:^i' —.^y®^?^:' ^s^'i.,^:':: CF0000061559 ^ IK • ITiE HISH COURT . OF JXJDICATCTRE- AT :JABALPUR (M.P) Criminat Appeal.__Y^^%_,_of' 1997 'A^PBM. UNDER . SECTION 37,4 GR.P^'C \ JS!j>PI,ICANf AKPELLANT' / 2N jAJt. ) Sin^Bench '^ 2.' ,'aiasl'T^.arl^l^ ,s.y/G B.ZS ^ .K;ti.c^;Z^fc^<SON-A3?PI.ICANT ..aged ..abciut'.,. 3 5 ,y^ars of •!7lllage .DhanAtol Dhamtarl, Distf^ Ra •¥ERSUS.; •s -Sfcate of n^E^,thro^i Dharatari^ Diste^^Q; fir-nln.gl^ iq.l^S.ahu' ..'Beslden.ce^ .^ Tharia '^6x^' rh S^X3». , ; .pur •CM»'P) || HI€HCOURT OF CHHATn:S©ARHAT BILASPUR Single Bench : Hon'ble Mr. Justice Prj'ti'nker Diwoker CriminQl ADDeai No. 1268 of 1997 APPELLANT RESPONDENT Ishwcirsal, s/o Bishal Sahu Versus State of Madhya Pradesh (now CG') Shri Suni! Sahu, counsel for the appeilant. Shrl Vaibhav A. ^overdhan, PL for the respondent/State. CRIMINAL APPEAL UNbER SECTION 374 OF THE CODE OF CRIMIN4L PROCEDURE JUD6MENT (0^.04.2011$ This appeai is directed Qgainst the impugned Judgment and order dated 24.06.1997 passed by SpeciGJ Judge, Raipur in Speciai Sessions Tria! No. 51/1996 convicting the accused/appeilant for the offence punishoble under Section 376 of the Indian Penai Codej and sentencing him to undergo rigorous Jmprisonment for five year^ pay fine of Rs.500, in default of payment of fine to further und^rgo rigorous imprisonment for three months. 2. Case of the prosecution in brief is that on 31.10.1995 at c^bout 12.30 in the mid night, F.I.R. (Ex.P-1) was lodged by the prosec^trix (PW-1), aged about 30 years, aileging that ot about 10 p.m. wher) she and WGS in her house, accused/appeilant entered her house, caught of her hand, threw her on the ground and after removing heif and his cioths committed sexua! intercourse with her. She has furtther alteged that thereafter, she narrated the entire incident tc^ BaHu (PW-3) and Anjordas (not examined) and after arrivaj o^ her husband the report was jodged. She has stated that at the tirr^e of incident, her husband had gone to his work place. Based on this F^.I.R., offence under Section 376 IPC and Section 3(l)(xi) of hojd one the ^^^ '-% e Scheduled Caste ond Scheduled Tribe (Prevention of Atrocities) Act (for short 'the Act') was registered against the accused/appeljcnt. Prosecutrix was medlcajjy examined vide Ex-P-2 by Dr. (Smt.) Asha Tripathi (PW-9). After investiQation challanwos fijed by the poiice on 22.12.1995 under Section 376 IPC and Sectlon 3(l)(xi) of the Act. However, while froming the charge, trid Court has framed the charge under Section 376 IPC and Section 3(2)(v) of the Act. | 3. So as to hojd the accused/appeliant guiity, prosecuti^n has examined os many as 14 witnesses in support of its case. Stattement of the accused/QDpeJlant \ws recorded under Section 313 <^f the Code of Criminai Procedure in which he denied the charge l^veiied aaainst him ond pleaded his innocence and faise impiication case. 4. After hearing the part-ies the trial Court- has acquitt< accused/appeil^it of the offence punishabte under Section 3(< the Act but has conyicted and sentenced him for the o| punishabie under Section 376 of the Indian Penal Code. |in the ^d the t)(v) of tffence 5. Counse! for the occused/appeliant submlts that present ^ppeors to be Q case of consent because while prosecutrix was being subjected to rape by the Gccused/appellant, she had notoffei^ed any resistance. He submits that as the accused/appeilant was seerf in the house of the progecutrix by one Ba!!u (PW-3) and Anjord<jis (not examined), the motter wos reported to the husband ^f the prosecutrix and then the report- was Jodged. He further submitl's that accused/Gppeiiant has been fa!se!y implicated In the case just for the greed of monetary bsnefits being glven to the prosecutrix ()f such cases beionging to the ScheduSed Caste or Schedujed| Tribe community. ^^^ff^"ey ^s^' 1 6. On the other hcind, supporting the impugned judgment it has been orgued by the state counsel that toking advantage of the hetplessness condition of the prosecutrix, accused/appejiant entered her house and subjected her to sexual intercourse. He submits that the statement of the prosecutrix is fuily retjabie and, therefore, conviction of the accused/appejlant is strictiy in accordance with !aw. 7. I hove heard counsel for the pcrties and perused the m^eficd avaiiabje on record lnc!uding Judgment impugned. ] 8. Prosecutrix (PW-1), aged obout 30 yecrs, has stated In her evidence that she is Safnaml by caste and she kne^ the accused/appellant. According to her, on the date of incident her husband had gone his Factory where he wos working os Labour and about 10 p.m. when her chijdren were sJeeping <& she was md^ingi^^/, accused/appeilant entered her house, the QppeHant caught hc^ her hand, threw her on the ground and after removing her arjd his cloths committed se^jo.1 Intercourse with her. She has statecl that upon hearjng her screams, Balju and Anjordas reached ther^ and after seeing them, accused/appeljant fied away from the spot. According to her when her husband returned to the house, don^ with him she lodged the report. In poragraphs 8 A 9 of her [cross examinction, while descrjbing the incident as to in whot manne^ she was subjected to sexuai intercourse, nowhere it has been stat^d by her that when the Oiccused/appejlant wos committing the GC^, she rdsed any alarm or made any effort to come out from the ciutc^es of the accused/appeijant. She has even not stated that her mout(i was gagged by the accused/appejjant. 5he ho.s stated accused/appeilant first noked himseif and then he removeGJ cioths. She has further stated that after commission of the o.ct, accused/appellant f!e-d away from the spot, she came out d of that her ntire from ^ her house and then she shouted and upon hearing her shouts, ^ajlu and Anjordas came there. There appears to be materiaj contradictions ond omissions in her statement which are cieor from her cross-examination. She has admitted the factthat as she !oe|ged the report agotinst the Qccused/appeJJQnt, Rs.lO,OCK)/-fwa^ giveiti to her by the ^ovemiiRent under the Special Provision of the Schem4 Shivprosad (PW-2) - husboind of the prosecutrix has stat^d in his evidence that on the date of incident he had gone to his v^ork p!ace and at about 10/10.30 p.m. when he returned from the ^aid piace, he saw 2-3 persons standing outside his house and wher|i he enquired from them, they have informed him that the accused/appeijant had raped his wife. In his cross-examination^ he hos stated thot when he reciched in his colony, first he saw Ballu and Anjordos who had informed him that they have seen |the accused/Gppellont comln9 out from his house and, thereafter, he ^old him that he himseif wouid go and enquire the motter from his v| ife. He has stated that when he asked the prosecutrix about the incidjent, initio!ly she did not say anything and when he scoided her, narrated the entire incident to him. Thls witness hos further st<hted that he Qsked his wlfe as to why she has not cried for heip bec<t»jse BaJlu (PW-3) and Anjordas were outside the house and then his (vife has informed him that her mouth wos gagged by accused/appetlant. He hcxs admitted the fact that upon lod9Jng report by the prosecutrix, Rs.l0,000/-[wer^ given by the (Sovernntient but, however, he couid get onSy Rs.7,000/- in his hand. Boliu (PW-3) has stated in his evidence thot at about 10 after hearing the cries of the prosecutrix, he saw Qccused/appeiiont running from the house of the prosecutrix. He stated that thereafter, the prosecutrix has informed him that accused/appeliant hos committed sexuoi intercourse with her she the the p.m. the has the ond ,&. "•'"^ 'siS^ 1 when the husband of the prosecutrix came, he informed the en^ire incident to h.1m. However, there are materia! contradiction and omissions in his court stotement from that of his case dipry statement recorded under Section 161 of the Code of Cnmina! Procedure. In paragraph 7 of his cross-examination, he has categorically deposed thot husband of the prosecutrix came to house, and it is he who had informed him that he saw fhe accused/appeilant coming out from his house and, thereafter, fhe husband of the prosecutrix a,<3ked her about the incident. Kripa Kam (PW-4) is a seizure witness of Ex.P-2 has not stated anyt-hing agai^ist his the accused/Gppel jo.nt. Sunder La! (PW-5) is Q witness to seizur^ broken bangies made under Ex.P-3 and is also a witness of spot r^ap made under Ex.P-4. Suresh Kumar (PW-6) is a seizure witness underwear vide Ex,P-4 but he h.o.s not supporte.d the prosecution cjsise and has been declared hostile, Kaijash Singh (PW-7) is a witnes^ of of to seizure of cloths mode under Ex.P-5 but has not stated anytl^ing against the accused/appellant. 6'hanshyoum yadav (PW-8) is J'he Patwori who had prepared the spot map (Ex.P-6). Dr. (Smt.) Asha Tripath' (PW-9) is the witness who (icd medicaliy examined the prosecutrix and given her report Ex. P-7 found abrasion in her forearm. However, she had not found externa! or internal injury on her body. She hos further stated t|^at no definite opinlon can be given about the commission of se; ^as sny ^uol intercourse. Pollce Constable Tlkaram Dhruy (PW-11) is the wit^ss who had sent th®sealed articjes A,B and C for F.S.L. Girdhan (PW- 12) is the witness who took the prosecutrix for medjca! examination. Dr. Virendro. Kumar Sahu (PW-14) who had medically examined the accused/appellant and given his report Ex.P-15 has stated that he was capable of performin9 sexual Intercourse. Inspector B.B.S. \^ 6 € Rajput is the Investigating Officer who has supported the coise of the prosecution. 9. AAinute examinQtion of the evidence of the prosecutrix (PW-1) makes it clear thot when she was subjected to sexual intercours^ by the accused/oppelicint, she had not offered any resistance de^pite the fact that she had ompte opportunity not only to offer protestj raise her cries. Import'ant witness AnjordQS has not examined b^ prosecution whereas as per the statement of Ballu (PW-3), he| the accused/appeiiant running from the hou^ of the prosecuj Evidence of Baiiu (PW-3) and husband of the prosecutrix nai|nely Shivprasad (PW-2) reflects that When the husbond of prosecutrix had asked her about the incident, initialjy she kept and when she was scojded <& slapped by her husbond, she has st(ited that she was subjected to sexual intercourse by accused/appellant. Taking cumulative effect of the evidence of| prosecutrix and other witnesses, possibijity of consent of prosecutrix cannot be ruied out. Even the medica! report- doe^ suggest that the prosecutrix was subjected to sexual intercour^ the accused/Qppej!ant 10. After going through the entire materid available on re4,ord, this-Court is of the considered opinion that as the prosecutior| has utterly failed to establish its case by ieading cogent and ctin^hing evidence, the benefit of doubt must 90 to the accused/appe]lant. Accordingly, the appeai is allowed. Impugned jud9ment convictin^ and sentencing the accused/appeilant is hereby set aside. Appella(it is ocquitted of the chorges levelied against him. The appellartit is reporl-ed to be on bdj, bail bond fumished by him stands dischar^ed. Sd/- Pritinker Diwaker Judge but the saw nx. the uite the the the not ? by