'HiGi-l CG"RT OF C‘HHATTI‘3GARE—i AT BIL‘ SP Criminai Aggeai K0. 695 of 2(365 UR Daujai Samami Vs. ‘ T é Stata of Chhattisgaxh POST FOR JUDGMENT ON [11“) AUGUST,‘EGG7 Sd/“ Drendra Mish Judge hi ra HiGi-i COURT GF’ CHHAT'T‘iSGARi-i AT EILA§PUR Criminai Appeai iio. 695 of 2005 HON’ELE SHRI EKiREhrDRA MTSHRA, J. Shri V. K Fandey, Advocate for the appeliant. Shri Sandeep Yadav, Dy. Govt. Advocate for the State. S \ JUEIEMENT This criminal appeal is directed against the judgment of conviction and order of sentence dated 26th duiy, 2005 passed in ST No. 26/2005 whereby 1earned Additionai Sessions Judge, Kabirdham has convicted the appeliant under Sections 450 and 3‘76 of I.P.C. and sentenced him to undergo RJ. for two years, to pay a fine of Rs. 500/~, in defauit of payment of fine, to further undergo additional KJ. for 6 months and to undergo R.i. for '7 years, to pay a fine of Rs. IOOO/-, and in defauit of payment of fine, to further undergo additional R.I. for one year. 2. The cas of the prosecution in brief as reflected from F‘.l.R. EX. P—l is that the prosecutrix aged 35 years lodged a reportin Police Station Borla on 9-8-2005 at about, 1'7 hours mentioning therein that her husband is dead and she resides with her small children. Yesterday, she slept in her home with ‘7 years old son Nandlal in the verandah, her son Prahlad had gone on guard duty of the field of lvlahesh, other children were sleeping inside the. home and light of the house was on. At about 4 Oiclock, she heard the sound {QW\ A 4w e l Appeiiant': Daulai Satnami, son of Bichhala ~Satnami, agsd 45 years, Rio villag€ Mahaii, RS. Badla, Distt. Kabirdham, (Kawardha) Versus Respon&ent: State of Chhattisgarh, through I ' RS. Badla, Distt. Kabirdham, y. Kawardha (C.G.) rQ ”4‘11 \4 of opening thE door, she got up and saw that her neigour accused Daulai entored in the verandah after opening the gate and caught hold her and threw her on the ground and forcibiy raped her. She raised aiarm but no one came. After committing the rape, he fled towards his house. in the morning, she narrated the incident to Mahesh Mishra, Moti Kotwar and Laiaram who advised her to lodge report and thereafter report EXP—l was iodged. On the basis of the report Ex. P—i, offence under Section 3'76 LRC. was registered. During investigation the prosecutrix was sent for medicai examination to Primary Health Centre, Taregaon where Dr. Durgesh Gajendra examined her and gave her report of Ex. P—lB. After completing investigation, charge sheet was fiied against the appeliant. ‘3. The Charge under Sections 3‘76 and 450 of LPAJ were framed against the appeiiant by triai Court. During triai, the prosecution examined 10 witnesses. The appeliant in his statement under Section 313 of Cr.P.C. denied the circumstances appearing against him in the prosecution case and stated that there is a dispute with the prosecutrix in relation to a piece of iand (badi) and, therefore, he has been faisely impiicated in the crime. 4. After hearing the counsel for the parties, 1earned trial Court has convicted and sentenced the appeliant as mentioned in part 1 of the judgment. 5. Learned counsei for the appeilant submits that th prosecutrix is a grown up lady and mother of ‘7 children. The appellant had married to Shanti Bai, sister of the ; prose’cutrix some 10 years back, however after some time, Shanti Bai left the appellant and started living at lvlungeli due to some difference with the appellant and since then relations between the accused and the prosecutrix are strained. There was also a quarrel between the appellant and the prosecutrix in relation to a piece of land (Badi). At the time of incident, the place of incident where the offence is alleged to have been committed, grown up children of the hb e prosecutrix w€re present in the house. Th€refore, the ailegation of rape that too in 4 O’ciock in the morning iS highly improbable. There are material omissions in the statement of the prosecutrix Ex. D-l as also in the report of EX. P-i, however same has been over looked bv the trial Court. in View of the atimitted fact that there was a land related dispute between the appellant and the prosecutrix and on account of which, the prosecutrix as also the appellant had lodged the report against each other, the learned trial Court was not justifieé in convicting the appellant on uncorroborated testimony of the prosecutrix. 6 . On the other hancl, learned counsel for the State has supported the impugned judgment. '7. Conviction of the appellant is based on the statement of the prosecutrix. The prosecutrix has stated that she has ‘7 children, three daughters and 4 sons. The Eldest son has gone to Delhi for earning livelihood. Next to him is daughter who is already married, other 5 children reside with her. On the date of incident, she was sleeping in her home, the accused came to her house at about 4 in the morning, light of the house was on, on seeing the accused she all of a sudden woke up. The accused was having axe. He caught hold her and threw her on the. ground and raped her. She resisted his attempt, however the accused fled away towards his home. ln the morning she narrated the incident to Katwar Moti, Mahesh Mishra and Lalaram and thereafter went to police station and lodged report of Ex. P- l. ln cross-examination, she has admitted that the house and Badi of Daulal are adjacent tovher house. She has denied that her house is constructed over the land which was given on Patta to the appellant, however she has admitted that the Patta was given to brother of Daulal who has left the Village and residing at Singarpur. She has denied the suggestion‘ that after the brother of the appellant left, Daulal came into possession of that land. She has denied that they fight at the time of fencing, however she has stat€d that the accused fights. She has also admitted that a quarrd had snsued between her and the appei‘lant and his son whereupon she lodged a report against the appeilant as the appeliant had broken her three teeth and on that day Daulal and his son had aiso lodged report to the effect that that the prosecutrix had committed marpeet and bitten. She has denied the suggestion that Shobhit Satnami 1ives in her house and there was a quarrel on the previous night between the two in the name 01 Shobhit Satnami. She has also denied that Shanti, her sister had Chudi married Daulal and she resided with him for a period of six months. She has admitted in para 1'2 that she has a dispute with Dauial from the day she has constructed the house. She has stated that Daulal wants to remove her from the house. in para 13 of her statement, she has claimed that while lodging the report of Ex. P—l and giving statement of Ex. D—l, she had told the police that the accused came to her house with axe and she had resisted the attempt of the accused and had caught hold of his hair, however she cannot tell as to why this fact is not mentioned in EX. P—l or in EX. D~l. She has also admitted that at the time of incident, three children aged about 10 to 12 years were present inside, the house, however she has claimed that she raised alarm but nobody came. She has claimed that because of the incident she had sustained injuries on her leg and hand. S. PW. l Mahesh Mishra has stated that on the date of incident at about”? am. while he was going towards the tank, he met the prosecutrix near the house of Kotwar who was coming out of the house shouting, on being asked, she ‘ said that the accused raped her at 4' Olclock in the night whereupon he suggested her to lodge report. in the cross— examination, this witness has also admitted that there is old dispute between the prosecutrix and the accused in relation to a piece of land (Badi). He has also admitted that Shanti Bai, sister of the appellant was married to Daulal. PW. 3 Motiram has been declared hostile. ThiWs stated that the prosecutrix met him in the morning and told.that Dauial was again quarreiing with her and she is lodging report against him whereupon he advised her not to lodge report. He has also denied that the prosecutrix had compiained that Dauiai committed rape upon her. in the cross-examination by the Public Prosecutor, he has denied his diary statement of Ex, P-S that the prosecutrix told that she was raped by the accused. 9. The only question for deciding this appeal is Whether the learned trial Court was justified in convicting the appellant by placing reliance upon the statement of the prosecutrix. 10. From the evidence available on record, it is n’ot in dispute that the relation between the prosecutrix and the accused was bitter, they were engaged in physical scuffle earlier also, as a 'result of which both the parties had lodged report in the police station 8-9 months-before the date of incident. It is also not in dispute that there is a dispute between the two in relation to the possession of the land over which the prosecutrix is residing after constructing thevhouse. The statement of the prosecutrix is to be examined in the background of this admitted fact as she has every reason to implicate the accused in a false case of rape, lf we scrutinize the evidence of the prosecutrix in the light of the other evidence available on record, it is very difficult to place implicit reliance u’pon the testimony of the prosecutrix for convicting the appellant in the offence under Sections 45-0 and 3‘76 of I.P.C‘. because (a) the prosecutrix had admitted that while she was» sleeping in the verandah with 6-7 years old son, the other sons children aged between 10 to 12 years were present inside the house, (b) she stated she had struggled and raised alarm however, “no one came to the place of incident including her own sons who are admittedly present in side the house, {c} she has claimed that she was thrown on the round and she had made all efforts to resist the 'A Rh \\\ 4J\ g accused but from th medical evidence o the prosecutrix excep mor abrasios over right leg, no other injury has ben found over her hand as claimed by her, (d) the prosecution has also not adduced any evidence to show that e accused had sustained an injury during the ncident. She has sated for he first time befe e Cour tha the accuse was crrying axe. that b so, there ws no reason for this material omission in promptly lodged FR or diary statement. S is no a Witess of tth as she has denied even he marriage of her sister Shai ai with te appellant though this fac has been admitted by PW. 1 Maesh.P.W. 3 Moti KotWar f the village o has been name n t F.l.R. has also not suore the case of the prosection and who has staed that th prosecutrix had‘only mplained that he accused Daulal had quarreld Wl er. af pi of ll. For the oresaid reason, in the considered onion ts Court, it would not be saf to cnvict and sentence the appellant sely the basis of the testimony of the procutrix and he possibility nnot be ruld out that because of the lnd related animosity, she has implated the ccused in the oence of rape. 12. n the result, the appeal s allowed. The judgent f the tril Court convicting and sentencing the appellant for offence under Sections 45 and 3‘76 of l.P.C is set asid. The apellant acquitte‘ the above arges. l-le be se ecu: . i. v TDhir’endra’Mishra \ at Judge y v ‘ I x n Iv rum mw; t WW I \ > e f t in n e th y i t t or th t t d a if e a her I he t n ru t nt B h t h, , o wh d i he pptd u t e co t e tll D hi e o ol on se t ca e a ic a ff l i m o a 0 . e p is dof ch t at liberty forthwith if not required in any other case.