.^^ l.^o""....,SW "v ...-..- ..•;•» .I'JT'.-* 9<e',^ASA o« A...--•'9' SlngteBench IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0. / 2008 Appellant (In Jail) Parmeshwaru, S/o Bhaiya Ram Sahu, Aged about 35 years, R/o Village Lachhanpur, P.S. Kasdol, Distt.Raipur-(C.G.) Versus Non Applicant : State of Chhattisgarh, Through P.S. - Kasdol, Distt. : Raipur-(C.G.) CRIMINAL APPEAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 ./" ;-]••——•;— - .\ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 811/2008 APPELLANT Parmeshwaru Versus RESPONDENT State of Chhattisgarh Shri Deepak Jain counsel for the appellant. Shri Vivek Sharma PL for the State. CRinfllNALAPPEALUNDER SECTION 374 (1LOF THE CODEOF CRIMINAL PROCEDURE JUDGMENT (22.03.2011) This appeal is directed against the judgment and order dated 28.8.2008 passed by Additional Sessions Judge, Baloda Bazar, District Raipur in Sessions TrialNo. 14/2008 convicting the accused/appellant for the offences punishable under Sections 450 and 376 IPC andsentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 100, in default of payment offine to further undergo rigorous imprisonment for one month, oneach count. 2. Facts ofthe case in briefare that on 21.7.2007 a written report Ex. P-1 was lodged by the prosecutrix (PW-1) - amarried lady aged about 25 years alleging that on 20.7.2007 at about 11 p.m. the accused/appellant had come to her house todrop her husband who was under the influence of liquor and after making him lie on the cot he switched off the light. On her asking the accused/appellant as to why he had switched off the light, he told her that she was not concerned with that and saying so he threw her on the cot and after gagging her mouth with the sari committed forcible sexual intercourse with her and then left the spot. Thereafter, on hearing the cries raised by her, her uncle Mannu (PW-2), aunt-in-law Meena Bai (PW-3) and sister-in-law Ganesia reached there whom she narrated the entire incident. Based on this written report, FIR (unexhibited) was registered against the ^ccused/appellant under ^:«s si ;;SJS- —-Z— Section 376 IPC and after completion of investigation, challan was filed bythe police on 14.2.2008. 3. So as to hold the accused/appellant guilty, prosecution has examined 05 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 ofthe Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that there is no evidence available on record to show that it was the accused/appellant who had committed the offence alleged against him. He submits that apart from the story put forth by the prosecution being improbable, FIR has not been exhibited and the investigation officer and the doctors who had medically examined the accused/appellant and the prosecutrix have not been produced before the Court for giving their evidence and in these circumstances the tionvictionof the accused/appellant is illegal and liable to be set aside. 6. On the other hand counsel for therespondent/State supports thejudgment impugned. 7. Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 1 1 p.m. the accused/appellant after making her husband drunk had come to her house to drop him and made him sleep in her room and at that time he was not in senses. Thereafter, according to her, the accused/appellant switched offthe light ofthe room andverandah and after gagging her mouth with sari committed forcible sexual intercourse with her. She has stated that on hearing her cries, her sister-in-law and uncle-in-law got up and then the accused/appellant ran away. She is stated to have disclosed the incident t6 her uncle-in-law, .aunt-in-law and sister-in-law. According ^ -3— to her, at the time of incident, her son was also sleeping with her and while the accused/appellant was committing sexual intercourse she was not in full senses and after insertion of sari in her mouth she was feeling uneasiness. Subsequent to this, she went to the police station along with her uncle-in-law and reported the matter orally and then was medically examined and seizure of her petticoat was made. In cross examination she has stated that she knew the accused/appellant for last 8 years thereto and on the date of incident he had visited her house for the first time.According to her, on the next day of the incident, her husband had told her that on the date of incident he had enjoyed a ride on the motorcyde of the accused/appellant and also had chicken and liquor along with him. She has admitted that at the time when the accused/appellant had been to her room with her husband, she had gone asleep and therefore she did not know as to who had brought her husband there. Then she says that her husband was brought home by the accused/appellant. Then again she admits that being in deep sleep, she was not aware as to who had brought her husband home and who switched off the light of the room. This witness then again clarifies herself and states that her clothes were upturned by a fleshy persdh whereas her husband's body structure was peak and pine and that when she was being subjected to sexual intercourse, she had not fett anything like that because she was not in her senses and she could see the accused/appellant from back side while he was running away from the spot. She has stated that the room where she was sleeping is adjoining to that of Shankar but at the time of incident he was not at his house. According to her, in front of her house is situated the house of one Rajak Dhobi and adjacent to it is the house of one Rajak near whose house is situated the house of one Pardeshi Sahu but whether Rajak and Pardeshi had heard her cries, she was not aware. In paragraph 13 of her evidence she has stated that she was not aware of the fact that any written report was given to the police in her name but she has admitted that the report given by her was read over to her. She has further expressed her jgnorance as to who had brought her t^usband home because at the relevant time she was asleep but on the next day'she was ««.a;!«SS:! -^- informed by her husband that it was the accused/appellant who had brought him home. She has stated that she had not recognized the person who had committed rape on her but she had recognized him while he was running away. In paragraph 19 of her deposition she has stated that she had seen the accused/appellant while he was running away as it was the moonlit night. Mannu Lal Sahu (PW-2) - uncle-in-law of the prosecutrix has stated in his evidence that on hearing the shrieks of the prosecutrix when he had come out of house, the prosecutrix had informed him about the rape committed on her by the accused/appellant. He has further stated that at the relevant time husband of the prosecutrix was under the influence of liquor and therefore the repori: was lodged on the next day. Meena Bai Sahu (PW-3) - the mother-in-law of the prosecutrix has made almost similar statement as has been made by Mannu Lal Sahu (PW-2). Manharan Lal Sahu (PW-4) - the husband of the prosecutrix has stated in his evidence that on the date of incident the accused/appellant had taken him to his house and when he along with some other persons was taking his food, he asked him to take liquor. According to him, after having liquor and chicken, he lost his senses and was not aware as to where he was taken. On the next day after he came to his senses, he went to the police station. In cross examination he has stated that on the date of incident one Surndra, Trilochan and the accused/appellant had consumed liquor together. He has further stated that it is not that on the date of incident he had consumed liquor for the first time but even 3-4 months prior thereto also he had had the liquor on the occasion of Diwali. He has admitted that on the date of incident he had consumed that much of liquor that he had lost his senses and on the next day of the incident his father had informed him about the incident and that when he had gone to the police station his wife was already present there. Hari ShankarKurre (PW-5) is the Patwari who had prepared the spot map Ex. P-6. 8, It is undisputed that neither the FIR has been exhibitedby the prosecution nor the investigating officer has been examined by it. Not only is, even the doctor who had examined the •C-. :.; N^:iay sssKSSi- •!•«"?*(*.'lSI:* accused/appellant and the prosecutrix has not been produced in the Court for giving evidence. Record further goes to show that husband of the prosecutrix namely Manharan Lal Sahu (PW-4) was not aware as to who had dropped him home whereas according to the evidence of the prosecutrix it is the accused/appellant who had brought her husband home. Moreover, the prosecutrix herself admits that as the incident had taken place in the dark, she could not say as to who had committed rape on her and that she has identified the accused/appellant on the basis of his body structure that too by seeing him from back side while he was running away. Later, improving her version she again goes to state that being in slumber at the relevant time, she was not aware as to who had dropped her husband home. In these circumstances, it can very well be said that the evidence of the prosecutrix and that of her husband being inconsistent and contradictory to each other, are totally untrustworthy and do not inspire confidence of this Court and as such the accused/appellant is entitled to have the benefit of doubt. 9. Consequently, the appeal is allowed. Judgment impugned being ill founded one is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. As the appellant is in jail, he be set free at once if not required in any other case, ,____——-— Sd/- Pritinker Diwaker 'ws,