Bed Ram HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1251 of 1994 APPELLANT ‘ VERSUS RESPONDENT State of Madhya Pradesh Shri Ravi Bhagat courisei for the appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2! OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (21062010) This appeal ls directed egamst the mdgment and order dated 29 9 1994 passed by Additional Sessnons JLdge Bllaspur In Sessrons Trial No. 304/1993 conVIctIng the accused/appellawt 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 1O 3 1993 FIR (EX P 5) Was lodged by the prosecutrix (PW 3) — a married woman aged about 18 years, alleging that on 9.9.1993 when she was all alone in her house, accus‘edi'appellant came there and committed forcible sexual intercourse with her. 3. So as to hold the accused/appellant guilty, prosecution has examined 06 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 he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. V After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned abov 5. Heard counsel for the parties and perused the‘matei’ial available on ecord including the judgment impugned. 6. Counsel for the appellant submits that it is a case of falseimplication where'as the pros‘ecutrix and the appellant were seen by her husband together, the report came to be lodged by her. He submits that statement \ .. *3 s e. r -2_ of the prosecutrix and her husband Santosh (PW-2) are contradictory to each other and that they are not even sure as to when the FIR was lodged. 7. On the other hand counsel for the respondent/State supportsithe judgment impilgned and submits that the same being based on the materiai availabie on record does not call for any interference in this appeal. 8. Prosecutrix (PW-3) has stated in her evidence that on the date of incident at about 11 a.m. when she was all alone in her house as her husband had gone to the market, accused/appellant came there and after gagging her mouth committed forcible sexual intercourse with her on the point of knife. According to her, after entering the room, the accused had bolted the door from inside. She has stated that when her husband came back, the accused/appellant had opened the door but on seeing him carrying knife in his hand he” ran away. Subsequently, the accused/appellant also left the spot. Thereafter, her husband called his father and then the report was lodged on the second day. According to this witness,‘th’e room where the incident took place is adjacent to her shop being run by her father-in—law and that on the date of incident the accused/appellant remained there for two hours and after commission of the offence when her husband came back, the door was opened by the accused/appellant himself but her husband seeing the knife in his hand, ran away. ln cross examination, this witness has admitted that between her house and the shop there existed only a wall and the conversation made at either of the places is audible. She has stated that the accused/appellant used to visit her frequently. In paragraph 15 of her statement she has stated that on the date of incident she had spent the entire night in the kitchen garden and returned home on the second day when her husband had gone in search of her. Santosh (PW-2) — the husband of the prosecutrix has stated that on the date of incident when he reached his house, he saw one bicycle parked outside and he heard the \ioice “save me, save me" and about 15-20 minutes thereafter the door was opened by the accused/appellant who was carrying knife in his hand. He has also stated that seeing the appellant carrying knife he left the place. Sonia (PW—1) — the sister of the prosecutrix has stated that the prosecutrix had informed her abdut the incident but thereafter she has been declared hostile. Dr. S.K. Nigam (PW-5) who had medically examined the accused/appellant has stated in his evidence that he was capable of having sex. Dr. Maya Dubey (PW-5) who had mediqally examined the fjrosecutrix has stated that no injury was notiCed on her body and that she was habitual of having sex. 9. Having thus gone through the evidence of the prosecutrix and that of other witnesses, the case in hand manifestly appears to be of consent, and as the accused/appellant was seen by her husband inside the house in her company, possibility of his being roped in a false case cannot be ruled out. ) The Court below has failed in appreciating the evidence of the witnesses in i its proper perspective and that being so the judgment impugned convicting and sentencing the accused/appellant is liable to be set aside. In the result, the appeal is allowed. Impugned judgment dated 29.9.1994 is hereby set aside. Appellant is acquitted of the charge levelled against him. As he is already‘on bail, bail bonds furnished by him stand discharged; -3... 10. l ear- ‘1 Pritinker Diwaker Judge l‘gw