y: '\\ ^"•v . -- 0058l2-0 IH TH3 HXQH OOURT OF- MADH'XA •P3SADSSH AT ^ABAL?UR CriBiiaal Appaal'Wo. .^ ^.33 of 1995':' ^v^v':e'v~ -APPSLLANI (la Jail) Gulbag Khaa s/o' Chakbar Bag agsd aboat. 25 years Basident o'f Tillaga Hiava,. Poiica Station aad'Iahsil-Bemetra? Distrzct Darg.:,. T13R303 ^:::.;;!M .BSSPONDSIT1 : BtatQ of Madhya Pradesh throagh P61i.ee Statioa. 'Be aetra, Di strict Oa rg. GOSItSlTOU.Z^SZ^L.E^. Z-xs^s^RL-.^d^i^a-.Q^-as. 500-^^ laL^g^al^-M-Xias 3 moaths RI. APPSAL U/3 374(2>, OF 2QDB _5SE€S:MAL> _OH)Q.BQUHI •V 1- l m- .^-^ V^ ^ HIGH COURT OF CHHATTISOARH AT BILASPUR SB : HON'BLE MR. JU8TICS PmTINKBR DIWAKBR APPELLANT RESPONDENT CR.A. N0.2.99/199S Guibeg Khaii versus State of Madhya Pradesh :v> Shri H.S.Ahluwalia, counsel for flie appeUant. Shri Vivek Sharma, P.L. for the State. APPEAL UNDBR SECT10N 37412] OFTHJ^CR.P.C. JUDGMENT (03.03.2010) This appeal is directed again.st flie judgmeiit dated 20.02.95 passed by fhe Additional Sessions Judge^ Dui^ Camp Bersietara in. Session Trial No. 117/89 convictiiig flie appellajit for fhe offence puuishable under Sections 376 of tlie Indiao. Penal Code aiid sentenciug hmi to undergo rigorous miprisoiiinent for seven years aad pay fiae of Rs<500, m default of fme to furth.er iindergo rigorous miprisoninent for 5 m-onths. 2. The prosecution story in nut sheU is fhat 0x118.3.89, FIR Ex.P/2 was lodged by tlie prosecutiix (P,W<-2) aged a.bout 19 years alleging in it that on 15,3,89 when she was coUectiB.g dung cakes in tlie field along with her friend Godavari, aecused caiiie froxxi beliind, caught hold of her, tJirew her on the ground and coiniiiitted rape on her. She has alleged tliat when she cried, Godavari left tlie place aad after coinm.ission of tlie offeuce, she retuined back to tlie spot aloug with Chovax'ain aiid flien the accused fled away, Thereafter, she nan'ated fhe entire incident to her husband and as the Saipanch was not in flie village the report could not be lodged immediately aixd only after tliie arrival of Sarpaach itwas lodged on 18,3.89. 3. In support of its case tlie proseciition has exanxiaed as niaiiy as 15 witnesses, Stateiaent of the accused/appellaat was also recorded iinder Section 313 of the Cr.P.C, in which he denied fhe allegations leveUed agahist hioi and pleaded ianocerice aad false ioiplicatiou in fhe case. !. ^, 4, After hearing counsel for fhe parties, fhe trial Coiirt has convicted an.d seBtenced the appeUaiit/accused as nientioned above. Hesice this appeal. 5. Conteiition of Shn Ahluwalia, counsel fbr the appeUaut is that fhere is iaordiaate delay of tlu'ee days in lodging the FIR aad tiie said delay has not been explamed satisfactorily by tlie proseciitnx. He fuxllier submits that copy of the FTR has not been fonvaided to the concero.ed Magistrate. The FIR has been lodged naming the accused whereas fhe prosecutrix has admitted in her exanimation ia chief that fhe acciiBed was not known to her prior to fhe lodgtag of the FIR. He farther subinits that the raedical report of fhe prosecutrix does not support the prosecution case, 3eer Smgh.(P.W.-3), Kotwar (P.W.-4), Munna (P.W.-5) & Chova Raia (P,W.-6) have not supported the prosecution case m totaUty. 6, On the otb.er haiid, supportiiig the impugned jxidginent it has beeii argued by fhe State counsel tliat on the basis of tlie evidence adduced by fiie prosecution, fhe prosecution has proved its case beyoiid aU the doubts aiid tiierefore conviction of fhe appeUant is iii accordaiice with law, 7. I have heard counsel for fhe parties. 8. Prosecutrix (P.W.-2) m her Court statement has stated tliat at aboiit 4.00 p,in. the accused/appellant came froiii behin.d, thrcw her on the grouud and coinmitted rape on her. Slie states taat at that time Godavari. was present aud after comnuttiag fh.e offence, the accused fied away. She reported the inatter to her husbaad on f}ie sanie day. She further states that she was not aware with Ae nariie of fhe accused/appellant aiid nanie oftlie accused was told to her by her brother-in-law [Jeth). She furfher states that ilie report was lodged cn fhe second day, her petticoat was seized by fhe police vide Ex.P/3 aiid vide Ex,P/5 & P/6 her broken bangles and eai' riiigs were seized, She fiirtlier states that vide Ex.P/7, the identification parade was held ia the poUce station io. which she had identified fhe accused/ appellant In tlie cross examiiiiatioii fhe prosecuttix states that as fhe report was lodged after iafonTiing tlie Sarpaiich and fh.erefore it could not be lodged proinptly. Slie farther states that as she was uot aware with the nam-e of fh.e acciised at the tinie of lodging the FIR the sanie was not given to fhe police aiifl'iorities. Slie also states that as she was tlirown on the ground, sfae sustaiiied injunr on her lower back. She also states fhat she was shouting Chor Chor and on heariiig the cries Narottain & Chova Rain caine tliere. She fiirfher states tbat fhe accused/appeUatit had taken tlie coutract of niango orchard and at th.e thne of coniniission of tlie ofience she sufiered nuinber of uijuiies trom. which blood was ooziB.g out. She also states fliat at the time of test identification parade the poUce ofiicers were present aiid in the poMce station fhe accused her husband aad Sarpaiich Hriday Singh were also present. She also states fhat she was Bot wiUing to lodge fhe report in the poMce station but fhe same was lodged at the iiistaace of flie Saq)aach Hridsy Singh (P.W.-7). 9. Beer Singh (P.W.-3) husbaad of fhe prosecutrix has also stated that wlien fhe iacident was informed to tiim by his wife, she was not aware about tlie naaie of the accused aad wheu th.e accused was arrested his wtffe had identiiied him. He farther states that at the time of lodging tlie report, Munna (P,W,-5) had informed al3oi.it fhe naxiie of fhe accused. He also states fhat at the time of the iiicident Muiuia bad acconipaiiied the accused. In the cross exaoiination he adniits fhat fhere were tivo groups in the viUage and he belongs to the group of SarparlC^E whereas the accused belongs to the ollier proup. 10. Godavari (P.W.-4) states thatwhen she was collecting dung cakes along wifh the prosecuuix fhe accused caBie there, fhi^w her 011 flie ground aad tlien she raco. away and iriformeci fhe entire iacident to Chova Ram. However by the time Chova Rani reached fhe spot fhe accused had already fled away aad fhere tb-e prosecutrix had iaformed her fhat she was raped by the accused. She further states that she did not know tih-e naxae of tlie accused she kaew hiin only by his face. In fbe test identification parade/ fhis witaess has failed to identify fhe accused. In the cross examiiiation, ffcds witness states fhat before the test identification parade, she was taken to the poUce station where iiutiaily she failed to identift' the accused by sayiag that she falled to identify him however when fhe accused was identified by fhe prosecutrix she has also stated fhat it was the saaie person who comjaiitted tibe offence. She states fh.at she is makiiig the statenient ia the court as advised by th.e Sarpanch. 11. Munna @ Madari (P.W.-5) had not supported the prosecution case and has been declared hostile. Chovaraxn (P.W.-6) has stated that he does not know the accused aad on Uie date of incident Godavari was shouting !SChor Chor. He furfher states ftiat it was Godavari who had informed hii3i that one person had caught hold of her friend, However he has not seen anyth.iag nor he has been informed aboiit anythiag by the prosecutdx. 12. Hriday Smgh (P.W.-7) has stated that the hiisband of fhe prosecutnx has hifomied hixsi about the eiitii'es incideiit and the seiziire vide Ex.P/3, P/5 & P/6 were siiade before hmi. In his cross exammation, he states that the husbaad of the prosecutnx had iaformed hiin that the prosecutrix knows fhe accused. 13. 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'puiqQq laojj ^ureo P^SUOOB sq^ ^BI[^ suor^u^ui xuq.noQsojd 31^ y{J ^q^ HI -jsq ^q p^Spoi au Qip. HIOJJ ^uojQjjip si xu^noosojd 31^ JO ^UQHI^B^S ^JIIOQ 3I[5. U3Ag *SOS<S3I4TM ZUQJQJJlp Aq UOAlS uo^q QA^q ssuo^s ^UM3j]ip ^q}. JBOJO }I ^35[eUI S3SS3I4TM 3I[1 JO UOT^UTUreXQ 91^ JO ^upiuos ^umux oqj, -ST; •xai.noosojd QIR-JO Apoq oip. uo puuoj SBAY J3A90S^8qM AJYlfm OU ^I[^ p3^4.8 pBq XU^UOQSOjd 3qi p3UioiBX3 peq O!IM ^ndfey Bqqoq^ '^ias 'JLQ T-'M'd ^wsoq p^ujm ^A^q pire ss^o uonnoQsojd oq^. p^ioddns i.ou oABq nqes irejBqoAaa ST-'M'd pw q§mg uiaq>i TT-'M'd •l7T ^irenodd^/posp.ooB ^x^jo oureu 9t{^ ^noqB p9iaLiojin PBII Buxini^ jou vaun]^ TCTOJJ opBixi QJQM ssiuoiib ou ysv^ S^B^S oq uoi^BiuTTrexo SSOJQ ^ifi. ui •lirenoddB/pssuooB JO 9UIBH 31^ PW 9II uodnaj^qM xui.uoQsojd oq^ uo ofej jo ^ousgio 3iyt po^TUiuxoo paq oqM o^ SB p^s^ SBM ^UUU]^ UW^ pUB ^U^^9dd^/p3SU30B 3Xp pQixreduxoooB paq OI{A ^uuni^ ST I.T wqi^ ps>xujqtUT ^T[S ^unoy^ z\ s XLi^nos^ojd oq^ ix^qA §m:u^A3 sip. in iBip. S^BZ^ QH *1.od's ^qi. IIIDJJ A-^AYB p91J UOSJ^tI pQSTlOOB J9qi0 31^ pU-C UIQT^ JO 9UO ^fo ^d^J 0^ lodged at the instao.ee offh.e Sarpaiich Hriday Siagh (P,W.- 7). She also states fhat the accused was identified by her in tlie poHce station io. fhe presence of the poUce officers; her husband aad the Sarpaiich. This Court is ofthe considered opniion fhat such detective identi&cation of tlie a.ccused/appellant cannot be accepted in the eye oftlie law specially m view of the fact tliat the accused/appeUant was shown to fhe prosecutrix ui the police station. The prosecutrix states fhat at fhe tmie of lodgiag fhe FIR naiae of tiie accused was not nientioned however the FIR siiakes it very clear that fhe saxae was lodged by namiag the accused, In fact ti^e entire evidence as adduced by the prosecution becomes doubtfiil aad does not support fhe prosecutioii case, In fhe present case neither tlie statenient of the prosecutrix nor fhe stateiaent of ofher witoesses iaspire confidence of this Court on which basis tlie appeUant/accused can be convicted. 16. In conclusion, tlie appeal is allowed. iBipugned judgnieiit convicting aad sentencing tlie accused/appellaiit as m.entioned above is set aside. He is acqiiitted of the charge levelled agamst hiin. Accused/appeUaiit is reported to be on bail. His bail bonds staad discharged, Sd/- pritinkerDiwaker Judge