/^ S A I 'tfil ^ V^M^ ^ y- ^, ^ HIGH COURT OF CHHATTISGARH. BILASPUR S.B.: HON'BLE MR. JUSTICE SUNIL KUMAR SINHA Cdminal Appeal No. 900 of 1995 Lomash Ram Vs. The State of Madhya Pradesh (Now Stateof Chhattisgarh) JUDGMENT ^ Post for Judgment : 6~/07/201 1 Sd/- Sunil Kumar Sinha Judge '^sssa- 4 ''^-^'" HIGH COURT OF CHHATTISGARH.BILASPUR S.B.: HON'BLE MR. JUSTICE SUNIL KUMAR SINHA APPELLANT Criminal Appeal No. 900 of 1995 Lomash Ram, Son of Ganeshi Ram Sahu, Aged about 44 years, Resident of Village Bodra, Police Station Magarlod, Tahsil Dhamtari, District Raipur RESPONDENT Versus The State of Madhya Pradesh (Now State of Chhattisgarh), (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedyre) Appearance: Mr. M.D. Dhote, Counselforthe appellant. Mr. Satish Gupta, Government Advocate for the State. JUDGMENT (05'.07.2011) (1) This appeal is directed against the judgment dated 14.06.1995 passed in S.T. No.442/1994 by the Additional Session Judge, Dhamtari. By the impugned judgment, the appellant has been convicted under Section 376 (1) IPC and sentenced to undergo R.l. for 7 years and pay fineof Rs.1000/-, in default, to further undergo R.l. for 1 year. ./L Criminal Appeal No. 900/1995 (2) The facts, briefly stated, are as under:- Prosecutrix - Heminbai(PW-4) was ja married ladyaged about 27 years. The appellant was her next door neighbour. On 18.08.94 at about 11:00 a.m., she was all alone in her house. When she was cleaning the Kotha fcattle keeping place) of the house, the appellant came from the front door and bolted the door from inside. The allegations are that thereafter, he caught the hands of the prosecutrix and took her to a nearby room and committed forcible sexual intercourse against her. The further case of the prosecution is that when the prosecutrix made hue and cry, the niece of the prosecutrix namely Hembai @ Hembu (PW-1) came to the room and saw the appellant committing sexual intercourse against the prosecutrix. According to the prosecution, Hembai @ Hembu (PW-1) was an eye-witness to the incident. When Hembai @ Hembu (PW-1) came there, the appellant ran away from the back door of the house of the prosecutrix. Chandu (PW-3), husband of the prosecutrix, reached after sometime. The prosecutrix narrated the story to him. A Village Panchayat was convened in the evening, but the appellant did not turn-up in the Panchayai. Thereafter, the matter was reported by the prosecutrix to the concerned Police Station on 19.08.94 at about 14:45 hours. The First Information Report (F.I.R.) is Ex.P/6. The prosecutrix was sent for her medical examination on 20.08.94. No external or internal injury was found on the person of the prosecutrix. Hymen was old ruptured and she was found to be habitual to sexual intercourse. The Doctor opined that no definite opinion can be given about the sexual intercourse on 18.08.94. The MLC report is Ex.P/8-C. (3) The case of the prosecution was based on the testimonies of the prosecutrix (PW-4) as also eye-witness Hembai @ Hembu (PW- Criminal Appeal No. 900/1995 1). The learned Sessions Judge relied on their testimonies and recorded the finding that the appellant committed forcible sexual intercourse against the prosecutrix, therefore, he was liable for punishment under Section 376 (1) IPC. (4) Mr. M.D. Dhote, learned counsel appearing on behalf of the appellant, argued that the prosecutrix (PW-4) and her niece Hembai @ Hembu (PW-1), both are unreliable witnesses. Initially, the prosecutrix came with the case that she was subjected to forcible sexual intercourse by the appellant, when she was all alone in her house and her niece came after the appellant had gone from her house, whereas, Heminbai (PW-4) and Hembai @ Hembu (PW-1) improved their versions in the Court and Hembai @ Hembu (PW-1) deposed as an eye-witness to the forcible sexual. intercourse. Therefore, the entire prosecution case appears to be doubtful. '-\. (5) On the other hand, Mr. Satish Gupta, learned Government Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) I have heard learned counsel for the parties at length and have also perused the records of the sessions case. (7) It is well settled that when the version of the prosecutrix inspires confidence of the Court and the Court feels it proper to Criminal Appeal No. 900/1995 ^) depend on her testimony, a conviction can well be based on it needing no corroboration thereof. (8) Now, we shall examine the evidence of the prosecutrix (PW- 4). The prosecutrix deposed that when she was cleaning her Kotha, the appellant came there, caught her hands and dragged her to a nearby room and thereafter, committed forcible sexual intercourse against her by throwing her on the floor of the room. She further deposed that while the appellant was committing sexual intercourse, her niece Hembai @ Hembu (PW-1) came there and saw the appellant committing sexual intercourse against her. She further deposed that the appellant thereafter scolded Hembai @ Hembu (PW-1) and then, he left her and ran away from the back door of her house. She, thereafter, asked Hembai @ Hembu (PW-1") to call her husband. (9) Hembai @ Hembu (PW-1 ) deposed that when she heard the cries of her aunt (prosecutrix), she went to her house and saw that the appellant was performing sexual intercourse against her aunt. He was lying on her aunt. When the appellant saw her, he left her aunt and ran away from the back door of the house. (10) The F.I.R. (EX.P.6) was lodged by the prosecutrix on 19.08.1994. She has also admitted to lodge the said report. This report contains her thumb impression. In the entire report, there is Criminal Appeal No. 900/1995 no mention about coming of Hembai @ Hembu (PW-1) at the time of commission of rape by the appellant. On the contrary, the prosecutrix mentioned in the FIR that when after performing sexual intercourse the appellant left her house, she was sitting all alone in the courtyard of the house and was weeping on account of the above incident. It is at that time, her niece Hembai @ Hembu (PW- 1) came there and asked her as to why the appellant had came there, she saw him running away from the Badi side of the house? Then, the prosecutrix narrated her that she was subjected to forcible sexual intercourse by the appellant. This shows that according to the F.1. R. lodged by the prosecutrix (PW-4), Hembai @ hlembu (PW-1) was not an eye-witness. In fact, when she came to the house of the prosecutrix and saw that the appellant was running away from the back door of the house of the prosecutrix and out of curiosity, may be on account of suspicion, she asked about the same to the prosecutrix, then the prosecutrix narrated the above story to her. The omission of the above material facts in the F.1. R. (EX.P/6) creates doubt on the testimony of the prosecutrix (PW-4) and her niece Hembai @ Hembu (PW-1). (11) Hembai @ Hembu (PW-1) was a young girl, aged about 12 years. She reached to the house of the prosecutrix all of a sudden and saw the appellant running away from the back door of the house of the prosecutrix. On this, she went to the prosecutrix and asked about all this. It appear that on such question raised by Criminal Appeal No. 900/1995 Hembai @ Hembu (PW-1), the prosecutrix may have gathered that she must have seen the appellant incompromising position with her, therefore, she made the story in the above manner. (12) On appreciation of the evidence of the prosecutrix (PW-4) and Hembai @ Hembu (PW-1), l am of the opinion that the version of the prosecutrixdoes not inspire confidence,and 1 do not feel it proper to depend on her testimony. There is yet another circumstance to be considered i.e. the prosecutrix alleges that she was dragged by the appellant, who took her to a nearby room and threw her on the ground and thereafter, forcible sexual intercourse was peri'ormed against her. However, no external or internal injury was found on the person ofthe prosecutrix. (13) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 376(1) IPC are set-aside. The appellant is acquitted ofthe charges framed against him. It is stated that the appellant is on bait. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge shyna