^^!'S^^'l%i^ n: t't.niaiui, m 'rHE, HIG'H ^CQURT .OP -MADHYA PRADE.SH AT J^tBALPHR . Criminal Appeal No.A'-2^ OF 1995 APE'SjLzWS / 8 ,,-• Arjun Ram Yaday ^,/o Kandra Rsm MalAul ', ^ ^ ^aged abou-b 30 years, 'FesidiSit of : 1 vitlage Bidgh&ra P. S. Bagidas., ciis-tt Raigdrb .{M.P) . ^"^ . . ' Versus - KESPONDENT State of Hadhya Pradesh,through Bist-rict. 1-iagist.rate, Rc&garh.rf"^ r!\ ") ^ APPEAIi ER SECTION 374-(2) OffCr.P.C, HI6H COURT OF CHHATTESSARH AT BILASPUR Sir^le Bench : Hon'ble Mr. Justice Pritinker Diwaker Crimina! Appea! No. 1123 of 1995 APPELL4NT Arjun Ram Yadav Versus RESPONDENT State of M.adhya Pradesh Shri Aditya Tiwari, Advocate on behalf of Shri B.D.Suru, counsel for the appellant. Shri Neeraj AAehta, PL for the respondent/State. CRIMINAL APPEAL UN&ER SECTION 374 f2) OF THE CODE OF CRIM2NAL PROCE&URE JU&eMENT This appeal is direcfed against the impugned judgment and order dated 31.7.1995 passed by Additional Sessions Judge, Jashpurnagar, Distt, Raigarh in Sessions Tria! No. 7/1995 convicting the accused/appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years and poiy fine of Rs.500, in default of payment of fine to further undergo simpte imprisonment for two months. 2. Case of the prosecution, in brief, is thort- on the basis of written report (Ex.P-2) dated 13.6.1994 lodged by the prosecutrix (PW-4), F-I.R. (Ex.P-2A) was registered against the occused/apjKllant on 4.8.1994 under Section 376 of the Indian Penal Code. It is alieged by the prosecutix thot on 8.6.1994 at about 9 p.m- when she was sleeping in her room along with her three children and her younger sister, accused/appellant entered her room, threw her on the fioor and committed sexual intercourse with her. She has aileged that upon hearing her cries, her younger sister and one Viren.dra Singh reached there and after seeing them, the accused/appellant fled away from the spot. She has furt-her alieged that on the second day i.e. 9.6.1994 a written report was lodged in the potice station, Bageecha, by the prosecutrix and her father but as no action was taken against the appeltant on account of his infiuence, a written report' was todged by her. After receiving this written report, Additional Superintendent of Police directed the S.D.O. (P) to make enquiry cuid to submit his repori-. After completion of investigation chalian was filed on 15.11.1994 against the cccused/appellant under Section 376 of the Indian Penal Code. 3. So as to hoid the accused/appetiant guilty, prosecution has examined as mosny as 5 witnesses in. support of its case. Statement of the accused/appeilant was recorded under Section 313 of the Code of Criminal Procedure in which h.e denied the chargeleveiled against him and pleaded his innocence and false implication in the case. 4. After hearing the porties the trial Courf' has convicted and sentenced the occused/appellant for the offence as mentioned above. Hence this appeal. 5. Counsel for the accused/appeilant submits that the prosecutrix is not trustwort'hy and a vsry improbable story has been putforth by her. He submits that there is on inordinate delay in lodging the First Information Report. According to him incident is said to have taken place on 8.6.1994 whereas the written report (Ex.P-2) was lodged on 13.6.1994dnd there is no exptanation for lodging this reporf- after in an inordinote detay. He further submits thot at the time of commission of offence, prosecutrix was sleeping a!ong with her three chitdren and younger sister, aged about 15 years and, therefore, it is literally impossibie for anyone to commit forcible sexual intercourse with her in presence of her children and younger sister. l-1e submits g 1 ^ ^f,. "^,^ ^pis. that no lady doctor has been examined by the prosecution in support of its case. He submits that accused/appetlant has been falsely implicated for the fol!owin9 two reasons;- "(i) On account of viilage politics as the accused/appeijant contested the election against one Virendra and in the said election he defeated the said Virendra. (ii) Father of the prosecutrix was to pay Rs.7(X)-800 to the accused/appellant as he had taken various househoid articies on credit from the shop of the accused/appellant." 6. On the other hand, supporting the impugned judgment it has been argued by the stat®counse! that non-exQminotion of the lady doctor is not fata! for the prosecution because admittedly, incident took p!ace on 8.6.1994 whereas the prosecutrix was medically examined on 26.8.1994. He further submits that prosecutrix wcs a married tady having three chitdren and, therefore, non-examination of the doctor in the couri- hardly motters. He further argues that the prosecutrix was residing in the house of the accused/appellant as a tenant and taking advaitaae of her helplessness, sh.e was being subjected to rape by the accused/appellant. 7. I have heard counsel for the parties and perused the material available on record including judgment impugned. 8. Prosecutrix (PW-4), a married lady aged about 25 years has stated in her evidence that at the relevant time her father was working as AAeson cmd on the date of incident she olong with her father had gone to village Bheetghara for some work. She has stated that she was earlier residing in the house of Manmohan but as there used to be dispute with him, she start-ed tiving in the house of the accused/appeliant as a tenant. She has stated that on the date of ^t. "*!s& wi,l .^-s ..^' <i»" ^t incident, when she was sleeping in her room along with her three children andyounger sister/but as the door of her house wassimply ajar but not bolted, accused/appellant entered the room, caught ho!d of her hand and after removing his and her clothes committed sexual intercourse with her. She has stated that when she raised her cries, accused/appeltant asked her to keep quiet ond upon hearing her cries, her sister woke up and after compteting the offence, accused/appellant fled awcy from the spot. She has further stated that when the accused/appeilant was running away from the spot, one Virendra Singh reached there and then she narr'ated the entire incident to him. She has further stated that on the next day the matter was reporl'ed before police station, Bageecha and, thereafter, she came back to her h-ouse. According to the prosecutrix, when no action was taken by the police. she sent written request at 3-4 places and, thereafter, written report (Ex.P-2) was lodged and she had put her thumb impression in the said written report-. She has further stoted that she is uneducated. She has further stated that the said written report- was prepared by one Karal Singh with whom she was having good relations. She has furt-her admitted the fact that Koral Singh is the brother of Virendra Singh and both of them are present in the court. According to her, in the village election the accused/appellant had defeated the said Virendra Singh. She has further admitted the fact that numberof persons including famiiy members of the accused/appellant were residing near the house where she was residinq. She has further admitted the fact that her father had tak.en various articles from ths shop of the accused/appellcait on credit and he was to pay Rs.700-800., though she has denied the fact that on account of fhe said amount, false \ repori- was lodged. She has furt-her admitted the fact that after lodging the report', she started living in the house of Karal Singh and ^, .c/~. where she stayed for about one week. She has further admitted th.e fact that on the second day pf the incident there was some dispute between her and the wife of the accused/appellant. She has admitted the fact that she has gone to the poiice 'station along with Kasal Singh and Virendra to lodge the report' against the accused/appeltant. There appears to be material omissions and controidictions in the court stort'ement of the prosecutrix from that of her case diary statement recorded under Section 161 of the Code of Criminal Procedure and this has come in paragraphs 10 and 11 of her cross- examination. She h.as denied the fact that she was havin9 cny affair with the accused/appellant. According to the prosecutrix, she was subjected to rape by the accused/appellant for about 20-25 minutes. Kalawati (PW-1) - younger sister of the prosecutrix has stated that on the date of incident she was sleeping aton9 with the prosecutrix and upon hearing her cries when she woke up, she saw the accused/appeilant committing sexual intercourse with the prosecutrix. She has stated that she and the prosecutrix wer-e crying for help but nobody came to them rescue but the incident has been witnessed by Virendra and after seeing him, accused/appellant ran away from the spot and, thereafter, her parents also ccmne there to whom the entire incident was narrated by the prosecutrix. She has also admitted the fact that from the shop of the accused/appetlant, her father had toiken various household art-icles on credit and he was to poiy Rs. 700-800. She has further admitted the fact that just opposite to the place of incident, famiiy members of the accused/appellant were sleeping and likewise other villagers were also sieeping as it was the summer season. Samaldas (PW-2) - father of the prosecutrix has stated in his evidence that on the date of incident at about 7.30 p.m. he had gone to take the village round along with his wife and at about 9 p.m. he was informed by Koral Singh that some incident had taken place and when he reached to his house, he saw the prosecutrix weeping and she narrated the entire incident to him and, thereafter, the report was lodged. He has admitted the fact that written report- was lodged by him with the help of Karal Singh who is brother of Virendra Singh and he is having good reiations with the said Virendra Singh. He has further admitted the fact that in the Panchcyat election Virendra was defeated by the accused/appellant. He has also admitted the fact that after the date of incident, he lived in the house of Kcral Singh and Virendra Singh. Dr. Y.K. Toppo (PW-7) who had medically examined the accused/appellant and given his report Ex.P-1 has stated that he was capable of performing sexual intercourse. A.S.I. B.N. Singh is the Investiaoting Officer who has supported the case of the prosecution but has nowhere stated that any report was lodged on 8.6.1994 or 9-6.1994. 9. AAinute examination of the evidence of the witnesses reflects thata very improbable story has been put forth by the prosecutrix as according to her in a small room inc.luding the prosecutrix five persons were sleeping side by side but yet according to her, she was subjected to sexual intercourse which continued for about 20-25 minutes. Statement of the prosecutix and her sister Kalawati appears to be very unnatural and does not inspire confidence of this court. AAoreoyer all the witnesses have admitted the fact that in the pachaydt election the accused/appelicmt had defeated one Virendra Singh oind the said Virendra Singh wois having good relations with the father of the prosecutrix and he continued to help the prosecutrix and her father/even after the incident tilt recording of the evidence. IIF1'" ^ •^ According to the prosecutrix and her father very prompt report' was lodged in the police station but there is no evidence to this effect and even the Investigating Officer has not stated so. From the record it is clear that the incident is said to have taken place on 8.6.1994 whereasthe written report- has been lodgedon 13.6.1994 and this inordinate delay in lodging this report has not been explained by the prosecutrix (PW-4) in accordance with law and cumulative effect of the evidence adduced bythe prosecution do not make out a case against the accused/appeliant under Section 376 IPC beyond all the reasonable doubts ond the accused/appeltant is entitted benefit of doubt. for 10. Accordingly, the appeal is allowed. Impugned judgment convicting and sentencing the accused/appetlant is hereby set oside. Appetiant is acquitted of the charges levelled a9ainst him. Since appetlant is already on bail, his bail bondsstand discharge. Sdl- pritinkerD*vvaker judge D/t