IS THE HISH COUBTOF JUBISATCTiE KT JABAI.pm Grlalnal Appeal HO.^_^L/2000 s Kejau Baa S/o Baae'shsd', aged (la Jall) J<- o^ Hajgahaa, pollee statloa Oeorl, Dlstrlct Durg (M.P.) A.. --•:'".<^!.-'"" •' J, ^^^.•'" ^" ^-"^.: ^,,6. Versos s State of H.P. tMsoa^h'pollce statloa Deorl, Dlstt. Barg (M.P.) genteaee B/S 341 of the I.P.G. B.T. for one nonth u/s 37@(1) of the TPG B.T./for sevea yeavs a/s 5o6(part II) of •r'»^• B.I. for S years Ul senteuees to ron -:^-J^/_.__- 'MINAL APPSAI,_.,T®@ __SBGTTOIT 374(2) OF THE CODE. _CBTHT I, EBpCEDE$S, &. '<.*)• Hicai COXJRT OF CHHATnStiAiai AT WLASPUR SB_: HOHItyE MR. JUSTICS PRITIMKER OIWAKE& IBB CR.A.NO. 287/2000 APPBLLANT RESPONDBNT vssus KejauRam State of Madhya Pradesh Shri Abhay Tiwari, counsel for the appeBart. Shn Vivek Sharma, P.L. for the State. APPUCATIOM U/8 374 OF THE CR.P.& JUDGMBHT (29.03.20l<n This appeal is directed agaiaat fhc jiidgment dated 11.1.2000 passcd by fh.e Additfonal Sessioas Judge, Batod, Distt. Dui^ ia Session Trial No. 212/1999 convictu^ the accused/appeUant for fhe ofience puiushabte iinder Sections 341, 376(1) 8& 506 (Part II) ofthe Indian Peiial Code aad sentencmg him to undeigo r^arous iuiprisoaiitent for one inonlli, seven years aad two ycars respcctivety. 2. Brieffacts ofthe case are fhat on 25.1.99 FiR (Ex.P/1) was lodged by the prosecutrix (P.W.-l) aged about 29 years aUcging ia it fhat on 16.1.99, at about 8.00 p.m.. when she was retunung after atteiiding the catt of aature, on fhc way, fhe accused/appeUaat caught hold of her, dra^cd her and took iaside tfae house aad despite her resistance coiamitted rape on her. It te also aUeged ffaat after commission of fbe offence, she could soinehow save herself by jumpaig off tbe waU. 3. So as tp hold the accused/appeBaat guilty the prosecution has examiaed five wttaesses. Statement ef fhe accused/appeDaat was also recordcd uader Scction 313 of the Gode of Crinanal Procedure in which he denicd fhe cliarges teveUed agamst him and pleaded his innocence and false iiaplication in the case. This apart, oae defence witaess ha? also been exauuned ,by hun in support ofits case. K» ^•?' 11 lifi' B!" :: 4. Afker hearing the parties, fhe tral Conrt has eonvicted fhe accused/-appeBatit for tlie offencc as aforcnacntiODcd. Hence this appeal. 5. Contention of fhe couasel for fhe appcUant is tbat ffae inordinate dclay of nihe days ia iodging fhe PIR has not been esqplamed by the prosecutrix. Hc fiirther subnrits that the inedical report of fhe prosccutrix also does not support the prosecution case. He.also sabmits that eveai tte FSL report does not support. thifc .prosecution casc aad fhe stateraent of fhe prosecutrix is as such which cannot be believed. 6. On thc othcr hand supportu^; the uapugaed judgment it has been argucd by the State counscl fhat thc impugned judginent is stricfly in accordancc with law aad feere is no illegality in fhe same. 7. I have heard counscl fbr fhe parties and perused the record. 8. Prosecutrix (P.W.-l) in her Court statement haa stated that about ten months prfor to her cpurt statemcnt at about 5.00 p.in. whea she had gone to attend thc caU of nature towards fhe field, accused/appeHant canic fheic and after giving her fhreat, forcibfy comautted rape on her. She has stated fhat after about half an hour she retuined to her housc but on account of fear she did not disclose fhe iacident to anyone. She has steted fhat in fhe niOEamg stue narrated fhe entire incident to her father and to onc Sita. She has fiufher stated fhat after about 15 days of thc previbus iucident, at about 9.00 p.ni. whea she wa» returoing after attendiag (he call of nature, on ffac way accused/appeUaat laet her, Stopped her and asked her that he wUl keep her. TheTeafter, afler gagging har mouth, ftic appeflaut took her inside his house, bolted fhc doer and committed rape on her. She has stated fhat at fhe time of commission of fhe ofifence, niofher of the appellant who was deaf, was also sleeping ia fhe house. Thereafter by jumpiag B8 •53« % ^ m^ ^ s) '"^'' off the waB she caaae back to her Iwuse however on the account of fear she had not narrated about fhe incident to anyone but iiarrated the iacident to her fathcr and thereatter fhe report was lodged. 9. In fhe cross eKaininattoin, the piosecutrix faas stated fhat she had not disctosed about tfae first incident to auyone however had disclosed about fhe second incident to facr fathcr but no report was'lodged and a ineeting waa caBed by the accused/appeBant Proin the record it appears fhat fhe prosecutrix was demaading one photograpli of fhe accused/appellant and when fhe saine was not givcn to her she had tekeu the same forcefutty forwhich the matter was reported by the appeBaat in fhe police station on 20.1.99 (Ex.D/3). F*Fona the record and stateinent of fhc proaecutrix it also appears fhat they were having sonie relations and fbere was som.e dispute wifh regard to fhe phatograplk. The prosecutrix admits that she was mamed to someane else 12-13 years back but siace last nmie years she wae deaerted by her husbaad. She has stated fhat she is not awarc as to why the poUce has recorded her slateinent ia a different manncr. In her cross cxammation, she has atated fhat fhe appeUant had nevcr taken hcr inside the house. She has jumped off fhe waU with fhe hdp of a Mango tree. Her court statenient reflects sevcral contoadictions aad ontasioiis. Id. Vishal (P.W.-2) father of the prosecutruE has stated fhat the prosecutrix had uifomied 1iim about fhe conainissioa afrape on herand fhen fhe meetit^ was calfed. He bas stated liiat there was soine disputc betweea tfae prbsecutrix and the appeUaat ovcr the plwtograph of appeUant He admits that the appellEUat had lodged a conaplaiat against tiae prosecutnx for settmg fhe curtaias of his housc afire. He also admits fhat once fhe prosecutrix had sSao lodged a case against him by pourtttg lcerosene on her. Dr. Smt. V.S. Maodge (P.W.-4) had given thc meaical report vide Ex.P/6-A and she has categoricalfy stated fhat she had exaBtined fhe prosccutrix but had not found aav 'i: ^ extemal or uitemal iajiuy and no opnrion csat be given about rape. Dr. D.L., Ramtetee (P.W.-5) who had examined the accused/appeBant has stated that he was capabte of perfomung sexual intercourse. 11. Krishxia Kumar .(D.W.-l) has ^ated that hc had registeaed a report lodged by appellaat vide Ex.D/3. He ftufher submits fhat even fhe FSL (Ex.P/9) is found to bc acgative. '/ •^ 12. On minute exaxainatton of the evidence, itia dearthat the cvidence ofllie prosecutrix does not inspire confidcnce of the Court and fhcre are material contradictiaas ia the same. In fhe FIR she has stated about one incident wlucfa accordiug to her, had taken place inside flie liouse of the appeUaut whercas in her Court statcment she has stated that about 15 days prior to the date of actual incadent, she was subjected to rape by the accused/appeBant la the fleld aad she had nanated about the incident to her father and one Sita. However, her father has not supported aay such statement aad Sita has not becn examined. Proia the reeord it also appears that there was soiac dispute between Ifac prosecutrix and fhc accused/appeUant and thenefo»e the possibfllly offatee implicatkui canaot be ruled out. 13. In fhe present case neither flie statement of the prosccutrix aor the statexnent of oQser witaesses inspnie confidence of this Court on which basis fhc appeUant/accused caa be coavlcted. 14. In conclusion, the appesS. is aUowed. Iinpiigned judgmcnt convictuq; and sentencii^ fhe accused/appellant is set aside. He is acquittcd of fhe char^e levclled ^ainat him. Accuscd/appdlaat 1s in jafl since 12.09.09. He be set fiee forthwith, if aot required in any other caac. Fine, if paid, be refunded, Sd/- pritinkef Diwaker .SUagfc