”Aa ‘ I i ! l ! I l l l l l l m l l l ! i l l l l l l H l l l l l i 0 0 1 7 0 0 0 5 9 7 A T J A B L P U R C & I M I 1 3 4 A r u A L N o \ 1 g l - / 1 A p p e l l a n t \ s u H 9 9 1 t a e o f M * 3 . S t / - V s . — a n c i e t ; m a n ~ 1 n c ‘ h V O H h d u k a r i m w a g e a 1 9 y e a r s , O c c x m a u l o u u l t i J a ’ r , r , r / o h u m b h u r g P u E E . K a m n y a , ‘ i h s t t R a I n c l n d g o m E M W A E P E A L ‘ U i b 3 7 7 ( 3 F ‘ L H L S L R “ . L . ¢ O V F L u L g 5 A D K I P L ; R I . “ U P O M : Y E A R w V " J n A C ; -^-]^.\0 HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. BB Hon'ble Shri SymL Kumar_Sinha, J, Criminal Appeal No. 1122 of 1991 State o'fM.P. (Now Chhattisgarh) Vs. Ayan Singh (And connected Cr.A. No. 162 of1992) JUDGMENT For consideration Sd/- Sunil KumarSinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^-, Sd/- CliiefJustice / /' Post for Judgment :2-^/04/2010 Sd/- Sunil Kumar Sinha Judge .•F.R. ^--7-^-/6 HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J, APPELLANT RESPONDENT Criminal Appeal No. 1122 of 1991 •f StateofM.P. (Now Chhattisgarh) Versus Ayan Singh (wrongly mentioned as Am.an Singh in the cause-title of memo of appeal) S/o Shankarlal, aged 19 years, r/o Kuhikhurd, P.S. Chhuriya, Distt. Rajannandgaon (M.P.) (Now Chhattisgarh) (Appeal under Section 377 of The Code of Criminal Procedure) And APPELLANT RESPONDENT Criminal Appeal No. 162 of 1992 State of M.P. (Now Chhattisgarh) 7ersus Ayan Singh (wrongly mentioned as Aman Singh in the cause-title of memo of appeal) S/o Shankarlal, aged 19 years, r/o Kuhikhurd, P.S. Chhuriya, Distt. Rajannandgaon (M.P.) (Now Chhattisgarh) lAppeal under Section 378 (11 of The Code^ of Criminal Procedure) Appearance: Mr. Praveen Das, Dy. Govt. Advocate for the appellant/State. Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Shashi Bhushan & Mr. Sunil Sahu, Advocates for the respondent. iiaw Cr.A. No^l 122 on991& CrA. No. 162 of_1992 JUDGMENT (2.7-.04.2010) Following judgment of the Court was delivered by Sunil Kuinar Sinha, J. (1) The State has filed Chese appeals against the judgment dated 19.9.1991 passed in Sessions Trial No. 46/91 by the Sessions Judge, Rajnandgaon. The Sessions Judge, while acquitting the respondent u/s 376 IPC, convicted him u/s 450 IPC and sentenced to undergo R.I. for 1 year. (2) Cr.A. No. 1122/91 has been filed for enhancement of sentence awarded u/s 450 IPC, whereas, Cr.A. No. 162/92 has been filed against the judgment of acquittal u/s 376 IPC. (3) The facts, brieHy stated, are as under:- The respondent was charged u/ss 450 & 376 IPC. The allegations are that in the intervening night of 25th-26th of August 1990, the respondent entered into the house of the prosecutrix and committed forcible intercourse against her. The case of the prosecution is that at the time of incident at about 3.00 a.m. on 26.8:1990, the prosecutrbe wa&all alone in her house as her husband and mother-in-law had gone to see nacha on the occasion of celebration of Ganesh festival. AccQr^ing to the prosecutrbc, she made hue and ciy, on - which, Shatruhan (F;W-7), a next door neighbour, also came there and saw the respondent running away from the house of the prosecutrix. The mother-in-law of the prosecutrix namely - Kala Bai (PW-2) was the village-kotwar. In the morning, the prosecutrbs narrated the story to her mother- in-law. There.after Dehatinalishi (Ex.-P/l) was recorded, 1 Cr.A.No, 1122 ofl991_& CrA.No, 162 of 1992 I:'F- .< •y^ ./-] ../ based on which, the First Information Report (Ex.-P/1-A) was registered. The prosecutrbc was sent for her medical examination. She was exarained by Dr.(Smt.) Sushma Gupta (PW-9) on 26.9.1990. She gave her report Ex.-P/6. According to the M.L.C. report, no injury was found on the person of the prosecutrtx. No'external injury was seen on the private part. The report of the lady Doctor did not support the prosecution case. The learned Sessions Judge, on a close scrutiny of the evidence, led by the prosecution, acquitted the respondent u/s 376 IPC. However, he was convicted u/s 450 IPC and was sentenced to undergo R.I. for 1 year. (4) Mr. Praveen Das, leamed Dy. Govt. Advocate appearing on behalf of the appellant/State, argued that the learned Sessions Judge erred in law in holding that the prosecution could not establish that the respondent committed forcible sexual intercourse against the prosecutrix. He further argued that the sentence awarded u/s 450 IPC is inadequate. (5) On the other hand, Mr. P.K.C. Tiwari, leamed Sr. Advocate appearing on behalf of the respondent, opposed these arguments. While supporting the acquittal u/s 376 IPC, he argued that in the fact's and circumstances of the case, even no offence u/s 450 IPC is made Ou<, therefore, the respondent is entitled for acquittal u/s 450 IPC also. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. \m 1 Cr.A.No; 1122 of 1991 &Cr.A,No. 162 of 1992 ^ (7) The prosecutrbc (PW-1) deposed that she was recently married with Prakash Kumar and was residing with him in his house. The respondent was well known to her as both were residents of same village. On the date of incident, her family members, including the mother-in-law, had gone in a programme of nacha arranged in fhe village on.account of Ganesh. festival. She was sleeping in her house after closing fhe door from inside. At about 3-4.00 a.ru, the respondent entered into her house. He switched-off the light. Thereafter he got her woke up. She inade hue and cry but nobody came there and the respondent committed forcible sexual intercourse against her. When the respondent was running away from her house, on her cries, her next door neighbour Shatruhan (PW-7) came there. He saw the respondent running away from her house. She narrated the stoiy to Shatruhan (PW-7)". She admitted in ParalO of her cross- examination that a clay-wall is only there in between the house of Shatruhan and her house, and their houses are situated on both sides of the wall. She further admitted that after entering into her house, the respondent firstly sat on her cot, and thereafter he committed sexual intercourse. (8) tShatruhan (PW-7) has turned hostile. He put a different stoiy. He deposed that Kala Bai (PW-2) was making hue and ciy in the morning. When he asked her as to why she is crying, she told to ask the story -from the prosecutruc. He clearly deposed that he Cr.A.No. 1122 of 1991 &_Cr.A,No, 162 of 1992 did not see anybody either inside the house of the prosecutrfai: or running away from her house. (9) Kala Bai (PW-2) deposed that Prakash, husband of the prosecutrix, came to her and told that the respondent had informed him. that somebody had entered into their house because she (Kala Bai) was making hue and cry. On this, she told Prakash that it was Ayan Singh (respondent) who had entered into their house. Kala Bai further deposed that the prosecutrix told her that firstly she thought that her husband has retumed from nacha place and he has switched-off the bulb, but, later on, she could notice that the person who entered their house was not her husband and he was the respondent. (10) How the doors of the house, which were closed from inside, were opened? Why nobody came to rescue the prosecutrbc when she allegedly made hue and cry? Even next door neighbour Shatruhan (PW-7) could not notice the presence of the respondent in the house of the prosecutrbc. We further note that the prosecutrix did not receive any injury on her person and the report of the lady Doctor did not support the prosecution case. On all thes'e 'grounds, the version of the prosecutrb; does not inspires confidence of the court ahd there appears to be no inlirmity in the finding recorded by the Sessions Court fhat the prosecution could not establish that the prosecutrix was subjected to forcible sexual intercourse by fhe respondent. .^' '"^'xawtsacsFc-w 1 Cr.A. No. 1122 of 1991 & Cr.A. No. 162 of1992 (11) So far as finding in relation to an offence u/s 450 IPC is concerned, that has to be set-aside. On close scrutiny of fhe evidence led by the prosecution and the conduct of the prosecutrix, a possibility of her being a consenting party cannot be fully ruled out in this case. In the facts and circumstances of the case, when an offence u/s 376 .IPC would not be made out on account of possibility of the prosecutrix being a consenting party, there is hardly any scope for convicting the respondent u/s 450 IPC. (12) Mr. Praveen Das, leamed Dy. Govt. Advocate, argued that no appeal has been filed by the respondent challenging his conviction u/s 450 IPC, therefore, his case cannot be considered for acquittal. We are unable to accept this contention. Section 377 Cr.P.C. provides that the State Government niay in any case of conviction on a trial held by any Court other than a High Court, direct fhe public prosecutor to present an appeal against the sentence on the ground of its inadequacy. Sub-section (3) of Section 377 further provides that when an appeal has been filed agairist the sentence on the ground of its inadequacy, the Appellate Court sh'all not enhance the sentence except after giving / to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. •^ \<< -^' Cr.A.No. U22of 1991 & Cr.A. No. 162 of 1992 (13) For the foregoing reasons, we do not Bnd any substance in the appeals filed by the State. The appeals are liable to be dismissed and are hereby dismissed. However, we accept the claim of the respondent for his acquittal u/s 450 IPC and direct that his conviction and sentence awarded u/s 450 IPC are set- aside. The respondent is acquitted of the charges framed u/s 450 IPC also. v Sd/- Chief Justice Sd/- Sunil KumarSinha Judge 1