^. ^ ^ c HI^H_CQURT_OF CHHAmSGARH, BILASPUR Cr.Appeal No.789/2005 APPELLANT RESPONDENT Gopal Yadav s/o Ludhru Yadav, aged about 50 years, Gram Turekela Thania- Kharsia, District Raigarh(CG) Vcrsus State of Chhattisgarh tlirough P.S. Khai-sia, District Raigai'h(CG) Appearasace: Shri Abhijit Sarkar, counsel for ttie appeUaat. Shri Asliish Shukla, GoveiTmient Advocate for tlie State. ORAL JUDGMBNT (31.01.2008) SUmLJ€UMAR_SINHA,.J, c (1) This appeal is directed agaiiist the judgnient of coiivictiou aiid order of sentencedated 16.9.2005, passed by the Second Additional Sessions Judge, Raigarh iii S.T.No. 161/2004, whereby, tiie accused/ appellaiit has been convicted under Sections 376 aad 323 IPC aiid sentenced to undergo RJ, for 7 yeai's and to pay a fiiie of Rs.500/-, m default of payment of fine to furtlier iindergo R.I. for 1 month; aad liae ofRs.500/-, iii default of payment of fiiie to furtiier undergo R.I. for 1 montli respectively. (2) The case of the prosecution is tliat on 5.8.2004, at about 10.30 a.in., the prosecutrix, Smt Pannila Yadav (PW-1) retumed back to her house after grazing her goats. When she was opennig the lock offhe door, the accused/appellant coisie over tliere, took her inside fhe hoiise and after overpoweriiig her, committed forcible sexual intercourse agamst her. Thereafter, tlie prosecntrix rao. away froni her hozise aad went to tlie house ofone Ghisalraiii. The appellaiit chased her and he found her m tlie house of Ghisalraxn. There he abused ao.d assaulted her saytag fliat maziy .V, Criminal Appeal No.789/2005 € persons coine to visit her house, she aUows theni, aiid why she is not allowing hioi to conimit sexual uitercourse, This iacident was disclosed by flie prosecutrix to Hiralal, Natihu, BakeUiin and also to flie village Kotwar aad tliereafter a First Information Report (Ex,P/6) was lodged ia PoHce Station-Kharsia on 5.8.2004 at about 16.40 hrs, Diinng the course of iiivestigation, the prosecutidx was sent for medical examiaatiou, Dr.(Mrs) P. Shadan.gi (PW-3) exaiaiaed tlie prosecutiix aad prepared report Ex.P/5. She iioticed the foUowitig iiijuries on the person of tlie prosecutrix. 1. A contusion dftlie left cheek, a bluish Biark below tlie left eye aiid swellhig over cheeks, which were pamful. 2. An itiju^ below right eye ui the size of V4 9? 3. An nijury below chia admeasuiiiig 1 W x 1/4" 4. 3 sraatl iiijuries on fhe upper portion of ttie neck 5. SweUiag aiid saiall iiijury on the left side of tlie liead 6. SweUmg on right side offlie back portion oftlie head 7, She was complaiiiiiig paia. She also examraed the private parts of the prosecutrix and did not found any iajuiy over it aiid the report iii regard t.o such exainmation was normal. She could not give aiiy definite opmion regarding commission of rape agaiast tlie prosecutrix. c; (3) After completion of flie usual mvestigation, charge sheet was filed m the Court of Chief Judicial Magistrate, Raigarh, who in tiini, coraiiiitted tlie case to tfae Sessions Judge, Raigarh froin where it was received on transfer by tiie Secoiid Additional Sessious Judge, who conducted tlie trial aa.d convicted the accused/appellaiit as albrementioned. However, he was acquitted ofthe charges framed under Section 294 IPC. (4) Leanied counsel for the appellaiit argues that tlie prosecutrix is not a reUable witoess, which is apparent from her condiict. He also argues that in fact, on tlie date of mcident, goats Crimmal Aooeal No. 789/2005 aiid she-goats of tlie prosecutrix had grazed flie field of fhe appeUaiit, for which, sorae quaiTel took place beteveen the appellant aad tlie prosecutiix and a writtea report (Ex. D-2) was lodged by tlie appeUanLt, due to aJI fliis, tfae prosecutrix lodged a false report m connivaace with her husbaad under Section 376 IPC. '" . • . .• (5) On tJie oflier hand, leai-ned counsel for tlie State opposes fliese ai'gunieuts aiid supports tlie jiidgm.ent oftlie trial Coiirt. € ^- (6) I have heard leanied counsel for the parties at lengtli ao.d have also peiiised tlie records ofthe Sessions. Case. (7) The prosecutrix (PW-1) has deposed tliat on the fateful day, when she retuiTied to her-house aiid was openiiig'the lock ofthe door ofher house, tlie accused/appellaiit came froin back side and caught her by her breasts aiid after tlirowixig her, he removed her clofhes aiid undenve.ar azid fhereafter, he comraitted sexnal iiitercourse agaio.st her, In para 2 ofher examiaation-in-chief, she has deposed that. fhereaJt.er she went to flie liouse. of one Khorsi, where Khorsi, her hiisbaiid and her daiighter-ia-law were present. She hidden herself below the cot iii tlie house of Khorsi The accused/appellaiit caine tliere aiid assaulted her, due to which, m.aiiy persons gatliered at tliat place. In para 3 she deposed that when tlie appellaut was assaiiltmg her, eldest son oftlie appellmif, iiamety-SaiitDsh, came over there and lie also saw flie iacident She had a taJk with tlie son of tlie appeUaat. She ftirtlier deposed tliat tiien she went to tlie hoiise of Hiralal Sidar, Najihu 9j:id-Ex- Sai'panch, tliereafter, she went to tlie house of Rajendra Gotiya, who gave her Rs.20/- then she went along wifli. Shyam Gada to Kharsia. She searched her husbajid'iii Khai'sia and after ineetmg her husfcaiid, she went to lodge tlie report in flie PoMce Station< ^^ . Crimina! Aupeal No.789/2005 (8) Ifwe look m to Fii'st Infbrmation Report (Ex.P/6), it would appear that tlie proseczitrix has named 4 persons iii it, to whoin she naiTated the stoiy. Their names are Hii'alal, Nan.hu, BalceUiia and Kotavai'. Out of tliese 4 persons, only Kobvar has been exainiiied iri tliis case whose uame is Sharalal (PW-4). Shamlal has deposed that on tlie fateful day, lie had gone to Kharsia for seivice of summons of Tehsildar Court. Rainprasad aiid Parmila inet hiai tliere, The prosecutnx told hixn tliat she was beaten by tlie accused/appeUaiit by hands and fists. He hacl also seen tlie iiijuries 011 fhe person of flie prosecutiix. He has veiy specificaUy mentioned iii para 2 of his examuiation-ia-chief tliat except the iiicident of marpit by the appeUaiit, tlie prosecutrix did not disclose aayfhiiig to him. Therefore, it. is clear fliat after tlie alleged incident, when tlie prosecutrix meet Kot^var-Shainlal, she did not disclose hmi tliat she was subjected to sexual iatercoiirse by the appellaiit. She only disclosed that she was beaten by tlie appellaat with haiids aad fists. (9) Ifwe rely on the evidence offhe prosecutrix, it woiild appear tliat fii'stly she was subjected to sexual iiitercoiirse by tlie appeUaat arid theii she ran away to tlie house of Ghisah'am, where tlie appeUajit also reached after chasiag her and he abused aiid assaulted her, due to which, she received tlie above iajuries. When fhe sexual iiitercourse was already performed by tlie appellant iii tlie house offtie prosecutrix aiid she has raa away from her house, aiid tlie ratention of tlie appeUmit was only to coinmit sexual intercourse agauist her, tlien for what pzirpose he will chase tlie prosecutrix to the house of Ghisah'ara and wliy he wffl assault tlie proseciitiix tiiere, pm'ticiilarly sayiag that maiiy persons visit her house ajid why she was not allowiiig him to cominit sexuei iiitercourse wltti her? Therefore, the version given by tlie prosecutrix tliat after comraission of sexual iatercourse tiie appellmit cliased her aiid Criminal Aooeal No.789/2005 when she was found ia tiie house of Ghisalram, Iie abused aad assaulted her ia tlie aforesaid iDLanner, does not appear to be reasonable. y\ (10) The cardixial priaciple of law is tliat if tlie evidence of tlie victim of sexual assaiilt iaspires confidence of tlie Court, no furtlier evidence is requii'ed in. her support and tlie conviction of flie accused caa be based on tlie sole testimoiiy of siich victini, but if her version appears to be unnatural aiid iraprobable, which creates iiiherent discrepaiicy iii her version and it does not iiispire' coniideuce of tiie Court, the conviction cannot be based on such testimony of tlie prosecutiix, {11) Iii tiie present case, for flie reasons stated above, tlie version oftlie prosecutiix does not iiispire confidence oftliis Coiirt to hold tliat she was firsfly subjected to sexual in.tercourse by flie accused/ appellaiit aiid tlien she was assaulted by hitii. Therefore, tiie charges frained under Sectipn 376 IPC would not be sustamed ajiid fhe accusecl/ appeUaiit is entitled for acquittal under tlie said chaTges. (12) So far as offence imder Section 323 ofIPC is conceiTied, it is established by tlie version of the prosecutrix as also tlie meclical evidence tliat she was assaulted by tlie appeUa.nt, It appears tliat on account of certahi dispute regardnig gra2:in.g of tlie goats iii tlie field of tlie accused/appellaiit, tlie iacident of assault t-ook place aaid tlie appellmit assaulted tlie prosecutiix, in which, she received tiie above iiijuries. Looking to tlie natiire of injuries, the Court below has held that tlie appellaiit was responsible for punishmeiit under Section 323 of IPC, Such fiiidiag of tlie Court below does not appear to be unreasonable aiicl tlie fiiidiag that tlie appeUaiit was guUty of the offence under Sectiou 323 of IPC can safely be sustaiiiied. ""\ @ .., •:'^^Si^t ^•^'^... ^^ ^. '^ Criniinal Aooeal No.789/2005 jt' I, I 1 ^c:^^ '-7' (13) Iii tiie result, tlie appeal is pai'tly allowed. (14) The conviction mid sentence awarded to the accused/ appeUaiit under Section 376 IPC are set aside. He is acquitted of ttie said charges, However, his conviction under Section 323 IPC is upheld. (15) It is stated that the accused/appeUant is m jail siace 16.9.2005, He be set at liberty, forfhwith, if not reqiiired ia aay other case, . r Sd/- Sunil Kumar Sinha Judge sumta x