2-Q Vindeahwar Sai PaiKi'a, Age 30 yeai-s, S/'o Negi Sai Paikra, Caste - Kanwar, R./o Bainba, Thana - Bagicha, Distrtct - JashpuT i'C.G.^ STATE.OF CHHATTISGARH Shri S,K. Mishra, couascl for fhe appeilaut. Sllri Sushil Dubey, Govt. AdvoRate for the Stete. gfj^ *^IS£ 0^^'?l |<6 A oV/*k? »AV%/< | unr Heard. Tfais appeal is directed against. fhe judgmcnt o-f conwiction and order ofsente-nce dated 26/4/2002 passed in R.T. No.53/2003 by the Second Additional Sessions Jiiflge (FTC), Jasbpunsagar (C.G.), wliereby, the said Court after holdlTig fne appel'laiit guilty o-f ttie offence piuiisbable under Sectiou 376 of TPC, sentenced him to uiidergo R.I. for 10 years and to pay a fine ofRs.3000/-, in. flefaiilt ofpayi&ent offine to fiirther iicrlergo S.T. for 3 months. This is a case in wliicU the prosecutrix naTneiy Kii. Santoslii,i who was aged about 1.7 years 011 fhe date of incideDt, inakes allegations tliat s1-ie was subjected to forcefi.il sexiial intercourse on 2 occasious hy fhe a.ppellant, firsfly, on 1.2/4/2001 and secondlv on 5/6/2001. AccorrtiTtg to ber contention, she dif! not; mafee any report about the forceftil sexual intercoiM'se cominitted OIJL 12/4/2001. However, when a repeated act of forcefnl sexns-jl intercoiu-se was done on 5/6/2001, a written repnrt vide Ex.P/1p r ! ®, 2 'sl No,969/2002 was lodged by ber in the Police Station on 6/6/2001. T1ie case, according to the report, is that on 13/4/2001 at abont 3 p.m.; the prosecutrix was a1l aloue in her 1nouse. At that time; t'he. appellant canie over there and coiiunittet! fhrceful sex-i>a1 mtercoiirse aeainst taer. She dw3 not take any action on this incident. TlT.e.reafter, OT) 5/6/2001. at about. 7:00 p.ni., w'hen the prosecntrix taad goiie to answer the cafl of natiire, the appe'Slant mct Tier IT, the way anrl dragged her to SOIIIR distance to a nearby pit anr1 CtiniTnittefl forcefuT sexi.ial intere-oiirse against lier, biit. friis time, w1ien he was coniinitting sexiial intercoiirse, on 1-iearing the noise, Shatniglian (PW-7)'came over the'i-e and witnessed the iTicident. Ttiere.aft.er, fl-ie appellant ras away from. the place of occui-rence. Sliati-iighan took flie prosecutrix tu ber Inother and inade complaints to 'her, on which, they rlecidcd to lodge a report and therea'fter, a written report (Ex.P/11) was lodged. Dnring fhe coiirse of iriveRtjgatioi-i, the 'orosecutrix was sent for mediRal exaiTiination, ori whicb, Dr. (Srnt.) Vinodini Bafehla (PW-10) Rxaniineri lier on 6/6/2001 and prepared her report (Ex.P/16 A). According to the said report, tiiere were ]io extenial UTJuries on tne pei'son of t'he proseciitrix. Her breasts and iiterus were Rnlgrger!, She was can'ying pregnancy of 21 weeks and 1ier hymen was old niptiirec!. STie could not give a definite opuiion regarding commission of rape on tlie victiin. The site p1ans ofboth t1ie places wp.re pi-Rpared nnder Ex.-P/T and Ex.-P/2 and bangtes and pieces of hangles of tiie prosecutrix were also seized -unfler Rx.-P/3. Anofher sife plan (Rx.- P/5) was prepai-erl by 1'he Patwari - Rawi Narayan Rathia (PW-3). The und.erwear ofthe appellant was also seized nndRr Ex.-P/7. After comptetion of the usiial investigation, charge sheet was filed in fhe Co.iii't-ofCbiefjTidicial Magistrate, JasTipiimagar, from where, the niatter was committer! to the Conrtof Sessions J'urigc, Raigarh on 17/1/2002 and was nii-eiveri on transfer by the TI Additional Sessions Judge (FTC), Jas^piimagar (C.G-), w'i'io ultunately, conchiderl tne trial and passed fhf. iinpngnp-d jndgnient Ck.Appeal No-969/200: of conviction. and oiTlerofsentence. ?t is agamst flii's nidgment of conviction and osder of sentence awarded to tbe appellant t1-ie appellaut has pre.feiTe.fI this appe.al. Conviction of the appeltei-it is based upoTi the sole te.at.inioTiy o-f fhe proseciitrix nainety Kzi. Santoshi. (P"«'-6) holding that tlie appeUaTlt, takin.g luidue advantage of fhe sitaiatioiis coniinitted forceftil sexual intercourse agaiast her. Learaed counsd for the appellant raises only one poiiit. His subaiission is fhat accoriing to the evidence of the proseciitrix and her inoflier, t1ie inatter appears to be one of coiisen.t aiid the conviction based upon the testiniony offhe proseciitrix deserves to be set aside. On tlie oflier hand, leanierl counsel for the State opposes fhese arguinenta. He. supports the radgment of conviction asii order o{ sentence passed by the triat Conrt. I llave heard teanied counset for tlie parties at tength and liave also penised the iiecords ofthe Sessions Trial. So far as age of t}i.e proseciitrix is concenied, there is no dispute in t3iis regard that she waa above 16 yeans of age on the date of incident. According to the proseciition, she was abo-at 17 years, If we examine lier evidence, for the firat incident, she deposed iu para 2 that. on 12/4/2001 t.he appellant had coiue to her house and 'h.ad comnutted ra.pe against her. At that time, ber aiother and father were not present in the house, as they had gone for doing labour work. She deposerl that 'he.r Tnenstruation has stopped from the saici date. Stae tias also deposefl that her nioth^r and father bad said that tliis was the first mistate; tb.erefore, stie shoiiJd forgive it. For the second incident, she cieposed vide paiajl tliat on 5th ofJyne iu ftie last year, at about 7:00 p.ai, wh.ea s&e was going towai-ds the fields, fhe appellant started rtragging hfer and froiii flie fie.Us, he took toer to a nearty nit and fliereafter ^f s. . • i cotniuitted sexiial uitjercourse against her, she marle alanii, pn which, Shatnighan (PW-7) came ove.r there. Seemg this, appe1lgi.Bt ___A_^___ i ^-3 Cs.Appea raii away from the place of occuiTence. Thei-eafter, 1ie (Shatrughan) caugat her and took her to the hoiise and she uarrated. tJie story to her mother and father. Shatnigban. also nan'ated the story to fhem. and tt-ien, fhe Teportwas todged. PW-9 - Indi-ainani is fh.e mofl-ier of the pFosecrit.rix. She has stated tliat appellant had aiinTnitted sexuaT intercourse for 2 times against her daughter. About the firsf incident, t1iey ciid not report fhe ruatter to the PoUce dzie to fear of their repntation. However, when tiie second tuiie, sexual intercourse was coinmittef!, the inatterwas reported to the PoTice. About the second iiicident, she deposed that on tiie said date, Sbatnighan bronglit her daiighter to flieu- house and told that the aRpellaut has: comniitted se.A^]a1 intercourse against Tier. Her daiighter aiso nan-ated the story t.o her, on which, tfiey decided to report the matter anr! the report was lodeed. Shatrughan has also been exainined as PW-7; but, he 1ias coiapletely tunied hostile and has not siipported the case of t'!ie" prosecution. The brotlier of t'h.e prosecutnx namdy RiparaTn has also been examined as PW-8. He has alsn deposed that. after the second uicident, T-tis sister alongwith Sbatiligan came To the lioiise and said that appeflant. had coinmitted rspe against her. Shatrughan has also stated tTiat appe1>ant har! conimitted sexiial iutercourse against his sister and thereafter, he i-etiinied 1iack to his house, afterwhich the reporfwas lodged. Ifwe anatyse the evidence ofthe proseciitrix in 1ight ofother evidence in tbis niatt.er, particularly the evidence of mother and First Infoniiation Report, it wonld appear tliat according to t1iR prosecution itself, for the first tiiTie she. was snbjected to sexiial in.tercourse on 12/4/2001 at. about 3:00 p.m.. T}IR incident. had taken place-in ber own taoiise when her mother and father were aot present She disclosed this incident to her fafhp.r and nzot'hcr or to her brother has not been brougltt OT] I'ecnrcl, Init accoiTiing to fhe evidence of her uaother, it appears, that the said incident was Cr.Appeal No-969/2002 known t.o her and even after known-ig aQ this; no i-eport o'fthe said incident was lodged either by tbf proseciitrix or Tiy tier fstiTiily nienibers. They are giving Rxplanafcion tliat they had forgive'n tTie appeUaTi.t for th.at. tiiae, biitwtien the. saine act was repeatcd on 5/6/2001, they decided to 1odge a report to fli.e Police aiid tben only, fhe report (Ex.P/11) was lodgerl in the Po'iice RtatioTi. Abcnit the secoiid incideat., it comes that when. on that date; the prosecutrix was goin.g to answer the cal1 of natTire, t'he appellant. uiet her in fhe way and force.fally di-agged her to a nearby pit. anfi tiiere, lie coininitted forceful sexiial intercoiu-se against her. Though the prosecutrix says fhat Sliatniglian (PW-7) had reachRfl to fhe spot after her alana, 'but this story giwen by the prosecutrix is not supportef] fiy Shatnighan (PW-7), as he nas completely tumed hosfile and has said that he. does nof know ahout the said incident. tf we look into the evidence of fhe proseciitrix and her uiotfa.er, it wou1d appear fhai both of them Tiad said that the prosecutrix was brought to tlie hoiise by tlus witncss - Shat.nigl'ian (PW-7) and he had said to them fliat appellant was co'mniittisg sexual intercourse against the girl in a pit, In fact, 1ie was an eye- witaess to flif: second incident. AH theae facts are TOentioncd in the PoUce statenient of this witn.ess - Shatnighan; w'!r;R''n bas been proved as Ex.-P/lS, but after piitting snch statemerit hefore hiro, he expressed his denial about this stateTncnt. T1ie statement ofthe prosecutrix as weU as stateDients of niotner anr! brother and fiuth.er ftie Coiirt evidence and the conte.nts of tlie police stateroent of Shatrughaii would show that, in fact; on fte fatefiil day, the prosecutrix was taken by this appeflant to a pit. wherehe com.initted sexual intercourse against her and at tliat time, Shabnghan caine over fhere, raay be after heaTing SOTDE noise anrf" witnessed thp incident and took the girl to flie limise and oiade coiBplain.ts to her niotl-ier. On this, niother Tiad stated fliat Doiv flie repeated iucident. has taken p1ace, fherefore, thf* niatter slionld ') be repoi-ted to the Police a.od ttoen only, a report in tlie Police Stationwas lodged by flie prosecutrix iinder Rx.P/ 11. AU the abovf; facts aiid circunistances of this case consfri'ain tliis Court to take a view that flie prosecirtrix was a consenting party on both the occasions. Tlie report was not. 1or3ged '&rst tuiie by her because the incident -was not noticed tay anyhody an.d it canie in fhe knowledge of the iiiother becaMse iiHimately, the prosecutrix carried pregnancy. Por the seco-od tiTne, flie Tnatter was disclosed liecanse the incirlent itself was witnessefl bv Shataiglian (PW-7), who anytiow reacbed to t1ie spot and caiigTit flie prosecutrix red banded with fSie appellant in a pit whfle they were pei'foi'uung sexiial intei-coursR. In the facts and cii'ciiiiistenCRa pf ttiis GSSR, iii t'he opinion of fliis Court, as stated above, a possibflity of the proseciitrix heing a consentmg party 1-iaa not Tieen ftilly ru1ed oiit and on sucTi evidence, conviction and sentence awai'ded to appe.nant caijfflot be sustauied. It deserves to be set aside. Accordingty, tlie appeaS is allowed.y'e- (^>'>"At-+!°fi ^ sel-.^e-nc.·. A^^TcDLoteol •a(b te7ayf< Uflt.i^f/. Ot/>C. Se-'+' <A^ (lo''e ' He is acquitted oftbe charges fraiued against bun. Shyn; It is stated that. fhe appellant is in jafl smcf; 11/12/'200T. 1f lie has not 'been released so far, Tie be 1'eleased fii-i-tlTwith. Sd/- Sunii Kumar Sinha Judge I) + f ••!.; <"