, f- -\'. CFOOOOOS8651 IN THE HIGH COURT OF WADHYA PRfiDESH S AT 3ASALPHR. CSIItINAL APPEAL MO. OF 1983. .,,,B!jSJ!ls ,{SI^3pe"" Triloki Singh a NankBlla son af BoRdhan SinghThakar, aged 30 ysars, Sssident of Shi.vgha'fc', P.S. Sarkanda Qistric't;: Bilaspar (?1P). a.RPELLAHT. B IIN 3fticr g The State of pladhya Pradesh 2 ^ ••£ C^ l a : •-a^ C'^l RESPON'BCTT. GSIfflINAL APPESr BN8EB SECTI3N 374(2) 3F TW CTIWINA 1. PROCE@UR£ 1006. VttSMSX tlMN.^il ItU^WKI.vltW^VfXl s""''sss» s9isdl^My ^aaBS'SSSS HIGH COURTOF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 738/1993 APPELLANT Triloki Singh alias Nankunna Versus RESPONDENT State of Madhya Pradesh Shri Satish Verma, counsel for the appellant. Shri Pravin Das, Dy. G.A. for the State. CRIW11NAL APPEAL UNDER SECTION 374 (1) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (15.03.2011) This appeal is directed against the judgment and order dated 24.7.1993 passed by Additional Sessions Judge Bilaspur in Sessions Trial No. 167/1990 convicting the accused/appellant for the offences punishable under Sections 376, 342 and 506 (1) I.P.C. and sen'encing him to undergo rigorous imprisonment for seven years with fine of Rs.oOOO/- u/s 3/6, rigorous imprisonment for six months u/s 342 and rlgorous imprisonment for one year under Section 506 (1) IPC, pius default stipulations. 2. Facts of the case in briefarethat on 24.12.1988 FIR (Ex. P-1) was lodged by the prosecutrix aged about 14 years alleging that on that day at about 4 p.m. when she had gone to the floor mill, the accused/appellant came there and touched her cheek and shoulder and then he went back. It is further alleged that after some time the accused/appellant again came there and took her to his house by her arms but as his wife was present inside the house he took her to the terrace and committed rape on her thrice by putting her under threat. Based on this FIR, offences under Sections 342, 506-B and 376 IPC were registered against him. After investigation, challan was filed bythe.policeon21.8.1989. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 07 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled ..:^'v ;35.1, 1 - 2_— against him and pleaded his innocence and false implication in the case. This apart, one Atmaram Asrani (DW-1) has also been examined by the defence in suppori: of its case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Counsel for the accused/appellant submits that a very improbable story has been put forth by the prosecution that the prosecutrix was subjected to rape by the accused/appellant thrice in the open terrace adjacent to the main road but it was not seen by anyone. He also submits that the prosecutrix did not even raise any alarm or make any effort to come out of his clutches. He submits that as per the FIR the prosecutrix is said to have been subjected to rape thrice whereas in the court statement she has stated that the accused/appellant could not succeed in committing the rape because when he tried to insert his private part into that of her, she used to stand up. He submits that the medical evidence of the prosecutrix also does not support thecase of the prosecution as no internal or external injury was found on her person and that her hymen was found to be intact. He submits that as per the statement of her mother, the age of the prosecutrix at the relevant time was about 18 years whereas as per the radiological examination vide Ex. P-7, her age at that time was in between 14 and 16 years which may carry the margin of two years on either side. 6. On the other hand, counsel for the respondenVState supports the judgment impugned and submits that in view of the stafement of the prosecutrix though the offence under Section 376 IPC is not made out against the accused/appellant, offence under section 376/511 is clearly made out and so also the offences under sections 342 and 506 (II) IPC. 7. Prosecutrix (PW-1) has stated in her evidence that the incident had taken place on 12.8.1988 at about 4 p.m. According to her, when she had gone to the floor mill, the accused/appellant reached there, touched her cheek and shoulder and then after having some talks with the proprietor of the said floor mill he went ,\ hssg back. She then went to the house of some lady and informed her about this act of the accused/appellant. After some time, according to this witness, the accused/appellant again came there and told her that he knew that she would come to the house of said lady. He then took her to his house by dragging and after bolting the door from inside he asked her to remover her clothes. Thereafter, he himself removed her clothes and took her to the terrace of his house, made her lie down and inserted his penis into her private part. According to her, when she tried to raise an alarm, he gagged her mouth. She has then stated that after subjecting her to sexual intercourse inside the house for 1-2 minutes, the accused/appellant took her to the terrace and there also he repeated the said act for 1-2 minutes. On being asked whether the penis of the accused/appellant had entered into her private part, she answered in negative saying that when he was trying to insert his penis into her private part she used to stand up. She has further clarified that not even a slightest penetration had taken place. According to her, after commission of the offence, the accused/appellant had come to drop her up to the floor mill. Thereafter, she came to her house and narrated the incident to her mother though the accused/appellant had asked her not to do so and then her mother disclosed the same to her father. According to this witness, the appellant had given her Rs. 21- which she had given to the police. Thereafter, she went to the hospital but was not medically examined. In cross examination, she has stated that the floor mill is situated on the Ratanpur-Korba main road adjacent to which numbers of huts were there. According to her, 4-5 rooms are also there adjacent to the said floor mill in which the tenants were residing and one of them was scrapper. She has stated that after the accused/appellant had touched her cheek and shoulder, she had gone to the house of one Bheri through the inner way leading thereto but she did not try to get away from there as she was mentally upset. On being asked as to why she did not leave the place after the accused/appellant had touched her cheek and shoulder, she has stated that she did not do that because her cycle was parked in the floor mill. She has stated that she did not raise a cry because the appellant had gagged her mouth and shown her a -o - knife. On being asked as to why she did not raise an alarm in the floor mill, she has stated that she was shivering. She has thereafter stated that she had informed the police that the accused/appellant had made her sit in his courtyard but then she retracts from this and states that there was no courtyard in his house. On being asked whether anyone else was present in the house of the accused/appellant, she has answered in negative. She has expressed her ignorance about the presence of the wife of the accused/appellant in his house. When questioned that in the police statement she had stated that as the wife of the accused/appellant was there in the house, he had taken her to the terrace, she has stated that the said thing was informed to her by the accused/appellant. She has then stated that she spent 5-10 minutes in the room and 5-10 minutes on the terrace but then she states that the accused/appellant had kept her in his house for 1-2 hours. According to her, the terrace of the appellant was open from all sides; no parapet wall was there and the activities going thereon could be watched by the passers-by of the road. Then she assigns the reason for her not raising the alarm to be the threat at the point of knife given by the accused/appellant. She has admitted that just opposite the Sarkanda police station her father was having a groundnut shop and that the report was lodged after taking permission from her father. Sumitra Bai (PW-2) - the mother of the prosecutrix has stated in her evidence that age of the prosecutrix at the relevant time was 18 years and that on the date of incident the prosecutrix had gone to the floor mill and when she did not return, she proceeded thereto in search of her, she met her on the way weeping and on being asked as to why she was weeping, she told her about the incident. Dr. V.K. Khetrapal (PW-3) is the witness who had medically examined the accused/appellant and given his report Ex. P-3 has stated that there was no injury on his penis and he was capable of performing sexual intercourse. Dr. (Mrs.) Anjali Gupta (PW-4) is the witness who had medically examined the prosecutrix and given her report Ex. P-5 has stated that no external or internal injury yi/as noticed by her on the person of the prosecutrix, her hymen was intact and no definite gw^te.te.,.. N ^'-[r ' —s.^ opinion could be given on her about the sexual intercourse. She has stated that age of the prosecutrix at the relevant time was between 14 and 17 years and for determination of her exact age the prosecutrix was referred for radiological examination. A.P. Tiwari (PW-5) is the witness who had recorded the FIR Ex. P-1 and done part of the investigation. Subhash Singh (PW-6) is the witness who had arrested the accused/appellant and sent him for medical examination. Dr. C.S. Sharma (PW-7) is the witness who had taken x-ray of the prosecutrix and given his repot Ex. P-7. According to this witness, age of the prosecutrix at the relevant time was between 14 and 16 years which may carry the margin of 2 years on either side. Atmaram Asrani (DW-1) has stated that he was the proprietor of the floor mill and on the date of incident the prosecutrix had come thereto but after some time she had got back but he was not aware as towhere she had gone. He has stated that Ex. D-1 to D-3 are the photographs ofthe floor mill, the house ofthe accused/appellant and the road. 8. Having thus dealt with the evidence ofthe witnesses and other maten'al available on record in detail it appears to this Court that while making allegations against the accused/appellant the prosecutrix has been very inconsistent. In the FIR she has stated that she was subjected to rapethhce - once in the roomand twice in the terrace whereas as per her Court statement no rape was committed on her and was just made naked. In paragraph 20 of her evidence when a question was put to her whether the appellant had inserted his penis into herprivate part, she nodded in affirmation but in paragraphs 27 to 29 she has stated that he could not insert his pen/s into her private part nor even the slightest penetration took place. Further the evidence ofthe prosecutrix makes it clear that no effort was made by her to come out of his clutches all along. Moreover, she has given two different versions in respect of the commission of crime in question - first being that she was raped in s/cfe the house and the second being that she was raped by him on the terrace. It is worth mentioning that though no spot map has been proved by the prosecution, if photographs Ex. D-1 to D-3 are seen, it V»SitSs. & becomes apparent that the house of the appellant was on the main road and there was no parapet in the terrace. The prosecufrix has even admitted that a triple storied building was adjacent to the house of the accused/appellant and activities going on there could be easily seen from the road. Medical evidence of the prosecutrix shows that no external or internal injury was found and if she was raped thhce on open terrace, there is every possibility of her sustaining some injury. This way, the prosecuthx does not appear to be a trust worthy witness and therefore it would not be safe for this Court to convict the accused/appellant as has been done by the Court below. Even as regards the age of the prosecutrix, as per the evidence of Sumitra Bai (PW-2) - the mother of the prosecutrix, she was aged about 18 years at the relevant time and according to the radiologist she was in between 14 and 16 years of age which may carry the margin of two years on either side. Thus it cannot be said that on the date ofincident the prosecutrix was minor. In this view of the matter and considering the incons'stency in the FIR and the evidence of the prosecuthx, the accused/appellant is entitled for benefitofdoubt. 9. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. Pritinker Diwaker Judge 't-'l \^