HIGH COURT OF CHHATTISGARH, BILASPUR Single Bench: Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 455 of 1995 1 Khem Chand Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Post for Judgment : 2 //10/2011 Sd/- Sunil Kumar Sinha Judge .^€ ^ll.— HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 455 of 1995 Khem Chand, aged about 26 years, son of Ankal Kawat, occupation labourer, resident ofvillage Limora, P.S. Gunderdehi (Arjunda), District Durg, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Crjmmal Procedure, 19731 Apoearance: None for the appellant. Mr. Arvind Dubey, Panel Lawyer for the State. JUDGMENT (21.10.2011) (1) This appeal is directed against the judgment dated 2nd of March, 1995 passed in Session Trial No. 76/90 by the Sbcth Additional Session Judge, Durg. By the impugned judgment, the appellant has been convicted u/s 376 (2) (e) IPC and sentenced to undergo R.I. for 10 years. (2) The facts, briefly stated, are as under:- The prosecutrbc (PW-4) was a married lady, aged about 23 years, She was carrying pregnancy of 5 months. On 1.7.89 at about 7.00 p.m. she had gone towards the outer area of the village to answer the call of nature. The allegations are that the appellant came there and committed forcible sexual intercourse against her. The case of the prosecution is that while the appellant was committing ,^f%^^\ '"^ ^I^S^V Criminal Appeal No. 455 of 1995 sexual intercourse, brother-in-law (dewar) of prosecutrix (PW-4) namely Khooblal (PW-10) came there on the cry of prosecutrbc (PW-4) and witnessed the incident. He had some quarrel with the appellant also. After the incident, the prosecutrix went to the village along with her brother-in-law and narrated the story to her husband, and thereafter the F.I.R. (Ex.-P/5) was lodged in outpost Gunderdehi. The prosecutrbc (PW-4) was sent for her medical examination. She was examined by Dr.(Smt.) Madhu Shrivastava (PW-9) who did not find any external or internal injury on the person of the prosecutrbc (PW-4). However, she certified that the prosecutrbc was carrying pregnancy of 5 months. The medical report of the prosecutrix is Ex.~P/9. The appellant was taken into custody and he was also sent for his medical exaniination. He was exaniined by Dr. B.R. Dewangan (PW- 5) who gave his report (again marked as Ex.-P/S). According to the said report, there was no external or internal injury on the person of the appellant who was found to be capable of performing the sexual intercourse. (3) The learned Session Judge relied on the testimony of the prosecutrbc (PW-4) and recorded the finding that the appellant committed rape against the prosecutrbc who was carrying pregnancy of 5 months, therefore, the appellant was liable for punishment u/s 376 (2) (e) IPC. (4) I have heard learned counsel for the State and have also perused the records of the session's case. (5) The prosecutrbc (PW-4) deposed that on the fateful day, at about 6.00 p.m., when she had gone towards the nala to answer the call of nature, the appellant came there, threw her on the \ '•^\' '^^^' .^ Criminal Appeal No. 455 of 1995 '^ ground and thereafter committed forcible sexual intercourse against her. When she made cries, her brother-in-law - Khooblal (PW-10) came there andcaught the appellant and a quarrel took place between the appellant and Khooblal. Thereafter the appellant ran away from the place of occurrence. (6) Khooblal (PW-10) deposed that it was 7.00 p.m. in the evening when he had gone towards nala to answer the call of nature. There, he heard the noise of the prosecutrbc (PW-4) like ubachao'\ He went towards the place of occurrence and saw that the prosecutrbc (PW-4) was lying on the ground and the appellant was committing sexual intercourse with her. He caught the appellant. A quarrel took place between them and thereafter the appellant ran away. (7) Khooblal (PW-10) admitted in the cross-examination, Para-4, that the prosecutrix (PW-4) and the appellant were known to each other since long as they used to go to work together in a stone mine. The prosecutrbc (PW-4) admitted in the cross-examination that she cried only when she saw her brother-in-law ~ Khooblal (PW-10) coming on the way and she did not cry before she saw her brother-in-law. The words actually used by her in the cross- examination are " ^7 ^ VT^ ^ f^T, UW ^ /^cr/// S^ iTW^ W^ ^f /^cr//^ s^ / " According to Khooblal (PW-10), he heard a single call like "bachao'\ In the above facts and circumstances, it appears, that when the prosecutrix saw her brother-in-law coming towards ^^...\ '.k^- '^t^/ '•^...^' I. ^1NI»- Criminal Appeal No. 455 of 1995 them, then only, she made a cry like "bachao". It is not a case in which the prosecutrix was making continuous cries which attracted Khooblal (PW-10) who after hearing such cries reached to the place of occurrence. If in fact a forcible sexual intercourse was being committed by the appellant, Khooblal (PW-10) would have noticed other acts of resistance also by the prosecutrix (PW- 4). Khooblal (PW-10) simply deposed that the prosecutrix was lying on the ground and the appellant was lying over the prosecutrbc and was conimitting sexual intercourse against her. We find that the prosecutrix did not receive any external injury on her person. Even there was no mark of resistance over the person of the appellant. If a forcible sexual intercourse would have taken place, certainly the prosecutrbc (PW-4) would have received some external injury as she deposed that she was firstly thrown by the appellant on the ground and thereafter she was subjected to forcible sexual intercourse. The prosecutrbc (PW-4) and the appellant were known to each other and they were going to work together in stone mine since long back. This close intimacy in between the prosecutrix and the appellant together with the conduct of the prosecutrix creates doubt on the testimony of the prosecutrbc who deposed that she was subjected to forcible sexual intercourse by the appellant. (8) No doubt, the evidence of a victim of sex offender is entitled to great weight absence of corroboration notwithstanding as she ••^^- "IM&.-1^ 3 '—y IN^»^. Criminal Appeal No. 455 of 1995 stands at par with an injured witness, but the fact remains that her evidence must inspire confidence of the Court. (9) In case on hand, the evidence of the prosecutrbc (PW-4) does not inspire confidence of the Court. It appears that when the commission of sexual intercourse was noticed by the brother-in- law, she came out with the present story of commission of rape with a view to save her honour. Considering all the above facts and circumstances, I am of the view, that a possibility of her being a consenting party with the appellant cannot be fully ruled out in this matter. (10) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 376 (2) (e) IPC are set-aside. The appellant is acquitted ofthe charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge vatti