CF0000060867 IN THE HIGH COURT OF MADHfX PRADESK AT JABALPUR. Criminal Appeal No. b^u /96. ^wsf APPELLANT. (IN JAIL) s Mohd^ Mastaqueem Khan : ^' S/o<. Maksood Miya (Husl'aman) age 22 years R/Oo Village"^ Bilmha^ PS- Dhorpur Distt- Sarguja, HPo -Versus- RESPONDENT. $ State of MoP* througK' ,3*0. PS- Dhorpur Distt^"" Sarguja, NP^ ^^_ CRIMINAL APPEAL U/So 374(2) OF THE CODE OF CRININAL PROCEDUREo "ss:. 7. \ HI6H COURT OF CHHATHSGARH AT BILASPUR Si'ngle Bench : Hon'bSe Mr. Justice Priti'nker DiM/ciker CritninQJ ADD€QJ No. 650 ojl996 APPELLANT BESPON&ENT Mohd. Mustoqueem Khan Versus State of Madhya pradesh Shri Shakti Raj Sinha, counse! for the appeiiant. Smt. Smita Ghai, Ponei Lawyer for the State. CRZMINAL ^PPE^L SECTION,374:(2) OFJHg_CODE^F (09.02.2011) This appeal is directed again.st the Impugned Judgment and order dated 15.2.1996 possed by Sessions Judge, Ambikapur, Sarguja in Sessions Triai No. 66/1995 convicting the Gccused/appeiiant under Sections 450 and 376 (1) of the Indian Penai Code and -sentencing him to under-go rigorous irnprisonment for five years u/S 450 IPC, undergo rigorous imprisonrnent for seven years u/s 376 (1) IPC. Both the sentences were ordered to run concurrentiy. 2. Case of the prosecution, in brief, is that on 24.8.i994 F.I.R. (Ex.P-1) was iodged by the prosecutrix (PVV-1), aged about 14 years QJleging that cn 22.8.1994 when she WQS ail ajone in her house and her parents h.ad gone to market for business purpose , accused/appeliont entered her house, after removing her clothes, committed forcible sexuai intercourse with her. She has stated that after cornrnission of offence, upon hearing her cries, her maternd uncle SabbiruSlhasan came there and he asked the accused/oppeilant as to why he was dgjng this bod work and th©nher parents also came there. She u- has further stated that when she nGrro.ted the entire incident to her parents and mater-nGl uncle, all of them hod siapped the accused/appeiiant and then one Bengdi dso came there, however the accused/appeliant was asked by the sdd Bengaji to go oway. After investigatlon c/?<3/%3?? was fijed^on 30.10.1994 under Sections 376 (1) and 450 of the Indian Penal Code. 3. So as to hold the accused/appellant guiity, prosecution has exomined 5 vy'itnesses in support of its case. StGtement of the Gccused/appeiiant vvas also recorded under Section 313 of the Code of Criminaj Procedure in which he denied the chargss ieveiied against him o.nd pieaded his innocence and'fdse implication in the case. 4. After hearjng the parties the tria! Court has convicted and sentenced the accused/uppeiiant for the offence as mentioned above. Hence this opped. 5. Counsel for the appel!ant submits that present appears to be a coise of consent where unfortunatejy the maternai uncje and parents of the prosecutrix have the Gccused/appeilant and the prosecutrix in an objectionabje condition Qnd that is why the report has been Jodged. He submits that thsre is no legaljy admissible evidence on record to determlne the age of ths pro-secutrix ond jn absence of any such evidence it is to be presumed that on.the date of incident the prosecutrix was major. He further submits that even the Doctor who had medicajly examined the prosecutrix and other important witnesses ho.ve not examined by the prosecution. ;\ (i- 6. On the other hand, supporting the impugned Judgment it has been argued by the State counsej that the prosecutlon hos proved its ca-se beyond o.11 the reasonabie doubts and, therefore, conviction of the accused/appeilant is fuily justified and does not caii for any .interference by this Court. She further submits that minor contradictions in t-he statement of the prosecution witnesses have to be ignored. 7. I ho.ve. heord counsel for the parties ond perused the mGterid avdlQble on record. 8. Prosecutrix (PVV-1) has stated in her evidence that on the date of incident at about 8 p.m. when she was dj alone in her house and her parents had gone to market for business purpose, accused/appeilant wh.o happens to be her rnaternGi grandfother in rejation entered the house and on'the point of knife after removing her ciothes, he committed forcible sexual intercourse with her.She has further stated that when the accused/appellant committed rape on h.er, hearing her cries one Bengali came in her house ond Gfter seeing him, accused/appeliant had ieft her, however, he wascaught hoid by the sdd Bengaji and then her mother and father GJSO came there but the vHlagers have ailowed the accused/appejjant to run away from the spot. Thereafter, sh©narrated the entire story to her mother and father. She has further stated that on the next ddy the Panchayat meeting was called which was not attended by the accused/appeilant and, therefore, F.I.R. (Ex.P-1) WQS lodged. Her clothes were seized by the poiice and sh© was sent for medica! examinatlon. Zn her cross- exGmination, the prosecutrix has stoted thot the accu.sed/appeilant is .resldlng near her house aiong with his ^ mother, fc.th.er and wife whereas one Bindeshwori and Arvind are residing about 100 yords from her house. She has stated that initialiy she trisd to raise darm but when the accused/GppelSQnt sh.owed her knife, she kept quite and when the accused/appellant was running away, she raised an alarm. She has further stated a!l the facts i.e. in respect of using the knife whiie committing th©offence and some other reievant facts were norrQted to the police and if those facts have not been mentioned.in the F.I.R. or in her case diary statement, she connot teli any reason. She has further stated that she was subjected to rape for about two hours and during this period nobody had come to her rescue. She has further stated that upon hearing her cries, viliaQers had gathered in her house and mother of the prosecutrix was also there. She has also stated that on the next morning, Panchayat meeting was cdied whereas in her cross-examination she has stated that no panchayat meeting was caiied. In pcr'agraph 9 of her cross-exQmination the prosecutrix has stated that she wos subjected to rape by the accused/Gppejjant for about two Hours as G result of which she suffered injuries on her back and h.6nd whereas her medicai report does not confirm this fact. Riyasat (PW-2) - father of th.e prosecutrix has stated in his evldence that on the, date of incident he had 9on€to the market for business. purpose and the prosecutrix was in the house along with his son Konda. H©has further stated that when he returned to hls houseyhe saw SabeerulhasGn and one Bengaii holding the accused/appeiiant. He has further stated th.ereafter her daughter had informed him o.s to in what •^ monner, the accused/appelJGnt committed forcibje sexual intercourse with her on the point of knife. He has further stated that the vilio.gers have permitted the accused/appeliant to go. He has further stated that in the next morning, when he requested for the Society meeting, the committee members have assured him but did not conduct the sdd meeting for about 4 days and then on the 5 dcy the report was jodged. In cross-examination, he has stated that SabeepuihassGn, Bangali and Bindeshwari are residing Just adjacent to his house and if somebody makes any taik in his house, the same can be heard by these three persons. He has stated that in his cose diary statement he had not informed the poiice about the fact that his daughter had informed him that the offence was committed by the occused/oppeiiant on the point of knife. Devcharan Rajwo.de (PW-3) - PGtwari had prepared the spot map (Ex.P-2). Dr. K.P. Vlshwakarma (PW-4) who had medjcaiiy examined the accused/appeliant and given his report Ex.P-3 has stated that the he is co-pable of performing sexua! intercourse. ASI S.R. Dhritlohre (PW-5) is the Investigating Officer who 'has supported the co.se of the prosecution. Prosecutjon has not examined the important witnesses of the case namejy Bengali, BindeshwQri and Sabeeruihasson. Likewise Dr. M. Patre who had medicdly examined the prosecutrix on 26.8.1994 has a!so not been examined nor her medica! report has been exhibited. However, ©venif this un- exhibited document is taken into consjderation, no injury whatsoever has been found on the body of the prosecutrix and the Doctor has oplned that no definite opinlon can be glven regarding recent sexual iritercour.se. In respect of the age of the prosecutrix she was referred for the osslfication test but ...,,^^^! no doctor to this effect has been examined by the prosecution. As there is no legaily admissibie evidence on record in respect of the age of the prosecutrix, the Coisrt can presume that she was a rnajor girl. 9. AAinute examlnation of the evidence of the prosecutrix makes it clear that she has improved her version while making the court statement. In the FJ.R. and m her case diary statement, the prosecutrix hos not stated about the appeiiant showing knife and has rnerely stated thot she was subjected to rape by the accused/oppejjant whereas in her court statement she has stoted that she coujd not raise ajarm because the accused/appellGnt had threatened her by showing knlfe. purther in the F.I.R. the prosecutrix has stated that after commissjon of offence, her maternd uncie Sabeerujhosan reached the spot and caught hoid cf the accused/appellant and then her mother and father GJ&'G came there whereas in her court statement she has stated that when the accused/appellant was committing rape on her, upon hearing her cries one Bengaii came there and after seeing him, accused/appeiiant was tr)/in9 to run away from the spot, however, he was caught hoid of by the said Bengali and then her mother and father came there. There appears to be severai contradictions and omissions in her statement from that of her statement recorded under Section 161 of the Code of Crimind Procedure. Simiiar is the position with the statement of Rjyasat (PVV-2) - father of the prosecutrix. In absence of any corroborative evidence, statement of th.e prosecutrix does not inspire confldence of this court especiaily when nymber of important witnesses have not been examined 7 by the prosecution. Furthermore, as per the statement of the father of the prosecutrix Riyasat (PW-2), prosecutrix was in the house a!ong with his son whereas prosecutrix has not stated anything about the presence of her brother. In his case diary statement it has been stated by fother of lthe prosecutrix that prosecutrix WQS in the house aiong with his three children and iikewise in her case diary statement mother of the prosecutrix has mode the simiicr statement but the prosecutrix has not deposed any thin9 about the presence of her three younger brother ond sisters. 10. Thus, after going through the materia! avaiiabie on record, this Court has no hesitation to hold that there are several contradictions and omissions in the statement of the prosecutrix recorded under Section 161 of t?ie Cr.P.C and the F.I.R. and that recorded before the Court beiow. That apart, the prosecution has utterjy falied to prove its cose beyond reasonable doubts by adducing proper evidence in respect of age of the prosecutrix and in these circumstances the benefit of doubt must go' to the accused/Gppeiiant. On the basis of the evidence adduced by the prosecution it woujd not be safe for this Court to convict the appeliant. tl. In conciusion, the appeai is diowed. Impugned Judgment dated 15.2.1996 is hereby set aside. Appeiiant is acquitted of the charge ieveiied against him. Since appejiant is dready on bai!, hi-s bail bonds stand discharged. .,...„-„..-....—^.....--.--..... ^,-- ^^ PritinkerDiwaker Judge ^