HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon Mr Justice Prltlnker Dlwaker) Criminal Appeal No 869 of 1995 APPELLANT Jeevanlal VERSUS RESPONDENT State of Madhya Pradesh. x ‘ Shri Vivek Rathore counsel for appellant. Shri Akhil Mishra Dy. GA for respondent/State. J r \ CRIMINAL APPEAL UNDER SECTION 374 (2) 'OF THE CODE OF CRIMINAL PROCEDURE. 3 u V. JUDGMENT (16.04.2010) This appeal is directed against the judgment and order dated 2941995 passed by Addmonal Sessrons Judge Saktl District Bllaspur in SeSSIons Trlal No. 336/1994 VconVIctIng the acpused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years. 2 Case of the prosecution in brief is that on 10.5.1994 at about 7.30 p.m. FIR Ex. P—9 was Iodged by the prosecutrix (PW-6) aged att‘out 24 years alleging that on that day at abut 3 p.m. when she was all alone in her house, accused/appellant came there and asl<ed for a glass of water. Thereafter, he caught hold of her hand, made her lie down on the ground and committed forcible sexual intercourse with her. 3.? So as to hold the accused/appellant guilty, prosecution has extamined O9 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure In which she denied the charges levelled against her and pleaded her innocence and false implication in the i l G ’ Galse. l 4 After hearing the parties the trial Court h conVIcted and sentenced the accused/appellant as mentioned above l 5i Heard counsel for the parties and perused the material available on record l l l x W.“ . '1‘ -2‘ 6. Counsel for the appellant submits that present appears to be a case of consent as when the prosecutrix and the accused/appellant Were seen by Katkin Bai (PW-8) in an objectionable condition, the report was Iodged by her. He further submits that Sukhbai (PW—9) also makes it ciear that the prosecutrix was consenting party to the act of the accused/appeliant. Z. On the other hand counsel for the respondent/State supports the judgment. l l l 8. Prosecutrix (PW-6) has stated that on the date of incident at l about 3 p.m. when she was sitting in her house after taking meals; ajc‘Eused/appellant came there and asked for a glass of water. When she gave him the same, he tookrher inside the room, undid her cloths, made her lie down, pressed her neck and committed sexual intercourse with‘ her. Thereafter, he went away to the house of one kvatkin Bai (PW-8). The prosecutrix then narrated the incident to her mother and lodged the report. According to this witness, Katkin Bai had seen theaccused/appellant committing sexual intercourse with her. In cross examination, this witness has stated that her marriage had taken place with one Sitaram but later he had deserted her. She has further stated that accused/appellant had put off his slippers outside her house, made an entry therein without closing the door and though she raised her voice for three-four times, accused/appellant had pressed her neck According to her even while havmg sex he was pressing his neck She has further stated that when Katkin Bai had come to her house and called her by name, accused/appellant was engaged In sexual Intercourse With her and as he had pressed her mouth she could not give reply to her. She has stated that Katkin Bai was present outside her house fpr half an hour. She has stated that when she came out of her l l house,‘accused{appellant was inside and when she closed the door from outside, he brokeEo''pen the door. First this witness has stated that she had seen the accused breaking open the door but subsequently she has stated that she had seen him from some distance She has further stated that except her maternal grand " mother Gayamati InCIdent was not disclosed by her to anyone i .y. ¢3~ Gayamati (PW-7) has stated in her evidence that the prosecutrix had not informed her anything and even the door of her house was not broken She has further stated that the prosecutrix had informed her that the accused/appellant was In her house and she had bolted the door from outSIde At this stage this Witness has been declared hostlle. Katkin Bal (PW-8) and Sukhbai (PW—9) have also not supported the case of the prosecution and have been declared hostile Dr (Smt) C K Singh (PW-1) who had medically examined the prosecutrix has stated that the prosecutrix was compiainmg pain on her neck but no Injury was noticed by her on any part of her body including the neck According to this Witness no definite opinion reg‘arding recent sexual intercourse With her could be given Dr J C Meshram (PW-5) Who had medically examined the accused/appellant has stated that he was capable of performing sexual intercourse with her. 91 Minute scrutiny of the material available on record particUlarIy the statement of the prosecutrix appears to be highly unnatural and therefore the same does not inspire conhdence of this Court. Her statement that while being subjected 'to rape by the amused/appellant, Katkin Bai (PW—8) was present outside her house fer half an hour, remains un-supported by Katkin Bai herself. According to the prosecutrix, she had narrated the entire incident to her maternal grand mother Gayamati (PW—7) but Gayamati herself does not say so, rather she states that the prosecutrix had not informed her about the incident. In the circumstances when none of the witnesses has come forward to support the wavering statement given by the prosecutrix, benem of doubt has to go in favour of the accused/appellant. 1b. In view of above the appeal is allowed Impugned judgment is hereby set aSIde Accused/appellant is acquitted of the charge levelled against him Accused/appellant is on bail His bail bonds stand discharged. Pritinker Diwaker Judge i Sd/- ,