HIGH COURT OF CHHATTI$GARH, BILASPUR aiminal Appeal No. 998 of 2902 Birsingh 51. two othétrs Versus State of Ghhattisgarh JUDGMENT Post for: $052007 5d!- Sunn Kumar Sinha Judge , V4 , J iii i if¢U3iv ZUUri HIGH CGURT OF CHHATTISGARH, BILASPUR Criminal A_2peal No.998 of 2002 APPELLANTS 1. Birsingh, S/ o Kartik Ram, Studmlt, Aged 2D years. 2. Kartjk Ram, S/o Chamat'u, Aged 45 years. 3. Sitaram, S/o Kartik, Aged ‘26 years. A11 residents of Village: Dhanaura, RS. — Bijapur, Distt. Dantcwada (C.G.) Versus REsi’mmENT‘ ‘ State of Chhath'sgarh, Through RS. -— Bijapur, Distt. Dantcwada (C.G.) {Appeal under section 374 (2] of Cr.P.C.1 Appearance: Shri Subhash Yadav, counsel for iha appellants. Shxi Arum Sac, Govt. Advocate for the State, JUDGMENT (16.05.2007) Suail Kama: 3inha, J. (l) This appeal is directed against the judgment of conviction and order of sentencea dated 3.8.2002 passed in Sesaious Trial No. 518/2001 by the Second Additional Sessions Judge, Jagdalgmr (Bastar), whereby, the said Court after holding appellant No. 1 guilty. of olfence punishable under Section ' 376 (1) I.P.C."sentenced him to undergo RJ. for 7 years and to pay a nne of Rs.1,000/-, in default of payment of fine to further undergo R.l. for 1 year, Appellants No. 2 & 3 were convicted xx« 3 Cr.A. Ne. 998 9f 2002 under S€cti011 323 I.P,C. and were sentenced t0 pay a fme of Rs. I 500/ -, in default of payment of fine to undergo SJ. for 1 month. 1(2) Appellant No. 1 was chaxged with the oEence punishable -u/ ss 376, 456 & 506 Part-II l.P.C., Whereas two other appellants ;Were Charged 11/ ss 323 and 506 Part-H LRC, 3(3) The case of the prosecution is that on 28,83,001 at about - u f 6.30 p.m., the proseeutrix namely— K11. Malti (PAM-3} had gone ta tile house of Up—Sarpanch, Telamganga for Ieceiving the paddy ion account ofulabour work rendered by her. By chance, at that ltime, nobody was them in the house of Up-Swpanch. The -§a]legations are that taking advantage of the said situation, appellant No. 1 Birsingh came over there and caught hold of the prosecutrix, threw her on the ground and then, he undressed her and he also undressed himself and thereafter committed sexual intercourse against her. The further case of the prosecution is that on hearing hue and ery'of the prosecutn'x, Sint. Mala, Smt, Bageshwari (P.W.-8) and Smt. Mandi (P.W.—5) came over there and they witnessed the incident. After seeing them, appellant No.1 ran away from the place of occurrence. These ladies took the prosecutrix to her mother, where she narrated the story. and thereafter, on the next day, a village Panchayat was convened. The further allegations are that in the said Pmwhayat, the appellants threatened the mother of the prosecutrix for causing her murder by knife and they also scuttled With her, in consequences of which, the proceedings of 3 CLA. N0. 998 01’2002 Z O Panchaya! could net take place and tha raport EX.-P/8 was lodged. (4) The kaife was seizad from tha mothar 0f the prosecutrix ami tha prosecutn'x as well as hsf mothar both werc sent for medical exammation. The clothes of the pmsecutrix wem also r sent for axaminah‘on. The re‘gort of medical examixiation of the p§b§ecmrix was obtained vide EX.-P/ 1 and the medical report of the mother of the prosecutm‘x was also recei§ed vide EX.—P/3 and A after completiéniusual inveau'gation, the charge-sheet was filed and I mspective Charges were damed 1u1der the aforementioned Sections of LRC. against the accused pereons. {5! The learned Additioaal Sessions Judge recorded a finding that the charges u/se 456 & 506 Part-II LRC. were not proved against appellant No.1. However, he held the charge ufs 376 I.P.C. to be proved against him. (5) For appellants No.2 6:. 3, the said Court also recorded a finding that the charges n/s 506 Part-II were not proved against these appellants but charges uis 323 I.P.C. were proved against them. (2’) So far as appellant No.1 is concerned, his conviction is based upon the testimony of prosectttiix, K11. Malti (P.W.~3) and w conviction of other two appellants are based upon the evidence of K11. Malti (P.W.—3) and Smt. Rukmani, (PAM-4) mother of the prosecutrix. 4 Cr.A. Na. 998 of2002 \ r (8) Learned cpunsel for the appellants argued that on the basis of evidence of the prosecution wimesses, it is apparent that this matter ismone of consent and the conviction of appellant ‘No. 1 u/s 376 l.P.C. cannot be sustained. For appellants No. 2 55 i3, he argued that no case u/s 323 I.P.C would be. made out \{ against them. '(QF On theother hand, learned counSel for the State opposed this argument and supported the judgment of conviction and order of sente‘nces passed by the Sessions Court. ‘ 3(10) I have heard learned counsel for the parties at length and have also perused the records of the seasions case. (11) Admittedly, K11. Malti was aged about 18 years on the date of incident. The clinical observation regarding her age is 18 years and in her ossification test also, ahe was found in hetween 18-20 years, which has not been disputed by either of the partiea. (12} Kn, Malti (P.W.-3) deposed that on the fateful day, she had gone to the house of Up-Smpanch Appellant No. 1—Birsingh came over there and caught hold of her and thereafter, he took her in the house of Up-Sajpcmch, where he undressed llei‘ by putting off her agree and peticoat. Birsingh was wearing fulpant. He put 01f his fulpant. He was also wean’ng undeiwear which he also put 01f and thereafter, he got her laid down on the floor and committed sexualintercourse against her. She deposed that v r when she made hue and 01y, Suit. Mandi (P.W.-5) came over ’V / 5 Cr‘A. N0. 998 0f2002 there, who gave her 5aree and petticoat, which she could waar and Mandi took her to her mothal; Vide para-3 of her evidence, she d€posed that themafter, a Panchayat was called and in the said Panchayat hsr mather was also praseiat along with othor villagers. In that Panchayat father of appellant No.1 namely- : Kartik Ram (appallant No.2! triaci to assault hey mother and glam hor a11d tho Parachayat could not convene. Sho fm‘thor deposod that at that time, aopellailt No.3-Sitaram was keeping a knife 1‘11 his haods and was trying to assault them with the. kzlife. t ‘ (13} Smt. Maadi Bai (P.W.-5) deposed that appellant No. 1 was ilying on the oroseeutrix. The ilrosecutrix was weeping in Vm‘mtdlz of her house. She was decla‘ed hostile by the oi‘osecution. She had admitted in cmss examination that the prosecuh'ix has told her that she was subjected to fomeful sexual interoourse by this appellant No‘. 1 in the house. (14-) Telam Bageshwali (P.W.-8), who is a member of the house of Up-Sarpanch, deposed vide para-2 that when she had gone to fetch water, appellant No. 1- Birsingh had caught the prosecutrix in the Varandh of her house. Appellant~ Birsingh had undressed the prosecutrix and he was lying over her and was committing sexual intercourse and when she could notice all this, she went to calLthe‘mother of the prosecutrix but by that time, the appellant-Birsingh had already left the place of occurrence and the prosecutrix was all alone in her house. She. further deposed that the prosecutrix told before her mother that when she had gone to her house for receiving the paddy on account of labour 6 C;‘.A. N0. 998 {#2002 g 3 work mnda‘ecl by her, the appellant~Birsi11gh had cemmitted sexual intercourse agaiast 11m: (15} On the basis 0f evidence of these witnasses, as also on fha iJasis of other avidence. 0n mcord, it appsai‘s that ths §msacutvix was a consenting party with gppEllan’t-Birsingh. The evidenca of flle prosecutxix is quite. un—natural, wl1i1€ she is making aikéatiqns against ths appallant—Birsingh that when she had gone to the house of Up-Saypandz, for receiving the paddy on account of labour work rendered by her, she was caught by this appellant and he forcefully committed sexual intercourse against her. She deposed that appellant No1 caught hold of her and thereafter took her inside the house of Up-Sarpwzdt, where nobody was present. The appellant firstly put 01f her scu‘ee and thereafter, he also put off her pettiooat and when she became completely naked , the appellant put oh' his own fulpant, thereafter his underwear and then, after getting her laid down on the floor, he committed sexual intercourse against her. It is at this stage, one of the inmate of the house namely- Telam Bageshwari (P.W,-8) came there, who had gone to fetch water, and she could see that the appellant was committing sexual intercourse against the prosecutrix. P.W.-8 has not stated that at that time, the prosecutrt'x was making any resistance against the appellant. According to her evidence, she was a silent participant in the the process of sexual intercourse committed by the appellant against her. She also did not disturb them and had gone to call the mother of the prosecutrix. The conduct of i ‘W 7 cm. Ne. 998 or 2002 m6 prosecutrix, 1'11 not making any resistance While putting 9g her clothes amd calming h€r completely naked aild t11€reafter further got making wiy resistagce whet; ehe wae made to lay down on the flaor and also at the time of milwean'ng of his own dress by the appellant and furthm mlently allowmg hlm to commlt ulterco 1rse agamst her goes to Show the conduct of the prosecuuix amd in the facts and circumstances, refen‘ed to above, a poséibility of the erosecutrix beinga consenting party eannbt be fullyJuled out in this case. (16} For the reasons stated above, the matter anpeai‘s to be one of consent and the conviction of appellant No.1 uis 376 LRC. does not appear to be proper. He deserves to be. acquitted, (17) So far as appellants No, 2 8:. 3 are concerned, there are no cogent and reliable evidence against them to hold them guilty of olfence punishable under Section 323 I.P,C. The evidence of pmseoutrix (P.W.-‘3) and her mother Smt. Rukmani (P.W,-4) in regard to scuming and assault on the day of village Panchayat is shakey and no conviction can he based on such evidence. Therefore, these 2 appellants also deserve to be acquitted in this CaSC . (13) In the result, the appeal is allowed. The conviCtion and sentences awarded to the appellants are set aside. The appellants are acquitted of the charges framed against them. u dna a ‘sat- suml Ku vatti Judgew w J