I»THS_HIQ1 G8HKT ©?«KESISh PKWEgH &T i?AB&IPCTH.; ' eR.&.s®. Kanhaiya soa of Rur'd^B'atel aged atoGut SB years'j i«sidepi of SlltaraP.Sl'Salcha'tparf Bis-fetr Bllaspur. /ff. /S6 Ih *'« (Tn 3-aiXT to ^ Versus. ».. 1^^- : Sta-fce of M.P. .. ^. ||J^|,^IZ^M _ _ »'• ^ / 'f i^-ffg9» -I ^,33^ '*".: HIGH COURT OF CHHATTISGARH AT BILASPUR SB : HOK'BLE MR. JUSTICE PRITINKEai DIWAKBR APPELLAMT RESPONDENT CR.A.NO. 928/1996 Kauhaiya versus StateofM.P. Shri Abhay Tiwari, counsel for fhe appeHaat. Shri Pravecn Das, Dy. G.A. for fhe State. APPEAL U/8 374(21 OF THE CRIMIIIIAL PROCBDURB CODB JUDQMENT (18.04.2011) The present appeal a(ise»out of the judgment & arder dated 21.5.96 passed by ffae Sessions Judge, BUaspur in S.T. No. 520/95 convicting fhe accused/appeBaat for ttie offence piuushable under Section 376(1) IPC and sentenciag hnn to uadergo rigorous icaprisoninent for seven years and fine of Rs. 100, in default. of payinent offine to fixrfher uadei^o RI for three nionths. 2. Brief facts of the case are that on 5. 10.95 at about 5.00 p.iu. PIR {Ex.P/8) was lodged by ttie prosecutrix (P.W.-l) a married lady aged ab6ut 21 years allegmg that a day before tfaereto, i.e. on 4.10.95 at about 12.00 noon whcn she had gone to fhe ficld for cutttag fodder, accused/appellant approached her and asked for sexual favOur. She has-^Ueged that .when she refused, accused/appellant thiew her^o^' fhe field and fiircibly committed sexual iutercoiirsc with her. Acconling to fhe prosecutdx, she cricri for help but no one came to rescue her aad she caine weeping to her house and iiflBrated thc etLtu-e iucideat to her sister-ia-law and her husbaud thereafteron the next day the viBage meetiug was convened and the report came to be lodged. Based on ffus FIR, offence under Section 376 IPC was registered ^ainst fhe appeUant. ..•"•:"'a!"»s»>:: f'"' •:. "% ---t^. [u... -..";';B>,. J] ^'^' .^...^••" -s- 3. So as to prove fhc guilt of fhe accused/appellaat, fbe prosecution has examined 5 witoesses. Statemeat of tfae accused/appeBant was also recorded under Section 313 of the Cr.P.C. in which hc deiued the charges leveUed against. him and pleiaded his mnocence and false iinpHcation in the case. 4. After 'hearing couasel for tte parties, the trial Court has convicted the accused/appeUant under Section 376 IPC and sentenced him as mentioned above. Heace this appeal. 5. Contention of Shri Tiwari, counsel for the appellant is that present appcars to be a case of false iiapUcation because there were stiaiu relations between the lauuly offhe accuscd/sppeUait and ftiat offhe prosecutrix. He submlts fhat ifthe stateiaent ofttie proaecutrix is taken as it is, it is clear that she oflfered no resistan.cc to fhe act of ttie accused/appeUaat. Hte fupther submits fhat no iajury whatsoever was sustained by fhe prosecutrix on the extemal or intemal part of her body, no FSL report is there on record, therefore bene&t ofdoubt be extended to the accused/appeUant. 6. Oa fhe other hand, it has been aigued by Shri Das, State counsel that fhere is absolutelv no evuleace on record to show as to why the prosecutrbc has falsety impUcated the accuscd/appeBant. He further subnuts that the prosecutrix was a manied lady and fherefore even if ia fhe aaedical report no injuiy was ft>und, it wffl not give any advautage to the accused/appellant. He alao submlts that veiy prompt report was lodged and therefore the conviction of fhe accused/appfeUant is stricfty ia accordance wifh law. •• ./ 7. Prosecutrix (P.W.-l) ia her oourt stateinent has stated fhat the accused/appeBantis her brother-ia-Iaw in relation and on fhe date of mcident, at about 12.00 in fhc noon, when she had gone to the fieU to cut fodder, acciised/appeBaat who was also wortdug ia lus field, asked her for sexyal favour. Shc has further stated fhat after tyiag ftic buadle of grass whea she was to leave fhe fleld, accused/appeHan.t approachcd her, caugltt hold of lier hands and committed' forcible sexual intereourse with her. She has stated fhat /f -3-- i.'! i thereafter she started weepiag aad abused the appeUant aad caaie back to her house, narrated fhe entire incident to her sister-in-law aad hcr husbaad. She has stated that thereafter ia fhe nigfat, vfllage panchayat was convened in which she and fhe accused/appellant were called where she narrated the en.tire iucfeleafc She has also stated fhat fhe accused/appeDant deiiied that he has eonanitted any such offence and thereafter fhe report'came to be lodged. In cross-cxamination, fhe prosecutrix has stated that just aear the place of iacident, field of Ramlal is situated and at the time of incident, wife of Ramlal nauicty Mahesia or Gaaesia was present She has admitted the fect that near fhe place of incident there was a brook where people use to take bath ashore. She has furfher stated that at ftie time of iucident she was haviag sickle in her hand aad when the accused/appellaut asked for sexual favour she abused him aud raised cries but ifher such stateiaent is not reconled ia her case diary statement she couM not teU ffae reason. She has also stated fhat as fhe accused/appeltant was holding her haads Ae coidd ncit assault him. She adnaits fhat sher could not assaiilt (he appdlaat with sickle because she kept it on ttie grozmd to tie fhe bundte of grass. In para 9 of her stateiuent she has stated that fhe accused/appeUant is ia relation but before her niarriage fhere was quanel between fheni aad fherefore fhe rdatfons have becoine strained. She has admitted fhe fa.et fhat Just before tiie IncBlcnt, there was quarrel between her father-m-law, mothcr-ia-law aad titie family niembers ofthe accused/appeUant and siacc last 10-12 years, fhey werc having stramed relatioas. In para. 13 she has stated that she was not called ia tfae panchayat meeting and fhe panchas had coine to Iicr tibuse to make an enquiry. Ashpfe (P.W.-2). husband ofthe proseculrbc has stated that on fhe date of iacident at about 1.00 p.ia. the prosecutrix canae and informed hiTn fhat the accused/appellant had subjected hcr to rape and on the next day fhe report was lodged. He also adxnits that 2-3 months before the incident, fhere was some quarrel betwcen fhe chiUien of bofh ths faiailics but he dcmes fhe feict that he cver gavc threat to tfae accused/appeUant. He has stated that if aay oae shouts at fhe place of incident same cannot be heaid on account of distance oftalace. ^ 1!\ -H- ® Kaleslua (P.W.-3) has not supported fhe prosecution case and has been declarcd hostile. Jaikuinar (P.W.-4) is fhe A.S.I. Aml Tiwari (P.W.-5) is fhe Invesligating officer who has done part of the iavestigation. The lady doctor who had niedically examincd fhe prosecutrix vide Ex.P/1 has not been exanuned ia fhe court. 8. Miaute cxamination of the .evidence niakes it clear fhat fhe PIR has been lodged after about 29 hoiu-s, fhe lady doetor who had examined fhe piosecutrix has not been examiacd m thc Court and even as per fhe medical report (Ex.P/1) no i&juiy whatsoever was found on thc extemal or iateraal part of her body. Moreover, fherc was ao mark of struggle found on fhe person of fhe prosecutrix. Tbe evidence also reflects fhat fhe prosccutrix Taaa not made any attempt to come out fi»inthe clutches of the accused appellant aad had even not offered any resistance. The piosecutrix has also adxnitted fhe fect that fhere exists an old dispute between the two faaailies. That apart her stateinent is inconsistent toecause In the exainination-ia-chlef shiB has stated that she was caUed- ia the pancliayat uieetiag whereas in her cross-examination she has stated that she was not caUed m the meeting but fhe pancfaas canie to her house. Purfhennore, thc evidence adduced by the prosecution in particiriar fhat of piosecutrix is not veiy clincbiug aad trustworfhy, therc is iaconsistency in tbe statement of the prosecutrix and her husband and fhat beii^ so, it does not inspiTe the confidence offhis Court to upbold the conviction offhe accused/appeUant under Section 376 IPC and benefit ofdoubt is to be extended to the accused/appcUant, 9. In the result, the appeal succccds and is aUowed. The / ~~» . ' impugnpti judgmentoffhe Courtbelow convictiaig and sentencmg the appeBant/acGUsed under Section 376 (1) offhe Indian Penal Code is set aside. The appellant/accused 1s acquitted of the chaige under Section 376 of the Indian Pcnal Codc. As (he accuscd/appeUant is reported to^bc on bail, his bail bondsstand dischapged ..'Sd/-1 ,.„ pntiBker1D^akcr Jadge