Si(gm In hymn QM”) i Crmmai} n - ’ IN THE HIGH GWRT CE‘ JUDIGATUREQ mm$ PRwEH AT JUR $rmégd 5w OL‘Mmri., 30x: o£ wry?W OF 1,997 cammAL APPEAL Now :2. Me i Ngmyan Tiwari, aged 23 yawa, réside§t of village Phga, ?@lice saucy; Balumamg Bigmm Bilaapum a .MIW W; WL The 5mm oi Eadha Pradagh y PM ;maa9..3;2.;2.2-m... ,, EN! a u .RES?GRE cam ML um swam glam OF TEE CRMNMa ROCYmURE AEASLP k com; OF HIGH COURT OF CHHATFI$GARH AT BILASPUR Single Bench : Hon'ble Mr. Jumce Prifinkar‘ Diwaker' ) I Crimina! Appea! No.2019 of 1997 APPELLANT ’ Sarda Tiwar‘i RNT ESPONDE This appeai is direcTed agains‘? The impugned Judgmem’ and order dared 16.9.1997 passed by 7T!“ Addifiena! Sessiens Judge, Biiaspur‘ in Sessions Trial Na. 48§X1995 convicfing ihe accused/appeiicm‘i' far “(he m‘fences punishqbie under Seciicns 376, 363, 366 and 342 of ihe Indian Penal Code and seniencing him To underga rigorous imprisonmen‘i for seven years u/S 3.76 % IPC, rigorous imprisonmem for five years ufS 3&3 IPC, rigorous imprisonmem‘i for five years u/S 365 IPC and rigurous imprisonmeni' for six momhs u/S 342 of The Indian Penal Code. Aii The sen’rences were ordered To run concurreniiy. 2. Brief facts of ihe case are ’ri‘ia’r on 1181995 a wri‘Hen repori (EXP-5) was iodged by ihe prosecu‘irix {PW-4), aged abou’r 16 years stoning fherein iho’r on The previous day when she had gone To village Goraila for purchasing “Rakhf'j The accused/appeilanT who happened To be The broTher of her ) sisTer-in—law (Bhobhé meT wiTh her and asked her To accompany him To a piace Jamuna by saying ThaT he will keep her ' There as his wife. She has furTher sTaTed ThaT accused/appeilanf had alsc +hrea’rengd her saying Thai if she mar'r‘ies someone else, he wiii kiii her. She has s’ra‘red fhafion accoum‘ of Threw giver} by The accused/appellanf she acccmpcmied him, They firs? wen‘r “m Jung/e and 'Hqer'e fhe accused/appeHanf cummiffed mm 0n her and Then he +ook her to his residence at Jamuna and fixer-e aise he commiHed forcibie sexual ini'er'course wiih her and 'ihe‘r'eaf‘ier', she me? her broiher—in—iaw Radheshyam in fhe viiiage Devgaon where she narr'cn‘ed The eniir‘e inciden‘i 1‘0 him and fhen her- broiher- in—iaw (Jae/a) fock her TO The poiice s’ia‘iion for- iodging ihe FIR. According f0 her, she has meniioned her dafe of birih as 16.6.1979 in ihe Iasi line of her wri'iien report Based an fhis wrih‘en report F.I.R. (Ex.P—4) was regis‘i’ered' againsf The accused/appellant on 11.8.1995 under Seclions 363, 366, 376 and 342 ofr‘rhe lndian Penal Code. i3rosecm‘rix was medically examined on 13.8.1995 vide Ex. P-14 by 'Dr. (Slut) Anand Verma (?W-13) and case diary slafemen‘i of The prosecu‘i‘rix was recorded on 12.8.1995. Affer inves‘iigaiion, aha/Ian was filed on 22.10.1995 under Seciions 363, 365, 376 of fhe Indian Penal Code. 3. So as To hold The accused/appellant guiliiy, prosecui-ion has examined as many as 17 wifnesses. Sm’remen'i' of i'he accused/appellan’r was also recorded under Section 313 of The Code of Criminal Procedure in which he denied fhe charges leveled againsi‘ him and pleaded his innocence and .false implicaiion in The case. 4. AfTer hearing The parTies The Triai CourT has convicTed and senTenced The accused/appeiian‘r for The offences as menTioned above Hence This appeai. 5. Counse! for The accused/ggpellam submits fhaf prosecu'rr‘ix (PW—4) is very inconsisfem" in making ailega’rion agains‘l' The accused/appellant He submi‘i‘s ‘Hm‘ in the Elk, in her case diary s‘m’remem and in her caur'f s‘ia‘remen’r, prosecm‘r‘ix had given 'ihr‘ee differen‘? siar‘ies and iha‘i makes i‘i clear fha’r she h’qs falseiy impiim‘ied ifhe accused/appeiim’r. He submh‘s Thai ‘ihere is nc iegaiiy admissibie evidence in respec’r of The age of The pmsecu‘irix. According 1‘0 “the prosecuir‘ix, her da‘ie (3f bin‘ih is 16.6.1979 bu? no documem‘ +0 i'his effeci has been proved by “rhe prosecufion. He furiher' submifs iha‘i i'he da‘i‘e 0f bir'ih bf ‘r’ne pnosecu‘inix is 156.1979 which has been given by hen and hen faiher aniy on fhe basis of assump‘iion. He submiis ihcn‘ as per The ossifica‘iion ’res? of ihe prosecufrr’ix (Ex. P42) her age is in beiween 16-17 year's and Dr. 5. Chaiierjee (PW—9) has cieariy opined fhaf fhe same could he plus iwo years aiso. if has aiso been argued iha‘i medicai repori’ of The prosecuirix does no? suppor‘i fhe prosecu’irix case and furihermcre The ESL. repor‘i (ExP—Z4) is aisc negai'ive. 6. Supporiing The impugned judgmen? if has been argned by fhe sia‘ie caunsei 'ihai inconsis‘rency in The siaiemem‘ of The prosecufrix is eniy because of her Tender age and This minor lacuna in The case of ihe prosecufion is 'io be ignored. He further submiis Thai once The prosecuTrix has given her daTe of birTh is 16.6.1979, There is no reason fer This CourT To disbelieve The same. He furi‘her submiTs ThaT as The prosecuTrix was ThreaTened, she'couid noT iodge The reporT prom pTly. 7. . I have heard counsel for! fhe Qarfies and perused #he mafer'ia! dvaiiable on record including judgmen‘f impugned. 8. Prosecu‘rr'ix (PW-4) has sfc‘red in har evidence f’na? a’r The Time of fes‘s‘ivai ’Rakshabandhan" siie had gene To one shop a‘i Goraila To purchase Rakhf and when s‘ne was refurning To her house, accused/appellant me'i her, shaped her and informed, her Thai her mo‘rher- is caiiing her. She has furfher' siafed f'hai she was riding her‘ cycie and on way The aceueed/appelian‘i freak her cycie and asked her i0 si’r on fhe back side and iook her +0 ’rhe oiher‘ dir‘ecfion and when she fried” ‘ro siop him, she was ’rhrea‘iened. $he has fur‘rher smfed ’rhaf accused/appeilanf Teak her' To The Jung/e and afTer' Throwing hen cycie, on The poin’r of knife commiTTed sexual inTehcour-se wiTh her. She has further sTaTed ThaT accused/appellanT kelp? her in The foresT for about % hours and Twice he cammi’rTed sexuai inTercour-se wiTh her and aT ThaT Time she was weeping. She has aiso sTaTed Thai” when she and The accused/appeiianT came near The side of Pendr‘a Road, hen elder br'oTher' SiTaram came There and afTer seeing himi she .cnied for help and she clung To her broTher, She has fur-Ther sTaTed ThaT ThereafTer, accused/appeiian‘i pushed her brQTher and ThreaTened her by saying ThaT he wiii kill her. She has also sTaTed ThaT accused/appellan‘i again Teak her inside The faresT and kepf her in a small huT and There alsa Twice he commiTTed sexual infercaurse wiTh her in The night She has furTher sTaTed ThaT in The morning The appellanT braughT her on Theroad, made her board in a Truck and inTroduced her as his sisTer and Then she was Taken To village JhiriaTola in a hoTei, he locked her in iThe room of The hoTei and a‘l‘Ter someTime he came There in an l inToxicaTed condiTion and again ThreaTeneci her. She has furTher \U'L @ wuv xsw“: . s’ra‘red Thaf afTer hearing we voice of her brofher' in-law, she banged a'r The door and cried far help“ and ’rher'eaffer accused/appellam‘ sfam‘ed figh‘ring wiir‘h her .browar-in-law wh0 fhen s’rmigh’r away wem‘ Te The peiice and when The y0§ice came, she was Taken cu? from The said house and narramd fhe inciden‘f To the police personnei, She has furiher grated 'rhaa” she was medicaiiy examined and her consent ieTfer is EXP-6i If ‘ihe cour’r sfm‘emem‘ of ’rhe orosecu’rrix is considered from Thai" of her wri'i‘ien repor‘f Ex.P-5 and her case diary s'ia‘iemen‘i Ex. D-l, if is appareni The“? ‘rhree differen’r stories have been given by The prosecu‘irix, Inj‘he wriffen reporf she has smied The? accused/oppeiianf oiiureci her by saying fha’r he wiii marry her and ‘ihen commified sexuai intercourse wh‘h her in ihe Jungie whereas in her cour‘i s+aiemeni she has s‘iaied' Thai she was Taken by The accused/appeiian‘r by saying ThaT her moTher is caiiing her and Then she was subjecTeci To rape in The Jimg/e in a differenT places for number of occasions. In her case diary sTaTemenT she has sTaTed Tho-i w.en The accused/appeiienT asked her To accompany him she Toid him ThaT if she wiii go wiThouT informing her paren'is They wouid be angry whereas no such sTaTemenT has been made by her in The courT or in The FirsT Informa‘iion Repori’. AparT from This, There are maTeriai conTradicTions and omissions in The sTaTemenT of The prosecuTrix and The enTire sTaTemenT becomes doubTfui. In respecT of The age of The prosecuTrix, in her courT sTaTemenT The prosecuTrix has sTaTed ThaT she is no? aware abouT The daTe of birTh buT she is sTudying in ciass 1Qfh whereas in her wriTTen reporT she has sTaTed ThaT her daTe of birTh is 16.6.1979. Mohan Lai Dubey (PW-5) ~ faTher of The prosecuTrix in his courT sTaTemenT has sTaTed ThaT daTe of birTh of The w prosecufr'ix 16.6.1979 but in the cross-examina’r§on he has sm‘red ‘H‘m‘t wn he go‘f admi'r'red The prosecu’rr'i in fhe schooi, dafe of bir‘fh was recer'ded as 1978 and ’rhis was +0 ensure her admission in The schoo. Though in he examinafion—in—chief, he has deosed fhe dm‘e of bim‘h of e pmsecufrix is 5.6.1979. Admi’r'iediy, no documentary evidence has een produced by fhe prosecm‘ion showing ihe dafe of bir‘ih of ‘re prosecu‘irix as 16.6.1979 and Thus ii is difficul‘i i'o oid 'iha'i on fhe dm‘e of inciden‘i The prosecui'rix w minor. On The other hand Dr. 5 Chafferjee (PW-9) has s‘ia‘ied iha‘i as per ihe ossificaiion fesf (EXP-12) age of The prosecuirix couid be befween 16-17 years bui ‘ihis can be pius ‘iwo years aiso. Thus, fhere is no cogeni legai admissibie evidence on record 'i'o ho 'i'hai an ihe dm‘e of commission f offence The prosecufri was minor‘ \u.“ 9. Dr. (5min) Anand Verma W-13:1 is fhe wiiness who had medicaHy examined fhe prosecufrix and given her reporf Ex.P-14 has merely sfafed fha‘i hymen of The prasecufrix was iorn buf id opinion in respect of The rape of her can only b given by some ynecoiogis‘i. She has fur’rr s'im‘ed Thai- fhe prosecufrix ha G he d noi' cooperafed wh‘h her ai fhe fime of edical examinai‘ion. Dr. (SmfJ haily Pandey (PW—12) - Gynecoiogisl' has sfafed fha‘i upon medical examinafion of “ihe prosecui’ri she has nof found any injury on her privafe parf and no definife opinion cn be given in relafion 1‘0 ‘ie commission of rape and her medical repori‘ is EXP—13. 10. Sifaram Duey PW—6) - brofher of The prosecu‘irix has sfafed in his evidence fha‘l‘ o fhe dafe of inciden’r he me? wifh fhe rosecufrix and accsed/appellan offer fhreatening him, accued/appellani‘ “rook The prosecufrix along wifh him, is he x i + p th 1 b h h as . id o x (P e m S x a h b ( n p uf fhe s Benir‘am (PW-6) is a seizure wHness of The ar'TiCIe vide EXP—9. BhamTIa! Dewcmgcm (PW-8) - Pafwar'i has prepared The spa? map (EXP-11). DP. 3D. Ansari (PW-15) who had medicaiiy examined ’rhe and his Ex.P—17 has smfed ’rhe accused/appelianf given repor’r Thai fhe he is capable of performing sexual infercour‘se. Jai Pmsad Pamie (PW—17) is a Head Cons’rabie who has done The a par'f 0f invesi'igaiion. 11. Thus, afier‘ going 'rhr'ough The mafer'ial availabie an record, This Cour'i has no hesi'ia‘rion To hoid +ha+ There are several confradic‘rions and omissions in fhe sfa‘remem‘ of fhe 161 of The Cr.P.C and fhe / i proseculrix recorded under Seciion 161 of FIR. and Thai recorded before The CourT below‘ ThaT apar‘r, The prosecuTion has uTTerly failed To prove iTs case beyond evidence in of ? l rl e reasonable doubT by adducing proper respecT age of The pro’secuTrix and in These circumsTances The benefiT of doubT musT go To The accused/appeilanT. ‘IT would noT be safe for This Cour? To convicT The appellanT on The basis of The d4 evidence adduced by The prosecuTion. 12. In conclusion, The appeal is ailowed. Impugned judgmenT daTed 16.9.1997 is hereby seT aside. Appellan‘r is acquiTTed of i. v The charges levelled againsT him. Since appellanT is already on bail, his bail bonds sTand discharged. i Sd/n i i4. l Pritinker Diwaker l Judge l