CFQ000057946 I ^. -ffyfmt^ft' IN THE HI0H COtIRT OP MAOHYA PRADESH AT JABAL^UR •Gr•A.No. Gf 1995 Appellaaf? Accused (IB JaU) $-iU.4^M—l£ wi»<-^—^^^" ,......AJvo<A l»9ttS^W**WKIHS^ -( fcWD.R.^ ^u—.^ ResD@®deatt A^racahram^ aged abozrb 25 y^ars^ aon of Soordeshi Ram^cxaltivat@r %nd restdent o£ village SefeFadabi?i^ P»S.ArJ<aa,l» Tahsil Dhamtauci, DiatriGt Ralpuf,M»^, wweaus The State @f Madhya Pradesb CRIMINAL APPEAL UMDBR SBCTION 374 (^_1 OF TKS CODB OF CRIMXNAL PROCEDtiRE* 197 3 : 6,1 ^p.^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 258 of 1995 APPELLANT RESPONDENT VERSUS Awadhram State of Madhya Pradesh Shri B.P. Rao counsel for the appellant. Shri Pravin Das Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (01.02.2011) This appeal is directed against the judgment dated 8.2.1995 passed bythe Additional Sessions Judge, Dhamtari in Sessions Trial No. 327/1993 convicting the accused/appellant under Section 376 (1) ofthe Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000 in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Case of the prosecution in briefis that on 24.5.1993 at about 12.30 afternoon FIR (Ex. P-7) was lodged by Sukhram (PW-7) - the husband of the prosecutrix (PW-1) aged about 24 years at the relevant time alleging that on 23.5.1993 whenshe had gone to the tube well of the accused/appellant for drinking water, accused/appellant came there, caught hold of her, took her inside the pump house and committed forcible sexual intercourse with her. It is alleged thaton his return after attending the Panchayat meeting, the prosecutrix narrated the entire incident to him. After investigation, challan was filed on 31.7.1993 for theoffence under Section 376 (1) ofthe Indian Penal Code. 3. So as to hold the accused/appellant guilty, prosecution has examined 10 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled "•y%.'^ '^2^^ against him and pleaded his innocence and false implication in the case. This apart, one Raj Kumar (DW-1) has also been examinedby the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that in the case in hand as the prosecutrix herself has not supported the case ofthe prosecution and has been declared hostile, the findings recorded by the Court below convicting the accused/appellant under Section 376 (1) IPC are erroneous. Secondly, he submits that there is an unexplained inordinate delay of about 24 hours in lodging the FIR and on this count as well the Court below has erred in law in convicting the accused/appellant for commission of rape. He submits that the Court below further went wrong in not considering the medical evidence of the prosecutrix which does not suggest any sexual intercourse with her and on the contrary it says that injury on her private part was caused as a resultof insertion ofsome sharp and pointed object. 7. On the other hand counsel for the respondenVState supports the judgment impugned submits that looking to the manner in which the prosecutrix was ravished by the accused/appeltant, his conviction under Section 376 (1) IPC is wholly justified and does not call for any interference from this Court. 8. Prosecutrix (PW-1) - a married lady aged about 25 years at that time has stated in her evidence that on the date of incident she had gone to the field of the accused/appellant and when she was drinking water, accused/appellant came there, caught hold of her, took her inside the pump house, removed her sari and petticoat and after gagging her mouth insulted her. Thereafter, according to this witness, the accused/appellant inserted a club in her private part as a result ofwhich there was complete blackout before her eyes. Then after returning from there, she narrated the entire incident to her husband. This witness then says that because of fear she could not ,^/1;^^^ ^ ""•y«?. ^-"sk :^ T:\.-'^ ..••,--^>.;... ^ 1 g %. '^^/ tell anything to her husband. Now she stated that after mounting on her the accused/appellant had inserted something in her private part as a result of which she became unconscious and did not remember anything. According to this witness, as she was not keeping well, she was admitted in a hospital at Bathena. She has stated that her uterus had prolapsed. According to her, she had narrated the incident to the doctor examining her. At this stage, this witness has been declared hostile. Paragraph 4 of hercross examination carries material contradictions and omissions which has been admitted by this witness herself. According to her, she had not disclosed anything about her ill-health to her mother-in-law and when she returned home, her husband was not there. Then she has stated that she had informed her husband about her stomachache and also asked him to take her to the hospital and save her. She has stated that on account of being thrown on the ground by the accused/appellant, her ban, les had been broken and that as a result of bad work done by the accused/appellant she had fallen sick. In paragraph 6 of her cross examination she has stated that after being thrown on the ground by the accused/appellant she became unconscious and thereafter she was not aware as to what had been done to her by the accused/appellant. She has stated that at the time of incident she was not pregnant and that as a result of the act of the accused/appellant her uterus had prolapsed. She has denied the fact that mid-wife was .called to reinsert her prolapsed uterus or it was done by her mother-in-law. She has admitted that in the hospital small wooden pieces were detected in her uterus but she was not aware as to how they got inside it as she had become unconscious. According to her she had not lodged any report but it was lodged by her husband immediately after the incident. According to her, as she had become unconscious, she could not tell anything to her husband. She has stated that as soon as she reached the hospital, she was taken for operation. She however has admitted that during this period she did not tell anything to anyone. Vishwanath (PW-2) - the witness to seizure made under Ex. P-2 and that of the spot map Ex. P-3 has not fully supported the case of the prosecution. Ramshila (PW-3) has not supported the ~c/~ case of the prosecution and has been declared hostile. Dr. Smt. Sanjay Chaterjee (PW-4) who medically examined the prosecutrix and gave her report Ex. P-2 has stated that something was coming out from her private part which was bleeding profusely. According to this witness, the prosecutrix had informed her that when she was working in her field, all of a sudden her private part started bleeding and that accused/appellant had committed rape on her. She has stated that the injury suffered by the prosecutrix could have been caused with some sharp and pointed object. This witness has admitted that small wooden pieces were found in the uterus of the prosecutrix. Prosecutrix is said to have informed this witness about insertion of some wooden object in her private part. Shobhadas (PW-5) is the village Kotwar who had prepared the spot map Ex. P- 5. Johitram (PW-6) is the rickshaw puller who had taken the prosecutrix to the hospital. Sukhram (PW-7) - the husband of the prosecutrix has stated that on the date of incident his wife had complained to him about the stomachache and thereafter he took her to the hospitat of Dr. Mina Jain where he came to know that something was coming out from her private part and then he shifted her to Bathena hospital where she had informed him about being raped by the accused/appellant and then he lodged the report Ex. P- 6. Dr. Virendra Kumar Sahu (PW-8) who had medically examined the accused/appellant has stated that he was capable of performing sexual intercourse. Jani Bai (PW-9) - mother-in-law of the prosecutrix has not stated anything against the accused/appellant and has been declared hostile. M.S. Pareshwar (PW-10) - Sub Inspector is the witness who had registered FIR Ex.P-6 and done part of the investigation. Raj Kumar (DW-1) has stated that there was some dispute between the accused/appellant and the husband of the prosecutrix. 9. Having thus closely seen the evidence of the prosecutrix and the contents of the FIR it becomes apparent that they are not consistent to each otheras in the FIR she has made an allegation of rape on her but improving her version in the statement recorded in the Court she has stated that the accused/appellant had done some bad work with her whereas at some places she has stated that the S-- accused/appellant had mounted on her and inserted something in her private part as a result of which she sustained injury. Further at some places she has stated that she had not disclosed anything to her husband because she was unconscious but at some places she says that she disclosed the incident to her husband in the field itself. She has admitted the factum of omission and contradiction in her court Statement and the statement made under Section 161 of the Cocfe of Criminal Procedure. Most importantly, in this case the prosecutrix herself has been declared hostile that being so the benefit has to go to the accused/appellant. From the record it also appears that the prosecutrix was having some gynecological problem and that an attempt was made to treat her at home itself using some wooden object. If the statement of the prosecutrix is taken as a whole, it can not only be termed as inconsistent but shaky too and this being the position, it does not inspire full confidence of this Court so as to maintain the conviction recorded by the trial Court. Moreover, according to the FSL report Ex. P-12 no sperm was found on the seized undergarment of the accused. Thus the failure on the part ofthe prosecution to prove its case beyond all reasonable doubt, should extent benefit to the accused/appellant. 10. In view of the aforesaid discussion, this Court is of the considered opinion that the judgment impugned is not sustainable in law and liable to be set aside. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As he is already on bail, his bail bonds stand discharged. Sd/- Pritinker Diwaker Judge CYV