IN THE HON‘BLE HIGH COURT OF CHHATISGARI-i AT BILASWR APPELLANT : ACCUSED UNDER CUSTODY RESPONDENT u CONVICEION UNDER SECTI ON 376 z.p.c; u 6%? CRIMINAL APPEAL No. €3L _/2001 Shital Singh san of Baba Ram, $ged about 4O years, Occupation Service. Asstt. ,Teacher, Resident of Village silphili, 9.3. Shankargarh, District Surguja (C.G.) Versu s State of chhatisgarh 7 years R.I. and Fine sentence cf Rs. 1,000/- in default 6 months RJ. CRIMINAL APPEAL} UNDER SECTION 374 CRIMIEAL PROCEDURE CODE. Wm @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 652 of 2001 Shital Singh S/o Baba Ram APPELLANT VERSUS RESPONDENT State of Chhattisgarh. Smt. Savita Tiwari counsel for appellant. Shri Pankaj Shrivastava PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 12) OF THE CODE 0 CRIMINAL PROCEDURE JUDGMENT (15.04.2010) This appeal Is directed against the Judgment and order dated 11 72001 passed by Additional SeSSions Judge Ambikapur in Sesswns Trial No. 35/2000 conVIcting the accused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 9.12.1999 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 28 years who at the relevant time was working as Anganwadi worker, alleging that when at about 3.45 p.m. she was returning from village Bhadar, on the way the accused/appellant who was working as teacher in a primary school stopped her took her near the pond by dragging, threw her on the ground and after removing her as well as of his own cloths, committed forcible sexual intercourse with her. Thereafter, one Badri Prasad (PW-4) came there and on seeing him the accused/appellant fled away. She narrated the entire incident to Badri Prasad (PW-4) and then the report was lodged by her. 3. So as to hold the accused/appellgrwft guilty, prosecution has L i examined 06 witnesses in support of its case. Statement of the ‘ accused/appellant was also recorded under section 313 of the Code ‘ Q) @ of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 4. 6. Counsel for the appellant submits that present appears to be a tit case but as the prosecutrix and the accused/appellant were seen inen objectionable condition by Badri Prasad (PW-1), the report has been lodgedby her. She further submits that before conclusion of her cross examination, the prosecutrix had expired and therefore the accused/appellant did not get full opportunity of cross examining her by putting fourth his defence properly and in these circumstances the appellant is entitled for acquittal: She further submits that before the court statement of the prosecutrix could be recorded, she filed Ex. D-1 stating that she was not subjected to rape by the accused/appellant and when she was talking to him, Badri Prasad (PW-4) came there and as he had spread a rumor about her having illicit relations with the accused/appellant, the report was lodged by her. She submits that number of love letters were also written by the prosecutrix running from Ex. D—3 to D-14 which makes it clear that she was a consenting party to the act of the accused/appellant. According to the counsel for the appellant, father of the prosecutrix namely Shaisahu has also tiled an affidavit clearly indicating the fact that her daughter (the prosecutrix) was never subjected to rape by the accused/appellant and thus forgiveness to the appellant has been pleaded. 6. On the other hand counsel. for the respondent/State supports the judgment impugned and submits that as FIR has been lodged by the prosecutrix with a great promptitudtgy'as the incident had taken . place 3.45 p.m. whereas the matter was reported at 6.15 p.m. He submits that as the medical report Ex. P—5 also supports the case of the prosecution in which it is stated that the prosecutrix had suffered / l i l l i l 5. Heard counsel for the parties and perused the materia available on record including the judgment impugned. g ‘ ‘ l @ _.3_ abrasions on her lumber region, there remains nothing on the basis of which innocence of the appellant can be established. As regards love letters written by the prosecutrix, State counsel submits that it does not help the accused/appellant in any manner whatsoever as the same have been denied by the prosecutrix in her cross examination. He submits that affidavit given by the father of the prosecutrix has no value in the eye of law because Badri Prasad ‘ (PW—4) has duly supported the case of the prosecution. 7. Prosecutrix (PW-1) agedabout 28 years has stated that at the relevant time she was working as Anganwadi worker at village Bhadra. On the date of incident when she was returning from village Bhadra on foot, accused met her on the way, stopped her, caught hold Aof her right hand, took her to a nearby Sarai tree and after removing her as well as his own cloths committed forcible sexual intercourse with her. While she was weeping, one Badri Prasad (PW-4) came there and on seeing him, the accused/appellant left the spot. She then narrated the entire incident to said Badri Prasad (PW— 4). Thereafter, she was medically examined for which she gave her consent Ex. P-2. ln cross examination, certain letters were shown to the prosecutrix but she denied the same to have been written by her. This witness has admitted her signature on affidavit Ex. D-1 but has not stated anything further. Before her cross examination could be concluded, unfortunately she died and therefore, it can be said that accused/appellant was deprived of fully cross examining her. Statement of the prosecutrix has been supported by Badri Prasad (PW-4) who has stated that on hearing the weeping—like sound when he went to the spot, he saw the accused/appellant lying over the prosecutrix and on seeing him he ran away. According to this witness, the prosecutrix had narrated the entire incident of her having been subjected to forcible sexual intercourse by the accused/appellant. During trial; affidavit Ex. D—2 was filed on 15.2.2000 by the defence and when Vaumquestion was put to this = witness, he has admitted his signature over the same but denied the contents thereof. Dr. Kiran Bhajgauli (PW-2) who had medically examined the prosecutrix has stated that she had found two abrasions onher left arm, one abrasion on right wrist and number of ‘i @ small abrasions near her waist. However, no internal injury has been noticed by her. Devcharan Bhagat (PW-3) is the witness who took the prosecutrix for medical examination. Dr. A.P. Gupta (PW-5) who had medically examined the accused/appellant has statedthat he was capable of performing sexual intercourse. B. Minj (PW-6) who is the investigating officer has supported the‘case of the prosecution. FSL report Ex. P-12 shows the presence of spermatozoa on the Underwear and vaginal slides of the prosecutrix though on other articles no mark Iike this was present. s r 8. From the ciose examination of the facts of the case in hand and evidence available on record it can be said that some incident might have taken place yet the same is not sufficient for holding the accused/appellant guilty for an offence under Section 376 IPC. During trial itself,.both the prosecutrix and Badri Prasad (PW-4) have given the affidavits stating that no such incident had taken place and bOth of them have admitted their signature on the same though Badri Prasad has denied the contents thereof. In respect of love letters though an attempt has been made by the prosecutrix to deny the same but in respect of letter dated 24.11.1999 she has stated that she cannot say whether it was written by her or not. Contents of the love letter show that there was some affair between the accused/appellant and the prosecutrix. This fact has been supported ’by Phulchand and Laungiram (DW—1 and DW-2) who were working along with the prosecutrix. These witnesses have categorically stated that the letters were written by the prosecutrix. Another thing which appears to be in favour of the accused/appellant is that full cross examination of the prosecutrix could not be done on account . of her death during trial and that being so the benefit of doubt has to be extended to the accused/appellant. This apart. though it has no ‘1‘ legal value at this stage, the father of the prosecutrix has also given an affidavit stating that he is not interested in prosecuting the appellant as he has not done anything against the prosecutrix. This also shows that the relations between the two families have become normal. As regards medical report stating some abrasions on the body of the prosecutrix, may be the prosecutrix was a consenting party to the act of the accused/appellant, the injuries might be " ‘ / <3? V_$’_ caused even if the intercourse was done with her on a rough surface. 9. Evidence adduced by the prosecution does not inspire the confidence of this Court and creates a doubt whether the prosecutrix was subjected to forcible sexual intercourse by the accused/appellant for the reason that she has not stated anything in her evidence that she offered any resistance to the act of the accused/appeiiant to come out of his clutches. The approach of the trial Court in convicting and sentencing the accused/appeiiant under Section 376 IPC thus appears to be off the record and is Iiabie to be overruled. 1 0. Accordingly, the appeal is allowed. Impugned judgment dated 11.7.§001 is heteby set aside. Accused/appellant is acquitted of the charge levelled against him. The accused/appellant is already on »;a bail. Bail bonds so furnished stand discharged. //i/- S _ Pritinker Diwaker I Judge -1