CF0000063056 BEFGRE THE HON'BLE HIQI COURT OF JUDICAW ATéAEALPvR' ’ ‘ ‘Sih’gfe Bench (JimmaJ \Q‘LQ CRIMImL APPEAL NO. -—-—-.-—-....-....of 2000 BAHORI a” Aged about 27 yearfé son of Jhuku Yadav Resident; of: Plandiparg,smvmgar Police-station: Azad Chouk Raipur: ? f Wahgil and‘District: Rgipur M.P. }§9 ACCUSEDAPPELLANT o o- r w$ «2§3§§§ State Of M.P. Through: Azad Chowk P.S.Raipur ...Prosecution CRIMML APPEAL UNDER sECTION 374§21 OF CODE OF CRIMImL PROCEDURE 1973 J 5> HIGH COURT OF CHHATFISGARH AT BILASPUR single Bench : Hon’ble Mr. Justice Prifinker Diwaker Criminal Aggy No. 1626 of 2000 Shri Abhay Tiwar'i, coungel for The appellant Shri Vaibhav Goverdhan, Panel Lawyer for The Sfate; CRIMINAL A PEAL UNDER SECTION 374 2 OF THE CODE OF V‘. CRIMINAL PROCEDURE JUDCMENT (22.03.2011) vi . This appeal is direcfed agoinsf the impugned judgmenf and order daied 29.11.1999 passed by 6’“ Additiona! Sessions Judge, Raipur in Seséions Trial No. 141/1999 convicting ihe accused/appellant for- The offence punishable under Section 376 of 'rhe Indian Penal Code and sentencing him f0 undergo rigorous imprisonment for eighi years and pay fine of Rs.1,000, in defauli of paymenl' of fine To further undergo rigorous imprisonmenf for six monfhs. 2. Case of fhe prosecution, in brief, is That on 21.2.1999 a’r abou'r 9 p.m. FIR. (Ex.P-4) was lodged by The Prosecufrix (PW-3), a minor girl aged abou'l' 12 years alieging in if 'l‘haf fhe accused/appellant is her sfep father and on 21.2.1999 when she was in The house of The accused/appellant she was, subjected to sexuai intercourse by him after bolting the room from inside. Based on this F.I.R., offence under Section 376 IPC was registered against the accused/appellant. After completion of investigation Mai/an was fiied on 21.3.1992 under Section 376 of the Indian Penal Code. APPELLANT _ Bahor-i, son of Jhuku Vadav Versus RESPONbgNT State of Madhya Pmdesh has examined as many as 9 wifnesses in support of its case. Sm‘l'emen‘r of The accused/appeuant was aiso recorded under Secfion 313 of The Code of Criminal Procedure in which he denied fhe charge leveNed against him and pleaded his innocence and false impiica‘rion in The case. Aparf from this, one wii'ness namely Gunnubai'@ Koshalya Bai (OW—1) has also been examined by The defence in support of ifs case. 4. After hearing fhe parties The friai Courf has convicfed and ‘éenfenced fhe accused/appellanf for fhe offence as meni’ioned above. Hence This appeal. 5. Counsel for The accused/appellanf submifs fhaf fhe prosecufrix appears fo be a shaky witness where she was declared hostile. He submifs Tha'l' 'l'he medieal report of the prosecutrix does not support the case of the prosecutionand FSL report Ex. P-8 is also negative. He submits that on the basis of week type of evidence adduced by the prosecution, benefit of doubt should be extendedto the accused/appellant. 6. On the other hand, supporting the impugned judgment it l has been argued by the state counsel that there is absolutely no evidence on record to show as to why the accused/appellant has been falsely implicated. He submits that a very prompt report was lodged by the prosecutrix. He submits that Urvashi Bai (PW—4) and Punni Bai (PW—5) have also supported the prosecution case. He further submits that though the prosecutrix was declared hostile but in the crossexamination g she has categorically stated that she was subjected to rape by the accused/appellant. He further sibmits that medical report 3. So as to hoid ’rhe accused/appellari‘r guilty, prosecution ‘ i @ of 1'he prosecu’rr‘ix is negafive because full pene’rr'a’rion was not done by fhe accuse/appellant however, for convicfing ‘rhe person under Secfion 376 of The Indian Pena! Code even parfial pene’rmfion is good'enough. 7. I have heard counsel for fhe parfies and perused fhe material available on record iacluding judgment impugned. 8. Prosecufrix (PW-3), aged aboui 12 years in her court sfa‘F'emenT has s'iafed ihai The name of her fa’rher is Ghanaram and her mofher had performed second marriage with fhe accu§ed/appeliant She has sfated That of fhe relevant Time she had come To The house of accused/appellant along wi‘rh her mofher md when her mother had gone f0 'rhe hospifal along wi‘rh her sister who was not keeping well, accused/appellam called her, beafen her but he has not done anything. She has further stated that no report was lodged by her though she was medically examined and her X-ray was also taken. At this stage, the prosecutrix was declared hostile. However, in the cross-examination the prosecutrix has stated that it is true that her underwear was removed by the accused/appellant and after removing his underwear, accused/appellant committed sexual intercourse with her. He has stated that as soon as she was subjected to bad work, she raised cries, she has however stated that full penetration could not be done by the accused/appellant and then in the court she has described that the accused/appellant had inserted about 1/4“ of his private part into her private part: she has’further stated that after hearing her cries, landlord of the house and the other tenants came there and they have seen the entire incident through the peepholes of the door. She has further stated that whenever @ she used t0 come along with her mofher fo The accused/appellant he used to quarrel with her mother and used f0 raise dispute. She has further sfafed fhm’ on #he da‘re of incidem she was brumlly beaten by the accused/appeltant as she failed to fill the husk in a 5igdli She has stated that when she started crying, her neighbours gathered there and had asked the accused/apQeHant not to beat her and thereafter, the accused/appeilant started abusing them and th" enf, her neighbours have locked him inside the room saying that as to why 'you are using abusive ianguage'. She has further stateb that when the accused/appeilant was locked in the room, he was shouting by saying that he has been beaten and, therefore, he would lodge the report agatnst all the persons. She has further stated that apprehending their implication in a case, her neighbours had called the police and, thereafter, the accused/appellant was arrested. She has further stated that she was asked by her neighbours to make the statement before the police that the accused/appellant had done bad work with her. Her neighbours had further explained her to state that her underwear was removed by the accused/appellant and then only the accused/appellant would go behind the Jail. She has further stated that she is making allegation of rape against the accused/appellant in the court as instructed by her neighbours and in fact she was not subjected to rape by the accused/appellant. She has further stated that landlord of the house also used to ask the accused/appellant to vacate the house and there was some dispute between Punni Bai (PW-5) and her mother. She has further admitted the fact that she was not wiiling to go to the police station; however, her neighbours had asked her to go to the police station by I saying that ofher‘wise she would be again beaten by fhe accused/appeuanf. She has further- admif‘ted the fact that had she not been tutored by her neighbours, neither she woutd have lodged the repart ncr' would have deposed in the court. Urvashi Bai (PW-4) - landlord of the accused/appeilant has stated that the next door neighbour of the accused/appellant Punni Bai (RW-5) had called her and then she had informed her that the accused/appeilant was committing rape on.his daughter and when she had gone to the house of the accused/appellant, she could hear the prosecutrix weeping and when theidoor was not opened, she saw the appellant through the peepholes of the door mounting on the prosecutrix in a naked condition. She has further stated that she had called one Fatima Be and other boys of locality and she saw the accused/appellant asking the prosecutrix to wear the underwear‘ After some time the door was opened by_the prosecutrix and she started weeping. She has stated that on that day she came to know that the accused/appellant is not the real father of the prosecutrix and was her step father and then the prosecutrix narrated the entire incident to her. She has admitted the fact that had the accused/appellant and his *wife would not have vacated the house, she would have taken the legal recourse. There are material contradictions and omissions in paragraphs 5, 6 and 7 of her cross examination. Punni Bai (PW-5) has made almost similar statement as has been made by Urvashi Bai (PW-4). She has stated that after hearing the cries of the pro'secutrix when she had gone to her house, she'saw the accused/appellant mounting on the prosecutrix in a naked condition and when the door was opened, A prosecufrix narrated The en’rir‘g incident to hen There appears To be mafer'ial confmdicfions and omESSions in paragraph 4 0f her statement. Premkam‘ Awasthi (PW-é) is The Invesfigafing Officer who has supported The case of *he prosecufion. Dr. KK. GaJbhiye (PW-7) - Radiologis? who has performed The assifica’rion fest of The proseeutrix and given his‘reporf Ex.P— 10 has stated fhaf she was aged abouf ‘12 years a? The fime of 'cemmission of offence. “f Nirupdrna (PW-8) is fhe Head constable who fook The prosecufrix for medica! examination. Dr. Prafibha Chouhan (PW-é) is 'i'he witness who had medically examined fhe prosecufrix and given herreporf Ex. P—13 hasmerely sfa‘l'ed fha'f she had nof found any exfernal or infernal injury on her body. She has further sfafed fha'l no definite opinion can be given abouf The commission of sexual inTercourse. 9. MinuTe examina-Tion of The prosecuTrix makes iT clear ThaT she is a'very shaky wiTness and had given differenT sTories in differenT paragraphs of her sTaTemenT. In paragraph 6 of her sTaTemenT, she has admiTTed The facT ThaT she was noT subjecTecl To physical relaTion by The accused/appellanf and she lodged The reporT aT The insTance of The neighbours. She has caTegorically sTaTed ThaT she was asked by her neighbours To lodge The reporT in such a manner To ensure The arresT of The accused/appellant According To her, she has deposed in ° The courT exacTly in The manner in which her neighbours had asked her. Evidence furTher reflecTs ThaT There was some dispuTe beTween The accused/appellanT and his landlord for ‘ - geTTing The premises vacaTed and, Therefore, also possibiliTy of false impiieaTion cannoT be ruled ouT. MosT imporTanTly, The ;os stafemenf of fhe‘ pro‘secuTr'ix does not inspire confidence of this court Thus an ‘H'Ie basis of her- s‘mhment i1 will noT be safe for fhis Court To uphold the convic‘l’ion of The appellam‘ under Secfion 3760f ‘rhe Indian Penal Code and the appellant is enfh‘led 'ro benefh‘ of doubt 10. In conclusion, 1'he appeal is allowed. Impugned judgment dated 29.11.1999 is hereby set aside. Appellant is acquitted of thiefcharge levelled against him. Since appellant is already on bail, his bail bonds stand discharge. Sdl- Judge i. Pritinker Diwaker‘ a l /a.