I:- •/ / ^ ^/ / 'f / / ^l' '•^ ?;?_ ^J CFOOObb5"7737'" IN_THE HIGH COURT OF PIADHYA gRADESH AT 3ABALPUR CRI^INAL APFCAL NC. ®<^O OF 1995, APPELLART Hi^iTLT *** KNErtNATH SON OF ATffARA!*? CHOUMAN, Ag©d 40 years^ ResldQnt ©f3ailpara^ Raigarh, (!»»•?•)• Versy® ^ ^ RESPOKDENT **^ TWE STATE OF WAOHYA PRADESH Through P<S^ KotwaMy Rai@arh»(W»P»)• ;"i , ^nwK^^^£Jcf CRIPIINAL APPEAL tJNDER SECTIGN 374(^ GF THE CODE OF ..^^^—"""A^ocAi CR in I NA L PR QCED URE. '.. ^A HIGH COURT OF CHHATTISGARH AT BILASPU^ (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 273 of 1995 APPELLANT RESPONDENT VERSUS Khemnath State of Madhya Pradesh Shri Vijay Deshmukh counsel for the appellant. Shri Vaibhav Goverdhan PL for respondenVState. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (02.07.2010) This appeal is directed against the judgment and order dated 10.2.1995 passed by Additional Sessions Judge, Raigarh, in Sessions Trial No. 155/1994 convicting the accused/appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1,000, in defautt of payment of fine to further undergo rigorous imprisonment for three months. 2. Facts of the case in brief are that on 17.3.1994 FIR Ex. P-1 was lodged by the prosecutrix - a widow aged about 35years alleging that on 16.3.1994 when she had. gone to answer the call of nature, accused/appeltant came there, took her inside his house on the point of knife and committed forcible sexuat intercourse with her. It is alleged that she was kept in the house of the accused/appetlant for the whole night and was subjected to sexual intercourse thrice. After completing the investigation, challan was filed by the police on 21.4.1994 and the charge was framed by the trial Court on 2.8.1994. 3. So as to hold the accused/appellant guilty, prosecution has examined 04 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. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above. 11 69 -'2-- 5. Counsel for the appellant submits that present appearsto be a case of consent because as per the statement of the prosecutrix herself, she was kept by the accused/appellant in his house for the whole night but did not make an attempt to come out of his clutches. He submits that the prosecutrix herself has admitted that thinking that it being night nobody would come to her rescue, she had not raised any atarm. He submits that according to the prosecutrix, the accused/appellant was her tenant and there was some dispute between them on account of payment of rent and thus possibility of false implication can atso not be ruled out. He submits that even the medical report of the prosecutrix does not support the case of the prosecution and that investigating officer has also not been examined by the prosecution. 6. On the other hand counsel for the respondenVState supports the judgment impugned and submits that looking to the prompt report lodged by the prosecutrix thereappears to be no reason for her to falsely implicate the accused/appeltant in the crime in question. 7. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 8. Prosecutrix (PW-1) has stated in her evidence that earlier the accused/appellant was residing in her house as tenant but after the incident he had vacated her house. She has stated that on the date of incident at about 9-10 a.m. the accused/appellant had come to her house and asked for water and in the night when she had come out of her house to answer the call of nature, accused/appellant came there, and after putting the knife on her neck took her inside his house, threw her on the bed and committed forcible sexual intercourse with her. She has stated that the accused/appellant had kept her in his house for the whole night and at about 4 a.m. on the next day she came out on the pretext that she wanted to go for easing herself. Thereafter, she came to her house but on account of fear of insult she did not disclose the incident to anyone. According to her, she then went to her sister who resides at Balsamund but did not disclose the incident to her also. According to her, the F accused/appellant again came to her and asked her to feed him, on which , she said to him as to what was his relation with her that she should feed \ -3- him. Thereafter, she met one Manohar who on seeing her weeping asked the reason thereof but she did not disclose the incident to him and then the report was lodged by her. In cross examination, this witness has stated that though the accused/appellant had taken her inside his house by dragging, she did not sustain any injury. She has stated that two tenants were residing in her house and distance between those rooms might be about 15-20 steps. This witness has also stated that on account of fear of insult she did not disclose the incident to the people residing in the neighbourhood. She has stated that the accused/appetlant kept her in his house for the whole night and subjected her to sexual intercourse thrice but she did not raise an alarm being under the impression that it being night nobody would come to her rescue. Kishore and Manohar (PW-3 and P-4) to whom the prosecutrix is said to have disclosed the incident have also not supported the case of the prosecution and have been declared hostile. Dr. Jyoti Ekka (PW-2) who had medically examined the prosecutrix has stated that no injury was found on her person and that she was habitual to sexual intercourse. Investigating officer, in this case, has not been examined by the prosecution. 9. tn view of the aforesaid discussion, this Court is of the considered opinion that the evidence of the witnesses particularly that of the prosecutrix appears to be highly un-natural and does not inspire confidence of this Court. The triat Court has not given thoughtful consideration to the evidence adduced by the prosecution while convicting and sentencing the accused/appellant as mentioned above. In these circumstances, the impugned judgment is liable to be set aside. 10. Accordingly, the appeal is allowed. Impugned judgment dated 10.2.1995 is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. Appellant is already on bait. hlis bail bonds stand discharged. Fine amount deposited by him is directed to be refunded. Sd/- pritinker Diwaker Judge r^v/ l/