HIGH COURT OF CHHATTISGARH BILASPUR » ’ unil Kumar Sinha J. CriminalAgpeal No. 895 of 2005 v r Farsuram Vs. State of Chhattisgarh JUDGMENT Post for Judgment: 16/1 /) Sdl— Sunil Kumar Sinha Judge 1/2009 Sinqle Bench? Honble Shri S 4E@ HIGH COURT OF CHHATTISGARH, BILASPUR Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J. Criminal Aggeal No. 895 of 2005 APPELLANT I Farsuram S/o Laxman Gond, aged 19 years, R/o Mulmula Lemdi, Platpara, P.S. Kondagaon, District Bastar (C.G.) Versus REsPONDENT State of Chhattisgarh through P.s. Konda'gaon, District Bastar (C.G.) (Criminal Aggeal under Section 374 of the Code of Criminal Procedure) Agpearance: Mr. Vivek Shrivastava, Advocate for the appellant. Mr. Ajay Dwivedi, Dy. Govt. Advocate, for the State. JUDGMENT (16.11.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha J. ——__L_ (1) Appellant Farsuram stands convicted u/s 376 IPC and sentenced to undergo R.l. for 7 years and to pay fine of Rs.500/— with default sentence of R.l. for 3 months, by the Second Additional Sessions Judge, Bastar at Jagdalpur on 28m of November, 2005 in Sessions Trial No. 121/2005. (2) The facts, briefly stated, are as under:— Prosecutrix (PW-1) was a married lady aged about 20 years. On 2.2.2005 at about 3.00 p.m., when she was returning from village Dongriguda to village Saatgaon, appellant Farsuram met her on the way near village Satll. The allegations are that he put her in fear and took her to a nearby field and committed sexual intercourse against her. The case of the prosecution is that after the intercourse, the prosecutrix ran away to one Pankuram, who was working in a nearby field, and narrated the story tohim. Thereafter she narrated the story to her husband Jungaram (PW-2) JV, - \\ \ 2 @ Criminal Appeal No. 895 of 2005 and then, a First Information Report (EX.-P/4) was lodged by the ‘ prosecutrix in the concerned police station at about 22.00 hours on 7.2.2005. (3) The Iearned‘Sessions Judge recorded the conviction of the appellant on the'soieatestimony of the prosecutrix hoiding that she was subjected to forcibie intercourse by the appellant. (4) Mr. Vivek Shrivastava, learned counsel appearing on behalf of the appellant, argued that the version of the prosecutrix cannot inspire the confidence ‘of the Court as a possibility of her being a consenting party cannot be fully ruled out in this case. He also argued that there is s a inordinate delay in‘Iodging the F.I.R; and no reasonable explanation has been offered for the same. He further argued that the main supporting witness of the prosecution would have been Pankuram but he has not been examined at the trial. (5) On the other hand, Mr. Ajay Dwivedi, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. ‘ (6) l have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) The prosecutrix, PW—1, deposed that she was going on the road, when Farsuram came from the back side and caught her saree and thereafter took her to a nearby field and got her to lie on the ground. Thereafter he showed her a knife and committed sexual intercourse for 2- 3 times. After the sexual intercourse, she went to a person who was working in a nearby field. He was Pankuram. She narrated the story to him. Some persons chased the appellant but he ran away in the forest. 3 Criminal Appeal No. 895 of 2005 Then she went to her house and narrated the story to her husband Jungaram (PW-2). They were searching Farsuram for a week and thereafter a report was lodged in police station, Kondagaon. in the cross examination, she deposed that eariier she was not knowing the accused. Her husband told that the boy who committed intercourse against her was Farsu. However, her husband had not seen the accused committing sexual intercourse against her. In fact, her husband made an inquiry and thereafter a report was lodged against the accused. She categorically admittedfvide Para-6 of her cross-examination that she had not told the name of the appellant/accused to anybody prior to lodging of the F.I.R. She furthér admitted that her husband and father-in—law had gone to the police station to lodge the report and they had also taken accused Farsu to the police station. About the delay, she deposed that since they were inquiring and searching the accused, therefore, the time was consumed and there was delayuin lodging the report. She further deposed that one person was working in a nearby field and two other persons were grazing their cattle and they had chased the accused. She very categorically admitted in Para-12 of her cross-examination that the appellant/accused ' committed sexual intercourse for 3 times which has consumed about half an hour and during the said consecutive sexual intercourses she was not kept tied by the appellant/accused. (8) Jungaram (PW-2), husband of the prosecutrix, deposed that “His wife was subjected to sexual intercourse by the appellant. The incident vvas stated to him by Pankuram and also by his wife when she returned to the house”. ln the cross-examination Para—8, he categorically admitted that “lt is true that his wife told him that Pankuram had seen the appellant committing sexual intercourse against her”. In appreciation, the version @> Criminal Appeal N0. 895 0f2005 of the prosecutrix regarding commission of rape against her does not inspire confidence of the Court. Why the prosecutrix accompanied the appeilant from the road to a nearby field ? It is not a case in which either she was dragged or was taken by holding her. Why the prosecutrix Iaid down herself on the field ? Though she deposed that she was shown a knife in the field but we do not find any such story in the F.l.R. The most alarming fact is that the prosecutrix allowed the appellant to commit sexual intercourse for 3 times. She'was free after first intercourse but she did ngtfrun away and made her a party to the second and third intercourse. ‘The prosecutrix deposed that she made complaint to Pankuram but it appears from the evidence of her husband that, in fact, she narrated her husband that Pankuram had seen the appellant/accused committing sexual intercourse against her. lt also comes in the evidence of her husband that Pankuram had told this story to him and then, the prosecutrix also told the same story. This makes clear that, in fact, Pankuram saw the prosecutrix in compromising position with the appellant in the field and he disclosed this fact to the husband of the prosecutrix and then only the story of forcible intercourse was brought into motion. (9) Pankuram has not been examined by the prosecution, otherwise, the story would have been clear. However on the basis of above evidence available on record, it does not appear that present was a case of forcible intercourse, and possibility of the prosecutrix being a consenting party cannot be fully ruled out in this case. (10) Dr. Rajni Thakur (PW-4), who examined the prosecutrix on 8.2.2005, deposed that there were no external injuries on the body of the prosecutrix. On internal examination also, she did not find any internal 5 @) Criminal Appeal No. 895 of2005 injury. The hymen was old ruptured. Vagina was admitting two fingers easily. Uterus was developed. According to this witness, she was habitual to sexual intercourse and there were no sign of struggie at all. This further negatives the contention of the prosecutrix regarding forcible sexual intercourse in a field 'for 3 times. (11) Apart from the above, we find that the F.l.R. is delayed by 6 days. The explanation given in column-8 of the F.l.R. is that it was on account of non—availability of the male members of the house. Such‘explanation offered byfthe prosecutrix in the F.l.R. is apparently false as according to the prosecution. she narrated the story to her husband on the same day £ evening. This is an additional ground to falsify the testimony of the prosecutrix. ;n (12) For the foregoing reasons. the learned Sessions Judge completely erred in law while recording the conviction of the appellant on the sole testimony of the prosecutrix (PW-1) which does not inspire confidence and does not appear to be natural and truthful. Therefore, conviction and sentence awarded to the appellant has to be set~aside. (13) ln the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set—aside. The appellant is acquitted of the charges framed against him. it is stated that the appellant is continuously in jail since 9.2.2005 till date. He be set at liberty, forthwith, if not required é in any other case. n Sdl- 1\l i i Sunil Kumar Sinha l Judge l vatti ‘ r, ‘