l lllH CF0000061 161 Hill MDHY AA PRADESH Appe- anit Pn: Ramanand Vanni/so Maheshram‘”§e f aged R/o Jarwe. abcut Police 36 yea§s£ tat ‘ istrict, Rainr (M.P .vs- I; at o y roug Poce Station-Palri istrict, %iur (M.P ) “a CRINAL APPEAL UNER sECTIeN 374 (2 OF THE L IM D ) ‘A__'—'_"""‘"' I I l : ‘lS¢~X\ / a. i D p )x. / Ste f Madha Pradesh Thh li a. D p / CRII‘QINAL" PRGCEDURE ceDE . 1 973 @ (Hon. Mr. Justice P‘ritin‘ker Diwaker) Criminal Appeal No. 1303 of 1996 Ramanand Verma- VERSUS State of Madhya Pradesh. CRIMINAL PROCEDURE. $ v; J U D G' M E,N T (11.01.2011) This appeal is directed against the judgment dated 26.7.1996 “ passed by Additional Sessions Judge Baioda Bazar, District Raipur‘in Sessio‘ns Trial No. 359/1994 convicting the appellant under Sections _ 456 and 376 of the lndian Penal Code and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 500 u/s456 and rigorous imprisonment for ten years and pay~tine of Rs. 500 u/s _ i 376 IP’C, plus default stipulations. 2. &ase of theprosecUtion in brief is that on 24.5.1994 FIR (Ex. P- 1) was lodged by the prosecutrix (PW-1) alleging that on 23.4.1995 at about 9.30 p.m. when she was sleeping in her house’%long with her children as her husband was not there in the house, accused/appellant entered the house after opening the door, gagged her mouth, took’he’r to another room, bolted the door from inside, threw her on the floor and after removing his full-pant and upturning her cloths committed forcible sexuall intercourseiwith herJX‘ANfter investigation challan was filed on 28.6.1994 for the offences under sections 456 and 376 IPC. - 9 , 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 08 Witnesses In support of Its case Statement of the accused/appellant was also recorded under section 313 of the , ' : ¢ Code 6f Crimina! Procedure in which he denied *the charge levelled against him and ‘pie’aded his innocence and false impiication in they * 7 0836.. 0 4. After hearing the parties the trial Court has convicted and sentenced the aCCUSed/appeiiantas mentioned above. 5. Heard c'ounsei 'for the parties and perused the mate'riai availa'bie on record including the judgment impugned. u. 6. ’Coun‘sei’for the appellant submits that present appears to be a case o’f consent and as during the course of incident husband of the A ‘p’rosec‘utrix reached there the report came to be Iodged by her He submits that medical report Ex P 7A Is on record but the doctor who has given the said report has not been examined He submits that the I a seizure Witness Dharam Das (PW-6) has also not supported the case ‘ ' ‘ of the prosecution. 7. On the other hand counsel for the respondent/State supports the Judgment impugned 8. Prosecutrix (PW—1) — a married lady aged about 29 years at the' relevaritt time has stated in her evidence that on the date of incident when ishe was sleeping in her house along with her children, accused/appellant- made an entry thereto, lifted hergrom the cot, gagged her mouth, threw her on the floor and aft‘er upturning‘ her cloths committed forcible sexual intercourse with her However while the offence was being committed her husband came there and as the door was bolted from inSIde he banged at it and called her by name ' and after hearing his v0ice the accused/appellant got up and ran away She has stated that herhusband then started quarreling With her sayingtthat she herself might have called the accused/appellant and on, denial thereto by her he took her to the police station where the report as lodged in cross examination this Witness has stated that on the date of inCident her husband had gone to attend the marriage of one “ g ‘ ‘ 7. v f J ..$a E Blsahu; She has denied that earlier also she was having illicit relations wrth the accused/appellant She has stated that as a result of Qresistance to the act of the accused/appellant offered by her, the bangles were broken and Blood started oozing from her hand. She has stated that she also suffered injury on her leg which started bleeding also. She however has admitted that when she was thrown by-the accused on the floor, she did not raise an alarm. According to her, when she Went to lodge the report along with her husband, one Master and Atmaram had also accompanied them. Though the medical report Ex. P—?A ‘is on record, doctor giving such report has not been examined by the proseCution. More so, the medical report goes to show that no injury was found by the doctor on the -body of the prosecumx Ramchand Viswakarma (PW 2) has stated In his ewdence that after hearing some bang like sound he rushed to his house by Jumping over the wall of his neighbour and saw the accused havmg sex With his Wife ie the prosecutrix herein and on seeing him he left the spot by pushing him aSIde leaVIng his full pant and slippers there Itself This Witness has also stated that at the time of inCIdent he was mentally disturbed Later he says that he was mentally disturbed 1 2 month after the inCIdent Sarju Verma (PW-3) has stated in his ewdence that he saw the accused/appellant and the husband of the prosecutrix quarreling over some matter Dr S R Baniare (PW 7) who ‘ had medically examined the accused/appellant has stated that he was _ f g capable of havmg sex Station House Officer namely éhetan Arya (PW 8) Is the investigating officer who has supported the case of the prosecution. 9. Thius .what is apparent from the evidence of the Witnesses I fl particulafly that of the prosecutrix is that there are material contradidtions and omissions in the same In the FIR the prosecutrix / has stated that after her husband had left the house for outsrde the l door was bolted by her from InSIde and the accused/appellant came improbable there after thing opening Secondly, the same in the which FIR she in has deed stated appears that after to havmg be an/ an entry to her house the accused took her to another room whereas l r l / " @ ,q 1 l i ‘ in the-C'ourt statement she has not stated so. More so, the material on record also suggests that the prosecutrix lodged the report only after 'the insistence by her husband and that her husband after sensing something wrong, had suspected the prosec‘utrix to have called the accused. ln these circumstances, the possibility of prosecutrix being a consenting party cannot be set at naught. Thirdly, the doctor medically examining the prosecutrix has also not been produced in the Court to depose so that something againstthe accused could have been elicited. u s 10. The discuSSIon on facts In the light of the eVIdence on record as above does not make this Court to uphold the findings recorded by the Court below as the prosecution has not succeeded to prove its case beyond reasonable doubt. Accordingly, the appeal is allowed. Impugned judgment is hereby set aside. Appellant stands acquitted of _ the charge levelled against him. Accused/appellant is reported to be on ll “’ bail. His bail bonds stand discharged. ' / / Y: Sdl- ~ Pritinker Diwaker Judge /‘‘xic. ‘ #