Tt: -3'r •^^^:^^^i;^^-^/;^:^^T^:i;:^^^?~:;^^ ::/-K;^'^;;^y:.,^.^ CF0000058163 /^^^ ^^^fe-srf m tIH13- HIOH COURT ,OF:t4ADiffi^ .PRADgSH' AT JAE^LJ?U^»- 4-?^ CR.JM.I^SL AF1::SAL ."TO. :/1^5» INK^' I : ^^ ^•2.-±ji _ATPSLIAN®i- L^ -5ctU Krishn.a @ Baaa:, @' Kho^ba^' son of. iSBli&'. 3u'h;hiram Satnami^. , aged .afcout 25 yea.rs ^ resldent o.f gram Sodhi •Na^am^ P»S«patliaria,Eistt. Bilaspur^?-SP.< ySRSUS !»<»<»<»««»» <w^t>ua«w<wB» t,St--££..':L&?:.L"-L ta^.oo^^,^*.^^....., RSSPQNDSNTs. The •Sta.t@ofM<P» , • . throughs P^ S^Patharia^Distt^Bilaspar* R. [o D.^; • C^Z^^^L^P^£ALJJHDSR_SaCTIW 374 C2) QF SS££t£2gE, ^^.•^^v . • ;- •;•... H1GH COURT OF CHHATriSGARH AT BILASPUR (•Hon. Nr. .lustice Pritinker Diwalcer) CrimlnalAppeaa No. 472 of 19S5 Krishna VERSUS RESPONDENT State of Madhya Pradesh Shri Ajay Mishra, counsel for the appellant. Smt. Smita Ghai, P.L forthe State. CRININAL APPEAL UNDER SECTION 374 ril_OF.rM_E. CODE OF CRSNINAL PROCEPyRE^ SJLB^MMMJ. ' . (11.04.2011) f Thls appeal is directed agalnst the impugned judgment and order dated 21.04.1994 passed by 4th Additlona! Sessions Judge/ Bilaspur^ unk Court Mungeil m Sessions Trial No. 295/91 convicting the accused/appellant for the offence under Sectjon 376 of IPC and sentencjng hsm to undergo rigorous imprisonment for seven years. 2. Brief facts of the case are that on 20.11.1990 at about 7.45 p.m., FIR Ex. P-1 was lodged by the prosecutrix (PW-l) aged about 20 years alleging in it that on that day at about 8 a,m. when she was going to her fleid/ on the way/ the appeliant came from her behind^ threw her on the ground by catching her hair and committed fordble sexual (ntercourse with her. Based on this FIR^ offence under Sectlons 376.. 341 and 506 of IPC was registered agalnst him, The prosecutnx was medjcaljy examjned on 22.11.1990 vide Ex, P-3 by Dr, Smt, Niljma Sharma (PW-3). After jnvestigation ChaliQ'n was filed on 03.12.1990 for the said offence whereas the court -—^p^ -s- betow framed charge against the appetlant for the offence under Sectlon 376 of IPC. 3, So as to hold the accused/appellant guiity, prosecution has examined 05 witnesses jn support of its case. Statement of the accused/appellant was also recorded uncter section 313 of the Code of Criminaj Procedure in which he denied the charge levelted against hfm and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted the appellant for the offence under Section 376 of IPC, hence^ the presentappeal. 5. Contention of the learnect counsei for the appellant is that in the present case the prosecutrix has turned hostlle and therefore the materiaj availabJe on record and also looking to the medical report of the prosecutrix the appettant cannot be convicted under section 376 of IPC. 6. On the ofcher hand supporting the impugned judgment it has been argued by the Searned State counsel that though fehe prosecutrix was cteciared hostile but questions were put to her by the pubtlc prosecutor and she has stated that she was subiected to sexual intercourse by the appeljant. 7. Heard counsei for the parties and perused the material available on record including the judgment Impugned, 8. Prosecutrix (PW-1) in her court statement has stated that sn the afternoon when she was going to her fletd aiong with 10-12 other women wlth her consent, the appellant had done the bad work with her. According to her, she has compromlsed the matter wlth the appellant. At this stage the prosecutrix was declared hostile. In cross-examination ^•Sr^ 3 m:'&£ ^/ -<3- though she has admitted the fact that she was subjected to sexual intercourse by the appellant and she has also described as to in what manner she was subjected to rape by the appeljant but she appears to be a very shaky wltness. Tejau (PW-2), husband of the prosecutrix has stated that on the date of incident at about 11 a.m. the prosecutrix came to hjm and informed that when she was coming, on the way/ the appetlant caught hold her and committed fordble sexual intercourse with her, According to hlm he saw the torn sari of the prosecutrSx and then the report was jodged. There appears to be some contradjctions in paragraph-5 of the statement of thls witness from that of his case diary statement. Dr, Njjjma Sharma (PW-3) who medically examined the prosecutrix vjde Ex. P-4A has not found any external or intemal jnjury on her person anct according to this witness^ no definite opinion could be given about the commjssion of rape. Dr. S. P. Dahriya (PW-4) who medicady examined the accused/appellant vide Ex,P-5A has stated that the appellant was capable of performing sexual intercourse. The investlgating Offjcer J.P. Gupta (PW-5) has supported the prosecution case. 9. Minute examination of the evidence makes it ctear that the prosecutrix has not supported the prosecution case and has been declared hostile. Record further reflects that the prosecutrix had physical relation with the appellant wlth her consent. Though in her cross-examination she has stated that she was subjected to sexual intercourse by the appeltant but the same does not appear to be trustworthy. The medical report also does not support the case of the prosecution and no injury on her person was noticed by the doctor who medically examined her That apart incross examination this wltness appears to be very shaky and several contradtctlons and omissions are there in her statement: SincQ the '^ ^ •J .' -4- prosecutrix has not supporteci her case and has been declared hostile^ she is not a trustworthy witness and her statement does not inspire confidence of this Court^ there remains nothing on which basis the appellant can be convicted under Section 376 of IPC. 10. In view of the above factuat backgroundy this Court is of the view that the Court below has erred in appredating the evidence available on record while recording the findings convlcting and sentencing the accused/appellant for the offence mentioned above. AccordingSy, the appeal ls altowed and the impugned judgment dated 21.04.1994 being contrary to the evidence available on record is set aside. Appellant ts acquitted of the charge levelled against him. Since the appeliant ls on baily his bail bonds stand discharged. - (^ Sd/- Pritinker Diwaker Judge