CF0000057668 IN THE HIGH COURT OF WHYA PRBD$H kT JABATJUR ? CRIMENM; A??hAL NO _______/1995. Bahal son 0f Nirdhan vrav, Agriculturist, aged 36 years, Resident of Gopalpur, i’olice [Statien Rajpur, District Surguja (MP). out. Vs. State ’ot‘ Madhya Prade‘sh mwzvwr: g... CBmINAL AWEAL minim Smr‘wm 314 L2; OF IHh bRIMINAL PROCWYIRL-l. C®E. 1 W mmHLS‘.% \ HIGH COURT O‘F CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 70 of 1995 APPELLANT Bahal son of Nirdhan Urav VERSUS ‘ a RESPONDENT State of Madhya Pradesh Shrl Shrl Valbhav Jlrendra Goverdhan Shrlvastava PL counsel for respondent/State for the appellant _ ‘ ; l CRIMINAL APPEAL UNDER SECTION 374 (2! OF THE CODE O CRIMINAL PROCEDURE J U D G M E N T (03.05.2010) This appeal is directed against the judgment and order dated 5 1 1995 passed by Sesswns Judge Amblkapur Sarguja in SeSSIons Trial No 457/1993 ponVIctmg the accused/appellant for the offence punishable under Section 376 (1) IPC and sentencing him to . undergo rigorous imprisonment for seven years. ‘ 2. Case of the prosecution in brief is that on 28.10.1993 FIR Ex. P—1 was lodged by the prosecutrix (PW-1) aged about. 38 years alleging that on 27.10.93 when she had gone to the house of her neighbour namely Mohan along with one Dhodho for taking meal and at about 8 9 p m when she had come out from the house of Mohan to ease herself the accused appellant came there caught hold of her hand took her to the court-yard threw her on the field / and despite her re3istance committed forCible sexual intercourse With her Upon hearing the cries her husband Janardhan (PW-2) came there and after seeing him the accused/appellant ran away from the spot 3V. So as to hold the accused/appellant guilty, prosecution has examined 05 Witnesses in support of its case Statement of the accused/appellant was also recorded under section 3 i3 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the sk ‘ l I ,2, ase. This apart one Mohar Ram (D—1) has also been examined y the defence in support its case. 4. After hearing the paties the triai Cout has cvioad r r onted’_in ntencd the accused/appeiiants s mentioned above. see a i and i va n h pe e a ‘ 6. Cousel for te apllant submits that presnt ppears to be a case o‘consent whre as nortunately the prosecurix and the accused/apellnt were seen by the husband of the prosecutrix amely Janardhan (PW-2) i an objetionable ondition, thereport came to be lged by her. He submits that it wold literally be ipsible for t acsed ppellt to commit forcible sexual interourse with the robust prosutrix that too in psence of nub of perso. He ubmit that on the occasion of arrival of n ,c a feast as organized in t hous of Mohan where number of villagers had gathered to participate in th same. He submits that as‘ per the statement of he proecuti’bt h was abruptly rown y e appellant on the ground as eslt of which she had sustained injury on her buttcks whereas the medical report doe o support the same. He subits that the important witnesses nm h d ot n ex y prosecution. 7. On the other hand spporting the judgmn impugned, counsel for th rdent state submits that looking to the staten of the prosecutrix (PW—1 ), her husband naely Jaardhan (PW—2) and one Sbran (PW—3) the ndings f he court below convictin and sentenci the accusd/appellant as mentioned above being well founded do not call for any interference in this appeaL Prosecutrix (PW-1) has stated in her evidence that on the occasion of arrival of new crop,she had gone to the house of Mohan along with one Dhodho, to participate in the feast organized by him 5. Heard counsefor the parties perused the materia ailable on record including the judgment impugned. aely Moan and Dhoho have n bee amined b the i l 8. c i W b Of f e uf t pa n n c c od u mos he cu aan c ec re mer ns ss ew rop w he e e t s se th b th a ru o s nt m u et e espon met m n o fi o t g ng e # ok; 2 usand f the'p'r'se''ciX'as state in hi evidenc at on the _ date-of‘incident when e came back to his hous, he came o know that the prosecutrix h gone to the house of Mn and wn he oo reache there, he heard the cries of s wife and when he approached nearer to her, he aw accusd/appellant n the prsecutrix ina mpromi’n'g’psitn. ccordi o this witness, after sing him the accused/appellant lft the so. In cross- examination this witness has stated tht when is wif had raised an alarm, h was inside the house of Mohan and despite there being darkness, he had seen the accused/appellant committing sexual intercourse with his wife. He has further stated that after hearing the cries of his wife he alone had come out of the house and there was none in his company. He has stated that he was not sure whether his wife had taken liquor on that day but the other persons present there had consumed liquor. Sobran (PW-3) has stated in his evidence that after hearing the cries of the prosecgtrix and her hUSband when he came out of his house, he was informed by them that the accused/appellant had done bad work with the prosecutrix. Dr. Pritam Singh (PW-4) who had medically examined the accused/appellant has stated that he was capable of performing sexual intercourse. M.S. ‘Chouhan (PW-5) who had conducted the k . f c ccet t r oun s h res h Soan m d/a fm ssm ss m m o c pr d dose t er‘hus she was ha t n and when after preparing ood she came out of his house to answer the all of nature, aused/appllan came there‘ caught hold of her hand, took her to he courtyard, threw he on the grd and despite her resistance he committed forcible exual intercourse with er. According to this witness, when after hearing her ci er husband Janardhan (PW-2) and one br (PW-3) cae there, the ‘ accuseappellnt ran aWay ro the spot. In cro-exaination this witne has aditted that at the tie f inident number of persons were esent in the house of Mohan but she di not disclose the incident to anyone. This witness has also admitted that she had not iscld o hband that to go to the house of Mohan along with Dhodho to take food. She has stated tt when she was hrown on the rough surface she had sustained injury o her buttocks and that at the time of incident though her bangles were bren they were not seized by the police. Janardhan (PW—) — the hb o ounh d s e th h e t ad oha he t d hi s the e ad d COisOiO Ang t ee e pt a h e e l investigation has supported the case of the prosecution. Though the lady doctor who had medically examined the prosecutnx has not been examined before the court the medical report submitted by her does not go to show any injury havmg been received by the prosecutrix 9. If the entire evidence available on record particularly that of the prosecutrix is put to close scrutiny, entire version given by her that though number of persons were present at the time of incidentf’ @ it was only her husband who had come out of the house after hearing her cries, appears to be an absolutely concocted. In addition to this, the recordalso reveals that when the husband of the prosecutrix reached the spot he saw the prosecutrix and the accused/appellant in a compromising position and it is only then the report came to be lodged by her and in these circumstances the pOSSIbIlIty of consent can not be ruled out Even the doctor who had medically examined the prosecutrix though has not been examined before the Court, he has clearly stated that the prosecutrix had not sustained any injury on her body which also falsify the version of the prosecutrix that as a result of her being thrown on the rough surface she had sustained injury on her buttocks ln other words the statement of the prosecutrix being a fully embelllshed one does not appear to be worth credence to base the conVIction of the appellant 10. Accordingly the judgment impugned appears to have been passed without proper appreciation of the evidence on record and therefore, the same is liable to be set aside. 'Appeal is thus allowed. Judgment impugned is set aside. Appellant is acquitted of the charge levelled against him. As he is already on'bail, bail bonds so furnished by him stand discharged. n Sd/- ,1 Pritinker Diwaker " Judge . 7] rgr::=:r _ .. «ah