?— ir!K-; / ^ ^ .; T RISONER N0. Fafcherf s name Residen-ce . Senfcenced ^S^T^t Under section CF0000066019 ^n^nr C^r-ft- ^•3//^^ a ^®^ ^^7-^7<^7 ^ftr^ Age.,,^^6^,,,__, w2/feswwww^°-^f-^^ - ---- ^^r^Vss^wf^^T- ^ <a3PT-^T^y&fTn-~^R!^ -xw^ n^^^^:?^^^*-%&yf:sr^^ -^T^ff^T^fpfif®^^PSr ^WtW it is explained to fche.prisoner thafc if he sfcyfc^s orr wFshes: fco be represe^fced bylegal pracfcifcioner fche Appeliste Court will nofc proceed wifch the base for seven days unless the.legal prQcfcifcioner appears^ If the leg.al practifcioner does not Qppear wit.h-in seven days he rnay not heard afc all. If the . prisoner stafces fchafc he does not wish to be represenfced by legal practiofcioner the coux't rnay proceed at once v/ith the caseli and will not be obliged fco give a hearing to -any legal -cfcitioner who should appear^ ,Date of Applicafcion for copy of Judgement Dabe of which copy received • 3^ Date on which appeal sent ' j^<2L Whether the prisoner-wished^to be represented or nofc-^^s/N&, N0. Continued in ?\, "^ Name ^J^.,,,, : ^___ , ._, _ _ . f\ "^~m^'^PT^r^'^^T^r^rr Jail ^gn No- .-..L^E..^^^.. Dated..-_-/^.^'^^............. 1Q? "^^%^^^^^^^^?^mr^r^^w'^<?37^ Porward to the ^gather which acopy of order passed in the case for favour of transrnission to fche proper Appelliate CQurto ^^^-f^^7^©7^-^ c^y*^ / SupGrinfcendent JSItSS,. Date of receipt in C.J.M's Office Date of receipt record to accompany Memo .ofAppeal of the AppeliQte-Court « ^'.^.._ . ^ . ' - Dated Forwarded to the 199 . CoJ. gisfcrate Date of receipfc in Appeliate Courfc //SURGUJA TY.// -^ --'.- •-••• '•^ ^... Wtourtof Giz ttis^ ['X«As^UR"'t" 1 pp r ^'w< ..-^^.....,...J/ fteo.e^pt a»ei »^<tourt, BUaspur' -HC-22 ^TT^T^T r<rii<=h sn^T 5h^ich 'MRa ^^T T^ll<41d<4, ^^ll^4l(o, loi^l^y 3ff^T "q^? _.Cf>':..fi.:.^..Q.:s..?..L/°^. "^[ 200 f^ ^W<f\{ 5h^lcb •^•^T' 37T^T'^TT^H: ^ftn BB:HON»BLBSHRI DHIREIIDftA MISHRA.J. APPBLLANT VERSUS RESPONDENT 2S-10-2007 Shri Abhay Tiwari, Advoc|ate for the appellaat, Shri Saadeep Yadav, Dy. 2. This appeal is directed onler of sentence dated 2nd whereby learaed Sessions appeUaat under Section 376 o] RJ. for 7 years, to pay a fiiie of iSrie to fdrfher undergo S,I. f4 3. Brieflv stated fhe case oi incident i.e. 12-4-2003, the pr^ house aad her husbaad Tejratn pm, wife of the accused naio|ely prosecutnx aad called her to m rclation of the prosecxitrix accused, Accused Somarsai beating her aad confined fh< house whereupon fhe prosecu|hix Sukhani Bai (P.W. 4) came to the prosecutrix, however in th^ chi1Lif<n41ri -HH^T^ Fs^l <F3i<^i< '^3^P:T37T^T Somarsai, S/o Sukhana State of Chhatdsgarh Govt. Adv. for the State. a^ains>/fhe judgment of conviction aad Ji4ie, 2004 passed in S.T. No. 260/2003 J^idge, Ambikapur has convicted the I,P,C, aad sentenced hiin to undergo c|f Rs, 200/- aad ia defaiilt of payraent )rone month. the prosecution is fhat on fhe date of j^secutarix aged 18 years old was ia her had gone to Jashpur. At about 6-7 32|ely Gayatd went to the house of the ler home. At that tmie, Sumitri, sister ^lso accomparded her to the house of tdnied his wtfe out of ffae house after prosecutrix and Sumitri iaside his raised alaroi. Hearing her shouts, Ithe house of fhe accused aad rescued night around 10-11 pm, fhe accused XI-HC-22 STT^T^T f^rii<^ ^n^r 5h^i<=b <if^a ^sr ^ii^i^iq^ ^Til^^Ko, fcKrlKHy 3^?T xra^? *ll*ldl ^^j^-——•———•••—^F^ 200 'fq^ST' 'SH^T ^^TT8;R'^cT went fo fhe house of Sukhacd prosecijitrix AiabikapluLr her home despite resistaace fro|m iDLatter was narrated by fhe pro|s( the laoming, She also narrated| retiira, Report ofthe iacident at about 11.30 hrs. The to Distdct Hospital, (P.W. 7) exacodned her aad ga\ apparels of fhe prosecutrix iavestigation aad fhe same regardiag presence ofseinen Vagmal slides of fhe medical examiaation to F.S,L, After conipleting iavestlgationj appeUaat in the Court ofjudicj|al wdre aild prosecultnx 4. During tdal, the Thereafter stateinent of the acc of Cr.P.C, in which he However the trial Court after respective parties has nientioned above. plea4ed conviclted titie 5. Leamed counsel for fhe of fhe appellaat is based on 1), Sukhaai Bai (P.W. 4) and | fhat fhe versiou given by tiht< cbNf<n41ri 'HTR^if ^ f^si' <p3i^i< ^3Tf^R3?TT^T pai and dragged the prosecutrix from the prosecutrix aad raped her. The >isecutnx to Siikhaai Bai and ofhers in tibie iacident to her husband after his ^ras lodged on 14-4-2004 vide Ex. P-1 was sent for inedical examination where Dr, Shashiprabha Jaiswal ^e her report of Ex, P-4, The weanng also takeu iato possession during rere sent for opinion of fhe doctor the opiaion ofthe doctor is Ex, P-5. aad her petdcoat were sent for Raipur aad the rcport is Ex. P-12. charge sheet was ffled agaiast fhe Magistrate First Class, Anibikapur, prosec|ution exaimned 10 witaesses ia all. :used was recorded under Section 313 innocence aad false inipUcation, hearing fhe learaed counsel for fhe aad sentenced the appeUant as appeUant submits that fhe conviction statements of fhe prosecutrix (P.W. Sumitn (P.W. 10). He farther ai^ued witoesses during trial are iaterse ^TT^T^T krli<=h 3TT^T 9h^ich ^f^a ^-oEf ^|<L||^<L|^ ^Til^^Ko, f®«ni^y 3TI^T '^^K ^l^dl ^^^•••—••—••—•—•—••—••^p^ 200 'fN^sr" a^T'^TTW^rf^T appeljjant aroudd contradictoiy aad highly imprc} record, it caa be iiiferred that Allegation agahist the prosecutrix in his house bv Sukhaai Bai. Thereafter sh^ Suldiani Bai at 12.00 in tfae unsuccessfLilly tded to stop \ forcibly dragged her, coufined confinmg her for whole night Bai to free fhe prosecutnx story is highly improbable. Th^ is no tateraal or exteraal niiiiit evident from fhe report of fhe she was forcibly dragged by th^ ftie froka 6. On fhe ofher hand, fhe iaipugned judgnieut si| prosecutrix is corroborated by| as also from the statement of corroborated by fhe statenienl neighbour of fhe accused, 7. I have heard the learaedl the iaipugned judginent as als^: 8. P.W. 1 Prosecutrix has s|t of iacident, she was alone ia cbi^f<n<41'i T^I^i ^^S <F3i^i< '^^rf^THSTT^T ^bable. Froin fhe evidence avaiiable on prosecutnx was a consentiag party. is fhat firstly he confined fhe 6 to 7 pm however she was rescued was again dragged firom flie house of i|dght in presence of Sukhaai Bai. She Uie accused however, fhe accused 1:0 ms house aad conmiitted rape after ^iid no atteinpt was xnade by Sukhaai the clutches ofthe accused. Whole prosecutrix is a grown up lady, there on the person of the prosecutnx as is Idoctor which beUes the allegation that accused. leahied counsel for fhe State supportmg ibmits fhat the testimony of fhe titie statement of P.W. 4 Sukhani Bai :>.W, 10 Sumitd. Her statement is also of P.W, 2 Tiburam who is next door |counsel for the parties. I have perused b fhe evidence available on rccord. ^ated ia her deposition fhat on fhe date ^ier house when at about 6 pni Gayatri __-JL 37T^T"^T f<rli<=h 3T1^T 5b^ich <Hf^a "S^t ^ll^Krl^, ^ill^^ico, f®i<ytl^^< sni^r ^^fs HW<r[[ ^^j^**—••——•'—•••••••—-^p^ 200 f^^ST' w 3TT^T ^<TTW ^rfiTf appe|Uant ho^ever, proseci^trix Bai, wife of the appeUan.t toot^ fhe house of Gayatri, the her and confined her in his hd her repeated request Hearinrf there aad asked the accused rcfuLsed to open fhe door door aad she took the Around 10.00 to 11.00 in th<j Bai's house aad forcibly dragfeed After the iacident, she went to incident, Her husbaad came inicident to her husbaad also has admitted that P.W. 2 children, brofher, brothers the appellant aad if one would be audibie froni the amval of aunti twice, openia^ fhe ground, raising alarm at out in her cross-exaininatioi statement, she has admitted| 8.00 - 9.00 a.m. on Sunday. she went with the wife of the aad the age ofSmmtadi is 16 yclars. 9. P.W. 4 Siikhani has stai had gone to Jashpur on fhe cM^f<rt<flri 'HR^if ^ fi^ if^^K "^ ^rf^TH ^3^^T her to her home. WIien stie reached turaed her wife out after beatmg ^me and did not open fhe door despite her shouts her aunt Siikhaai caine (o open fhe door. InitiaUy fhe accused ^ever, after sonie tinie, he opened fhe to her house and she slept there. night ffae accused came to Sukhani her to his house aad raped her. tthe house of Sukham aad narrated fhe jback ou Sunday and she narrated tiie |and lodged the report of Ex. P-1. She Ram aad her family niembers, wife ;, all reside adjacent to fhe house of ia fhe house of the appeUaat, it of TiburaDi, Oinissions rcgardio.g fhe door, throwiag fhe prosecutribc on flie tmie of iacident have been poiated by the defence. In para 5 of fhe fhat her husbaad retumed at about |She has admitted ia para 6 fhat when iccused, Siiinitd also accoinpanied her Tiblu wtfe shohits h4>use ed fhat fhe husband ofthe prosecutrix late of iacident. She was alone ia her 'sn^r'^r f^TW^T^T 5t>^i<=t) ^f^a "^? ^ll^ld<LI, ^Tll^l^Ko, f^Krtl^y ^7 3TliOT ^^K *<l^crll 5b^icb •^ 200 I^^T' 3TT^T'^TT^R Tff^cT house. Wife of the prosec|utrix came to catl tfae prosecutrix whereupon fhe prosecutrix ai^ The accused locked fhe prose^ prosecutrix, she went to fh^ chNf<r<^rl ^rTR^Tf ^ ^S <F3l<^l< '^3Tf^m3?TT^T d her daughter Sumitd went with her. mtrix m his house and tumed his wife out of his house after beatmfe her. After hearing fhe shouts of the ? house of the accused aad forcibty entercd and brought the pros^cutrix to her home around 5,00 to 6.00 pni. At about 12.00 in the nigpit, the accused came to her house aad dragged fhe prosecutrix af1|er fhreatening her of her life, The prosecutrix was shoutmg, The not to raise alann. In fhe iaor|img, fhe prosecutrix caBie to her hoine aad told her that the accus regardiag coniing of the accjused to her house ia the night aad fhreatening her, her daughter along wifh Gayatri, wife of fh 10. P.W.10 Sumitri has of his house after beatiag I^ his house who retunied ia accused also threatened her (Sukhani) ed forcibly raped her. The oinissions Sumitri accompanying fhe prosecutrix e accused, etc. have been pointed out however, fhis witness has staljed fhat she had narrated fhe above fact to the police at fhe time ofgifmg diaiy statement azid she is iiaable to give fhe reason why fhese f^cts are missiag in her diary statement stated fhat she acconipaaied fhe prosecutrix to tfae house of G^yatd. The appellaat tiinied his wife out er aad locked fhe prosecutrix m his house. Sukhaoi Bai came the^e and took them to her house. However ia the night, the appellant aga|m dragged the prosecutnx, her sister to fhe nioming aad told thein that fhe accused had raped her. In titte cross-examination, this witoess has adinitted fhat ia fhe xughtwh^n the accused was dragging her sister, &-/ ^TT^T'^T Rrli<=h 3Tli?T 5b^i<=t) ^f^a TSET ^l<4ld^, ^•y<l<o, r6«ni^l< siri^r Jf^K HW^i{ ^^^-—*••——-——•—•—-^F^ 200 fN^ST 6 37T^T'^nW^f^T at fhat time fhe prosecutrix had| inotiier and others. She has alsfc was bemg dr^ged by me accu^ awoke aad it is correct to say fact that the accused had takenl further adinitted fhat at fhe night, fhe accused did not fh^- stated that when her sister it< narrated that SoBiarsai had tak4 asked her not to disclose fhis fact to admitted that when the prosecutrix ^ed, at that time her mother was not tbat her inofher was not aware of the |fhe prosecutrix ia tfae night She has ti|me of takiag the prosecufa±x m the [^eaten fhe prosecutrix aiid she has rtunied in the inormng, then she c^n her ia fhe n^ht. 11. Dr, Shashi Ptabha Jaisvt prosecutrix has stated that sh< over fhe person of fhe proseci^tiAc over her private parts aiid she inenstraatmg at fhe time of e^aiE about recent nitercourse could examiaed the accused and give|a stated that fhe appellaat mtercourse. 12, After close scrutmy of fh|< observed fhat all the three Siikhani (P.W. 4) and Smnitri (I was first tirae taken to the accused Gayatri at about 6J prosecutnx were confined by fh< fhe shouts offhe prosecutodx w^ cbl^id41-l 'RTR^Tf'? ^S <F3i<-$i< ^ srf^HT 3TI^T ^al (P,W. 7) who has exaixiiaed the did not notice aiiy extemal injury ^ti±c. There were no iajuries present |was not coiaplaiEung paia. She was e^ammation aad no defmite opinion t>e given. Dr. G.R. Kurre (P.W. 6) has report of Ex. P-3 and he has only w|as capable of perfoniung sexual evidence of fhese witaesses, it is wit^aesses i,e, fhe prosecutrix (P,W. 1), ['.W, 10) claimed tliat fhe prosecutrix houlse of fhe accused by ffae wife of fhe .0^) p.mi. aad there Siimitn and the accused aad Sukhani after hearmg rtot to the house of the accused aad 37T^T^T f<rii<=h ^n^T 5b*li<=h ^f^a ~5^r ^ii<4H1Ll, ^^il^^Ko, facni-My 3Tli[?T ^f^K HW<^{ ^^^..—.———•••••••-^F^ 2Q0 •f^^T' ^IT^T ^<nw 'yi^a ^ri^1 suilar rescued the prosecutrix aad SuijaAt is missiag froin fhe diaiy prosecutnx has stated fhat again caine to fhe house of his house and raped her. Sh^ Sukhaai Bai was awoke aiid ffareatened bv fhe accused has claiined fhat when the and was draggmg fhe (Sukhaaii) not to raise alarxa,| cross-exanunation has categori^al] was being dragged, her aware of fhe uicident of fhe prosecutrix, Apart from the S/akhani is accepted, ia that prosecutoax was taken ih>ni he3 then she did not disclose fhis did iiot trv to inake any effort fhereafter, The above fact that P.W. 2 Tiburam, who accused along wifh his brofh^r rescue fhe prosecutrix while sh^ of fhe accused. If fhe above ofthe adinission offhe P.W. 10 sister (prosecutrix) was bemg she had asked her not to discldse Suijaitri Bai, however, fhis importaiit fact statetaient of Ex. D-3 of Sukhaoi Bai, The aro|und 10.00 to 11.00 pm tlie accused Siii|jiarii Bai and forcibty dragged her to wh<breas accijlsed prosecu|tnx itegori^aUy mDfhbr ni^ht abd)ve cfrse, f^ct llo attaiilLS refeides cbl^id41r1 '^TP^f"? fe^t <Rl^i< ^3rf^TH3T[^r does not state fhat at fhat tune, ^he tried to mtervene aiid she was Sukhani Bai ia her depositiou caiae ia the night at about 12.00 forcibly, he also threatened her on fhe ofher haad, P.W. 10 ia her l^aUy stated that when fhe prosecutnx was not awoke aad she was not fhat ffae accused had taken the discrepaacy, if the version of fhe ;, it is highly improbable that tiie home forcibly by fhe accused, even to other persons ofthe viUage and rescue fhe prosecutrix timxiediately signtficaace ia fhe ligfat of the fact adjacent to the house of fhe and wife, also made no eflfort to was in fhe confmement in the house s^repaacy is viewed ia fhe background $umitriwho has stated fhatwhen her d(ragged by fhe accused, at thiat tioie, fhis fact to mother aad that whUe dis4krepaacy STT^T^T r<vli<=h 3TI^T 5b^ich <iRa ff- ^^r ^i<4idi|/^Ti1^^^ fa<ni^(i< 3TT^T TT5[^ ^l^dl ^^j^*-—••—••—•—•••••—^pj^ 200 'f^^T' 3TT^T'^IT^R ^rf^T o|f wiio fhe prosecutrix was goiag wiftji tilireat her, attaias sigiuficao.cel. appears fhat fhe place where night of fhe iacident aad fromi offhe accused is at a distaace the person oftiie prosecutrix raeters also niakes the defence prosecutrix inight be a report is conceraed, the examined by the doctor only 01 fhe iacident after her husbaad presence of huDian spemi ia prosecutrix is of no consequenc^ consenti|aig the accused, fhe accused did not From fhe spot map of Ex. P-8/ it jthe prosecutrix was sleeping m fhe 14here she was dragged aad the house 100 meters, absence ofmiuries over was dragged for a distaace of 100 ^f fhe accusea isiore probable that the party. So far as fhe positive F.S.L. is a married lady, she was 14th April, 2003 i.e. two days after tiad already come back aad fhercfore, tjhe slides or weariag apparels of the pros^cutribc 13, The husbaiid had rcturae|d 8.00-9,00 a,xa, however fhe re^ort day at 11,30a.m. and there is 4o rcport aad that also makes tiie 14. In view of fhe above discili under Section 376 ofl.P.C, aiidl caanot be sustaiaed. 15, In Uie result, the appeal set aside. The appeUaiit is acqii|Ltted He be set at libertv forthwifh tf: ct)N(<yt<flr1 "RTR^ff"? 'fec3t <p3l^l< '^^rf^m^n^T on Sunday ia the mormng at about was lodged ODAy on fhe follownig explanation for fhe delay m lodging lase offhe prosecution doubtful. ssion, fhe conviction of tlie appellaat sentence ioiposed under fhat section aUowed, The iixipugned judgnxent is of fhe above charge. He is in jail. ot reqiiired ia aay other case^ Sd/- Dhirendra Mishra Judge [Tft^ ^f<3^