! CF0000057719 "'ihie ^- 1'S IB3 HIOH BOU&I OF MAD5XA ffiADBSH AT JAB&LPOS Gr. APpeqi Ho._^S.Z^_ ./199li- A-t'Pji.LLMfIS ^-I-n Tc^ ^ f. jagani^th g/o aaiyya aam agga 23 ys&'rs .' ./-" MSyb 2. Ram S^i.g/o a>mra Ram aged 2!+ years. - Bofch resident of ^ltliage gkamte, ttena ^>n districfc Raigarh (M^ ^ s/^^ ,;<AVV\~f2t:, p^^iSytS-^^' .AA-A f ^ , itoD.<>; n.l^,.1.^ ^' Ter su s BESWroSNT e State ofMa'3hya Eradesh Through Stafcion House Officsr of P.S. Sanna^dlsfcrict Raigarh APE3AL tMOBB SBlCTIOH -ff^ (2) Q? C3?.P.C . RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:44 +0530 .-^?^ Sinole Bench : Hon'bte Mr. JusTjce Pritinker & Gker APPELLANTS RESPON&ENT 'i^'^'t.1^^ 1 'T l""-)- 'aQcnrsoth md another. State of -Madhva Pradesh fr'ow ChhattlsQar'h'S Shri A.N. Pandey, counse! for ths Gppe!!sn+s. Shri Pankaj Shrivastava, Pane! Lcwyer for the Stcte. '*i np 01 'OIO) Present appaa! arises out of the linpugned judgment and or'der'dated 21.10.1994 passed by .Additional Sessions. Judge., Joshpur Nogor, District Raigorh in Sessions Triai No. 112/1993 conyicting the accused/appeilonts for the offence pun'shabje. under Section 376 of the Indion Peno.j Code and sentencing them to under.go r-igorous imprisonment for "'en years, Q"d to pay fine of Rs.2,000/-, in defauit of poyment of fine to further undergo rigorous impr"sonment for four months. 2. Cass of the prosecution in brief is that on 10.12.1990 written report (Ex.P-1) wos lodged by the prosecutrix (PVi/-4), agsd about 30 years a!!eging m it thct on 5.12.1990 when she was retuming to her home, at about 5,30 pm two psrsons met her and had tr'ed to outro.ge her modesty. Based on this written report. F.I.R. (Ex.P-2) was reoister'ad against the unknown persons on 10.12.1990. It appears from the "ecord that on 11.1.1991 the prosecutrlx made a wrst-en compiaint to ths District Coiiector vide (Ex,P-5) mentioning it tho+ on 5.12.1990 she WQS rapsd by the Qccused/'appeilants, however, t'v ;'^' S V •^ when she lodasd ths r'enort on 10.12,1990. tbs DO'ice has not reQistered ths offence uidsr Section 376 of ths IndSan Pena! Code but has regis+ered the offence oniy ursder Section 354 c.f the Indian Penal Code. In the meanwhiie, on 23.12.1990 the chaiian wos fijsd aQQ'nst the Qccused/QDse'ionts for the offence unde" Section 354/34 of the. Indian Penal Code. Aftei" taking cognizance, the learned Wagistrcffe proceeded wth the case, however, when the statement of the prosecutrix was «i recorded in the Court she has stated that on 5.12.1990 she was subiected to raos bv the accused/aDDe'loDts. Sosed 0" "his statement, learned Magistrate committsd the ca.se· before Sessions Judge, Jashpurnagar and, thereofts", on 22.6.1993 ieamed Additicnd Sessions Judge fromed the charge agoji"at the csccussd/aDEiellants fo" the cffence under Section 376 of the India" Psnal Code. So as to hold to accused/appeiJGnts guilty, prosecu+ior; has examined as many as 5 witnssses in support of its co.se. Statements of the accused/appell.ants were aiso recorded under Section 313 of the Cc.de of Cr-iminol Procedure in wh'ch they denssd the1 charges Isveiied agoinst them ond pieadsd their innocence csnd faise imDiicaticn in the case. 4. After hearina the oarl'ies the tria! Court has convicted and sentenced the accLised/appe.iJCB'ts for the offence cs mentioned above. hsnce this appea!. Counsei for the appejicmts submits tho.t there is an inordinate deiay in iodging the First Information fteport. Hs submits thcff the incident is said to have taken Dicce on i.12.1990 wh?reo.s the written report (Ex.P-l) was iodged on 10.12,1990 and there is no expjanation for iodging this reporr after in an inordinate deiay. 1-ie submits that "o Test Identificotion Parade has been heid by the prosecution and once in the initiai report' the accused persons were "ot known to the prosecutrix, then ai! or c sudden she has disciosed the name of the accused/appeiicsnts m he" case diary statement recorded on 11-12.1990. He submits that in a case of raoe when there is no eye witness in the ineident. name of the accused persons haye been disclosed by the prosscutrix after six days of the incident that too on the basss of information aivsn ~o her by the viilmers, this improbabie story of the prosecution cannot be accepted. Hs further submits that i" hsr ipitic! written report, she ho.s not made ariy oHegation of th.s offence under Section 376 of the Indlan Penai Code and she kept silent tlil 11.1.1991 cnd then aii of a sudden, she made Q written complaint to the District Coi!ector that o" 5.12.1990 she was subjscted to rape by the accused/appeliants. He submits thct the entir®act of the Drosecutrix is doubtfui and under no stretch of imagination, the accused/appellants can be convicted for the offsnce under Section 375 of the Indian Pena! Code. 6. On the other hand supporting the impugned j'jdgme.nt it has bsen argued on behaif of the State. th.at the impuone.d iudament is in accordance wlth low ond thsre is no infirmity jn the same. 7. I haye hscrd counsel for ths porties and perused the materia! csyai'abieon record includirsg thejudgment impugned. Prosecutrix (PW-4) in her court statement has stated thst on 5.12.1990 when shs was retuming from market and was |oing to h.e.r home, ct about 5 pm near Dhangudi culvert, accused/appe!!ants were waiting for her cnd when she w-as trying to cross ths said cut-vert, o.ccused .Jagannoth stopped her and then both the accused/appeiiants ca.sght ho'd of her, took her up-to sgme d'stance and thsr'eafter, accused Jagannath threw her on ths fjeid and after upturning hsr petticoat removed her underwear and a!so r'emoved his own underwear. committed forcibie sexua! intercourse with her. She further states that thereafte", accused Ram Sai clso committsd sexual intsrcour'se with her against her wiil.She has stated that ths incident was not witnessed by anyone. She has further stated thct on account of commis-sion of offence, she was feeling tired and was not iri Q position to walk cnd after 3-4 davs when she could recover f"on~ he" aiiment. on 10.12.1990 she iodge the report-, She hos s~oted thst she had narrated the entire incident to the Head Constable of "hs Polics Station but the said police Constabie had stated. that as 4-5 days haye already eiapsed, incident of r'ape wousd not be made out aqalnst the accused persons and, therefore, it is better for her to jodge the report ofisve te.asing and under compelling circumstances, she iodged the report to that effect. In cros-s-examination, she has stctsd that on 11-1.1991 she had approc.ched to the Distr'ict Co'lector and iodged the written complaint (Ex.P-5). She has stated that she is educeted and is wow.mg as Assistant Teacher, She has further stated th.at on the dats of lodging the F.I.R., she was aware with the name of the accused/appeliants but in the repor" she ho.s not disclossd th.e name of the 1 i:.;;l 4 accused/appellants, thereaftsr, the villagers have informed her about the name of the accused/appeiiants a"d this was sometime aroursd 12 - 13 Decsmber, 1990. A bare reading of the statement of the pr'osecutrix (PW-4) makes the entire pr'osecution. case doubtful. Th.e incident had taken p!ace on 5.12.1990, first written report (Ex.P-1) was lodged on 10.12.1990, based on that F.I.R. (Ex.P-?) was registered against the occused/appe.HQp.ts for the offence under Section 354 of the Indian Penai Code. In the written report, prosecutrix does not disciose the no-me of the Gccused/Gppellsmt nor sh.e states thot she wcs subjectsd to rape by them. However, in hsr statement recorded unaer Section 161 of the Code of Crimind Procedure do.ted 11.12.1990, she has disclosed the name of the accused/appei'omt No. ! alone and 'm her court sta+ement she has stated that before 'odging the F.I.R., she was awo.re with the name of the accused/appe!!ants and then she hos stated that the name of the. accused/appeliants w-ere disdosed tolh,er by the viSlagers. The prosecutrix kept silent for obout one. month and then ail of o. sudden on 11.1.1990 she ma.de a comp'aint (Ex.P-5) to th.e District Coliector making ajiegations against the accused/appeilant for rape aiso. Thus overa!! testimony of the prosecutrix does not inspire confidence of this Court to sustain the findings recordsd by Court beiow conyicting and sentencing the accused/appstiorsts as mentioned sbove and that being so benefit of doubt mu-st go in foyour of the Gccused/appejiants. 9. Consequently, the appeai is aliowed. Impugned judgment dated 21.10.1994 js hereby set aside. Appe!!ants are o.cquitted sellfflits are on bail. of the cho.rge level'ed ago.inst th< bonds so furnished stmid dischorged. The fin®amount, if cmy, deposited by the appellants be. refunded to them. Sd/- pritinker Diwaker Judge