R HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’b Mr. Justice Pritinker Diwaker APPELLANT oo Maksd Ali Versus State of Madhya Pradesh Shri Sanjay K. grawal and Shr Sourabh Sharma counsel for the appellant. ’ u Shri Vivek Sharma PL for he respondent/State. CRIMINAL APPEAL UNDER SECTION 374 I2! OF THE CODE OF CRIMINAL PROCEDURE a " JUDGMENT (23.06.2011) This appeal is directed against the judgment and order dated '14.12.196 passed by the Additional Ssions Judge Bilaspur, in Sess Tria No. 91/1996 convictg the ccused/appellant under ectin 376 IP and sentencing him to undergo rigorous s a 9 es I ions l in a So C imprionment for two yers. 2. :Facts of the case in brief are that on 27.1.1996 the prosecutrix (PW-1) aged about 16 years had lodged FIR (Ex-9) alleging that on 25.1.1996 at about 8 p.m. when she had gone to answer the cali of nature, accused/appellant camethere from behind, felled her down and committed forcible sexual'alntercourse with her. According to her, when she tried to raise an alarm, he pressed her neck and put her to threat of life. After completion of investigation, challan was med by the police on 27.2.1996 for the offence under Section 376 IPC and then the Court below framed the charge under that sectionsh 3. So as to hold the accused/appellant guilty, prosecution has A examined 11 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 le Criminal Aggeal No. 2297/1996 RESPONDENT A i ~ t ‘ -1- levelled agalnst hlm and pleaded his Innocence and false lmpllcatlon In the case Q 4. After hearing the parties the trlal Court has conwcted and sentenced the accused/appellant as mentioned above In paragraph No 1 ofthISJudgment 5. ‘ Counsel for the appellant submits that a very Improbable story has been put forth by the prosecutlon because as per her own saying, the prosecutrrx , after being v undressed by the accused/appellant was subjected to rape by him for. about half an hour whereas as per the medical report Ex. P-8 given by Dr. (Mrs) Jeetpure (PW-9) the hymen of the prosecutrix was intact and no signs of external or internal injuries were there on ‘her person. He further submits that according to some witnesses the accused and the prosecutrix were seen together in the outskirts of the Village and may be for that he has been roped in a false case 6. On the other hand counsel for the respondent/State supports the Judgment impugned and submits that looking to the conduct of the accused in raVishing the prosecutrix, the View taken by the Court below is wholly justified and no interference with the same is called for in appeal. 7. Prosecutrix (PW-1) has stated in her evidence Jhat on the date of incident at about8 p.m. when she had gone td‘answer the call of nature, accused/appellant came from behind, felled her down and on cries being raised by her, he pressed her neck, threatened her of life and committed forcible sexual intercourse with her for about half an, hour Thereafter while coming to her house she met certain Villagers namely Salamuddin and NaZir and narrated the entire inCIdent to them and then after reaching home to her parents, According to her, on the next day i.e. 26.1.1996 she had gone to the police station and reported‘the matter. ln cross examination she has stated that though she was not aware whether the distance between her house and the place of incident is 5O steps yet she has clarified that if someone raised the cry from -3_ the place of incident, it could be heard in her‘house. She has stated that as while committing the offence, the accused/appeilant had caught hold of her hands, she could not offer her resistanceb‘y way of nail-scratching or hitting with the water-pot with her. Samsher Ali (PW-2) has stated in his evidence that-on the date of incident at about 11.30 p.m. father of the prosecutrix had come to his house and told him to accompany him in the Panchayat meeting. According to him, in the said meeting the father of the prosecutrix informed that as the accused and the prosecutrix were in love their marriage should be performed On this the prosecutrix was also called where she disclosed that she was In love wrth the accused/appellant and that she had gone near the school ground only after being called by him This Witness has further stated that after Panchayat, parents of the prosecutrix had dropped her in the house of the accused/appellant as it was decided in the Panchayat that since the accused and the prosecutrix were in love, their marriage should be ensured. Salabuddin (PW-3) has not supported the base of the prosecution and has been declared hostile. Nasar Bi (PW-4) - the mother of the prosecutrix has stated in her evidence that on the date of incident in the night hours when the prosecutrix returned home weeping after answering the call of nature, she informed her that the accused/appellant had subjected her to rape and then on the next day she along with her husband and the prosecutrix went to the police station and lodged the report ln cross examination also this Witness has remained firm to what has been stated by her in the examination-in-chief. However, she has stated that as it was night and the houses of Kotwar and village Patel were at some distance, she did not bother to disclose the incident to them. Nazir Ali (PW-5) has not supported the case of the prosecution and has beensdeclared hostile. In cross examination this witness has however stated that after Panchayat meeting, the prosecutrix had gone to the house of the accused/appellant. Dr. B.D. Sonwani (PW—6) is the witness who had medically examined the accused/appellant and given his report Ex. P-5 stating that he was capable of performing sexual intercourse. .Laxmi Prasad Tiwari l __¢/_ (PW-7) is the witness who had sent the accused/appeHant for medical examination and made seizure of certain articies vide Ex. P-1. Ram Narayan Choudhary (PW-8) is the Patwari who prépared spot map Ex. P-7. Di". (Mrs.) Jeetpure (PW-9) is the Witness who had medicaiiy examined the prosecutrixand given her report Ex. P- 8 stating that her hymen was intact and there was no internai or external injury on her body and that no definite opinion regarding rape on her could be given. Head Constable namely Bairagi Lal (PW—10) is the investigating officer who had duly supported the case of the prosecution. Dr. S. Chaterjee (PW-11) is the witness who had done ossification test of the prosecutrix and given his report Ex. P-14 stating that at the relevant time the prosecutrix was aged about 17-18.years. 8. After hearing counsel for the parties and? perusing the evidence of the witnesses, this Court arrives at the conclusion that the statement of the prosecutrix (PW-1) that while she had gone to answer the call of nature, the accused/appellant came from behind and committed forcible sexual intercourse with her for about half an hour, is highly improbable if it is seen in the light of the medical evidence adduced by the prosecution. Dr. Jeetpure (PW-9) who had medically examined the prosecutrix has categorically stated in her evidence that her hymen was intact and no internal or external injury was noticed on her person and that being the position the entire version of the prosecutrix gets belied and cannot be made a basis for conviction of the accused/appellant. Secondly, the prosecutrix herself has stated that the distance between the place of incident and her house was as such that if someone raised a cry from one end, it c0uld be heard at the other and as none of the witnesses has stated that the cry’ of the prosecutrix was heard by “anyone of them, it goes to show that either no resistance was offered by her. Thus if the statement of the prosecutrix is taken in isolation, it can safely be said that she was a consenting party to the act of the accused/appellant but if it is seen in the light of the medical evidence, it becomes conclusive that no incident of rape ._$_ has taken place at all because her hymen ‘was found intact and no external or internal injury was found on her person. Moreover, some of the witnesses have stated that there was some affair between the accused and the prosecutrix and for that a decision was taken in the Panchayat to drop the prosecutrix at the house of the appellant and their marriage should be ensured. Keeping in mind this fact also, the possibility of the prosecutrix being a consenting party to the act of._the accused/appellant cannot be ruled out. Thus the judgment impugned convicting and sentencing theaecused/appellant as mentioned above, if taken in its entirety does not Seem to be in consonance with the material brought on record and in this view of the matter, same cannot be_ sustained. $ u . 9. ln the result, the appeal is alloWed. Judgment impugned is hereby set aside. Accused/appellant is acquitted'fof the charge levelled against him. The appellant is on bail. His bail bonds stand discharged. r #11 t - ‘ Sci/- Pritinker Diwaker Judge