her aboyt the incident. Spot map was prepared. However, nothing was seized from her. tn paragraph-11 , the prosecutrix has admitted the fact that about 2 years back, her husband had gone to the house of the accused/appeltant for construction of a house. Though the prosecutrix has denied the fact that she used to suspect her husband for having illicit refations with the wife of the accused/appeltant, but she has admitted the fact that whenever the accused/appellant used to call her hustond, he used to leave his house even withput completing the other work and for this, she used to object and thereafter, the prosecutrix has stated that it is eorrect to say that she used to doubt the characterof her husband. She has further admitted the fact thatafter the incident, there was some dispute between her husband and the i" }^ 1'. !1i...M^.~- •i!S;-,; 4 i'll.il accused/appellant and then a Panchayat meeting was convened. She has stated that in the said Panchayat, a compromise was arrived into betweenthe parties. She has stated that she did offer protest when she v/as beingsubjected to rape. 9. In para-16, she has stated that before Ishwari Prasad (PW-3) and Ramriarayan (PW-5) could reach the spot, the accused/appellant had left ^he place thereafter, she has iriformed these two persons about the entire incident. She has further stated that after reaching home, she narrated the entire inctctent to her husband and brother-in-law. She has stated that she lodged the report immediately and she could not tell as to why this report fs not on record. 10. tn para-2) of herstatement, initialtyshe has statedthatshe is not aware of the fact that the accused/appellant was fined in the Panchayat meeting. However, she has stated that in the Panchayat meeting, the accused/appellantwas fined but thereafter, nothing had happened for about 4-5 days. In para-21, she has admitted the fact thaton 10.10.1999, reportwaslodgedby the accused/appellant against her husband and the said case is pending. She has admitted the factthat the typedreport was prepared by her husband and brother-in-law and upon their instructions, she put her thumb impressionon the said report and she was not allowed to read the said report. Joidharam (PW-2), husbandof the prosecutrix in his Court statement has stated that on the date OT incident, he was informed by the prosecutrix as to in what manner, she was subjected torape by the accused/appellant. He has stated that thereafter, he had gone to the hoi-i^ of the accused/appellant and| hurled abuses. He has furtherstated thatthereafter he had gone tolodge the report buf the T.1. had returned the papers and then, Panchayat meeting was convened where the accused/appeltant was punished, he has further stated ttiat tn the Panchayat, factswere hKledL He has steted that there was some scufHe also. After about 10 daysof the Panchayat meeting,.fhe accused/appellant had lodged the report against him and when he came to know about thts faet, the report was lodged against the accused/appellant on 12.10.1999. He has further stated that the report was prepared and typed by his brother and he along with his brqther and the prosecutrix, had gone to lodge the same in the Police Station. 11. Ishwari Prasad (PW-3) has stated that on the date of incident when hewas working in hisfield, Ramnarayan (PW-5)called him by saying that some one is catling hlm and then, he saw the accused/appellant and the prosecutrix sfending together. He has furtherstated that the accused/appellant and the prosecutrixwere hurling abuses to each other but he has not enquired anything from the prosecutrix, but she herself had informed him that she has been insulted by the accused/appetlant. This witness has denied the other facts and averments about the Panchayat meeting and the other incidents. 12 Biharital (PW-4) is a hear-say witness and has stated that the husband ofthe prosecutrix has informed about the incident. He has further stated that in the Panchayat, accused/appellant Pannalal was catled where he has admitted the fact of committing rape, whereas the husband ofthe prosecutrix has stated thatthe accused/appellant is like his family member and therefore, dispute be resolved. Ramnarayan (PW-5) has stated that on the date of incident, when he was going to his fleld, he heard the noise of "save-save" and then he saw the acoused/appellant and the prosecutrix were soiled with mud in the field. He has further stated that thereafter the accused/appeltant and the prosecutrix fotlowed htro and then the prosecutrix had informed hlm that she has been subjected to rape and then the accused/appellant and the prosecutrix left for their places. 13. Mohantat (PW-6), Surpaneh of the village has stated that in the Panchayat meeting, the husband of the prosecutrix had informed the fact that the-prosecutrix has been subjected to rape by the accused/appellant and in the said Panchayat, the accused/appellant has accepted the fact of committlng rape. He has furtherstErted that he advised the husband ofthe prosecutrb< to lodge repori:. *f. 14. There appears to b& material contradictions and omissions tn the statement of this witness from that of his case diary's statement. Bodha (PW-7) and Teejram (PW-8) are the wttness to the Panchayat. Dr. Anita Shrivastava (PW-9), who had medically examined the prosecutrix vide Ex.P-8 found no injury on the person of the prosecutrix has stated that the prosecutrix was habitual to sexual intercourse, no sign of forpeful sexual intercourse has been found. Salikram Sahu (PW-10)preparedthespotmapvideEx.P-5. Shyamlal (PW-11) is a seizure witness, who made certain seizures. Chhabilal (PW-12) isthe seizure witness of Ex.P-6. Mohantal Sahu (PW-13) took certain articles for chemical examinations,Awadhram (RA/-14) is Police Constable, M. Lakda (PW-15) has done part of investigation. U.L. Patel (PW-16) is the Investigating Officer. Dr. N.P. Mishra (PW-17), who had examined the accused/appellant has stated thatthe accused/appellant was capable of performing sexual intercourse. 15. Minute examination of the evidence available on record, particularly, the Court statement of the prosecutrix makes it clear that while deposing before the Court betow, the prosecutrix has not been consistent. The statement of the prosecutrix does not inspire the confldence of this Court and thesame does not appear to be trustworthy. Further, tt has been stated by the witnesses in particular, the husband of the prosecutrix that the report was lodged against the aecused/appellant because previousty, it was the accused/appellant who had todged the reportagainst him. That ;^. apart, record reveals that there was inordinate delay of 12-13 days in lodging the F.I.R. and the prosecutrix was made to put her thumb impression on it wlthout reading the same. All thisgoes to showthat the prosecution has not been able to prove its case beyond reasonable doubt and that being so, benefrt ofdoubt has to go to the accused/appetlant. 16. Resultantty, the appeal is allowed. Judgment impugned is set aside. The accused/appetlant is acquitted of the charge leveled against him. As the aecused/appetlant is reported to be on bait, his bail bonds stand discharged. Sd/- Pritinker Diwaker Priya ^j