@g‘ Singie Baneh IN THE HIGH COURT OF JUDICATERE AT BILASPUR (C.G.) CRIMINAL APPEAL No. $83 /2005 CRIMINAL APPEAL UNDER SECTION 374f gOF THE CODE OF CRIMINAL PROCEDURE 1973. APPELLANT: Dinesh Giri Goshwami, (IN JAIL) S/o Bhuwan Giri Goshwami, Aged about 32 Years, Occupation ~ Doctor, R/o Village — Khurmuda, P.S.— Patan , District Durg (CG) 03$ 3\‘ dr/ , VERSUS ¢ims 0NDENT: State. of Chhattisgarh, Through P.S.— Patan, District Durg (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal “0.88312005 single Bench: Hon’ble Shri Dilip Raonheb DeshmukhyJ. Dinesh Giri 605m! Vs. State of chhattiswh Postformdex‘s 1&0, —0" Sdl- Dilip Raosaheb Deshmukh ‘ 4 Judge r ] Tux-014006 H u \ \ t x § v v \ km,“ 1 1 x J ‘ HIGH 00m OFWM AT BILASPUR Cr. Appeal “0.88312005 Silage Bench: Hon’ble Ski Dilip Raosaheb Deshmukh, J. Dinesh Gin' Goswami yg. State of Chhattisgarh PRESENT:- Shn’ Hemant Keshaxwani, counsel for the accused—appellant. Shri Ashish Shukla, G,A. /Add1. Public Prosecutor for the Stats. J U D G M E 'N T (Delivered onib -01-2006) This appeal is directed against the judgment dategi 02-12-2005‘de1ive1ed by Shri Samnan Singh, sessions Judge, Durg in Sessions Case No.35/2005 whereby the appellant was convicted under Section-450 85 376(1) of the I.P.C. and was sentenced to rigorous imprisonment for 3 yeaxs and dne of Rs.200/- under Section-450 of the I.P.C. and was sentenced to n‘gorous imprisonment for 7 yeaxs and nne of Rs.500/— under Section-376(1) of the LRC. 2. Brieny stated the prosecution story is that-Suraj Bai PW-l is. the Wife of the Bhag'rathi PW—3. 0n dated 25-06-2004 at about 09.30 RM. Bhagirathi PW—S had gone towards the village for singing folk song and Suraj Bai PW-l was sleeping inside her house after locldng the outer door of the house horn inside. At about 12 P.M., she woke up to ,t _. /// Mm/ ., ”Va-’ww‘w. mld that the appellant was holding her hands. She tried to shout but the appellant gagged her mouth and committtd rape on her. After committing rape when the appellant was about to leave, at that lime Bhag'lathi PW-S, the husband of the prosecuu‘ix returned home. Suraj bai PW-l shouted at that juncture. The appellant ran away and hid himself in the house of one Mansukh. Bhagirathi, Mansukh, Dinesh & other witnesses saw the appellant running away horn the house of Mansukh. Bhagirathi PW—3 asked Suraj Bai, if she had called the appellant. Suraj Bai denied and told that the appellant had committed rape on her. F.I.R. Ex.P—1 was lodged by Suraj Bai on 26—06‘2004 at 04.20 P.M. On medical examination Dr. Mamta Pandey, PW-S found that Suraj Bai was plegnant and no dehnite opinion about the sexual intercourse with her could be given. After completion of investigation, the appellant was prosecuted for the odences punishable under Section-450 & 376(1) of the I.P.C. The accused—appellant abjured the guilt,~ pleaded false impltation by Bhag’xathi PW-3 who had threatened him, upon a quarrel on the date of No evidence in defence was adduced. The prosecution examined as many as 5 witnesses. Relying upon the testimony of prosecutn‘x Suraj Bai PW-l, Bhag‘rathi PW—3 and the medical evidence of Dr. Mamta Pandey VFW-5, learned trial Judge convicted & sentenced the accused-appellant as aforesaid. [earned counsel for the accused—appellant has assaile the impugned judgment on the ground that the evidence led by the prosecution clearly shows that the accused— appellant was falsely implicated by Bhagirathi PW—3. It was argued that the evidence revealed that the entlance ‘ NA .......,,,,.,....../ OCCUITCHCC . an mta d door of the house was locked mm inside and couki not be opened mm outside. Leamed counsel for the appenant submitted that non examination of Mansukh, though cited by the prosecution, also creates a dent in the pmsecution stoxy. On the other hand, learned counsel for the accused—appellant has supported the impugned judgment of the trial Court. Having considered n'val submiesions and after perusal of the record of Sessions Case No. 35/2005, this appeal deserves to be allowed. Sulaj Bai PW-l has admitted in para-1 that she had closed the outer door of the house hom inside and no one could enter the house till the outer door was opened nom inside. This also finds corroboration hom the testimony of Patwari Kamlesh Kumar Verma PW—2 in para—3. It is, therefore, impossible that the accused appellant could have fomibly entered the house of Suraj Bai late at night at 12 RM. for committing rape on her. Smaj Bai is a married lady and was pregnant at the time of occunence according to Dr. Mamta Pandey, PW-S. The tesu‘mony of Suraj Bai PW-l also shows that her daughter Jageshwan' was also sleeping with her. Dr. Mamta Pan'dey, PW-S has deposed that on examination, no dednite opinion about sexual intercourse with Sumj Bai could be given. Suraj Bai PW-l has in para-10 admitted that on the date of occurrence at about 09— 10 P.M‘, her father-in—law had mediated in a quarrel between her husband and the accused-appellant whereupon her husband had said that he would lodge a report against the accused—appellant. It seems highly improbable that a pregnant Suraj Bai With her daughter at home would have called the appellant when few hours prior at night //V h .. .M. to” ‘ , the appellant had a quarrel with her husband. In para—9, she admitted that it takes about 20 minutes to reach the PolicevStation on a motorcycle and that they owned 3 motorcycles and a tractor. F.I.R. Ex.P-1 was lodged on the next day at 4.20 P.M. There is no satisfactoxy explanation for such delay in lodgng theVF.I.R, in the abovementioned facts and cimumstances of the case. 7. The testimony of Suraj Bai PW-l in para-11 clearly shows that she started shouting after her husband arrived. She further stated that her husband started beating the appellant with a wooden stick. Bhagirathi PW-3 has stated that no sooner he entered the house, the accused— appellant ran away and hid himself in the house of Mansukh. Mansukh was cited by the prosecution as a witness and was present in the- Court on 2408-2005, but no reason was assig1ed by the prosecution for non- examination of Mansukh who was g‘ven upv This also creates a serious dent in the prosecun'on stoxy. 8. Suraj Bai PW—l in para— 14 has stated that she struggled with the accused-appellant during the sexual intercourse, as a result of which she sun'ered injurm‘s on her back as well as on her thighs. However, the testimony of Dr. Mamta Pandey, PW-S clearly negatives the above statement which fails to inspire conddenoe. It is also pertinent to note here that Bhagirathi PW-3 has nowhere stated that Suraj Bai PW—l had shouted at the h'me of occurrence which contradicts the testimony of Suraj Bai PW—l. In para—15 Suraj Bai PW-l has stated that immediately on arrival her husband Bhag'rathi PW-S, had asked, if she had called the accused. This also dnds corroboration by Bhagirathi in para—4. Since, the outer door of the house was locked by Suraj Bai n‘om inside, it cannot be ruled out that the sexual intercourse, if any, ’ was with tile conscnt of Suraj Bai. It also cannot be ruled out that the accused-appellant has been falsely implicated due to a quarrel with Bhagirathi PW—3 sometimes befom the occurrence, during which Bhagirathi had thxeatened to lodge a xeport against the accused-appellant. I Having considered the evidence led by the pmsccution in its entimty in the abovementioned facts and circumstances of the case, I am of the considered opinion that the prosecution has failed to establish the charges under Section‘450 61; 376(1) of the I.P.C. against the, accused-appellant. The appeal is allowed. Conviction of the accused—appellant under Section-450 & 376(1) of the I.P.C. and the sentences Vawanied thereunder are set aside. The appellant is acquitted of the charges under Sech‘on-45O & 376(1) of the I.P.C. and shall be set at liberty forthwith, if not tequiied‘ in any other case. Fine, if paid, shall be lefunded to the accu