CFD000059791 THE HIGH COURTF“JUDITRE OCAU AT JABALPUR 5m CriminaL Appeal 510511 s _/1996 F (g aw HA Govimi s/O Bahéor sinh Gond, aged 31 years, R/O village ‘Sambalpur P so Arjun.., Teho/ Dharn+arl, Distt. Ralpura i 15L I > APPEALLANT :\ M M V VERS US RE S PONT)? NT ' $ n< The state of MaPa thrp’ugh, / P.so Arjum’. , Raipur. APPEAL UNDER SFCTIDJV 374 OF CRgP Ca B eing aagrlved by thc Ju/dgment and conVlctlOn dta 27 11 96 passed by Learned Additional session Judge, Dhcmtarl, Dlsstte Ralpur 1n ssion Trial Non 385/96/ C ONVICTION SENTENCE; U/s 376 of LP.C° Seven years R.I¢ and fine of '; ’sa 7,00/—in (iemmlt of £ine 6 monyhs Rola g1 l N w m L rt g x Se R " HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 2211/1 996 APPELLANT ‘ Govind Versus RESPONDENT State of Madhya Pradesh Shri Sunil Sahu, counsel for the appellant. Shri Pravin Das, Dy. G.A. for the State. C IMINAL APPEAL UN6ER SECTION 374 1 OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (16.03.2011) This appeal is directed against the judgment and order dated 27.11.1996 pas'sed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 385/1996 convicting the accused/appellant for the offence punishable under Section 376 l.P.C. and sentencing him to undergo rigorous imprisonment for seven years with fine of Rs.700/- in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Facts of the case in brief are that on 15.7.1996 FIR Ex. P-7 was lodged by the prosecutrix PW-1 — a married lady aged about 45 years at the relevant time alleging that on 14.7.1996 at about 11 p.m. when she was in her house, accused/appellant entered therein and after bolting the door from inside committed forcible sexual intercourse with her. lt is alleged that whiie the accused/appellant was committing sexual intercourse with her, her son Rekhram PW—2 reached there and there was some scuffle between him and the accused/appellant. Based on this FIR, offence under section 376 IPC was registered against the accused/appellant. Prosecutrix was sent for medical examination on the same day vide Ex. P—2 and after completion of investigation challan was filed by the police. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 08 witnesses in support of its case. Statement of the accused/appellant was also recorded under Sectidn 313 of the Code of Criminal Procedure in which he denied the charges levelled 6? q,- ”1" against him and pleaded his innocence and false implication in the e ce. as 4. After hearing the parties the trlal Coun has conwcted and sentenced the accused/appeltant as mentioned above 5.’ Counsel for the appellant submits that present appears t0 be a case of consent where unfortunately as the prosecutrlx and the accused/appellant were seen by her son Rekhram (PW 2) In an objectionable condition there was no other option for the prosecutrlx bututo lodge the report As regards Injuries sustamed by the prosecutnx there ls no mentlon of the same In the FIR or the statement recorded under Section 161 of the Code of Criminal 1 Procedure. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that a very prompt report has been lodged by the prosecutrix and that the medical report Ex. P-2 also shows that she had sustained two injuries —abrasion in the elbow and contusion on the lip, which supports the statement of the prosecutrix. 7. Prosecutrix (PW-1) has initially stated in her evidence that she did not know the accused/appellant but thereafter she has stated that she knew him but she did not know as to where he was residing. According to her, on the date of incident at about 81g p.m. when she was all alone in her house as her husband had gone for work and her children had gone to watch video, accused/appellant entered her house, caught hold of her arm and committed forcible sexual intercourse with her by gagging her mouth due to which she could not raise alarm She has stated that when she was being subjected to sexual intercourse by the accused/appellant her son Rekhram (PW 2) reached there and after seeing him the accused/appellant ran away from the spot. Thereafter, according to this witness, her other son Santram also reached there. She then narrated the entire incident to her husband, matter was reported to the police and she was sent for medical examination. According to her, she had “ sustained injuries on her elbow, back and lips. In cross examination, this witness has stated that after the incident there was some scuffle between the accused/appeiiant and her son. She has stated that though the accusedlappeliant used to visit her house, she did not have any relations with him prior to the date of incident. According to this witness, her house is adjacent to the road where people used to pass by till midnight. She has stated that if someone raised voice frOm her house, same couid be heard from the road. According to her, she was subjected to forcible sexual intercourse in verandah of the‘h‘ouse and after entering her house, the accused/appeilant had bolted the door from inside and the lamp was lit. According to her, earlier the accused/appellant had also lodged a report against her son which was s‘till pending. Rekhram (PW-2) has stated in her evidencelithat on the date of incident when he entered his house, he saw the accused/appellant mounting on his mother and then he pushed him aside. There after some quarrel was there between him and the accused/appellant as a result of which he sustained some injury and so also his mother. He has admitted the fact that the report was lodged by the accused/appellant against him. He has further admitted that when he entered his house, the lamp was lit and that his house was adjacent to the road and the voice raised from his house could be heard by the passers by. Narayan (PW-3) is a witness to seizure of undenlvear of the accusedlappellant made under Ex. P—1. Dr. (Smt.) S. Singhal (PW-4) who had medically examined the prosecutrix and given her report Ex. P-2 has stated that she had noticed two injuries on her body i.e. abrasion on right elbow and contusion on her upper lip. This witness however has not stated anything about rape on the prosecutrix. Santram (PW-5) — . another son of the prosecutrix has stated that on’the date of incident when he reached his house, he saw the accused/appellant committing rape with his mother. According to him, the incident was also seen by his brother whereas he initially stated that his brother came there subsequently. Hariram (PW-6) is the Patwari Who had prepared the spot map. Dr. Anil Kumar Rawat (PW-7) who had @ -9, prepared the spot map. Dr. Anil Kumar Rawat (PW-7) who had medically examined the accused/appellant has stated in his evidence that one incised wound on right side of his neck and scratch mark on the Ieft shoulder was present and that he was capable of performlng sexual Intercourse B S Ojha (PW 8) is the Investigating officer who has supported the case of the prosecution 8. Minute examination of the evidence available on record goes to show that the prosecutrix was a consenting party to the act of the accused/appellant but as’she and the accused/appellant were seen in ‘an objectionable condition by her son Rekhram (PW-2) the report came to be Iodged by her. So far as the evidence of her two sons is concerned, same appears to be very much inconsistent. Evidence availabie on record also reflects that there was some dispute between the accused/appellant and her son, aparUrom the consent possibility of false implication can also not be ruled out. The story put forth by the prosecutrix appears to be too improbable to inspire confidence of this Court and that being so the appellant is entitled for acquittal. 9. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Appellant is acquitted of the charge levelled against him. Sd/— "‘ Pritinker Diwaker Judge 'é'A