^ 3^ HIGILCOURT OF^HHATTISGARH, BILASPUR SINGLEBENCH: HON'BLE SHRI R. L. JHANWAR, J. Criminal Apneal No. 1364/1994 APPELLANT Khelan Singh Versus RESPONDENT State of Madhya Pradesh (Now Chhattisgarh ) JUDGMENT Poston r) September, 2009 Sd/- R-L. Jhanwar Judge RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:46 +0530 p- HIGH^QURTOF^HHATTIS&ARH: BILASPUR SINGLE BENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. Appellant (Accused) Respondent Criminal Appeal No. 1364/1994 Khelan Singh, S/o Besahu Singh, aged about 29 years, Village- Korgaon, Thana Magariod at present R/o Sector No.6, Bhilai Nagar, Distt. Durg (MP) (now C.G.) Versus State of Madhya Pradesh, through: Police Station Magarlod, Tahsil Dhamtari, Distt. Raipur (MP) Criminal Apneal u/S 374 (21 of the Cr.P.C. Present:- Shri Sarfaraz Khan, counsel for the appellant. Shri D.K. Gwalre, Govt. Advocate for the State/respondent. JUDGMENT (Delivered on^| 9/2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th October, 1994 passed by the learned Additional Sessions Judge, Dhamtari, District-Raipur in S.T. No.352/1992, whereby the learned Additional Sessions Judge, has convicted the appellant for coinmission of offence punishable under Section 376 (1) ofthe IPC and sentenced him to undergo R.I. for 7 years and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo R.I. for 6 months. 2. The prosecution story, in brief, is that on the festival of Holi on 19.3.1992, villagers were celebrating Holi. The prosecutrix was living in her parental house as her husband had left her 2 years before. On the date of incident, she had gone to purchase pichkari to play colours and when she was returning, the appellant met her and asked her to play colours, however, she refused. At the place of occurrence the house of Tulsi Marar was there and the door was open. Appellant dragged the prosecutruc in the house of Tulsi Marar and closed the door and ravished her without her will. She cried but no one could hear her, as the noise of drums was there. When she tried to cry he gagged her mouth. After ravishing her he fled from there. When she came out from the house of Tulsi Marar, she saw Naresh (P.W.3). She stated him the incident and Naresh told that he had seen the incident. She went to her s W s house and narrated the incident to her mother, Radhe and others. Then she lodged report to Police Station Magarload on the sarae day at 6:00 pm. FIR was lodged. She was sent for medical examination. The doctor examined her and prepared her vaginal slide and sent for chemical analysis. Appellant was also examined by the doctor. After taking statements under Section 161 Cr.P.C. and after doing necessaiy formalities, investigation was completed. 3. After completion of investigation, charge sheet was filed under Section 376 of the IPC against the appellant in the Court of Judicial Magistrate 1st Class, Dhamtari, who, in due course committed the case to the Court of Sessions, Raipur. The learned Sessions Judge made over the case to theAdditional Sessions Judge, Dhamtari for trial. 4. The learned Additional Sessions Judge framed charge under Section 376 of the IPC and read over and explained to the appellant who abjured the guilt and pleaded that he is innocent and has been falsely implicated in the case. 5. The learned Additional Sessions Judge, Dhamtari, after evaluating the evidence available on record and hearing the counsel for respective parties held the appellant guilty for cominitting the offence punishable under Section 376 (1) of the IPC and convicted and sentenced him, as above. 6. I have heard learned counsel for both the parties at length and perused the record of the trial Court. 7. It is evident from the evidence of Lakshabai (P.W. 1) that on the date of incident they were celebrating festival of holi in her village. She went to purchase pichkari and when she was returning to her house, she went to see Rajmat Bai in her house, but she was not there. Then, one Brij called her where the appellant also came and told her to play colours, but she refused. Rajmat Bai was also there and appellant played colour with her. She further deposed that appellant dragged her towards kotha of Tulsi Marar. She ta-ied to cry and raise alarm, but none heard. After taking her to the house ofTulsi Marar he closed the door and ravished her. She also deposed that at that time Naresh (P.W.3) came and called Tulsi Marar, then she went to open. the door, but accused pushed her, upon which she fell down and appellantjumped and fled froin there. She opened the door and saw Naresh (P.W.3) and stated him and also stated f".- to Radhe and Ragho and thereafter report was lodged. In cross- examination she deposed that at the place of incident the house of Khelan was also there and house of Tulsi Marar was on the way and other people were also there. She further stated that she did not scratch the appellant with her nails or beat him with hands or kick in her defence. 8. Naresh (P.W.3) to whom she stated the incident, said that when he went to call Tulsi Marar at 10:00 am, he saw that in the kotha of Tulsi Marar appellant Khelan Singh and Lakshbai was there and they were kissing each other. He also stated that Lakshbai after seeing hiin told the appellant, and then appellant ran away. After Lakshbai came outside Naresh told her that he will narrate the story to her brother. 9. Dr. Smt. M. F'urohit (P.W.5) examined the prosecutrix and found no injuries on her body or on her private part, her report is Ex.P-10. According to her statement no defmite opinion could be given about rape. 10. In this way, it is clear from the evidence of prosecutrix that on the date of incident when the appellant saw her in front of the house of Tulsi Marar and wanted to colour her she refused.At that time according to her statement one Briz and Rajmat Gorin were also there and appellant played holi with Rajmat and thereafter dragged the prosecutrfa< in the kotha of Tulsi Marar and she did not cry. If she was not willing to go with the appellant, then she should have cried and Rajmat and Briz could hear and save her. But, according to the above circumstances, it seems that she was not dragged by the appellant, she went along with the appellant on her own freewill and at the tinie of incident when she was ravished she did not try to kick or beat the appellant by hands. She also not tried to scratch him with her nails in her defence. This shows that she was consenting party. According to Naresh (P.W.3) he saw the appellant with the prosecutrbs kissing each other in the kotka of Tulsi Marar and Naresh was not declared hostile witness by the prosecution. So, by his evidence it is also clear that she is a consenting party. Dr. Smt. M. Purohit (P.W.5) has also stated that she could not give any finding about sexual intercourse. In this way, it is clear that the prosecutrK was a consenting party. Therefore, she is not a reliable witnesses and conviction cannot be given on her sole testimony. The ";^i^ ^' s;: '"''^j. "^ .^' :.& ^ : 3^' :,-T«" learned trial Court has erred in believing her sole statement and thereby convicting the appellant. 11. Thus, in view of the above the findings of learned Additional Sessions Judge convicting the accused/appellant for the offence under Section 376 (1) of the IPC cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused/appellant is entailed to acquittal. 12. Accordingly, this appeal filed by the appellant is allowed and the impugned judgment and order dated 29th October, 1994 passed by the learned Additional Sessions Judge, Dhamatri is set aside and the appellant is acquitted of the charge framed against dismissed. He be set at liberty forthwith. Sd/- R.L. Jhanwar Judge Sinha ws. ^m <~< ^ PfB t CF- ? Qlk ^. !• &' v < ^ '» ^ l->0 -{3 _-4Q p ~^3 fr ly ^ 1^> ^ ^ .-^ |~a~ 3] " 3 ^ XI-HC—78 5.?iS?F ^T T^T^T TI'ETT 3^?i ST*^E% s^wi^w, ^f' 's ? '^wt"ta., afll+t'is, 'fewiy ..^.•..A..K(?..-....'..3..<OAj..3^: ( yqr '^nw^feia^r ^i^ci<il*i ^^?f!f ^ffs^ ^aiftwail^l ^ IKIVtf SIiriR.R.Sinhaaiidi Shri Surul Sahu, cojunsel for fhe appeUaat. Shri U.K.S.Chandel, Pas.cl La\vyers for the State. TIie inatter has beefa. listed for correction of clerical error in tlie JudgBieiit dated ^.9.2009, passed ta Cr. Appeal No. 13.54/ 1994. lu last para of t|ie judgraent, word "disiaissed has wrongly been typed ta pla,be of word "him.". The sam.e is corrected. In the last para offhe judguieut dated 2.9.2009, the word|"him." shaU be read iu place of word "disinissed". The order is accordingly corrected to fhis extent, ! ~ "~^ Sd/- I R.L. Jhanwar Judge