IN7THE-«I(^^CUBT^-CiF:';MAS3H^:.PRABH^.I;;:^:.JAB^ tliAsnqu.lnahhftfuilBti Cr ajBinaI^ Appeal Nsr.,. / ::1-7 _^S?' of 'SS®BBS -Htii . '••h'ff'v^ ~-^:^(is %a s^ gELMS: msM^. • ^B ^ :'i-IaE3js:am?son- of •MitfcyEam Sa)ay^:aS®d^.a^El 28: years't'.cu'l'ta.vatQr ,an<i'.ce&3.ti:enA?'^||stlgs'^R:!» :V3, tl;age ^on.di; F.S., Pali ^Sts't.r.ict; ;:'Bl^a§yBM.^Ixl •XM.P.,):..-'1-.;••,•, : - ..: :"SgESU-S .• '. ' ' " ! .- ^/i-.. •.•.-.;<!'.,•..;•'..:• T-L< ; .• •' ;^' > -..; '•''•'•-."•... .. :. •:- - • ', " ' • ' - . • .' ': /. '- '&S^ii^il; :^: -Ihe. |S'tafe,of,-Madhyai:.Er:ac3esfa -^^:']MffifflNNS ^Hfitt,s^^|&w'WE;ifi^ Mi§S(II ^i!at;Si,l^"/ '.;.!S;^ffi^a:9i:^!SEt;3i;s3nS^ liHIIIIIKi3181^'''j31Bi:IilS8^111j85SI!SBS5 BUil®K8ill;?iliSiffiBiSiU8SBBIii •^ws w w. ^p^, HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. hflr. Justice Pritinker Diwaker) Criminal Appeal No. 753 of 1993 APPELLANT RESPONDENT VERSUS Hariram S/o Mitkuram Sahu State of Madhya Pradesh. -I •^ Shri S.K. Chandel counsel for appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (19.03.2010) This appeal is directed against the judgment dated 23.7.1993 passed by Additional Sessions Judge, Bilaspur, in Sessions Trial No. 362/1991 convicting accused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years. 2. Case of the prosecution in brief is that on 3.5.1991 FIR (Ex.P- 4) was lodged by the prosecutrix (PW-1) aged about 19 years alleging that on 2.5.1991 at about 3 p.m. when she had gone to the jungle to collect firewood along with the present appellant and his wife, accused/appellant asked his wife to be on legs at some distance and give signal to him on seeing anybody approaching there and then after threatening her by showing axe, upturned her sari committed sexual intercourse with her. After commission of the offence, he again threatened to finish her in case she disclosed the incident to anyone. After returning from jungle she narrated the incident to her mother-in-law. Then her father-in-law went to the Kotwar to inform him about the incident. However, as it was late in the night, report could not be lodged on the same day. 3. So as to hold the accused/appellant guilty, prosecution has examined 08 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe Code •fVA-*-> ,h ;,/' ,'"\. of Criminal Procedure in which he denied the charge levelted against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that a highly improbable story has been cooked up by the prosecutrix where the wife of the accused/appellant was put on guard and then after threatening her by showing axe committed sexual intercourse with her. He submits that even the medical report of the prosecutrix does not support the case of the prosecution as no injury on her person has been noticed by the doctor who had medically examined her. He submits that father-in-law ofthe prosecutrix namely Dayaram (PW-3) has admitted in his evidence that he did not have good relations with the accused/appellant and they were not on talking terms with each other and therefore possibility of his false implication cannot be ruled out in this case. He submits that even before her marriage, one more case of rape with the prosecutrix was registered against some other person. He submits that after returning from jungle prosecutrix had first met her sister-in-law namely Radha Bai (PW-2) but she did not disclose the incident to her and the report was lodged on the next day at the instance of her father-in-law Dayaram (PW-3). He submitted that on the first day the prosecutrix had refused for medical examination and somehow it could be done on third day of the incident. He submits that no independent witness has been examined by the prosecution. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that the evidence of the prosecutrix is good enough to convict the accused/appellant under Section 376 IPC where she has given the detailed description as to how she was sexually exploited by the accused/appellant and therefore, thejudgment impugned convicting andsentencing him as v — 3 mentioned above being strictly in accordance with evidence of the witnesses, calls for no interference in this appeal. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident on seeing the appellant and his wife going to the forest, she also accompanied them thereto. When they reached to jungle, wife of the appellant asked her to g6 to the appellant for cutting the firewood but as the appellant happened to be her elder brother-in- law in relation, she refused to do that. On firewood being piled up, wife of the appellant separated herself from her company and then the accused/appellant came to her carrying axe in his hand, started dragging her and on resistance being offered by her, he threatened to kill her. Thereafter, he threw her on the ground, removed the Lungi worn by him and after upturning her clothes, committed sexual intercourse with her. She has stated that on account of her being thrown on the ground; she had sustained injury on the rear portion of her head and scratches on her entire body. Subsequently, she came back to her house and narrated the entire incident to her mother-in- law and lodged the report on the next day. In her cross examination she has stated that on the date of incident, she had gone to the house of the accused/appellant along with her sister-in-law namely Radha and from there she had gone to the jungle along with him and his wife for cutting firewood. While she was cutting the firewood, accused/appellant came to her, caught hold of her hand and while she was being subjected to sexual intercourse by the accused/appellant, his wife was watehing the same by sitting nearby. This witness has stated that initially she had refused for her medical examination but subsequently she agreed for that. 9. Radha Bai (PW-2) has stated in her evidence that on the date of incident the prosecutrix had gone to jungle along with the appellant and his wife for collecting firewood. On her coming back from jungle she saw the prosecutrix weeping and when asked the reason there-for, she told her that she would explain the things after arrival of her mother-in-law. After her mother-in-law came there, the prosecutrix narrated the entire incident of rape on her by the accused/appellant. Phulbai (PW-4) - the mother-in-law of the v .<-»<•'- lf < 1 -<-!- prosecutrix has stated that when she returned to her house, she met her elder daughter-in-law Radha Bai who informed her that the prosecutrix was weeping in her room. When she asked the prosecutrix as to why she was weeping, she told her that she was subjected to rape by the accused/appellant in the jungle. Sukrutdas (PW-5) - the Kotwar of the village has supported the seizure of axe made from the accused/appellant. Dr. (Smt.) Sukumpa Sawant (PW- 6) who had medically examined the prosecutrix has stated that no internal or external injury was noticed on her body. Mukutram (PW- 7) has supported the seizure of Sari and petticoat of the prosecutrix vide Ex. P-3. Investigating Officer - C.P. Jharia (PW-8) has also supported the case ofthe prosecution. 10. Having subjected the statement of the prosecutrix to close scrutiny, this Court arrives at the conclusion that the entire picture painted by her is quite awkward to be believed. Her statement that while she was being subjected to rape by the accused/appellant his wife was watching the same by sitting nearby, appears to be a highly improbable. This apart, there are material contradictions in her statement as in the FIR she has stated that the accused/appellant had asked his wife to be on guard to the situation but in the Court statement she does not say so and states that when she was cutting firewood, accused/appellant came there and committed rape on her. She has further stated that as a result of dragging and being thrown on the ground by the accused/appellant she had sustained injuries on her head and scratches on whole body but the medical evidence does not even give a whisper of that. Secondly, on her return from jungle though she first met her sister-in-law namely Radha Bai (PW- 2), she did not tell the incident to her and waited for her mother-in- law to come. Moreover, as the father-in-law of the prosecutrix namely Dayaram (PW-3) has stated that the relations between his family and that of the accused/appellant were not good and they were not even on talking terms with each other, possibility of false implication cannot be brushed aside. Record also reveals that earlier also the complaint of rape with the prosecutrix by some other man was lodged which is suggestive of the conduct of the prosecutrix being suspicious. In these circumstances, benefit of doubt in favour ^jt.!—^.^. ^ '*- ^:. . •sesss-<' —s-— of the accused/appellant becomes an inevitability. Thus in view of the overall evidence led by the prosecution, maintenance of conviction of the appellant under Section 376 IPC recorded by the trial Court would not undo injustice to him. 11. In view of the aforesaid facts and features of the case, the appeal deserves to be allowed and judgment impugned convicting and sentencing the accused/appellant as mentioned above becomes liable to lose its force. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As appellant is already beyond the bars, his bail bonds stand discharged. —-—— — Sd/- PritinkEr Diwaker Judge r^lf