HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 157 of 1999. Ghanaram son of Ganesh Ram Satnami. APPELLANT VERSUS RESPONDENT State of Madhya Pradesh. Shri Ravi Maheshwari counsel for appellant. Shri Rajendra Tripathi PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE~CODE OF CRIMINAL PROCEDURE. J U D G M E N T (16.02.2010) This appeal is directed against the judgment dated 23.12.1998 passed by Additional Sessions Judge, Baloda Bazar, in Sessions Trial No. 340/1991 convicting the accused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in default of payment of fine to further undergo simple imprisonment for six months. 2. Case of the prosecution in brief is that .on 28.7.1990 FIR (EXP-9) was lodged by the prosecutrix aged about 4O years to the effect that on 7.7.1990 at about 7.30 p.m. when she was returning from Bhatgaon weekly market, accused/appellant apprehended her near a canal and asked her for sexual favour. On refusal, the appellant caught hold of her hand, threw her on the ground and after removing her as well as his cloths committed sexual intercourse. It is alleged that after commission of the offence he threatened to kill her if she disclosed the matter to anyone. lt is alleged that after the - incident, she went to Shahdol where her husband was working and j narrated the incident to him and after returning from Shahdol, the report was lodged. 7i; r _2_ 3. So as to hold the accused/appenant guilty, prosecution has examined 1O witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminai Procedure in which he denied the charges ievelled against him and pleaded his innocence and false implication in the Case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants submits that there is inordinate delay in lodging the FIR as according to him the incident had taken place on 7.7.1990 but the report was lodged on 28.7.1990 i.e. 21 days after the incident and the same has not been satisfactorily explained by the prosecution. He submits that the medical report of the prosecutrix also does not support the case of the prosecution. He submits that there are material contradictions in her diary statement and one recorded before the Court. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below are based on the material available on record and no interference therewith is called for. 8. Prosecutrix (PW-9) has stated in her evidence that on the date of incident at about 6 p.m. when she was returning from Bhatgaon weekly market, near a brook the accused/appellant stopped her, caught hold of her hand, threw her on the ground and after removing . her cloths as well as that of his own committed sexual intercourse ‘ ' with her. She has further stated that after commission of the offence, appellant threatened her not to disclose the matter to anyone. Thereafter, according to this witness, on the next day after taking bath and arranging money she went to Dhanpuri and disclosed the _Z_ incident to her husband and after returning from Dhanpuri she went to the police station and lodged the report. In her cross examination this witness has stated that normally the villagers return from the weekly market before sun set but she could not do so because she had set out for the market itself at 12 noon. This witness has further stated that the accused/appellant had dragged her to a distance of about 20 ft. as a result of which she had sustained injury on her heel. Kotwar Chetandas (PW-1) has stated in his evidence that he was informed by the prOsecutrix that she was subjected to rape by the accused/appellant. He has further stated that he had asked the husband of the prosecutrix to lodge the report but the same was lodged 7-8 days thereafter. Dr. Chandrashekhar Patel (PW-2) who had medically examined the accused/appellant has stated in his evidence that he was capable of performing sexual intercourse. Premdas (PW-3) and Peerkhan (PW-5) are the seizure witnesses and they have not supported the case of the prosecution and have been declared hostile. Dr. (Smt.) Vrinda Mandge (PW-5) who had medically examined the prosecutrix has stated in her evidence that no injury was found on her body and her hymen was old ruptured and no opinion regarding rape on her has been given by this witness. Darasram (PW—10) who is the husband of the‘prosecutrix has stated in his evidence that the prosecutrix had informed him about the incident at Dhanpuri and thereafter he went along with her to the police station and report was lodged. 9. Having thus subjected the entire evidence of the prosecutrix to minute scrutiny, the entire story put forth by her appears to be inconsistent and quite un-natural and thereby does not inspire the \ confidence of this Court. No independent witness including the doctor who had examined the prosecutrix has corroborated her version. Most importantly, the prosecution has not been in a position to explain the delay of about 21 days in lodging the report. ln these circumstances where the prosecution has failed to prove its case by adducing any cogent and clinching evidence, the benefit of doubt has to go in favour of the accused/appellant. l ~.q_ 10. In the result, the appeal is allowed. lmpugned judgment dated 23.12.1998 convicting and sentencing the accused/appellant is set aside. He ls acqultted of the cnarge levelled against him. As the appellant is already enjoying bail, his bail bonds stand discharged. sw- Pritinker waker i l l l l Di Judge