/\ IN THE HIGH COURT OF JUDICATURE AT JABALPUR(MP) \a Jewia (\Wimir‘”? ’ Crmiual Aggeal No. éga J‘é' ¢ ‘ APPLLANT. (IN JAIL) Sohan Bargaba S/o. Mahar Barga y". ged 20 years R/o. Vlli-Kot, Baspara¢ PS-Sluapur Dlstt- aruja, MP. -Ver SUS " State of M.P. throtz PS—Sitapur Dstt— 3arguja, MP. n . 5 RESPONDENT o HleJ an kag g Y y 5m . éc/ L 1 :5 MN AJVWEt‘Q ' COICTION NV A u/s. 376(1) Ipc CRIrJImAL‘AQPEAL U/s. 374(2) OF THE CODE OF CRIMINAL PROCEDURE-193. SENTENCE . RI £01: '7 yeans. SENTENCE ALREADY UNDERGONE TO BE AUSTED m4 0. . ‘ -' E 3 é h a Sg X i M RE} 7 DJ. @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hpn. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 640 of 1997 Sohan Bargah VERSUS APPELLANT 1h Jail " State of M.P. RESPONDENT CRIMINAL APPEAL UNDER SECTION 374 12! OF THE CODE OF CRIMINAL PROCEDURE Present: ShJ'i Shakti Raj Sinha, counse! forthe appenant. Shrj Vivek Sharma, PL for the respondent/State. JUDGMENT (17.06.2011) This appea! is directed against the impugned judgment and order dated 26.02.1997 passed by the Special Judge, Ambikapur in Special Criminal Case No.148/1 994 convicting the accused/appellant under Section 376(1) of IPC sentencing him to Undergo R.l. for 7 years. “K 2. Brief facts of the case are that on 21 .10.1994, F.i.R. (EXP-8) was lodged by the prosecutrix (PW-5), a major married lady alleging in it that on 19.10.1994 when she had gone to take bath near the canal, the accused/appellant reached there, caught hold of her hand, took her to some distance and after throwing her on the field, upturned her ‘sadi’ and petticoat and after removing his underwear, committed forceful sexual intercourse with her. She has further stated that on the second day, she narrated the entire incident to her mother and thereafter, the report Ex.P-8 was lodged. Based on this F.I.R, offences under Section 376 of IPC and 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were registered against the accused/appellant. After investigation, challan was filed on 05.12.1994 under Section 376 of 0i CW? IPC and 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. So as to prove the guilt of the accused/appellant, prosecution has examined 7 witnesses, whereas one defence witness namely Bandhanu Das has been examined by the accused/appeiiant. Statement of the accused/app’eilant was also recorded under Section 313 of the Code of Criminal Procedure In which he denied the charges levelled against him and pleaded innocence in the case 4. After hearing the parties, learned trial Court has convicted and sentenced the accused/appellant as mentioned in para-1. 5.‘ Contention of learned counsel for the appellant is that a very improbable story has been put forth by the prosecution. He submits that as per the own saying of the prosecutrix, she was subjected to physical relation for about 1 hour, but she had not offered any protest whatsoever. He further submits that according to the- prosecutrix, she was thrown on the rough surface and had suffered injuries on her back whereas, the medical report does not say so. He also submits that according to the prosecutrix, she was having her periods whereas, the Doctor has opined that the prosecutrix was carrying pregnancy of four months. 6. On the other hand, supporting the impugned judgment, it has been argued by Shri Sharma, learned counsel for the State that no queries were put to the prosecutrix regarding her consent nor the Doctor has been properly cross examined by the appellant. He further submits that on the basis of the evidence adduced by the prosecution, the conviction of the accused/appellant is strictly in accordance with law. 7. The prosecutrix (PW-5), in her Court statement has stated that she knew the accused/appellant and on the date of incident, at .. @ about 12.00 noon, she had gone to the canal to take bath and at that time, the accused/appellant reached there, caught ho!d of her, took her to some distance and after throwing her on the field, upturned her sadi and petticoat and committed sexual intercourse with her She has stated that she did raise the cries but the same was not heard by anyone She has further stated that she had asked the accused/appellant as to why he is domg the said act. The prosecutrix has further stated that she narrated the entire incident to ‘s her mother. She has also stated that when she had gone to take bath, she was all aione, she had sustained injuries on her back and she Was subjected to rape for about 1 hour. She has further stated that just near the canal, houses of Dohan, Jainath and Bodhan are there and on the south side of thesaid canal, houses of Ramesar, Sakai, Jogesar Majho and Patrapariha are also there, but nobody had come to rescue her despite raising her cries. She has also stated that her cries could be heard from her house but she cannot tell as to whether it was heard by somebody or not. She has further stated that ‘Bhunsi’, (a piece of cloth which is used by the village ladies during menses period) was V‘taken out by the accused/appellant. She has further stated that she had not informed her husband about the incident. Dr. Smt Pratibha (PW-1), who examined the prosecutrix vide EXP-2, has not found any injury on her body and according to her, the prosecutrix was carrying pregnancy of four months. Ganga Prasad Gupta (PW-3) is the Patwari, who prepared the spot map vide EXP-5. Dr. K.K. Dutta (PW-4) had medically examined the accused/appellant vide EXP-6 and according to him, the accused/appellant was capable of performing sexual intercourse. R.P. Pandey (PW-6), Sub-Inspector had prepared the spot map vide EXP-9. Dr. K.S. Khan (PW-7) is the investigating Officer. The minute examination of the evidence reveals that according to the prosecutrix, though she was subjected to rape for about one hour, she has not offered any protest._ According to the g0 4 prosecutrix, a number of houses were there just near the place of incident including her in-law’s house. She was having her periods whereas, as per her medical report, she was carrying pregnancy of four months. Further, the incident took place about 12.00 noon Whereas, the report has been iodged after 2 days i.e. on 21 .10.1994 and no expianation has been offered by the prosecutrix in this respect. That apart, as per the prosecutrix, she narrated the entire incident to her mother on the next day, but her mother has not been examined. The prosecutrix herSeif stated that she did not inform the incident to her husband and this also appears to be very unnatural. AccOrding to the prosecutrix, when she was being subjected to rape, she sustained injuries on her back whereas, no such injury‘was found by the Doctor. V ‘ On the basis of the evidence adduced by the prosecution, it will not be safe for this Court to maintain the conviction of the accused/appellant. The evidence adduced by the prosecution in lparticular that of prosecutrix is not very clinching and trustworthy, there is inconsistency in the statement of the prosecutrix and that :being so, it does not inspire the confidence of this Court to uphold the conviction of the accused/appellant under Section 376 of IPC and he is entitled for the benefit of doubt and the same is extended to him. 8. 9. ln the result, the appeal succeeds and is allowed. The impugned judgment of the Court below convicting and sentencing the accused/appellant underSection 376(1) of IPC is set aside. The accused/appellant is acquitted of the charge under Section 376 of IPC. As the accused/appellant is reported to be on bail, his bail (si k bonds stand discharged. Sdl- Pritinker Diwaker Judge Priya