: IN THE HIGH COURT OF JUDICATURE AT JABALPUR(MP). CRIMINAL APPEAL N0. /t/C<'C/ /19g5 . APPELLANT: ii-f WL Respondent: Bdijnath S/o Motiram aged about 25 y'ears R/0 Village Rauni / , Police^S^ation-Bagicha, Raigarb-'" (MP) . -Versus- . . The State of Madhya Pradesh Through District Magistrate, Raigarh(MP) AAPPEAL UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE ^ '•?%~ ^fl ^b HI6H COURT OF CHHATnsSARH _4T BILASPUR SIN&.6 BENCH: HON'BLE MR. JUSTICE PRITENKER MWAKER Crimmai Awsal No. 1488 of 199' I 1 ijaijncrth Vs i State of Madhya Pradesh (now CG) Present: Mr. Aditya Tiwcri, Advocate for the '. Vivek Sharma, Panel Lawyer for iibn't. State. ORAL JUD6MENT (Deiivered on 29th March, 2011) Pritinker Diwaker. J 1. Thi.s criminal appeal is directed against the judgment of conviction and order of sentsnce dated 12.10.1995 passed in S.T. No.98/95 whereby the iearned Additional Sessions Judge, Jashpurnagar, District Raigorh (C6) has convicted the appellant under Section 376 of tiie IPC cnd sentenced to undergo R.I. for 5 years and to pay a fine of Rs.1,000/-, in defauit of pdymer't of fine to further undergo additionai 5.1. for 6 months. 2. Case of the prosecution, in brief, is that on 7.2.1995 at about 8.30 a.m. •rtie prosecutrix lodged a'first infor-matior! report (Ex.P-5) in •t+ie Police Station Sagicha to the effect that on 6.2.1995 at about 11.00 p.m. in the night when she was returning to her house froin the hous of her step son cfter consuming Hadia (a local beverage), the accused/appellant stopped her, took hsr near fence and after- making her lie down on the ground committed-.raipe with her. Af^er commission of offence, her step son ftawa recched there to whom>.she narr'ated the incident whereupon he assauited the accused/Gppelfant with club (iathi). TTiereafter the incident was narrated to the Patel of Vitlage, Roya Korwa, Kadar Mian, Shivcharan and others ond then the matter was reported in -rfie poiice stction aid thereafter statements of the witnesses were recorded. ~3 la.^. \'-;. *^. '":• ' F. ' •. ll"'^ •ri3"li!s, i ,i;,,«<"' •^t'1' 3. A-fter registration of crime, the prosecutrix was sent for medical examination to Primary Health Centre, Bagicha where Dr. (Smt.) Binodini Bakhla (PW-4) exammed her and gave her medico legal examination report of Ex.P-2. The appeilant was also sent for medical examination and his report is Ex.P-3. 4. After completion of usual irivestigotion, charge sheet under Section 376 of 1+ie IPC was filed agajnst the accused/appellant in the Court of Judicia! Magistrate Jashpurnogar, who, in tum, committed the case to the Court of Sessions Judge, Raigarh' from where the learned Additioncl Sessions Judge has received the cose on trouisfer for triai. Learned Additionai Sessions Judge framed charge under Section 376 of IPC a9(»insttiie accused, who abjured his guilt. The prosecution in order to establish char9e against the Qccus®d/q)peilantexamined eight witnesses in ail. Thsreo.f-te." statement of accused/ctppellant was recorded under Section 313 of Cr.P.C. in which. he denied •tiie circumstances appearing against him in the pr'osecu+ion cose ond pleaded that he has been falsely implicoted in the crime in question due to previous aninnosity. 5. The trial Court after hearing leamedcounse! for the respectiye parties vide impugned judgment conyicted and sentenced the accused/appellant herein ns mentioned in Panx-1 of the judgment. 6. Contention of Mr. Tiwari, learned counset for 1+se appeilant is that present appears to be a case of consent for the reason that step son of the prosecutrix namely Rama (PW-2) had seen the oppeliont and the prosecutrix 'm compromising pos|tion. He further submits that even the me4ical report belias the allegation that rape was committed on the prosecutnx. 7. On the other hond, learned Panel Lawyer for the State supporting the impugned judgment orgued That testimony of the prosecutrix is corroborated by the statement of Rama pW-2) and therefore conyiction of the accused/dppetiant under Section 376 of the IPC is in accordance ':- with law. ••» ^ •^ :liln ^ y =f 8. I have heard learned counsei for the pcrties and perused the record of the trial Court inciuding the impugned judgment. 9. The prosecutrix (PW-1) has stated in her deposition that she did not know the accused present in the Court. She has further stated •rfiat last yeor in the month of Februar'y, she had gone to the house of her son to dine and after taking dinner when she was rsturning to her house, on the way the occused/appetlarft caught her from the backside, took her towards her house and thereafter started insulting her. She has further stoted that the accused maae her lie down on •Hie ground and started outragin9 her modesty. She has further stated after commission of rope, her son came there and quarreled with the accused. She has further stated 1+iat on being asked by her son, she totd him that the occused forcibly committed sexual intercourse with her. In -t+ie cross- examinotion she has odmitted that her step son Rama had told her that if she did not lodge the report thers he would oust her from 1+ie house. 5he has further admitted that from the beginning she was denying to go to -riie police station to lodge the report. She has further stated that on -ths date of incident she had cansumed Hadiya (a local beverage) in the house of her step son. Place of jncident is situated at a distance of 100 meter from her house and the house of AAohna is situated adjacent to the place of incident. She has fur-ther stated that her son reached tiie spot after completien of bad work by the oiccused/cppellfltnt. She has further sta+ed when 1+)e accused/ oppellant was doing bad work with her she did not raise any aiar-m. In Paragraph 7 of her cross-examination she has stated that the accused/ appellont was her neigbhourer and his father used to quarrei after consuming iiquor. She has admitted the fact thaf hjer husband was beaten by the father of accused/cppellant ana therefore her stepL.^^son was having animosity with the accused/cippellant. She hos further stated that •Hie accused/appellant used to cail her 'grcaidmother'. She has atso stated that the accused/appeilont hqs committed half bad work wilh her. At the end of her stafement she has firstly stated that except throwing her on the . <:grflund, fhe accused/ appellant hos not done anything, but immediately a§r ff'^i'lifeE; tiiereafter she has stated that the accused/appeilant commltted bad work with her. lO.Rama (PW-2), step son of the prosecutrix, has stated that on hearing voice of the prosecutrix, he reached to the spot omd saw 1+iat tiie accused was standing near his mother and she was hurling abuses at him. The prosecutrix totd him tfiat 1+ie accused insulted her. Other villagers had also gathered there and he stopped the accused. In 1+ie morning when they were going to lodge the report, the accused/appellant met them cmd said that he has not committed any bad work. In the cross- examination this witness h<is admitted that his father cnd father of the accused/ appellant's used to quarrel with each other after consuming tiquor. However, he denied 1+iat he was havirsg cmy animosity with the accused/applicant. Budhan atias Bhurtu (PW-3) has not supported the prosecution co.se cmd therefore he has been declared hostiie. Dr. Binodini Bakhla (PW-4), who exomined 1iie prosecutrix, has stated that she did not noticeany external or internal injury on tiie body of •Hie prosecutrix and therefore no definite opinion about rape could be given. &r. ft.N. Oubey 0:>W-5), who examined tiie accused/appellant and gave his report of Ex.P-3, has oniy stated that the accused/oppellant was capable of performing sexual intercourse. R.N. Sidar (PW-6), who is 1+ie Patwari, has prepared 1+ie spot map of Ex.P-4. A.K. an (PW-7), who was posted as Station In-charge pf-,the Police Station Ba9icha at •rtie relevant time, has admitted the fact of lodging of report by -t+ie prosecutrix. t-1e has fur-rtier stated that he sent the prosecutrix for medical examination. !.N. Singh (PW-8), who is inyestigating officer, has stated that he sent the accused/appellant for medical examination as also the articles seized during investjgation for examination to Forensic Science Laboratory, )ur. He has further stated that he recorded •rfie statement of *««- wilnesses during inyestigation. 11. AA.inute examination of the evidenceof the prosecutrix on 1+ie basis of ,which convictionof the accused/appellant has been recorded, it is held ftiat-her stafement is inconsistent and full of contradictions and she 's-^ ^ ^ appears to be a shaky witness os at some places she has stated that she was subjected to bad work by the accused/ appellant, whereas at some places she has denied the same. The prosecutrix opened her statement wi-fh the words that '^e does not know ihe accused present in the Courf. whereas in cross-examination she has admitt-ed that house of the accused is sjtuated adjdcent to her house. She has also admitted that initially she was not interested in lodging the report but due to pressure of her step son she went to the p.blice station and lodged the report as her son had threatened her that if she did not lodge the report, he would oust her from the house. She has also stated •Hiat her son is having (mimosit/ with 1+ie accused/ appellant. She has also admitted that when the accused/ appellant was doing bcd work with her, she did not resist the same. Even the medical report does not support the prosecution case. t2.Looking to the above conduct of the prosecutrix, it would not be safe to convict the appellant under Section 376 of the IPC solely on the basis of testimony of the prosecutrix as tiie possibility of the prosecutrix being a consentin9 party cannot be fully ruled out in this case and the trial Judge ought to have given the appellcnt benefit of doubt. That bein9 so, the Judgment impugned convicting and sentencing the accused/appellant, as mentioned above, is liable to be set aside. 13.In the result, the appeal preferred by the appellant succeeds. Impugned judgment of conviction and order of sentence is hereby set aside. TTie / -^ppeilant is acquitted of the above charge. It is stated that qspellant is on bail. Hi? bai^bonds are cancelled and surety stands dischar'gedi. '*»- Rcshcn/- pritinker Oiwakcr Judge