^ I -f'y ^ CFooobbssb'^ ^^ &nit fCrMnal^ IN THE HIGH COURT OF &3AQHYA PBADESH AT JABALPUR, CBIMINAL APPEAL N0,^ ^^: t OF * 94. ^BMy c2j<<^- . ' ^ -•>-^ ^ 'u'''^.<£Ss,.^ —--"""z""' 4r^ •%} w ^.--^^ t^^< ^ft^"< Tarachand son of Nathu /, Jaiswal, aged about 32 years', resident of Ptrda, Police . Station Malkharoda^ District Bilaspur, M.P. / <.. APPELLANT. lL_g.Bs u s , The S tate of Madhya Pradesh, through S'fcation House Officer, jpolice Station Malfcharoda, District Bilaspur, M,P. .,_. .. .!K>N-APPLICAm'. o') C3RI1|INAL,APPEAL_ U )ER SfiCTION 374 OF THE CODE :^ fa^^^J&s.-c^ OF C&IMISAL PHOCEDUBE^ / A^.^^^^^^^^^__ ^ ^ rz":"." s-^—^_ ^.': HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 208 of 1994 APPELLANT RESPONDENT VERSUS Tarachand State of Madhya Pradesh Shri AfrojKhan, counsel for the appellant. Shri Ravindra Agrawal PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OFTHE COnE OF CRIMINAL PROCEDURE. JUDGMENT (14.06.2010) This appeal is directed against the judgment and order dated 05.02.1994 passed by Additional Sessions Judge, Sakti District Bilaspur in Sessions Trial No. 291/1991 convicting the accused/appellant for the offence punishable under Section 376 (1) IPC and sentencing him to undergo rigorous imprisonment for seven years with fine of Rs. 5000, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Case of the prosecution in brief is that on 30.05.1991 FIR Ex. P-6 was lodged by the prosecutrix (PW-5) aged about 19 years alleging that on 28.05.1991 at about 8 a.m. when she was all alone in the house and feeding her child in the court yard, the accused/appellant came there, forcibly took her into the room, gagged her mouth and after removing her Sari and underwear committed forcible sexual intercourse with her. Further case of the. prQsecyt.iqn. js that after commissjon of the offence when the accused/appellant was trying to go out, her husband came there to whom the entire incident was narrated by her. 3. So as to hold the accused/appellant guilty, prosecution has examined 09 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. This apart, one —^— Khemlal (DW-1) has also been examined by the defence in support of its case. •ft. ^ ^ 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that present appears to be a case of consent where unfortunately as the husband of the prosecutrix had seen his wife and the present appellant together, false report came to be lodged by her. In addition to this, counsel for the appellant submits that there is unexplained inordinate delay in lodging the FIR as the incident had takenplace on 28.5.91 whereas the report was lodged by the prosecutrix on 30.5.1991. According to the counsel for the appellant, medical report of the prosecutrix also does not support the case of the prosecution. He submits that even mother-in-law of the prosecutrix namely Lakhni Bai (PW-2) has admitted that there was some dispute between the two families and being so possibility of false implication of the accused/appellant in the case in hand cannot be ruled out. 7. Counsel for the respondent/State supporting the judgment impugned submits that the delay in lodging the FIR has properly been explained by the prosecution that as mother-in-law and father-in-law of the prosecutrix were not at home, the report could not be lodged with promptitude. As regards consent, State counsel submits that there is no evidence brought forth by the defence to this effect and therefore the same would not be of any help to the accused/appellant. He further submits that as at the relevant time the prosecutrixwas a married lady, negativity in the medical report will not haveany bearing on the case ofthe prosecution. 8. Prosecutrix (PW-5) has stated in her evidence that at the relevant time shewasresiding with her husband and her in-laws were residing at Raigarh. According to her, on the date of incident her husband had gone to the school and when she was feeding her child in her courtyard, accused/appellant came there, forcibly took her to a room and when she ^s. 1 ~^ • ^% ^y e -s- raised the cries, he gagged her mouth with a piece of cloth and then he made her lie on the ground and after removing her as well as his own undergarments committed sexual intercourse with her. This witness has further stated that when shewas sitting weeping, her husband reached there to whom she had narrated the incident on which he had gone to scold the accused/appellant. She has further stated that while her husband was coming from the school, he met the accused/appellant on the way after he was going from her house. Thereafter, the prosecutrix called her in-laws from Raigarh and after their arrival on the next day she described the incident to them and then the report (Ex. P-6) was lodged. In cross examination, this witness has admitted that the people of the neighbourhood used to pass by near her house and that in front of her house a betel shop and house ofthe Kotwarwere also situated. According to her, adjacent to her courtyard there was a closet in which her aunt used to reside. According to this witness, when she tried to raise her voice, accused/appellant inserted a pieceof cloth in her mouth and threw her child on the ground. She has stated that while being taken to the room by the accused/appellant, she had protested his act by scuffling with him as a result ofwhich her bangles had got broken and she had sustained injuries on her hand and back. Visheshar (PW-6) - husband ofthe prosecutrix has stated in his evidence that when he had come back to his house, he saw the accused/appellant coming out of his house tightening his underwear. On being asked by this witness, the accused/appellant told him that he had come to his house with a demand of Rs. 5. After he entered the room, his wife narrated the incident of rape on her. When this witness asked the accused/appellant as to why he had ravished his wife, he started abusing him. Thereafter, he went to Raigarh to call his parents and after their arrivalon the next day the report was lodged. This witness has stated that in the Panchayat meeting convened in the village, two persons present there had branded the accused/appellant as scoundrel. Lakhni Bai (PW-2) - mother-in-law of the prosecutrix has stated in her evidence that at the relevant timeshe was residing at Raigarh where her son had come and informed her that the prosecutrix was subjected to rape by the accused/appellant. In the cross examination, this witness has stated that there was some dispute between the two families on account of injuries ^^-^^ />• /••„ . "^ ^i^^ l^ilfe ^^^{' ^ ^s^- -^- caused to the he-buffalo belonging to her. Dr. Umakant Tiwari (PW-4) who had medically examined the accused/appellant has stated in his evidence that he was capable of performing sexual intercourse. Dr. (Smt.) U.J. Alen (PW-9) who had medically examined the prosecutrix hasstated in her evidence that she had not noticed any internal or external injury on the body of the prosecutrix and as she was habitual to sexual intercourse, no opinion regarding rape on her could be given. 9. Thus in totality of the facts and circumstances of the case as well as the evidence of the witnesses particularly that of the prosecutrix, this Court finds it difficult to uphold the findings recorded by the Court below convicting and sentencing the accused/appellant as mentioned above. In the absence of anything substantial against the accused/appellant by any of the witnesses examined by the prosecution, benefit of doubt becomes a necessity in favour of the accused/appellant. Accordingly, the appeal is allowed. Findings of-the'Court^belowconvicting and sentencing the accused/appellant as mentioned above are set - aside. Accused/appellant is acquitted ofthe charge levelled against him. Appellant is already on bail. His bail bonds stand discharged. 10. Appeal is thus allowed. Sd/- Pritinker Diwaker Judge