tiSailtriitliuLitlll; •<lr-:l Or IN 'EHE HIGH COUB2 OF JUDIGATOKS ATyBII.ASPUEyGHHA'I'TISGAEH. CBIMINAL APPEAL N0—OFSOOS. APPEI.GAHT:- (IT? TajL) c^'-- ....••' -?t:^^^0^ ^y^.^ ^^^"r <'° ^ -^ 'c'f' ..••' ->*r ,<^' '1. Prbtoa Bani Son of RamdlianyAge SO 'S'ear's,Qeepation-Agriculture,Cast Bajware, S. Mafytbai isife of LateB&ihedas,Age 55 Year's>Oeepatioa-Agriculture» Cast Rajware, 3. Bavesharen SQB of Baj«nandan,Age 8S Year's» ©ccpation-'AgricuJtuEe^ Gast Rajwarie, .<«- allEesedent 'V'illagePou»ick\|<Ajodbpure, P.S.-LakIianpure,Dfstt.SurgU3a(G. &.). VSESUS BBSPOHDEHT;- State of Clibattisgarfa. CRIMIBAL APPEAL USDBR SECTIOH 5-74 OF GBIMINAI., PEOCEDUHg GODE. 11H ii'il 11B L3  HI6H COURT OF CHHATTtS6ARH AT BILASPW Cr. Appeal No. 41/2002 Prabho Ram and two others Vs. State of Chhattisgarh Post for Judgment; o3 .10.2006 Sd/- Dilip Raosaheb Deshmukh Judge HI6H COURT OF CHHATTIS6ARH AT BILASPL« Criminal ApDeal No. 41/2002 Before; Hon'ble Shri &iljp Raosaheb beshmukh, J. '& Prabho Ram and two others. Vs. State of Chhattisgarh Present: Shri H.S.AhluWalia, learned Counsel for the appellant No.l. Shri Vivek Pondey, tearned Counsel for the appellants No.2 & 3. Shri Ravindra Agrawal, Ponel Lawyer for the State. JU&6 MENT (Delivered on -this 3h^day of October, 2006) This appeal is directed against the judgment dated 15.12.2001 delivered by Shri T.R.Burmon, I Additional Sessions Judge, Ambikapur, Ambikapur, Dist. Surguja in Sessions Case No. 269/2001 whereby the (xppellants were convicted under Sections 344 and 366 of the I.P.C. and sentenced to rigorous imprisonment for three yedrs and a fine of Rs.500/- oaid in default to additional R.I. for six months under Section 3441.P.C. and to rigorous imprisonment for seven years and a fine of Rs.500/- omd in defcult to additional R.I. forsix mon-ths under Section 366 I.P.C. In addition, appellants Prabho Ram and Dev Shamn were also convicted under Section 376 (2) (g) I.P.C. dnd sentenced to rigorous imprisonment for 10 years ond a fine of Rs.1000/- and in defoult to undergo additional R.I. for one year. 2. Admittedly the prosecutrix aged about 20 years is the dough'ter of Mansai P.W.3 and Shyampati P.W.4 and sister of Ramsai P.W.2. 3. Briefly stated the prosecution case. is that on 28.08.2001 appellont Maiya Bai came to the house of the prosecutrix and asked for Sudakhu. When the prosecutrix oame out, Maiya Bai drag9ed her to her house. Appellant Prabho Ram was already present there. The prosecutrix was kept in confinement under threats in the house of AAaiya Bai for •three days, during which period, Prabho Ram committed rape on her. Thereafter, Prabho took the prosecutrix to his house and keeping her in confinement committ'ed rape on her for four days. After that. the appellont Prabho Ram took the prosecutrix to the house of bev Sharon and kept her in wrpngfut co'nfinement for two doys and committed rape on her. Thereafter, at night when appellant Prabho Ram ond Gev Sharon were •taking the prosecutrix to another place, Ramsai P.W.2 saw them and cought hotd of -the prosecutrix and brought her home. 4. FJ.R. was lodged two doys thereafter on 08.06.2001 vide ExJP.l in Police Station Lakhanpur by the prosecutrix. On medical examination, &r. Smt. Asha Bansal P.W. 5 found that the prosecutrix vws menstruating. There were no external injuries on her person. A small abrasion was present over inner side of Labia with inflammation and tenderness. No inter-nal trauma to the vagina was found. It was opined that the prosecutrix was habituated to sexual intercourse. Vaginal slides of the prosecutrix and one green petticoat having semen like stuins which vwere seized from her vide Ex.P.3 were sent for ichemical anatysis. Vide report Ex.P.19, presence of semen ond humcn / spermatozoa on the vaginal slides and petticoatwas confirmed. After completion of investigation, the appellants were prosecuted. 5. The appellants abjured their guilt, plended innocence cnd led no evidence in defence. The prosecution examined as many as eight witnesses. Relying upon the evidence led by the prosecution, the learned trial Judge convicted and sentenced tiie appellants as aforesaid in paragroph 1. 6. Shri H.S. Ahluwalia ond 5hri Vivek Pandey, learned counsel for the cppetlonts contended that the testimony of the prosecutrix was wholly unrealiable since Ramsai P.W.2, Mcmsii P.W.3 and Shyampati P.W.4 did not corroborate -the prosecutrix that die had told them about any sexual intercourse having been committed with her by Prabho ftam. Her testimony was riddled with major contradictions and conviction of the oppellants was tiable to be set aside. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer argued in support of the iinpugned judgment. 7. Having considered rival subinissions, I have perused the record of Sessions Case No. 269/2001. The testimony of the prosecutrix P.W.l that she was kept in wrongful confinement for three days inside the house of Maiya Bai, thereafter for four doys inside the house of Prabho Ram <md after thot for two days inside the house of Dev Sharan and during all this period, oppellant-Pntbho Ram was committing rope on her is wholly unworthy of any credit. In paragroph 9, she admitted that Maiya Bai had not dra9ged her to her house. She also admitted that ^ie had not narrcrted about the commission of rape on her by -rtie appellant-Proibho Ram inside the house to Maiya Bai. "^ E. .-...„... 4 The prosecutrix further fldmitt-ed in paragraph 9 thoit she had gone voluntarily from the house of Maiya Bai with the appellant Prabho Ram. In paragraph 11, she admitt'ed that 5 to 6 neighbouring houses were present near -Hie house of Maiya Bai cnd had she shouted her cries wouid hwe been heard. The prosecutrix also admitted in para9raph 11 that the oppellant-Dev 5haran wos not present at the house of Maiya Bai and further admitted in paragroph 6 that &ev Sharan did not commit any rape on her. She admitt'ed in paragroph 12 thnt Dev Shardn vws not wilting to take her ond Prabho inside his house and she did not narrate to Dev Sharan that Maiya ond Prabho Ram had forcibly brought her to his house. She admitted the presence of the parents of the Dev Sharon inside his house ond stnted that she did not narrate anything to them. The testimonyof Ram Sai P.W.2, brother of the prosecutrix, clearly shows that while Maiya Bai and the prosecutrix were running away, he had caught hold of his sister who did not narrate about ony rape having been committed onher by Prabho. Parents of the prosecutrix i.e. Mansai P.W.3 annd Shyampati P.W.4 also did not state that -riie prosecutrix had narrated to them that the appellant-Prabho had committ'ed rape on her. Mansai P.W.3 also admitted that no missing person report was lodged by him during seven to eight days when the prosecutrix wos missing because the prosecutrix was hofoituated to teave the house for 2 to 3 days. To a direct question, he did not deny that the prosecutrix had illicit reldtionship with appellont-Proliho. Shyampati P.W.4 also stated that the prosecutrix did not tell her about ony rape having been committed on her by appeltant-Prabho. The testimonyiof .the parents and the bro'ther of the prosecutrix clearly render •the testimony of the prosecutrix unworthy of any credit. ^<.^-'- 8. It is also notewor-thy that even after being cought by her brother-Ramsai P.W.2 while she wois fleeing with AAaiya Bai, Ihe prosecutrix did not lodge report for a pariod of two days. The testimony of br. Smt. Asha Bonsal P.W.5 also clearty diows that there were no signs of trouma in the vagina of prosecutrix who was habitual of sexual intercourse. No external injuries were found on the person of •the prosecutrix. Mansai P.W.3 admitted in par-agraph 5 that the house of Maiya Bai is situated in front of his house across •t+ie road. The pro^cutrix admitt-ed in parograph 9 that she did not raise ony alarm white she wos being taken by Prabho from the house of Mniya to his house. She also stated that sha did not infcirm the o-ther family members of Maiya that the appellont Prabho ffcm was committ-in9 rape on her. 9. Hwing •rtius considered the evidence led by the prosecution in its entirety, I am of the considered opinion ttiat -the testimony of the prosecutrix is whollyunrelwble and claarly spells out consent in 1he sexual act, if any, committed by Prabho Ram wiith her. So far as the cppetlant-Dev Sharon is concerned, there is no evidence on record to diow -that he, in ony manner, wrongfully confined •the prosecutrix in his house cnd, in any manner, ossisted in the rape committjed on prosecutrix by -the appellant-Prabho Ram. The testimony of the prosecutrix does not rule out the possibiljty that she votuntarily accompanied Maiya Bai- to her house and went with the opRellont- Prabho from one ptace to another and indulged in sex with him. In this manner, conviction of the cppeltanfs-Probho Ram ond bev iShou^m under Sections 344, 366 ond 376 (2) ^) °'F the IJ'.C. cnd the 1 conviction of Moiya Bai under Section 344 and 366 of the I.P.C. and the sentences awarded thereunder cn'e liabte to be set aside. 1 / ^ NESS 10. In the result, the appeal is allowed. Conviction of the appellcaits-Probho Ram and Dev Sharan under Sections 344, 366 and 376 (2) (g) of the I.P.C. and the conviction of Maiya Bai under Section 344 and 366 of the I.P.C. and the sentences awdrded thereunder are set aside. The appellants are acquitted. The appellant No.l-Prabho ftam shall be set at liberty for-riiwith, if not required in any otiier case. Fine, if paid, shall be refunded to the appellants. Sd/- Dilip Raosaheb Deshmukh Judge S~5-