T **•*;. ^, o »••- ^»l^»^7-.-^u;^JC(;M^1 ^' HIGH CQURT OF CHHATTI80ARH AT BILASPUR SB : HON'BI^ MR, JUSTICB; PMTINKER DIWAKBR CR.A.SO. 1056/1993 Jagmohan RESPONDBNT versus State of Madhva Pradesh Shri Neeraj Mehta, counsel for the appellant. Shri Vivek Shaniia, P.L. for the State. APPUC^riONJU/S 374 (8)0P THECR.P.C. (09.04.2010) The present appeal is directed against the judgment dated 24.7.1995 passed by fhe Additional Sessions Judge, Jagdalpur, in Session Trial No. 169/1990 couvictiag fhe accused/appeBaiit for thc offence punishable under Section 376 ofthe Indian Peiial Code and sentencing him to iindeigo rigorous imprisoniaent for four years aad to pay fiae ofRs. 2,000. in delault ofpayinent offine to furfher uadergo rigorous uaprisonm.ent for one laonfh. 2. Brief facts of fhe case are that on 12.09.89 a written report Ex.P/1 was lodged by fhe prosecutrix (P.W.-l) aged about 18 years alleging in it that her niarriage was setfled wifh the accused/appeUant and engagement ceremony was also solenuuzed. She has alleged fhat before tiie maniage cereiaony could be solenuuzed, os. various occasions she was subjected to physical relation by the accused/appeBaiit. The panchayat meeting was catled but despite the assuraace given by the accused/appeUant he has not inarried witfa her and ftierefore she is lodging fhis report. On fhe basis of this written rcport, FIR Ex.P/2 was registered agatast ffae accused/appeUant on 12.9.89 for tiie offence puiushable under Sections 363,366,376 & 342 of fhe IPC. After invest^ation, challan was filed however, while fi-amiag the charges, the Court below has fi-amed fhe chai^e ^a'zait ^-'%. , ^. 'v^/ ^tWW agauist the accused/appellant for the ofience puiushable under Section 376 offhe IPC. 3. So as to provc fhe guilt offbe appeBant, the prosecution has examined as many as nine witaesses. Stateinent of fhe accused was also recorded uader Section 313 Cr.P.C. in which he denied fhe cbaige leveUed agauist hiiu and pleaded his innocence aad false implication in fhe case. 4. After hearfag leamed couasel for fhe parties, fhe trial Court has convicted and sentenced the appeUant/accused as nientioncd above. Hence fhis appeal. 5. Contention of the counsel for fhe appeBant is ttiat even if the entire case of the prosecution is taken as it is, no offence whatsoever is naade out again.st the appeUaat. He subinits tfaat adinittedly the prosecutrix was inajor and therefore if she has consented for physical relatfon and that too, for a long period, ttie oflfence under Section 376 offhe IPC is not attracted. i -'t-s.^^iu.t 7. On fhe other haad, supportiag fhe impi^ned judgment, it has been argued by fhe State couasel fhat present is a case where unfortunately the prosecutrix has been utffized by fhe accused/appeUaat and fhen he has refused to inany hcr. He submits fhat tlie Court below is fuUy justified in convicting the accused/ appeBaat 8. I have heard learaed counsel for fhe parties at length aad perused fhe record nicludiag fhe unpugn.ed judgment, Prosecutrix (P.W.-l) in her Court statemeiit has stated fhat she was engaged wifh fhe accuscd/appcUant in the year 1986 and fhereafter there used to be exchaage ofletters between her aad the appeUaat and ia the year 1987-88 she was taken by fhe accused/appeUaat by saying that his parents have called her and iastead oftakiag her to BacheH she was taken to Akash Nagar and there she was subjected to physical relations by fhe accused/appeUant She lias stated that fhereafter she was takca to fhe house of his parents where she stayed for 2-4 days and fUen .^s:-"*%.. w:s:-^ ^ ;:';1 j" '^ f" -,,-i''.1;' was taken by Tiim to Kotpad where one ofhis uncle was residing aad a cominunity nieeting was called ia which fhe accused/appeBant has agreed to inarry with her. She has stated fhat she stayed in fhe house of fhe fafher of the appeUant at BacheU for about one inonfh aad there she lived with fhe accused/appeUaat like husband aud wife. Accordu^ to the prosecutrix, after about one m.0ufh of her stay, niother of fhe appeUaut ousted her fiuin the house after beating her and fhen tfae report was lodged. In her cross exaiiiiaation, fhere are niaterial contradictions and omissions and in various places she has given different dates about fh.e engageinent cereinony, her date ofbirth and about the date of incident She adsnits that fhe letters were exchanged between tier aad the appeUant and even betweeu the two families. She has also stated fhat she took the help ofwoiaen oi^anization but yet fhiugs couM not be setUed though fhe appeUant had agreed to many her. 9. Soni Bai (P.W.-2) ^ tfae witncss who had attended fhe engageinent ceremony of the prosecutrix. K.K.Muhra (P.W.-3) has stated fhat the accused/appeBant was his tenant and fh.c prosecuteix stayed in the house along wifh fhe appeUant Trinath Bisoi (P.W.-3) fafher of fhe prosecutrix has stated that fhe engageinent of his daughter was soleiiinized with the accused/appeUaat but the inarriage could not be performed and her daughterwas ousted by the inofher ofthe accused/appeUant. This witness however has steted fhat the prosecutrix was haviag soiae inental problem for which shc was treated at Jagdatpur. Dr. Sm.t. S. Pandey (P.W.-4) is fhe lady doctorwho had examined fhe prosecutrix and has given her report Ex.P/13 & P/14. Chandramani Paadey (P.W.-5) Teacher, is the seizure of traasfer certificate Ex.P/7 & P/8. Ex.P/3 & P/15 are tfae documente related to ftie date ofbirthofthe prosecutrix. B.L.Sahflria (P.W.-6) SDO (P) has done fhe part of iavestigatioii. Amni Kutti Amma (P.W.-7) President of Wom.eu OraanJzation has stated fhat the prosecutrix has informed her that she was siibjected to rape by thc accused/appcUant. Sudhmal Baghel (P.W.-8) who is fhe neighbour ofthe accused/appeUaut has not stated anyfhing. ..»»•;. •/'i^ 10. Minute exaraination of fhe evidence as adduced bv fhe prosecutrix inakes it clear fhat at the tune of conunission of fhe ofFence, fhe prosecutrcc was inajor aad it appears fhat she has allowed the accused/appetlant to bave physical relation wifh Iier on many occasions. The conduct ofthe prosecutrix shows fhat she was a consentiag party aad ia view of this, it will not be safe for fhis Court to convict the accused/appeUant ou fhe basis of fhe evidence adduced by fhe prosecution. 12. In couclusion, fhe appeal is aUowed. Iinpugned judgment convicting aad scntencing tfae accused/appeBaat is set aside. He is acquitted of fhe charges leveUed against TiJTn. The appeUant is on bail, his bail bonds staad dischai^ed.^ - Sd/- Pritinker Diwaker Judge