EAL UNDa SECTION 374(22 OF THE CGDE w CRIMINALI P} IH|||1|“||||||||lllIlNHHIIll N mE HIGH COURT OF MAuIYA PRADESH' JABALPUR/ OF 1996 ; Q AP} 4 P X‘ICL CMINAL RI APPEAL NO . ,w’P. SHRINU Ramarao ALIASJSHRINIWAS. aged about 24 son years 0f ? w resident {é House No. ms 2764-656} Housing Board, Ponce Stauon Jami, Tahsil and DistriCt DURG M P.‘ w V'RSUS E A}, ¢ RESPONDWT THE STATE OF MADHYA PRADE‘SH’. I AP \ ' @E l'lEiH C(NRT W: CHHATHWARH AT #IM$PUB ’ (Hon. Mr. Justice Pntmker Diwaker) Criminal Appeal No. 1262 of 1996 Shrinu @ Shriniwas ABEELLAEI VERSUS State of Madhya Pradesh hri M. D. Dhote, counsel for te accused/appellant. hri Pravin Das, Dy. G.A. for the respondent/State. J U P § M E N T (14.06.2311) his appeal ,is directed against the impugned judgment and rder dated 25.07.1996 passed by Third Additianal Sessins Judge, Durg in Sessions Trial No. 225 of 95 conviting the accused/appeiiant for the offence under Section r376 1) of IPC and sentencing .him to .undergo rigorous impri onment for five years and pay Fine of Rs.5000, in defaut of payment of fine to further uundergo rigorous impri onment for‘five months. 2. Facts of the case in brief are that on 26.11.1994, FIR Ex.P—1 was lodged py the prosecutrix (PW-1), aged more than 16 yearsalieging that in January,,,1993/the accused/appefiant who was her neighbour entered herahouse. and committed forcih e sexual intercourse with her and also threatened her of life in . case she disclosed the, incident to her parents, Thereafter thesa'ppellant continued physical relation with her for abiout a month and on account of the same she conceived in the month of May, 1994. It is further alieged that the appell‘ant was apprised ef‘ this fact but despite assurance of l i a; u‘ h a 1%] 920 \ ‘ _Q~— ‘ marrying her, the appenant did not marry her and went to his viuagg (situated in Andhra Pradesh). 0n 12.10.1994 she gave i'iiirth to'a ahiia and thereafter she informed her parents about the entire moment and then the report was lodged. 3. o as to hold the accused/appellant guilty, prosecution has amined as many as 11 witnesses in support of its case. State ent of the accused/appellant was also recorded under sectio 313 of the Code of Criminal Procedure in which he denie the charge levelled against him and pleaded his innoc nce and false implication in the case. 4. a fter hearing the parties the trial Court has convicted ' and entenced’ the accused/appeiiant for the offence punis able under Section 376 (1) of IPC, hence, the present appea . 5.~ Heard counsel for the parties and pemsed the material availa le on record including the judgment impugned. 6. eamed counsel for the appellant submits that present is r a case of, false implication and if not it is a clear case of A consent where the prosecutrix had permitted the appeliant to R have hysical relations with her. He submits that from the state ent of the prosecutrix it is clear that she has not made ‘ any ttempt to save herself from the clutches of the appellant. As per the own saying of the prosecutrix, for the first tiime, she had physicai relation with the appellant in the month: of January, 1993 and it continued for about one month and thereafter she never had any physical relation with the ‘appellafnt. He submits that the prosecutrix gave birth to a child on 12.10.1994 whereas‘she had physical relation with the appellant in the month of January 1993 which continued only fo‘r one month, therefore under no circumstances it can be held that the appellant had committed, any offence. He s @7 ‘ furthér submits that the inordinate deiay in lodging the FIR has not been expiained by the prosecution as required under the law 7. n the other hand counsel for the State supporting the V judg ent impugned argues that the appellant had exp'loitedr the p thetio condition of the prosecutrix and had physical 4 relati n with her for more than one month on the premise of marri ge and therefore the offence under Section 376 (1) of IPC is apparently made out against the appellant. 8. rom perusal of the record following facts remain undis uted: i) That on the date of incident the prosecutrix was major. For the first time she was subjected to rape by the i appellant in January, 1993 and thereafter she had physical relation with the appellant only for one ‘ month. iii) In May, 1994,.the prosecutrix came to know about her pregnancy. iv) The prosecutrix gave birth to a child on 12.10.1994. v) The matter was reported to the police on 26.11.1994 H i e. more than one month after birth of the child. l i 9. gefore harping upon other ewdence supporting or contradicting the statement of the prosecutrix, a close scrutiny of her ewclence itself needs a careful examination According to the prosecutrix (PW-1) she was living in her house! along With her parents, two sisters and two younger brothers. In January, 1993 when her father had gone to i attend his duty and she was alone in the hut built in front portidn of her house, at about 4-4.30 a.m, the appeliant V ._ “v threateped her to open the door. Out of fear when she] opened the door, the appellant entered the house and ' committed rape on her. She has stated that she had a’sked the ap ellant not to do the said act to which the appeuant promis d to marry her and then she dld not offer any resista ce. According to her, she did not disciose to anyone about the incident because she was threatened by thet appeii ntfof her life. She has categorically admitted the fact that t e appellant kept on physical relation with her only for abOut ne month after having physical relation for the first . time i January, 1993 and thereafter she never had any physic l relation with him. She has further admitted the fact that h d her family members not enquired from her, she would ot have disclosed the act of the appellant. In the FIR, the pr secutrix has‘categoricaliy alleged that in May, 1994‘ she ca e to know about her pregnancy and on 12.10.1994 she de ivered a child and thereafter the report was lodged on‘ 26.11.1994. 10. us from the statement given by the prosecutrix before the Co rt it is apparent that'she was a consenting party to the a vof the appellant and no resistance was offered by her at the time of sexual intercourse. Secondly the prosecutrix had entough opportunity to disclose the incident to her parents or report the matter to the poiice. Even after coming, to know about titer pregnancy she has not lodged report and the report was lodged more than one month after deliveryof the chiid. If the erosecutrix could not lodge the report immediately after January, 1993, she could have lodged it in February, 1993 V because as per her own saying she was subjected to sexual intercourse by the appellant for about one month. . Looking to her overall conduct the only inference which can be drawn is v - l the first sexual intercourse which was done in the month of ‘l , s 3!. ’9 QM ,5’ that _ ‘he physical relations between the appeHant and the rosegutrix were consensual and not otherwise. 11. ' e other witnesses in this case are; Hari Ram (PW-2) - seizu e witness of clothes and marks sheet of the prosecutrix vide s. P-2 and P-4 respectively, Dr. Smt. Pratlbha Dani (Pw— ) who‘had medically examined the prosecutrix, Dr. R. D. Sharma (PW-4) who had medically examined the appel ant, Somnath Mishra (PW-5) - seizure witness of underwear (Ex. P—8) of the appellant, Pyarl Bai (PW-6) 7 ' moth r of the prosecutrix, Kunti Bai (PW-7) - aunt of the prose utrix, Dr. G. S. Thakur (PW-8) who had submitted the ‘ ossifi tion Ex.P-9 and as per the said report the prosecutrix f was ajor, Fundu Ram (PW-9) - father of the prosecutrix and S. S. hadoria (PW-10) - the Investigating Officer. 12. us looking to entire material made available :before this ourt, considering the unexplained Inordinate delay m lodgi g the FIR and most importantly the overall conduct of the rosecutrix as has been discussed above in detail conViftion of the appellant under section 376 (1) of IPC cannot stand Accordingly, the appeal is allowed Impugned Judg ent dated 25 07 1996 conVicting and sentencmg the ,accu ed/appellant as mentioned above is set aSide. The appel ant is acquitted of the charge levelled against him. He is oni ail. Bail bonds so furnished stand discharged. I, i l sw— l Pritinker Diwaker ‘ Judge k‘, p