•^ -.'^ y CF0000057724 ^ ^ll ;11 '"^^^^' IN TKE HIGHCOIRT^OF_N^^XA_PR^S^^^^^g^JM£Stl ss——-.—————— Cr. A. / ^3-' /94, .. tv'^\ ^ J 2^121 ^(' ':^'-";'"r?i"afV»*^ly»}sg»®g$, Radhe ©ondS/@ Mefetar ©ond ^ged about 25/yeara»» R/6 ©rpimPat©Mra^ P.S» Utei ©istrictDurg^ ^^ Versias State of Ma€1iya P3^adesh throBgh P«S»TJtai District Barg» '^ tl.D.^ .^s-^ Convietion 376 (1) IPC ,. APPELLftST ^ ^ ^ tStesponeeat Seiitence 7 Years R I ^ AE>E>EAL_VN©eR_SEeTI©N_^24-9£A-p2S« HIGH COURT OF CHNATHS@ARH AT BILASPUft Singte Bench : Hon'bJ®Mr. Justice Pritinker biwaker Criminai ^Dpeai No. 1025 of 1994 APPELLANT RESPON&ENT Radhe &ond, son of Mehtar @ond Versus The State of McKlhya Pradesh Shri Scmtosh Yadu, counsel for the appellant. Shri Neeraj AAehta, P.L. for the State/respondent. CRIMINAL APPEAL UN&ER SECTtON 374 OF THE CODK OF CRIMINAL PROCEDUftE JUD&MENT (05.07.2010) Present appeal arises out of the impugned judgment and order dated 2.7.1994 possed by Second Additionol Sessions Judge, Durg in Sessions Trial No. 72/1991 whereby convictin9 the accused/appeljant under Section 376(1) of the Indion Pena! Code and sentencing him to undergo rigorous imprisonment for seven yeors. 2. Brief facts of the cose are that on 12.7.1990 F.I.R. (Ex.P-1) was lodged by prosecutrix (PW-1), aged about 30 yeors ajjeging that on that day when she was oll alone in her house, accused/appellant reached there and had asked for fjre. It is atleged thot when she came out from her house, in Verandoh accused/appejlant caught hold of her and despite her resistance, he tried to commit forcibje intercourse with her. It is furt-her alleged that on account of scuffle, her saree cmd blousewere torn at many places and ofter gagglng her mouth, accused/appellant committed forcjble sexual jntercourse with her in a standing posture. (S) ^ f^y. ^ / k— 3. So QS to hold the accused/appejlant guilty, prosecution hds examined as many os 9 witnesses in supporl" of its case. Statement of the accused/appetlant was atso recorded under Section 313 of the Code of Crjrnjnoj Procedure m which he denied the charge levelled against him ond pleaded his jnnocence and false impljcation in the case. Aport' from this, witnesses namely Fekanbd (DW4), Rompyare (DW-2) A Dropatjbai (DW-3) hove also been examined in support- of its case. 4. After heorin9 the par^ies the trjal courl" has convieted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the port-ies and perused the material available on record including judgment impugned. 6. Counsel for the appellont submits thot the appeliant has been falsely impSicated in the cas@. He submits that jt is literally impossible for anyone to commit forcible sexual intercourse in a standing posture. He further submits that the prosecutrix did not make ony effort to come out from the clutches of the accused/appetlant. He aiso submits that Romeshar (PW-3) to whom the prosecutrix Is alleged to have informed about the incident immediately, has not support-ed the prosecution case ond has been declared hostije. He submits thot even the seizure witness Rampyflre (PW-4) has not supporl'ed the prosecution case. Accordlng to him, medJcal report- of the prosecutrlx oiso does not support- the prosecution cose. He has r^ferred the stotements of the defence witnesses namely Fekanbai (DW-1), Rornpyare (DW-2) & Dropotibai (DW-3) ond submits that os there was some dispute between the wife of the appeftant cmd the prosecutrix ^ ^ on account of taking some utensils from one house to onother, report has been iodged. 7. On the other hand, counsel for the State supports the impugned judgment and submits that very prompt report has been lodged by the prosecutrix and the defence has utterty failed to prove as to why the false reporl' hos been lodged. He submits that on the basis of stotement of the prosecutrix, accused/appellant is jjable to be convJcted. 8. I have heard counsel for the parl'ies at Sength and perused the materjal ovailable on record inciuding judgment impugned. 9. Prosecutrjx (PW-!) in her court- stotement has sttrt-ed thot on the dori'e of incident, when she wos atl ojone in her house, the door of her house was open; accused/appetlont came there and had asked for fire. She hc® stated that accused/appellexnt caught hoid her ond tcking aipport' of the walj, in a standjng posture he committed rope on her. She hos furt'her stated that ofter the incident when she came out from her house to take water, she met Romeshar (PW-3) and narroted the entire incident to him. In her cross-examination, she has stated that the appeltant's house is just after one house to her house. She hos stoted thot on the west side of her house there is a passage, which is being used commonly and had she roised cn alarm, some body would have heard it. She has furt-her stated thot she is not sure as to whether the occused/appellant had closed the door or not. She states that as soon as accused/Gippellant had entered her house, he caught hold her and by takm9 suppori- of the WQ|J, in a steinding posture, he committed rape on her. ^; 1 ^'^- f €.^ i%m& 1 ^' ter^'" ^ •-/• Romhu (PW-2)- husband of the prosecutrix has stated thot normolly he jeaves his house ecrfy in the morning and he used to return Jn the night. He hasstated that on the date of jncident also, he jeft his house around 3-4 am and when 9-10 am he came bock his wife had informed Nm thot accused/appellont came to her house cnd thereQfter, had left the house and then famiJy members of the accused/appetjant come there who were having ctubs m there hond. He has stated that he is not awcre as to whether the accused/appellant came to his house with cm intention to assautt or not, thereafter, this witness has stated that his wife had informed him that the accused/appeljant came to her house and committed rap on her. He has further stoted that prosecutrix has not suffered any injury nor she has informed him that her saree and blouse were torn at many places. Rameshar (PW-3) to whom the prosecutrix is alleged to hove Jnformed, has been declaped hostije. Dr. I.K. Badhawani (PW-5) who had exowlned the accused/appellcmt and has given hls medical report Ex.P-7 has stated that he woos copabte of performing sexual intercourse. Manrakhon (PW-6)— Seizur®witness has not supported the prosecution case and has been declored hostjle, AA.L.Patel (PW- 7) - Investigating Officer hos support-ed the prosecution case. B.S. Thakur (PW-8) has done the parl' of JnvestjgQtion. Dr. Vandflna Gupta (PW-9) - who had medicajly exomined the prosecutrix ond hois gjven her report- Ex.P-9 has stated that she found no injury whatsoever on the extemal or jnternal parl' of the prosecutrix. She has stated thot no definite opinjon can be given about the rape. ^ ^ Fekanbai (DW-1) has stoted thcrt there was some dispute between the prosecutrix ond wife of the occused/appellant on account of taking some utensjts in which accused/appetlcnt was also involved. SJmiiar statement ho®been made by Dropti Bai (DW-3) - wife of the accused/appellant. Rcimpyare (DW-2)- village kotwar has stated thot jf any mcident takes plaee m the village, report- is being lodged to him but in the present case he wos never informed about the incident of rape. 10. AAinute examinotion of the witnesses in part-icular the statement of the prosecutrix creates doubt in the mind of this Court, prosecutrix admits thot had she raised alcrm it could have been heard by someone. She has further stated that incident had taken place in the Vorandha (open place) and here also the stdtement of the prosecutrix become doubtful. Furt'hermore, prosecutrix hos stated that she was subjected to forcible sexual intercourse in a standing posture, this also creotes doubt. This apart, Ramhu (PW-2) - husbond of the prosecutrix has stated thort" prosecutrix had informed him that the accused/appetlant came to her house and therecifter, his family members ajso come there having clubs in their hond. Rameshar (PW-3) to whom the prosecutrix is alleged to hove informed the incjdent, has been dectared hostile likewise seizure witnesses have also not supported the prosecution co.se cmd, therefore, possibility of false JmpliCQtion of the accused/appellant connot be ruled out. In fact the entire statement of the prosecutrix does not inspire full confidence of this Court- ond in these circumstances the appetiant is entitled for benefit of doubt. 11. Consequentiy, the appeaj is allowed. Impugned judgment dated 2.7.1994 is hereby set asid®.Appellant is acquitted of the chorge levejled against him. He is on bajj, his baij bonds stand disehorged. | Sd/- Pritinker Diwaker Judge