CFOOob'657'733 n IN IHE SI®COUBI OF rL4BHYAPEA.D^H AI JAB&LPUR. Grimiaal Appeal a'o.\-'z)'3'2of 1994 APPBLIAIH; &CGCTS2D CT JAIL / Haiisha Bam Saha age<a 50 yeara, son of ,»•»•— ?£.d£--- ^******"**" ^to^.6 /' Hajari. Sahu/Galti-vator, reaident of oillage pilai Par", P.S.H'awagartl.diat.rict Durg. va I he Sta-fce of M.P. throagb th^ Biatrict Magis'fcrat?, Oarg. ;—:•»»»—N> APPffiL UM)BS SBCSIOS' 574 QF_THE Q »'E_0? GflIHimi, RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:44 +0530 .<<!i*:"g8 ,•!",.»"» *IIB'&,. i^l*": :-"' '.u COUS.T OP AT L.MO. 1332/1994 VcTSUS Malisha Rain State of Madhva Pradesh Shri D.N.Prajapaa, couasgl for the appellaai ShriU.K.S.Chandel, P.L. fortlie State. APPUCATION H/S 374 OE_THB CR.P.C. JUDGMEMT This appeal is directed agaiast the judgiaent dated 27.10.1994 passed by Ttie Additional Sessions Judge Durg Cam.p at BeBietaca in S.T. No. 225/90 convictuig flie accused/appeUant for the offence punishable under Section 376 of the IPC aiid sentenchig him. to undergo rigorous uuFriyoninent for seven years and to pay fme of Rs. 200, hi default of paym.ent of fiiie to f'urtlier undergo sunple iiiri-irisoirment for one nioE.fti. 2. Case of fhe prosecution in brief is tliat on 29.10.89, FIR Ex.Pf l was lodged by prosecutrix P.W.-l aged about 25 years allegiag t'tiat a day before fhereto i.e. on 28.10.89 at about l.00 p.Ei. wheii she had gone to her field to ciit grass, ail of a sudden, the accused/appeilaa.t cazQ.e aacl caugh.t hold of her, abused her, tlire~,v her oil tlie field liptunied her clofhuig aivl conim.itted forcible sexual intercourse on her. Thereafter she returaed back to her house, nan~ated tlie eatire iucideQt to her inother-in-law Neitia Bai (P.W.-5) aild on tlie iiext date the i-eport was lodged. After iavestigation ch&llaa was filed agaiast him.. 3. Iii order to esxablisb. the guilt of the accused, the prosecution has examiaed teu witnesses. Sta.teaient of fh.e S^y accused/appellant was also recorded under Sectioa 313 of the Cr.P.C. ia which he denied tbe charge leveUed against him. aad pleaded his itinocence aad false unpycation ui the case. Tnis apart, two defence witnesses have also bsen examuied by him ia support ofhis case. 4. After hearme coiinsel for the parties. the trial Court has convicted aad sentenced the accused/appeUiMit for the offence as nientioned al'sove. Hence 'chis aprseal. 5. Counsel for fhe appeliaiit submits that. pre.sent appears to be a case of coase&t where iaitiaUy tiie proseciitrix pemutt.sd the appeHant to se;-nial intercourse with her aiid fhereafter iaipiicated him ia a false case. He subiaits fhat there is ao evidence avai]able oa record to prove the fact that the prosecutrix was s-abjected to rape by fhe accused. Accordillg: to Iiiin the raedical evidence of the prosecutiix does uot suTiuort flie case offhe prosecution. He fcrfher subiaits fhat the ^roseciitrix has not sufiered acv u^tenial or exten'ial uiiun' and tbis tact is nlear froui tt'i." statenient of Dr. Srat. K. P. Christiaa. He also subia.its fhat fee nicident bad taken place iii tiie open fteld siid it is literaUy mipossible that in s-iich cit'ciunstaiices the prosecutnx iriay not have suffered any injuiy. He also sifDEiits that tlie eye witaess namely Munna (P.W.-6) aged about 13 yeai's has also not supported the prosecution case. He submits riiat Lslaram i'P.W.-9) aiid Piraiita (P.W.-4) have also not supported tiie prosecurion case. 5. On the other liand coi-tasel for the respondcnt/State supports fhe judginent impugned atid subsaits that the io.aiiner in which the prosecutrix has beeii subjected to r&pe by ftie accused/appeUant clearly shows that it is neiuier a case of consent nor false iiiiplicauon a'c fhe haGds of the prosecutrix. He submits fhat even tlie seatence iniposea on hua beuig just aari proper does not iieed to be dealt wlxh lenientlv. <^"' ^Sas"S3^1%.-- t^5» &, '^' Mf \^.^/ st®EESij^li-' 7. Prosecutrix (P.W.-l) ia her evideuce has stated that at about l.00 p.3n. she had goiie to cut the grass aiid at that potDtoftime tlie accused/'appeliartt came tliere, caugfat hold of aer, threw her on the field, uotuiTied her clotlung and after insertin.g a piece of clot'ti iii her inouth, putting T'abbal on her aeck, conimitted sexual nitercourse on her. She has stated lliat when slie tried to push the appellaiit her baagles were broken and aftcr cotninittio.g the offence fhe acciised/appeUant ran away fi'oin the spot. Thereafi.er she came back to her house and uarrat.ed the entire incident to her laotfaer-in-law Nez&a Bai (P.W,-5) aad oa fhe next day FIR Ex.P/1 was lcdgsd. She has stated that Iier petticoat an.il sari were seized by tlie police vide Ex.P/2 whereas the pieces of bangles and the baagle were also seized vide Ex.P/3 & P/4 and. s&e was sent for medical exammation. She has ftu~t.her stated that fhe incident was not witnessed bv anvone. la the cross exainuiatioa, the prosecutri?,. has stated fliat the acciised/appeUant is baviag a groceiy shop ia the vi!]age however, s.be was not in taUdng tenns with the accus-'d/appeUant nor she laiows the naine of the acc-used/appellaat. She has stated that tbe incident was narrated oiilv to 'ais inofher-ia-Iaw and father-in-law. She has also stated fhat she could not raise cry as a piece of cloth was iaserted iu her inoutb and she was threatened. She has fitrther stated ffiat she tiad suflered nuinber of injuries on her back, elbow aiid oa her knee aiid she was bleeding. She has also stated that aU her uijuries were narrated to ttie doctor when she was examined and when she was beiu.g raped she was carryuig a sickle ia lier hand wb.ich she had brought for cuttuig grass. In para. 13 she has also stated that sbe had gone to fhe field at about 7.00-8.00 a.in. ia th.e inoming and tlien she to.as again stated that she bad goae to the .tield iust 10.15 niuiutes toefore the iticident '&ad taken place and she has again narrated that she .bad goue to tb.e fielo. at about 6.00 a.ni. She farther states that. she had not inade aiiv effort to assault flie accused/appellaa.t with fhe sickle or even by her hand. She states that she Iiao. never given any fist blow to & ^•^.^..^ '^ 'W£!fc. S •-"^•^^^ ^ 1:1 y ^4 acciised/appeUaat nor she had abused him.. Sbe has also stated that the accused had given her 2-3 fist blows however, if ths ssuae has not been recorded in her case diaiv stateiaent, sbe conld not tell the reason. She has stated that tiie distance of police station is about 3 kins. froiu her house and it takes hsilt' an hour to reach there. 8. Froiu ttte Gourt stateinent of tlie prosecutrix it appears that she is trying t.o improve while inaldng the stateiuent. In fhe FIR or ia her case diarv stateiaent the prosecutrix bas not atated tb.at aay piece of cloth was inserted in her inouth whereas in thc court she has stated Aat sbe couid iiot raise the alarm as a piece of clotli was iuserted ia her nioufh. In ber case diaiy statenient and the FIR fb.e prosecutrix states fhat she tired to push the accused/appeUaat and also gave him fist blows but ia tlie Court she denies the same. Most importaaUy ia the court stateiaent the prosecutrix has categorically stated t-hat she does not know the naiue offhe accused/appeUaiit but in fhe FiR and in her case diaiy stateinent she has categorically named tbe accused/appeUant. In the FIR she has even disclosed the name oftlie father ofthe accused/appeUant aja.d tJie case of the prosecution is iiot that the name of Uie accused/appellaiit was disclosed to the prosecutrix by aj'iy other witness or she had uiitiaBy given the description of fhe accused appellaat and even his aame was told to her by sorueone. 9. Aaju Remi (P.W.-2) father-in-law of fhe prosecutrix & Neiaa Bai (P.W.-5) inofher-in-law of the prosecutrix have stated that when the prosecutrix came back to her house she had mformed fhem that she was subjected to rape by fb.e accused/appellaat. Aajii Rani (P.W.-2) has stated that there are two groups in tbe vffiage one is headed by fhe accused/appeHant whereas the ofher group is headed by Lala Ram in whose field fbe prosecutrix was working. He has stated fhat fhere was some previous dispute between the accused/aopeUaat and Lalaram.. ^s".:^ /'y's«\ f^A. '~ ^. 1 .ls":-» :1? Wben the'prosecutnx does not know the narae ofthe appeUaiit then lodging the FIR by naiB.e ci^ates a doubt in the aiiad of this Court. Further in fhe Court stateiaent the prosecutrix Iias categoricalty stated fhat at fhe tiine of uicident, she was carryiag a sickle in her hand whereas she bas not niade aay effort to assault fhe accused or to save herself froni the clutches of fhe acciised/appeUau.t. Here also fhe conduct of the prosecutrix becoiaes doubtful. As already discussed above, there are aiaterial contradictions aad oinissions in tlie stateiaent ot fhe prosecutrix. As per fhe case of tbe prosecution, tlie prosecutrix was medically exaaiined by fh.e doctor aud fhe report of the doctor is Ex.P/6 however, no doctor whatsoever has been exainiued by fhe prosecution aad Ex.P/6 has been proved' by S.K. Dubey (P.W.-7), the Investigating ofBcer. 10. As per fhe raedical report of fhe prosecutrix no injuiy whatsoever has been toiuid on her private part or aay other exteraal injuiy. The defence witness Dr. Sint. K.P.Cbristian (D.W.-l) liad given the inedicaj report vide Ex.P/6 and she has categoricaUy stated that on fhe second day of fhe incident she had exajnined tbe prosecutrix but had not found any extemal or iatemal iajury. la her coiirt stateinent the prosecutrix has stated tliat she has siiffered nuiaber of injuries but not a siugle iujuiy has been foiind by the doctor after examuiiug the prosecutrix. Here again the case of the prosecution becoiaes doubtfiil. 11. Rurthermore, one MunRa (P.W.-6) has been exainined by the proseciition who has stated that at the tiine of coiimiission of fhe oifence, he was sittiag on the tamariad tree aad saw fhe entire iacident. He has stated that when tfae prosecutnx was cuttiag the gi-ass the accused caiae froni behind, threw ber on the field, upturued her clotliiti^ and conunitted sexual intercourse \vith her. This witaess has not supported the statenient of the prosecutrix to fhe effect that a piece of cloth was inserted in her moufh when slie was subjected to rape by the accused/appeUaiit and the ^ !*^... rape was coirunitted forcibly. He has stated that he had not hearcl any cry of the prosecutrix aad had it been m.ade he could have easily heard the same. 12. Thus, the overall testimony of fue prosecutrix does not iaspire conlidence of fhis Court to sustaui the findiags recorded bv fhe Court below convictiag and sentenciag the accused/appeUant as nientioned above. 13. Accordingly the appeal is aUowed. Judgnient impugned dated 27.10.94 convicting and sentencing fhe accused/appeUant is set aside. Appellant is acquitted ofthe charge leveUed agaiust him. He is already on bail. His bail bonds stand discharged. Sd/- Pritinker Diwaker Judee