f 3;, W I“H|||||||||||||Hl|||||lll|llll \x, \man W) Mai? Mifrnm $111322? 11% §am¥a°r¥ \E m2? #Lmhw naaqa‘w wm MU w W Pmr - mama gm trog V_ arm am arm rvvwwWV wv’w.v¢m\vNJ— CFO 00057351 O I _’ W 3W &W / W~ 57/90 eff Wmtgm HEW arohammw mw , amt W i‘viar mama we Em X @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 404 of 1990 ‘ ° Mahasingh son of Premlal Mahar. State o Madhya Pradesh (now Chhattisgarh). Shri B.M.K. Bgjpai counsel for the appellant. D V - Shri Pravin Das y. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE; .- JUDGMENT (05.01 .201 0) s d d This appeal i directe against the judgment date 30.3.1990 passed by the Additionai Sessions Judge, Rajnandgaon in Sessions Trial No. 24/1990 convicting the appellant for the offences punishable under Sections 450 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years and pay fine of Rs. 250 u/s 450 IPC and rigorous imprisonment for th‘ree years and pay fine of Rs. 250 u/s: 376 IPC plus default stipulations. 2. Case of the prosecution in brief is that on 7&5.1989 FIR Ex. P-1 was lodged by the prosecutrix aged about 2O years alleging that on 6.5.1989 at about 9 p.m. when she was sleeping in her house, v l accused/appellant came there and asked her for lighting the bidi. I Meanwhile, it is alleged that the appellant enquired from the ‘l prosecutrix about the whereabouts of her husband namely Jamunlal l (PW—2) and when the prosecutrix told him that her husband had ‘ gone to some other village to attend some marriage, he threw her 0“ the cot and by putting her under the threat of her life committed forcible sexual intercourse with her. On hearing the cries raised by the prosecutrix, several villagers came there and caught hold of the appellant while he was trying to flee away. Thereafter, the r__ APPELLANT VERSUS RESPONDENT f l @ prosecutrix was sent for medical examination to Community Health Centre, Dondi Lohara where Dr. (Smt.) I. Chelani (PW-5) examined her and submitted the report Ex. P-3. in the said report the doctor has opined that as the prosecutrix was habitual to sexual intercourse, no definite opinion regarding recent intercourse could be given. Accused/appellant was also sent for medical examination to‘Primary Health Centre, Chhuria where Dr. M.G. Jungare (PW—7) examined him and vide report Ex. P-5 opined that he was capable of performing sexual intercourse. Vaginal slides were prepared and I sent for chemical examination. Report of the chemical analyzer is Ex. P-12 and that the serologist is Ex. P—13. Thereafter, on completion of investigation charge sheet was filed against the accused/appellant. ,_2_ 3. So as to hold the accused/appellant guilty, prosecution has examined as many as O8 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 against him and pleaded his innocence and false implication in the case. El 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offence as mentioned above. i 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. l 6. Counsel for the accused/appellant submits that the appellant 1 has been falsely implicated in this case and it is purely a case of ‘ consent. He submits that as the appellant was seen by one Sitaram 3 (PW—3) while coming out~of the house of the prosecutrix, the reportt was lodged by her. He submits that the statement of the prosecutrix, makes it clear that she had, not offered any resistance while being l- subjected to rape by the accused/appellant as no injury whatsoeverl was found on her body. According to him, even the medical reportl does not support the version of the prosecutrix regarding her having G .‘3_ been subjected to rape. He submits that as per the statement of the pr‘osecutrix when she was sleeping in her house, the doors were simply slammed and were not on Iatches from inside wherea‘s as per the statement of Sitaram (PW—3) when he had reached the spot, the doors of the house of the prosecutrix were on latches from inside and thereafter it was opened by the prosecutrix herself. He submits that the prosecution has failed to examine the independent witnesses namely Bhanu, Deosingh, Sukhdas, Kejuram, Motiram, Sundrlal, Lakhan, Chaitram, Atmaram and Ramkumar though they were eited as witnesses and are said to be present near the house of the prosecutrix and had also rushed to the spot after hearing her cries. l-le also submits that as the husband of the prosecutrix was incapable of performing sexual intercourse, the prosecutrix developed illicit intimacy with the appellant and thus according to him it is a clear case of consent. He submits that the slides prepared during the course of investigation do not disclose the presence of sperms thereon. Likewise, according to the counsel for the appellant, in the clothing of the appellant nothing as such was noticed. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that there was no occasion for the prosecutrix to implicate the accused/appellant in a false case. According to him, as soon as the appellant came to‘know from the prosecutrix that her husband Jamunlal was not at home, he made her a victim of his lust. He submits that as the prosecutrix is a fully‘ grown up and married lady, medical report regarding confirmation of her having been subjected to rape is bound to be negative. Hel submits that the report of the chemical analyzer Ex. P—12 supports the case of the prosecution as in the petticoat of the prosecutrix rv l “presence of sperms was confirmed. l 8. From the statement of the prosecutrix it is clear that on thei l l date of incident when the prosecutrix was sleeping in her house,\ doors thereof were simply slammed, accused/appellant came there l l __Q__ and asked her regarding the whereabouts of her husband. When the prosecutrix told him that her husband was in some other village in connection with some marriage, he made her lie on the cot and committed sexual intercourse with her. The evidence of the prosecutrix further reveals that‘when she raised an alarm, number of villagers came there and on seeing them the accused/appellant tried to run away but was ultimately caught hold of by them. The pirosecutrix has nowhere stated in her evidence that she offered any resistance to the act of the accused/appellant when he was having sex with her or did she try to save her from his clutches. On the contrary she has denied any such statement having been made in the FJR and in the statement recorded underSection 161 of the Code of Criminal Procedure. The prosecutrix has stated in her statement recorded under Section 161 of the Code of Criminal Procedure as well as in the FIR that the accused/appellant had asked her for lighting the bidi and had also asked about the whereabouts of her husband, but in her Court statement she has. specifically denied these things stating that the factum of lighting bidi and the query made by the accused/appellant about the whereabouts of her husband as mentioned in the FIR and the statement recorded under Section 161 Cr.P.C. are incorrect. Jamunlal (PW-2) — the husband of the prosecutrix has stated that he was informed by one Sitaram (PW-3) that some thief had entered his house. Sitaram (PW—3) has not fully supportedsthe case of the prosecution and thus has been declared how‘stile partially. In paragraph 7 of his deposition, this witness has stated that after hearing the cries of the prosecutrix when he went to her house, she was present therein and the doors were on latches from inside and when they were opened by the prosecutrix the appellant was also seen there. This witness has further stated that when an attempt was made by the accused/appellant to run away, he was caught hold of by the villagers. From the statement of this witness it is clear that the accused/appellant was seen by him in the company of the prosecutrix and for this reason only she has reported the matter to ‘ ; l , 1 1 @ the police. Dr. (Smt.) I. Chelani (PW—5) who medically examined the prosecutrix has not found any injury on her person. G 9. Thus from the overall material collected by the prosecution including the evidence of the prosecutrix what superhcially becomes apparent is that when the prosecutrix was being subjected to sexual intercourse by the accused/appellant, the doors of the room were on latches from inside and when the villagers got the same opened, accused/appellant was seen by them inside the room itself and it is only then the prosecutrrx was left With nothing to say on her part except to fabricate a false story of rape Moreover there are material contradictions in the FIR, statement of the prosecutrix recorded under Section ‘161 of the Code of Criminal Procedure and her Court statement as in‘the FIR and in the statement recorded under Section 161 of the Code of Criminal Procedure she has stated that first the accused came to her house, asked her for lighting the bidi and then t asked about the whereabouts of her husband whereas in the court statement she has categorically denied these things to have been stated by her earlier and termed the same to be incorrect. All these things go to show that the prosecutrix was a consenting party to the sexual intercourse by the accused/appellant and had she not been seen in his company by the villagers, probably the report would not have been lodged Threadbare examination of the evidence available on record leads this Court to the only rrreSistible concluSion that eVidence of the prosecutrix does not inspire confdence of this Court and looking to her conduct it can be presumed that she was a consenting party and therefore the appellant is entitled for benefit of i doubt 10. In view of the facts and features depicted above being seen in ‘\ the the light opinion of the that eVidenc‘e‘aslduced the Court below by the has prosecution not given this a Court thoughtful}? is of ‘ conSIderation to the material available on record in its properi perspective and thus has fallen in a legal error in conVicting the accused/appellant as described above and therefore the same is “if ‘ _é‘ required to be uprooted in appeal. Accordingly, the appeal is allowed, impugned judgment Ioses its operational force and accordingly is set aside. Appellant be set free at once if not wanted in the case other than the present one. 11. Appeal allowed. Sd/- Pritinker Diwaker Judge