IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CriminaIA eal.No. 8x” /2009 Budhelal arange @ Budhu, aged about 40 years, Son of Shri Kuda Satnami, Occupation — Nothing, R/o — Village — Bhurkuni, Thana - Dharsinwa, Distt — Raipur (Chhattisgarh). Narange, Caste‘ — Presently residing at -Rajeev Gandhi Aawas, Quarter No. 98, Thana — Urla, Distt — Raipur (Chhattisgarh). APPELLANT (Accused) (in jail) The State of Chhattisgarh, Through— Polish station Urla, District- Raipur. RESPONDENT (Prosecution) 7 /‘ CRIMINAL APPEAL UNDER SECTION- 374 (2) CODE OF THE CRIMINAL PROCEDURE, 1973 N HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon Mr Justice Prltlnker Dlwaker) Crlmlnal Appeal No 95 of 2009 Budhelal Narange alias Budhu APPELLANT VERSUS RESPONDENT’ State ofChattusgarh , 3 Shrl Roop Nalk counsel for the appellant Shrl Valbhav Goverdhan PL for the respondent/State ‘ RlMlNAL‘APPEAL UNDER SECTION 374 OF THE CODE O " ' CRIMINAL PROCEDURE J up GVM E NT . 7(28 0232011) * This appeal Is directed agamst the judgment and order dated 17 12 2008 paseed by Addmonal SeSSIons Judge (FTC) Ralpur In Sesswns Trlal No 112/2008 conVIctIng the accused/appellant under Section 376 IPC and sentencmg him to undergo rigorous imprisonment for seven years and pay fine of Rs 200 in default of payment of fine to further undergo rigorous imprisonment for 15 days. 2. Case of the prosecution in brief is that on 7.4.2008 FIR Ex. P— 2 was lodged by Smt. Horoundi Bai (PW-2) alleging that on 30.3.2008 when she and her husbandvwere not at home, accused/appellant who‘was residing in her house committed forcible sexual intercourse with her daughter (prosecutrix herein) by putting her under fear of evil spirit. Prosecutrix was medically examined on 7.4.2008 itself vide Ex. P-17 by Dr. Padmini Singh (PW—10). After investigation, challan was filed by the police on 29.6.2008 for the offences under Sections 376 and 506 (ll) IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 11 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the Case. ffa‘ C F “3* gone to Siltara and her brother had been to his workplace. Her mother is stated to have retuned on the next day and taken her to the potice station where the report was lodged. According to this witness, her two sisters had also accompanied them to the police station. Thereafter the police came there and arrested the accused/appellant who was hiding in the house of some other person. Her unde'nNear was seized by the police vide Ex. P—1 and then she was sent for medical examination. In paragraph 4 of her cross examination this witness has stated that on being asked by her lawyer whether she knew the accused/appellant, she told him that she did not know him as he was resident of some other village. According to her, she had three brothers and three sisters out of whom one elder sister and elder brother were married. This witness has stated that as one of her brothers was in jail in connection with some offence, her mother had kept the accused/appellant to help her in getting him bailed out. She feigned ignorance about the. accused/appellant being a leper. Horoundi Bai (PW—2) — the mother of the prosecutrix has stated in her evidence that as the accused/appellant had helped her in obtaining the bail of one of her sons, she had kept him in her house for about three months in the hope that he would take care of her children. According to her, on the date of incident she had gone to Siltara to meet her daughter and son-in-law and when she returned on the next day, her children had informed her about the incident. This witness has stated that the prosecutrix had complained pain on her waist and chest and disclosed the factum of rape committed on her by the accused/appellant and thereafter the report (Ex. P-2) was lodged by her. She has admitted that Patwari and Kotwar had come to her house and spot map Ex. P—4 was prepared. In paragraph 4 of her cross examination, this witness has stated that her house given under the Rajiv Gandhi Housing Scheme has one room, kitchen and bathroom and that the houses-of the neighbours are also adjoining to it. This witness has stated that after she returned from Siltara, instead ofrhome she straightaway went to her workplace and when in the evening she reached home, she was informed about the incident on the next day by her children. é? According to this witness, she had seven children and that on the dat of t 5 u. axm e incident the prosecutrix was aged abou 1 years. K Li (PW-3) — the sistr of the prosecutrix aged about 2 years s ted in her evidence that she did nt know the accusd/aellant. She has hover stat that on t date f incident, the accused/appellan had coitted rap on the posecutrix. Acong de he ng er ter-in-Iaw a sistes was sleepin in the use, accusd/ellt sared the of soe evil spirit and psing hmself be th ce rce exual intercoure with the prosecutrix. This witness has stad that entire mily s siding in the same house having one room, kithen, atrne and bathroom. According this witness, on t de of inident her brother and ister—in-law were sleeping o a ct c s n o whreas she alog with her brothers and sisters was sleeping n the om pr t e n o re we not at home and that in the next morning the prosctrix had ld her abou the accused/appellant having raed her. Om Prakash Tandon (PW-5) is the witness to eizure of underwr of the acused udr Ex. P—5. ohwar Vera (W-6) is th Pari who d preared he spot map Ex. P-4. He has tated tht the use in hich the prosecutrix was residing had one room and the same ws given under the RajivGandhi Housing Scheme. Mukund (P-7) — the father f the proseutrix has stated that he ws infmed by hi wif abot the act of the acused/appellant and then the rport was lodgd. He has admitted that the incidt w infored to him a about 7-8 dys thererom and then he asked his wife to go ad lodge the report. B.S. Jagrt (PW- is the investigating officr w has supported te case of the prosecution. D. Shishir Agrawl (W- 9) is the wits who had done ossification test o the prosecutrix and given his report Ex. P-16. According to him, at the relevnt ti the proscutrix was aged betwn 14 and 16 yes Dr. Pdini ingh (PW—10) is t witness who had medically examind the prosecutrix and given her report Ex. P—17 statig that her hyme was _¢{_ crdi to her, on the date of incint when s alo with h sis nd r g ho eappan c m m o i to e sorrer entered the room and committed foibl s e n o floor and that the accused/appellant had bolted the door fr outside. Parmila (PW—4) another sister of the osecutrix aged abou 7 years has statd that o the date f incident her pants re eu to t p s ea c ne Nmes m P e twa ha p t s a ho w a W o c a or s e u c e e en as m fter a -f n a 8) e ho h r a P nes f a me e ee ar. am S he e n n e 1 ha sat o epp we ed he o t mm e r s te fa wa re c li to he at old torn and two fingers easily entered her vagina and no injury was present on her person. Dr. Kamai Kumar Gajbhiye (PW-1 1) who had medically examined the accused/appellant and given his report Ex. P-19 has stated that he was capable of having sex. A _&‘ 9. Close perusal of the material available on record and the evidence of the witnesses including that of the prosecutrix shows that the statement of the prosecutrix is full of inconsistencies and therefore unfit to be relied upon. First she has stated that her mother had not permitted her to take the medicine given by the accused/appellant but later she says that at the time of incident her mother was not at home as she had gone to Siltara. Secondly, she has stated that the accused/appellant was staying in her house but when asked by her lawyer she told him that she did not know the accused/appellant as he belonged to some other village. More importantly, the house where the incident is said to have taken place consists of only one room in which 3-4 persons were already sleeping at the time of incident and that being so the story put forth by the prosecutrix that she was raped by the accused/appellant in the presence of everyone, appears to be highly improbable. This apart, there is inordinate delay of about 8 days in lodging the report which has not been satisfactorily explained by the prosecution and that the medical report of the prosecutrix also does not support the case of the prosecution. 10. In view of the discussion made above, this Court is of the considered opinion that the trial Court has not taken care of all these glaring lacunae in the case of the prosecution while convicting the accused/appellant by the judgment impugned. Judgment impugned is therefore liable to be set aside. 11. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As the appellant is in jail since 8.4.2008, he be set free forthwith if not required in any other case. sal— Pritinker Diwaker _ Judge