ipmt—sy' CF0000057325 jiiXiic SfSiiQ} '!,i'!:';!i;Eil's 's'" •----•—" ^ ....... —^ IN THK HIQH OOURT OP MAOHYA PBADESH AT JABALPUR Criminal Appeal 8o.Jl^__pf t<A ^, 1 ^ -I •^Q^y:^ f-a V61.V .MdvocaE:& APPELLANT (in Jall) RBSPONDENTS DevlaF son of Chuhuram, aged 30 years, resident of Thuthi Anba, Police Station Kunlcurl, DISTBICT BAIGARH. VERSUS State of Madhya Pradesh through the Station House Offlcer, Pollcs Station Kunkuri, DISTRICT RAIGARH. . R. lo D. 8. -lc-\ APPEAjL^UNBjR SECTIgN 374^2^CBmjtNAL_PROCgDURE^COre^ ,-<' A ^ -' HiGH COURT OF CHHATTiSGARH AT BiLASPUi Devial State of Madhya Pradesh Shri B. D. Guru counsel Shri Neeraj Mehta PL for appel! lt/1 This appeat is directed against the judgment and order date. ISC Trial No. 138/93 convicting the accused/appelfant for the offence piinishable under Section 376 fPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in defauit of payment of fine to further undergo rigorous imprisonment for three monfhs. 2. Case of the prosecution in brief is that on 06.01.1993 FiR Ex. P-S was lodged by the prosecutrix (PW-7) a married iady aged about 25 yesrs alleging that on 02.01.1993 her husband was not at home and she was there along with her daughter, at about 2 afternoon the accused/appel!cnt came there and made an enquiry about her husband, she had informed him that her husband had gone to Jashpur. Hovi/ever, at about 8 p.m, the accused/appellant again came to her house and made an enquiry about the arriva! of her husband and she again informed him that her husband had not returned and after drinking a glass of water he had left her house. She has further stated that af about 10 p.m. when she was sieeping, the acoussd/appellant entered the house by opening door, swiiched off the light, gagged her mouth, threw her on the cot and committed forcible sexuai intercourse with her. The prosecutrix has also stated that immediately after the incldent she informed about the incident to her sister- ^ .^ "'.;' I/ — 9 - in-iaw Shantl Bai (PW-8) and when her husband came on 05.01.1993 she narrated the incident to him also. 3. So as to hoid the accused/appeilant guilty, prosecution examined 10 witnesses in support appellant was also recorded lis innocence and false impiication its case. Statement of t section 313 of fhe Code charge teveiled against him the case. nas accused' Criminai td pieaded 4. hearing the parties the trlai Court has convicted ar as mentioned above. sncec 5. Heard counsei for the parties and perused the material avaiiabie on record including the judgment impugned. 6. Counsel for the appellant submits thaf present appears to be a case of consent. Admittedly the room of the prosecutrix was boEted froir inside and there is no evidence as to how the appeliant entered the sarne. Ke submits that as per the medical report, the prosecutrix was carrying pregnancy of more than six months whereas no such statement has been made by the prosecutrix. He further submits that the prosecutrix has categorically stated that she demanded Rs. 3,000 from the appellant and wiien the same was not given to her the report was lodged. Lastly it has be'en argued that the statement of the prosecutrix has not been fu!!y stipported by her husband and their statements are conflicting. 7. On the other hand supporting ihe impugned judgment it has besn argued by the State counsei that there was no occasion for the prosecutrix to falsely implicate the appeilant and it is not a case of the accused that as he was seen by someone in the company of prosecutrlx, the report was lodged. He however admits that there is some delay in lodging the FiR but the same has been duly explained by the prosecutrix stating that as her husband was not in the viilage, the report could not be lodged promptiy. Prosecutrix (PW-7) in her Court statement has stated her husband was not in the viiiage and hai Jashpur. She has stated that when she was in her house aion daughter aged about four years, at about 12 in thi li ^!^ gone to g with her noon tn^ 1 1 /'] <„-.- accused/oppeilant came to her house and toid her that he was searchins a case of sterilization and after staying for few minufes he went out. Howevsr at about 8 p.m. he again came to her house anc enquired abouf he; husband, she had informed that her husband had gone to Jashpur and thsreafter taking water the appeiiant v/ent to her father-in-iaw's house Siie has stated that when she was sieeping after bofting the door, at about 10 p.m. the accused/appeilant again came to her house, opened the doo.r, sv/itehed off the light, caught hold her ieg and when she shouted her mouth was gagged by him. She has further stated thai: the accused/'appellant asked her to keep quiet and after threatening her he cEiught hold her hand, threw her on the cot, upturned her Shari anc ccimmitted forcible sexuai intercourse with her; She has stated that at the tirne of eommission of offence she did raise her voice but nobody came tc rescue her. Accused/appefiant after committlng offence fled away frorr, tne spot and thereafter she nsrrated the entire incident to her sister-in-iaw (Manad) Shanfi Bai (PVtf-8). The prosecutrix has further stated that the incident took place on Saturday but when her husband came back on Monday she informed him about the entire incident thereaftsr the rsport was lodged vide Ex. P-8 and then she was sent for medical examination by the police and her petty-coat was also seized. in ner cross-e the incident, on She has further the Sarpanch and xamination the prosecutrix has ststed that aioiig wlth ie Sunder Ram also came to her house and arier a Panchayat meeting was called in the vulage that her husband had made an application before Ihe said Panchayat meeting the statement of the ded. She has further stated that in the Panchavar appeiiant was meeting she had not disclosed af! the facts including the fact o; commission of rape and upon Insistence of vHlagers she had demandec :S. J,( iHVIIU it-at^^ th( as he has not committed any mistake he would not pay any thereafter she lodged the report. In cross-examination the has further stated that before the incident a report was iodged husband against her father on account of which her father was From the statement of the prosecutrix it is ciear that there are /•' ;'-" -K% ».. ,: -4- msteria! contradictions and omissions in her statement. Shanti Bai (PVV-8) - Eiister-in-law of prosecutrix has stated that on the date of incident prosecutrix had informed her that she was insulted by accused/appeiiant and thereafter she had slept in her house. Lajhru Ram (PW-9) - the husband of prosecutrix has stated that on 05.01.1993 when he returned to his house, his wife had narrated him about the incident of rape ar.d thereafter the report was lodged. In his cross-examination this witness has denied the fact that any Panchayat meeting was called in the viltage and he ever made any appiication to the Sarpanch. He has rurther denied the fact that in the Panchayat meeting statements of accused/appeilant and prosecutrix were recorded. 10. Minute examination of these three witnesses creates a doubt in the mind of this Court as to whether on 02.01.1993 the prosecutrlx vvas subjected to rape by the accused/appellant against her wish, the prosecutrix has stated fhat she was sleeping in the house after bolting the door from inside and on the other hand she has stated that the accused/appellanf entered her house arter opening the door. She hs.s stated that on the application of her husband, a Panchayat meeting was cailed in which she made a demand of Rs. 3,000 and when the same wss not given to her the report was lodged. However this fact has been compietely denied by her husband. According to her husband (PW-9), no Panchayat meeting was ever called on his application. Further accordin$ to the prosecutrix the incident took piace on Saturday and the report wss lodged on Monday whereas the record shows that the incident took place on 02.01.1993 and the report was lodged on 06.01.1993, fhis deiay in lodging F!R has not been explained satisfactorily by the prosecution. Dr. (Srnt.) Lata Goyal (PVi/-3) who had medicaily examined the prosecutrix has stated that she was carrylng pregnancy of 6%-7 rnonths v/hereas in her deposition neither the prosecutrix nor her husband have stated fhat she was pregnant. The oyer alt conclusion of this Court is that the prosecution has failed to prove its case beyond all the reasonable doubts. The statements of prosecutrlx and related witnesses do not inspire the confidence of this Court and it wil! not be safe for this Court to convict the accused/appellant on that basis, /•^' K. Ihi; -A~- !n view of above, appea! is allowed. appeal is set aside. Accused/appel ied against him. He is reportedly on bail Ischarged. The fine amount if to him. Judgment under chailenge in is acquitted of the charge I. Baii bonds executed by him by the appellant be Judge