.© I-HC—78 ^n^r^\ f<rii<=b ^T^T 'yn^T 5b^i<=b ^ 3^r ^i^i^^, y>Tfl<i<i<o, (si^i^y W^vl\ tb^lcb ^ 200 3?T^5T ^nra? (<i^ftiQ<<i^) '^TTW^ritU 3TT^[ CRIMINAL APPELLANT (InJail) RESPONDENT Ba^ant, S/lo 5hiv Ratan, Aqcd dsout 36 years, R/o Village Jofc|ga, P.S. Surajpur, Disrict Sarguja (CG). Vs Stateofd (C6) P?^esenti Mr. A.K. Shukla.Advocate forthe Mr. Neeraj K Mehta, PW€\La^yer ORAl <=bi^I<n<i1ti ^i^i<nl ^f^fs^) <P»I<^K ^^fRm^STT^T ^PPEAL N0.322/2005 .6. through: P.5. Surajpur, Distt Surguja appellant, for the respondent-Stat-e. JUD6MENT (23^ frSs^nsber, 2007) P@r &hir@fidra Mishra. J: Thte criminai Gppeai is di and order of sentence dated 2^ jearned l^ Adciitional Session^ 'IPC') and sentenced uvith R.I. f< defauit of payment af fine to u 'ected against the judgment of conviction .3.2005 passed in 5.T. No.97/99 whereby Judge, Surajpur, Sarguja has convicted the appeiiant herein under Se^tion 376 of Indian Pgna! Cod@ (for shart ?r 7 years and to pay G fine of Rs.SOOA, in idergo additiona! R.I. for 2 months. Case of the prosecution|, in brief, is that on 12.1.1998 wh*en the prasecutrix returning her |iome afrer attending thc cail af nort'ure in her matrimonia! home, appeiian|- Basant caught her from behind and iaid her down an the ground. Anoth CGught both her hands. Accus^d Basant cammittcd rape i^ith her. The prosecutrix raised alarm and brothcr-in-ia^ Laxman came fri T accu'sed, ^ho is son-in-ia^ of Jagmahan, ^n hearing the abrrn af prosecutrix/her tom her hame and on seeing him^oth the ^TT^T ?FT f<Tli<=b ^T8TT ^TI^T ^FRW <- -^ 3^T ^WW^, ^^\W\<o, \^<ftWy. ^. ^l^dl *^|cb •^ 200 31T^?T 'V^K (4<yf^<s|<yST) '^TTW^f^T 3TT^T -2-1 h<fer Delvnath i^illnesses rec^ded accu^ed persons fied from therje. prosecutrix iodgcd the report examination to Cammunity Heal| Shrivastava (PVV-S) examined Ex.P-4. After compieting investig^i the appeitanf Qnd co-accused Section 376 (2) (g) of the IPC ai| (2) (g) of IPC wos framed againsl the prosecution examined 10 af the accused pcrsong wos which the appeSiant herein denie^ prosecution case and taok a defej invoivcd in the theff- of Nadar- hlm in the panchayat and becaus^ in the fatee case. T^o defence Ada! (DW-2) were aiso examined|by1 Learned Additiana} for the respcctive parties, acqu| the charge under Section 376 (2 appellant herein under Section mcntioned in Para-1 ofthisjudgntent cni^I<n<flTi ^i*i<A '^,'fe^l' <Pn^i< "^" 3?TfOT 3T1^T s. On the next day at 12.00 noon the (Ex.P-1), she WQ€ for medicai h Centre, Surajpur ^here Dr. Shipra and gave her medico legai report of incd |by the Sessidns 'ion, the charge ^heet.was fiied against for the offence punishabie under |d accordingly chargc under Section 376 bath the accuged persons. During triai, in all and thereafter statements under Section 313 of the Cr.P.C. in th@ evidence avaiiabie against him in the ^ce that father-in-iaw ofthe prosecutrix '-Jua/ the'y havc given evidence against af thi^ animosity he has been impiicoted ^itncsse^ nameiy Shantidevi (DVV-1) and defence. Judge afS=er hearing Searned coungei itted the appeilant and co-accused from ') (9) ^f the IPC, ho^ever, convicted thc 376 af the IPC and gentenced him as ^) 3^T ^T RTl[<=b 'cT^T'STI^T st)^i<=h 1 7^S( -qi-qi^'q, ^Tfl'y'Ko, fsf^l^y ^l^cfll ^^l<=h "^ 200 3H^?T X15RF (^|f^<yST) '^TTW^n^n^r -3- Learned counsel for th aii other witnegses inciua'ing aSieged that the appeiiant have onSy made aiiegations of perusa! of the conductof th raised aiarm only after the at thc piacc of incident aftcr running a^ay from the piace prosecutrix being a eonsents'nc On the other hand, impugned judgment. I have heard tearned c impugned judgmcnt ag aiso the Conviction of the app prosecutrix (PW-1), Chameii The prosecutrix (PW-3 ^he was returning after atten her i^aist threw her on the her. Accused Devnath WQ€ reached there and on seeing crosg-examinatian shc has e^ being convcned ian the viilage <=M^<n<fli^i*4<riT ^T^^ <f^t^i< ^STRlH^TT^T appelbnt argued that except pro^ecutrix <;hameii (PW-7) & Laxman (PW-8) have not con|mitted rape with the pr'osecutrix and they evg teasing. He further argued that from ^ prosecutrix it wouid be evident that she a^fence WQ€ compteted, as ^itne^ses reached liearing the ajarm onjy and saw the appeiiant of incident, and thus, the possibility of party cannot be ruied aut. le^^^d coungei for the State supported the |ounse! for the parties. I have perused the evidence avaiiabie on record. fcSlant is based on the statement of thc (F|W-7)&Laxman(PW-8). -1| has deposed that around 7.00 p.m. i^hije i^ing the cail of nature/the appeSiant caught ^round and thereafter committed rape i^ith |olding her hands. On her shouts', Laxnian |iim the accused persons fled a^ay. In the jpresscd her ignorance about any panchayat 'egarding the thefi- of Nagar-Jua of Aada! 3TI^T?^ f<rl[<=b TfSff 3TI^T $ti^icb -^ 'S^ •^I^IO^, ^TO-M<l<o, (®t0W^< *<l^dl d»*<|cb •^ 200 3^?T t^RF ( li^lc<<i?T) '^TTW^rf^T 3TT^[ -^f- <=bl^F<n<fll ^l^<;lf ^f^c3t Tf^R^R ^sfRpTa^TT^r Gond/ as she had returned fij'om hcr matcrnal home after staying there for a week. She has denied ^e suggestion that she bdged the report on the next datc of panchayat. T|ier€is no cross-examination afthis witness by th©defence regarding c^mmisgion of offence of rape and virtuaily ailegatians made by the |iro:5ecutrix in her statement regarding commi's^ion of rape by the app Chameii (PW-7) has q Bilants' stands un-rcbutted. teo gtatcd that at the time of incident darkness has set-in/ she hear^ the shouts af prosecutrix, ^"hen she went to^ards that side, she gaw fhc appcllant i"tunning away to^ards fore^t. Prosecutrix taid h©rthat accl WQS aiso present. Mo^ever, s^ \i€ed Basant had caught h@r and spoiied hcr i.e. h@ had raped her honour dp\d saying this she started ^eeping. Laxman e did not cee co-accused Devnath. She hag denied the suggestlon of de^nce that in the panchayorf- convened in the viJSage altegation of theft of I^GgQr-Jua WQ€ madc Qgainst her husband, he WQS directed to return Na^w-Jua and bscause of this incident the appeliant has been implicat€d|theaccused person^ in a false case.through the prasecutrix. Laxman (PVV-8) has ab^ deposed that on hearing the shouts of her Bhabhi (prasecutrix), hg ran fowards forest and caw Basant fteeing from there. No one was accompar|ying Basant. The prosecutrix toid hcr that the appeiSant WQ€ rabbing |t€r honour. This witness has dcnied the suggestion of the defence ^hat theft WQ.€ committed m ^he house of Tc^^TPn^T, ^Tfl^^l^, fd^iy^ '^- ^T^T ^T ^[cb ^^T3n^T5RqN7 f ^l^dl sh^ieb "^ 200 W^?T TWR (4^^<^) ^^TTW^f^a^r -5- Shivchoran afS-er breaking th< father vvas caught bythe acc| accused pcrgons. ThiS witnes^ Gr»i<if<!i<fli +IH<A* ^fezi' <n»i^i< ^•3tRp73T^r ^ wail just 3-4 days before the incident, his Lised persons and he i^as beaten by both the has aiso denied the guggestion that Nagar" juathefi- was committed by his father. He has further denied thatjust to escape from the charge of tl^eft he, his father and other famiSy members have fabgiy ImpSicated the aj3 Afl-er galng through above two witnesses it is prosecutrix regarding comni| rebutted. Hcr version is duiy peilant. ishe statement of thc prosccutrix and th© manifestly ciear that the version of the 'ission of rape by the appeltant stanas un- corroborated from the stateiTient ofChameii L4 (PW-7) & Laxman (PVV-8), w|ia have deposed that they heara1 the shouts of the progecutrix, whereup and €Wf the appeSlant runni progecutrix narrated about on, they wcnt towards the piace of incjdcnt ig away from the piace of incident and the i-he commission of rape ta them immediateiy aftcr the Incident. So far as the defen^e of the appeilant that the father-in-ia^ of the progecutrix ^as caught 'ed handed whiie attempting to commit theft in the hou^e of Shivcharanjthe appeilantg bcat him and bccause of this animogity he faiseiy impiia prosecutrix Is concerncd/ e^ the prosecution witnesses, ited both the accused persons through the :C€ptbald aiSegotians by woy of suggestions to io other evidence in the form of report to the paiice or rcgistration of o^iy offence again^t the father-Jn-law af the ^TT^T^\ f^-licb TT^TT'STT^T 5FRW t^ - (•" 3^cT ^1-^10^, tS»Tf1^41<o, (c|^l^^< ^Wv\\ d»Nlcb ^ 200 3^?T X^RF (4^f^<^T) '^TTW^rf^T 3TT^T -^- aiArni laae prosecutrix ha^ bee'n filed and therefore, in the considcred above suggcstions the versi^n unchaiiengcd, cannot be doubte4 Other argument advancec| the prosecutrix did not raise persons i^ho reached at the 'plc the appejlant runni'ng a^ay un4 purty is concerned, no ^uch def| to the prosecutrix and the con| the soiitary testimony of the the defence. In the rBSuit, the Qppeai djs'mis^ed and it i^ hereby disnii^ed. proved by the defence during trial and o^inion qf this Court simply on the basi's of of the prosecutrix, ^hich stand^ <=hi^I<n<fli ^i^<;if ^f^^l <H»t^i< i73tRw3T?^r by' iearned coun^ei for the appeilant that immcdiatejy after th@ incident, ag th@ of incident after hcaring aiarm only sa^ thu5, the prosecutrix ^'as a cansenting mce has taken by ^ay af ^uggestions Fid-ion of the accused can be founded on pr^secutrix, if the same is not chailenged by |has no ^ubstance, the same is iiabie to be Sd/- Dhirendra Mishra Judge