WW,WI€, C*:Qh¢$0\4 W3? W/imé Wm an 200 mé‘grwm ‘ am W'sn’aaw i ( WWW mm: (W) mW wW $Wm ABPELLAN‘I KESFUNULIN'L smhart t l Ram k’rasad. aged about 28 vears. Son 9f Gamhhir Vndmg: Rjg_ Villggg- 'Rnhgr «1' Mahauradoi. no. Janakpur Distt. Korea (C.G.) \fel‘SUS Siam 01 Ctmamsgarh. through Poh‘c‘a Station n pur. Dim. SB: HON ‘Jju: SHRI DEERE EBRA NubnxA. J'. sun Awadh inpatni, Advocatt: for the appeiiants. Shri Satish Gupta, Dy. Govz. A .J LJUGMENY (1-é-2Im7) Bhifeiidra Mishi‘a, J. me appellant has prele and ordar of sentence damd 2 Manenciragarh. Disn. Korea. Aciditionai Sassions iudac has 3'/6(i) aflPC. and smtsnced to pay a fma of Rs. 1000f— am RI. for 6 months respoctivoiv. Z. Case of the prosecutiox manual woman iodged a ropor 2005 at about 13.35 hrs. mentic .dvnnnta’ far the raggnndent /Stnte_ n‘ed tins appeal agamst the judgment of conviction t—4—ZUU6 passed by learned Addl. Sessions Judge. in Sessmns l‘1'iai No. 376/2005 wherebv learned conwcted the appeiiant under Sections 323 and to undergo RI. for 1 vear and Ri. for 10 vears am‘l i in c‘lefauit of payment of fine, to further undergo 1, m brlet, rs that trle prosecutrix. a 22 years oid t 1n Eohce b‘tzmon .Ianakpur. Distt. Korea on 23-8- nmg therein that day before yesterday i.e. on 21-8- T 'Ik K WW;WW,W m 11a 200 W WW (W) WWW 2005. h6r husband had gone or f13hing since morning. Hm motiwr-in—iaw and fathar-in—iaw wets prssent in 16 home. Her son Rahui aged 5 years had gone to piav. She went in soarch of R hui towards the vi‘flage. Chiidren were playing m tho courtvald of iha accused nd the accused was sitting before his door. She asked the accused about her s to which initiaiiy he i‘epiied in negative, however immediateiv thereafter he said hat he is inside his house. When she was peeping through the door and was caii g her son. her son reached there and 1n between around 1.30 aftemoon. aceu caught hold of her and dragged her inside his house and hohed the door Witi an intention to rob her honour. He feii her on the ground. She tried to save he d shouted and grappled with him whereupon he threw her on the gound and f rcibiy raped her. During the incident of rape, her mother—in-iaw knocked the do r whereupon the accused ieft her and ran away after opening the door. She ated the incident to Chaurasiya Bai. She had sustained injuries over her j and hoth Wrists and biood was oozing. Out OI shame, she proceeded towards crest in the evening to commit suicide. Yesterday in the evening. her hushand’an‘l Jeth Shivnath brought her hack from the forest. After registering the offence v’ ie Ex. P-l under Sections 3‘23 and 3% of I.P.C‘., investigation was commence Underwear of the prosecutrix Was taken into possession vide Ex. P-‘Z, spot Ex. P-3 was prepared. The prosecutrix was sent for medical examination to C mmunity Health Centre, Janahpur vide EX. P—l2 where Dr. N Yadav Rohan (P. W. 9) examined her and gave report E‘r P-l‘2—A. The accused Ram Prasad was also sent for medical examination to Eric, Janahpur vide Ex. ?-6. The un eiwear of the accused was taken into possession vide Ex. P—9. Slides of vagina f the prosecutrix were taken into possession vide EX. P-lO. After completing i stigation, charge sheet was filed in th‘e iiourt of o , s r n r a d p n e k ’5 “XI—Hc—78 W m ’*‘ANOHy/lmé m 200 mm (W) WWW WWWIWW gsaimm ., zga- Judicial Magistrate First Ciass, Manendragarh who in turn commitwd the cass to ths Court of Ssssions Judge, Surgujzg from Wham iaamed Additionai SessionS Judge recaived the case on transfer for trial. Chayges uncisr Sections 376 and 323 of 1P.C‘. were framed against the appeiiant. §. The prosecution in order to estabiish the charges against the appeiiant examined 9 Witnesses, thereafter the statement of accused was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. However, learned trial Cou1t after hearing the counsel for respective parties, convicted and sentenced the appellant as mentioned above. 4 Learned counsel for the appellant submits that the prosecutrix is a gown up lady. The incident is alleged to have occurred on 213i of August. 2005 at about 1.50 KM. however the report of the incident was lodged after more than 48 hrs. on 23-8—1UU3 at about 1.30 hit, and eXplanation of delay in lodging the report appears to be improbable and unbelievable. He further submits that from the evtdence available on record, it is evident that ll/z' year prior to the date of incident. Jeth of the prosecutrm was prosecuted for raping the sister of the accused. and therefore, the members of the prosecutrix have falsely implicated the appellant througl the prosecutrix. He further argues that so far as injuries present over the perso of the prosecutrix is concerned, the doctor who has examined the prosecutrix 24-8-2U05 at 1.00 PM. has given categorical opinion that the duration of the ' juries may he between ‘24 to 48 hrs. Thus from the statement of the doctor, it is clear that the injuries present over the person of the prosecutrix were inflicted a er the incident possibly on 22‘“ or 23“: of August f y ‘3 ‘ J‘. W m C(omNow/lgga 2% ‘ XI—HC—78 WW,W,W Wm m 200 mm (W) WWW wiawm’ww maf§am mmM’s‘aW %Ha1”m3né¥t mat she was not Wiliing to ‘dge the raport and she has aiso deniad the suggestion that because of th s, her husband had heaten her. In para 13 0f deposmon, she has admitted t only 2 — 3 mjnutes after dosing the door hv the accused her motnel-m-law rea hed there and started thumpmg the door upon > WIUCD IhE aCCuS€d lfmn€dlat€lv 01)€n6d Hie G001 and 1311 aWaV 8. RW. ‘2 Chaurasiya Bai, mother-in-iaw of the prosecutrix, has stated that the prosecutrix had gone to sea h Rahui Whiie she was in the home. On hearing the vorce of her daughte1‘-in—ia she went to the house of the accused Where Kahui told that the mother is de. She heard the cries of her daughter-in—iaw. She asked to open the door W1 ereupon the door was opened and accused fled from there Whereas the daugh -in-iaw was inside the room and was weeping. She narrated that the accused h s raped her. She had sustained injuries on her chin and wrists, blood was o from the injuries. At 6 PM, her daughter-in-iaw proceeded towards forest for c tting suicide. In the evening her son Ramnath came back. She told him about t 1e incident and aiso' toid that the daughter-in—law has gone towards forest. He we t in her search but he could not trace her. Next day. they brought her hack f1 m Ramgarh forest around ll hrs. in cross- examination, she has admitted t’ at her son had gone for fishing at a distance of half a kilometer, however, she did not go to inform him about the incident because she apprehended that h would heat her daughter-in—law. However she has denied the suggestion that fter bringing hack the prosecutrix her son had beaten her. She has further adm tted that when she entered inside the room. she found that the prosecutrix was o petticoat and sari. In para 7, she has stated that o h ' i t ‘ o ' o i ‘ XI-HC—73 WW,W&I,W mm 1n 200 mm (13W) WWW wwéwmm‘ mmm WW WW %ai1%mén%a ,é, 1161‘ daug’hter-in-iaw did not say anything about the incident t0 her and she stated this to tiw poiictz. 9. PW. 3 Ramnath, husbami of the prosecum'x and RW. 4 Shivnath, Jam of / the prosscutrix, both have stated that thay went in search of the prosecutt‘ix inside the forest on the date of inci . On the next day aiso, they could not iocate her and on 3rd day they could tr her in Ramgarh forest. He has also stated that when he rammed on the date o incident, he found that his mother was weeping. She informed that his Wife S has gone somewhere and only on the third day, when they found Sonu under tree, on being asked, she toid about the incident and she aiso toid that out of shame. she wanted to die. Statement of PW. 4 Shivnath is aiso on the same 1' e. He has admitted in cross—examination that he was prosecuted for offence of raping a iadv who was sister in reiation of the accused. however the incident of 1 Vi years back and he has been acquitted of the charge. He has denied the uggestion that because of this, after dehberation the repott was iodged against he appeilant. He has admitted in para 5 of the cross-examination that Ins brot Ramnath had reprimanded his wife in the home because she had committed mi take. However he has denied the suggestion that Kamnatn had beaten the prose 10. RW. 9 Dr. (Smt.) N. R an Yadav who has examined the prosecutrix has noticed the foiiowing injuries :- Lacerated wound on the ieft side of chin of size 1.5 cm in iength, .scab present. (I) # .iw d t a o h ' ‘ c . XI-HC—78 EW,W,W (ii) Abrasion on antqrio-iaterai sulface of 16ft wrist, 10m in iength. scab present. (iii) Two iinear abras ons '2 to 2.5 cm in iangth on dorsum of hand. (iv) Multiple iinear a‘ n‘asion ovar past suxface of right forearm 15 to 20 lll IImnD61‘. (V) Incisad wound ~~ 1cm X .3 cm. situated postoriomediai part of iower 1/3 oftigh forém‘m. (Vi) A bruiSe '7 X 2 on on back of chest crossing midiine between both scapula, obliqu piaced with black coioured. No semon or blood stains over private pan. Un imemai examinati she found that Hyman was oid tom, vagina admits two fingers easiiy and are was no injury over her vagina. No definite opinion of rape couid be given s the iady is man‘ied and habituai of intercourse, but iooking to the extemal injul‘es. rape is possibie in this case. AH the injuries have been caused by hard and nt object whereas injury No. 5 has been caused by some sharp edged weapon a d the duration of the injuries have been opined from 24 to 43 ms In cross-e tion she has stated that with the change of time, the coiour of Wound Chan s and when the wound is healed. scab formation take place. This happens betwee 48 to ‘72 his. Scab fotmation takes place earlier over superticial wounds wherea in deep wounds, it takes time. The injuries were Simple in nature. However, no juries have been found by the doctor who has r x__.,,.__.. .,..! a" o , ‘ u x‘ ' a WW,W§,W m Q W ‘L 200 WW W () WW&T%QTW mmm $Wm e s ugg i s d on‘ly after 2- minutes after accused had ciosed the door, h mher-in—i started thumping the door, w eupon the accused opened the door d fled away PW. ‘2 Chourasa Ba mot in-iaw has stated that she was standing efore her door, on heating her cries, she ched there and thereaher the accused pened the door and fled She has further ed in para 6 that when she entered th rm, she sa that the prosecutrix had on pettieoat and sari. Thus if the version of e prosecutrix and er mother—i aw re to he heiieved an it as not pracicay possihie for the accused to c ete the act of rape within such a short period that too with a iady who had resis the attempt tooth and naii. In —- State h ti h p e he o e D d ' Thoug the prosecutio has tried to expiain the deiay in iodging the report on the pretext that prosecutrix out of shame proceeded to the forest to commit suicide hut the expianation do s not inspire confidence because the incident is ol 1.30 RM. of~21$ August, 200 . She has stated that she returned home with her mother—in-Taw and she was he t in the home by the mother-in-iaw tili 6-7 P M t d Asiwk Kumar v (supra), it has been held at where me gap of reaching of te rosecutrix in house of the accused and h brotr was oniy of 1 or '2 minutes, n rap can e committed within such short ation. ,_. i N W i rsi pro n c m ‘ h t o h t d t 1 e examined the accused and he opined that ha was capabie of pm'fonnng sexuai intercourse. 11. The veon of the secutrix and other witnasses examinad by the prosocution does ot inspire idence. The prosecutrix in para 12 hasadmitted that her ouse is adjacen t t of the accused and at the time of incient: father- in-iaw and mother—in—law of e prosecutrix wre present in home. She ciaims that Whiie sh wa snglin th the accused she was Weeping and houting an 3 e er otaw h ‘ an iv i. he - b ea o t e oo w p t th h n i a th w tu o i h n V‘ ’ XI-EC—78 W 3am, m, C(QG‘CmHm warm $2, in 200g, mmf‘aaia?‘ ammm WWW wwwnxwm $Wm Thereafter she somehow mana brought bv her husband and Je" has aiso stated that she proceed On retum or her son. she na" ged to escape towards forest from Where she was h in the foiiowing morning. RW. '2 Chaurasia Bai ed towards forest for committmg suicide at b RM. ted about the incident and aiso informed that she had proceeded towards forest ’hereupon they went in her search, however, they couic‘l bring her oniy on the ne t day at about 1i O’ciock. She has admitted that both her sons had gone for fish ng at a distance ofjust i/i hm. however she did not go to them to inform about the incident fearing that his son shah beat her daughter-in-iaw. On the contr y, RW. 3 Ramnath: husband has stated that he returned with Shivnath at ‘7 P. 1‘. in the evening and round his mother weeping who informed them that Sonu has gone towards forest and he iearnt about the incident of rape only on 3m (1a. when his Wife was discovered by them from her. The conduct of P.W. '2 in no mm (W) owning her sons about the incident immediateiy when they came in the even ng, creates suspicion regarding veracity ot the prosecution case. If the versi n of the prosecutrix and her mother—in—iaw is ecutrix had returned from the forest on 22"d s lodged only on 23m at about 1.30, PlVi 4 Shivnath has admitted that R th has reprimanded his wife in the home as she had committed mistake though e has denied that he beat her in the forest. i3. The ieained triai Cour rehed upon the statement of PW. 9- the iady doctor who has examined the osecutrix and has found the injuries described in foregoing paragraph & has heid that the presence of injuries over the person of the i prosecutrix corroborates the sta ement of prosecutrix and other witnesses. and has ruied out consent. However fro perusai of the statement of iady doctor w‘to has accepted, in that case, the morning, however the report a a n t " s a ‘ ‘ t F XI-HC—78 r Wm WW, mug,W ‘§’b a QQLa./ g1 2009 mmm -16. WW WW §iwm assessw tha duration of th6 mjt reasons for the above assessm' accused appoijant appears to b: inflicioc‘l upon her atter Ina 1m medicailv oxaminod oniy after fulther strengthenod by the con aiso from unexplained deiay m 1v 14‘, As has ah‘eadv heeh oDS§ the adjacent houses. They had aiso, they resided together, and? the matter. in these cucumst prosecutrix was beaten by he reiationship with the appellant, c is allowed. Conviction of the appellant under ‘15. In the resuit, the appeal Sections 3'23 and 3‘76 of LPC. and sentence imposed upon him are set aside and a charges. He be set at libertv forthwith, if not ties from ‘24 to 43 hrs and aiso assigned mediea1 nt in her cross-examination, the defence of the probable that the said injuries might have been :ident from beating of the husband as she was 72 hrs. of the incident. The above possrbihty 1s duet of the prosecutrix and other witnesses and )dging the repon. :rved, the appeliant and the prosecutrix resided in gone to Deihi to earn their h'veh'hood and there he prosecutrix vsas initially not inclined to report mees, the defence of the appellant that the r husband on suspicion of consensual sexual an be probabilised. the appellant is acquitted of thr required in any other case. ah Sd/— l DHIRENDRA MISHRAI Judge ‘u Win33? (13W)