CF0000061 / 1 1 lllHlllllIIIIIIIIIIHIJELIIII i ll ‘ \ I THE HIGH COURT OF JEHDICATURE AT JABALPUR,M’P. Criminal Appeal No. \%\'v\ /97¢ APPELLANT; (IN JAIL) . Prem'ial S/oo Chaturgun Sonwani, age 18 years, Caste— Ghasi, Distt -Sarguja , MP. R/o. vill- Kandari PS-Kusmi, -VerSuS - RE$PONDENT .‘ ‘ a The State of M.P. through PS- Kusmi District—SargujaJdP. ¥ @fmJXQ'CRIMINAL APPEAL U/s. 374(2) OF THE CODE OF CRIMINAL ' pROCEDURE-l 973 . ‘7 N‘ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker)‘ a ~ Criminal Appeal No. 1814 of 1997 APPELLANT Premlal 1 In Jail VERSUS RESPONDENT State of Madhya Pradesh 1 P esent: Shri Shakti Ra} Sinha, coungeHorthe appeilant. Shri Akhil Mishra, Dy. G.A for the respondent/State. JUDGMENT (431072911) ‘ This apbeal is the directed against the impugned judgment and order dated 21.08.1997 passed by the 2"“ Additiona! Sessions Judge, Ambikapur, Distt. Surguja (CG) in Sessions Trial No.336/96 convicting the accused/appeiiant under Sections 342 and 376(1) of IPC and sentencing him to undergo R.i. for one year under Section 342 of IPC and to undergo R.i. for 7‘ years and to pay fine of Rs.2;000/—, in default of payment of fine to further undergo R.i. for six months under Section 376 (1) of IPC. 2. Brief facts of the case are that on 08.08.1996, on the allegation of the prosecutrix (PW-1), Dehatinalsi EXP—1 was recorded at about 11.00 a.m. at Out Post Chando, P.S. Kusmi alleging in it that on 02.08.1996 at about 5.00 p.m., when the prosecutrix (PW-1) had gone to bring back her cow, the accused/appellant who was standing near his house, caught hoid of her and took her inside the house. She has aileged that when she raised criesghe inserted his handkerchief in her mouth and in the night, the accused/appellant has committed sexual intercourse with her. She has further alleged that the accused/appellant kept her in' his house from Friday to Wednesday and during this period, he used to commit sexual intercourse with her. She has aiso alleged that the accused/appellant used to permit her to attend the natures can during night and on O7 O8 1996 when her father reached the house of the accused/appeHant In search of her he took her out from his house, then she narrated the entire story to her father. i Based on this Dehatinalsi, on 09.08.1996, F.l.R. EXP-16 was 1 lodged at P.8'. Kusmi under Sections 342 and 376 (1) of IPC. . After investigation, the challan was filed on 28.09.1996 under Sections 343, 376, 363 and 360 of IPC. However; while framing ‘ the charges, learned trial Court has framed the charges under Sections 342 and 376 (1) of IPC. 3. So as to prove the guilt of the accused/appellant prosecution has examined as many as 5 Witnesses Statement of the accused was also recorded under Section 31 3 of the Code of Criminal Procedure in Which, he denied the charges levelled against him and pleaded his innocence and false implication in the case. 3 4. After hearing the parties, learned trial Court has convicted " nd sentenced the accused/appellant as mentioned in para-1. 5. Heard counsel for the parties and perused the material available on record including the judgment of the trial Court. 6. Contention of learned counsel for the appellant is that there is no documentary or oral evidence in respect of the age of the prosecutrix (PW-1). He submits that in the medical report of f ‘the prosecutrix (PW-1), it has been mentioned that no definite opinion of commissionxof rape can be given and the prosecutrix (PW-1) has been found habitual’to sexual intercourse. He i i submits that even this medical report has not been proved by the prosecution as the same has not been exhibited nor any lady 1 l Doctor has been examined. As per the M.L.C. report, the age of the prosecutrix (PW-1) has been mentioned as 16 years. He further submits that in the Court, the prosecutrix (PW—1) has a i categoricalw stated that the accused/appenant kept her for one night and on the second day, she left his house and repprted the matter to her father and this statement is contran/ to that of F.i.R and the statement made under Section 161 of Cr.P.C recorded on 08.08.1996. He further submits that the statement of the prosecutrix (PW-1) is entirety different from the statement of her father Sahdui (PW-2). 7 On the other hand, supporting the impugned judgment, it has been argued by Shri Mishra, learned counsel for the State that minor discrepancies in the statement of the prosecutrix (5W4) are‘to be ignored considering the fact that the Court statement of the prosecutrix (PW-1) had been recorded on 19.02.1997 i.e. after about 6 months of the incident. He submits that the prosecutrix (PW-1) being a rustic viilager, may not be aware about the correct period of detention in the custody of the accused/appellant. V - 8. The prosecutrix (PW-1) in her Court statement has stated that she knew the accused/appenant and at the time of rainy season, in the night When she was returning after bringing her cow back, the accused/appeliant took her inside his house and committed forcibie sexuai intercourse with her. She has stated that when she raised her cries, her father came there and rescued her from the possession of the accused/appellant. She has further stated that for the entire night, the accused/appellant had kept her in his house and on the second day when her father came in search of her and took her from the house of the accused/appellant and after reaching home, she narrated the entire incident to her mother. She has further stated that during night, the accused/appellant permitted her to attend nature’s caii. Sahdui (PW-2), the father of the prosecutrix (PW-1) has stated that on the date of incident when he returned from the fieid, he found the prosecutrix (PW-1) missing and then he searched for her in the Village and on the sixth day, he found her in the house of the accused/appenant. He has stated that when he came to ‘know about the fact that the prosecutrix (PW-1) is in the house of the accused/appellant, he took Devsai, Dhuma, Mangai Sat and ‘Shiv Charan along with him. He has further stated that after i reaching the house of the accused/appellant, he had called him by his name but the door of the house was not opened by him and ultimately, after taking the help of the father of the accused/appellant, the door was opened and the prosecutrix (PW-1) was found there. Dr. N.K. Dutta (PW-3) had medically examined the.accused/appellant vide EXP—6 and has stated that he is capable of performing sexual intercourse. Dev Sai (PW-4) who is the seizure witness of EXP—8 and P-9 has not supported the prosecution case. Kabir Sai (PW-5) is the investigating Officer. 9. The minute examination of the evidence makes it clear. that the prosecutrix (PW-1) was inconsistent in making the/ statement. ln the F.l.R. and under Section 161 of Cr.P.C, she has deposed that the accused/appellant kept her in his house for about 6 days whereas: in her Court statement, she has categorically stated that the accused/appellant kept her for one night and on the next day, upon hearing her cries, her father came there and took her along with him and then she narrated the entire incident to him. However, Sahdul (PW-2), the father of the prosecutrix (PW-1) has come up with a different story and according to him, when he returned from his field, he found his daughter missing andpn the 6‘“ day, he recovered her from the house of the accused/appellant. it is relevant to note here that no missing report whatsoever was lodged by Sahdui (PW—2), father of the prosecutrix (PW-1 ). Though the medical report of the prosecutrix (PW-1) has not been exhibited nor any lady Doctor has been examined, but from the report, it is clear that her age has been shown as 16 years and she was found habitual to sexual intercourse and no injury was found on her external or internal part. Further, as per the statement of Sahdul (PW-2), when he came to know about the fact that the prosecutrix (PW-1) is in the house Of the accused/appellant, he had gone to his house along With Devsai, Dhuma, Mangal Sai and Shiv Charan whereas, no such witness has been examined by the prosecution. The prosecution has not filed any document or even adduced any evidence in respect of the age of the prosecutrix. Thus, it will not be safe for this 'Court to hold that on the date of commission of offence, the prosecutrix (PW—1) was minor. 10. Considering the totality of the case, particularly the inconsistent statement of the prosecutrix (PW-1) which does not inspire the confidence of this Court and which does not appear to be trustworthy, the conviction of the accused/appellant under Sections 342 and 376(1) cannot be upheld. £ d 11. Accordingly, the appeal is allowed. Judgment impugned is set aside. The accused/appellant is acquitted of the charge leveled against him. As the accused/appellant is reported to be on bail, his bail bonds stand discharged Sdl- Pritinker Diwaker Judge Priya h R