IN THE HQN'BLE HIGH COURT OF JUDICATURE AT BILASPUR Cr.A.no?^/2001 Appeflant:- (Injail) -MSsSy* /^) ^// •'^'ff'f^ •';/ ^.•'"/ /' "^- -/^••yy '.•:/''.»?'-^* ^ _ ^ ent Shiv prasad panika s/o Panneshwar panika aged 27yrs. R/o Bedmip.s. Ramkoia Distt.-Koriya V/s State ofChattisgffl-h Meiao ofaDpeal U/s 374 of Cede of Criminal Procedure ,,»^r "irf APPELLANT RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Wlr. Justice Pritinker Diwaker) Criminal Appeal No. 782 of 2001 Shiv Prasad Panika VERSUS State of Chattisgarh :;i»i?t^^S;3'^5fe;i •-'f Smt. Savita Tiwari counsel for the appellant. Shri Neeraj Mehfa PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THECODE OF CRIMINAL PROCEDURE. JUDGMENT (25.02.2011) This appeal is directed against the judgment and order dated 31.3.2001 passed by Special Judge, Ambikapur (Sarguja) in Special Case No. 58/2000 convicting the accused/appellant 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 rigorous imprisonment for three months. 2. Case of the prosecution in brief is that on 29.3.2000 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) - a married lady aged about 25 years that on 27.3.2000 she along with her husband had gone to jungle to collect the fire wood and when her husband had gone little far in search of the rope to make bundle of the wood, accused/appellant came there, caught hold of her hand and in spite of her resistance he committed forcible sexual intercourse with her by putting her under threat. Meanwhile her husband reached there and after seeing him the accused/appellant ran away fro.m the spot. Thereafter she was rinedically examined vide Ex. P-14. After investigation, challan was filed by the police on 30.5.2000 for the offences under sections 376,< 506 (II) IPC and 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 3. . So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code '^3 —a— of Criminal Procedure in which he denied the charges levelled against him and plead,ed his innocence and false implication in the case. This apart, one Darbari Ram (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has acquitted the accused/appellant of the charge u/s 3 (1) (x) of the Act but convicted and sentenced him-u/s 376 IPC. 5. Heard counsel for tfle parties and perused the material available on record includingthejydgment impugned. 6. Counsel for the accused/appellant submits that prima facie the case in hand appears to be of consent as the prosecutrix and the accused/appellant were seen by her husband in a compromising position, she was left with no other option but to lodge the report against the accused/appellant. She submits that medical report of the prosecutrix also does not support the case of the prosecution and that the FSL report has not been brought on record by it. 7. On the other hand counset for the respondent/State supports the judgmenf impugned. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident she along with her husband had gone to jungle to collect the fire wood and when her husband had gone little far in search of the rope to make bundle ofthe wood.accused/appellant came there carrying axe in his hand.caught hold of her hand and after upturning her sari and petticoat committed forcible sexual intercourse with her. When she tried to raise an alarm, he threatened to kill her with knife. Meanwhile her husband reached there and after seeing him the accused/appellant ran away from the spot. According to her, the incident was disclosed to her husband in the jungle itself and after reaching home to the other family members. She has stated that as the Sarpanch was not available in the village, the report could not be lodged on the same day and it came to be lodged after two days. In paragraph 8 of her cross examination she has admitted that she had not sustained injury as a result of the incident. She has stated that at the time of incident her husband was about 200 yards away from her and that in the jungle if someone cries from such a distance the ltll.i:l-,ll]i-i|t ^' ::^r>-:'-^-I;r!5i§J?s^'.s^S^l:ff -3- voice can easily be heard. She has also stated that the repot given by her to the police was prepared by the Sarpanch. Ram Pratap (PW-2) - the husband of the prosecutrix has stated that on the date of incident he along with his wife had gone to the jungle to collect the fire wood and while he had gone in search of the rope to make the bundle of the wood, h^ heard the cries of his wife and when he reached the spot, the accused/appellant ran away from there. Thereafter, the prosecutrix narrated the entire incident to him. According to this witness, as on that day the Sarpanch was not available in the village; the repdrt.could not be lodged on the same day. Dy. S.P. - K.R. Kamre (PW-3) is the investigating officer who has supported the case of the prosecution. Head Constable - Ishwar Prasad (PW-4) and Pramod Bihari (PW-5) are the witnesses who had participated in the investigation. Champa Bai (PW-6) and Sakhia Devi (PW-7) are ttie witness who had seen the accused/appellant ruhning away from the spot. These witnesses have however not supported the case of the prosecution and turned hostile. Basant Lal (PW-8) whom the husband of the prosecutrix had informed about the incident has also not supported the case of the prosecution and turned hostile. Dr. (Smt.) S.K. Pekra (PW-9) who had medically examined the prosecutrix on 30.3.2000 and given her report Ex. P-14 has stated that no injury was noticed on her body and no opinion of rape on the prosecutrix could be given. Darbari Ram (DW-1) has stated that Manmati and Sonamati, both had contested election of Sarpanch and the accused/appellant was supporting Manmati whereas Sonamati who was the relative of the prosecutrix won the election. 9. Perusal of the record thus shows that at the time of incident in the jungle the husband pf the prosecutrix was not present there and while the accused/appellant was having sex with the prosecutrix, he reached there and on seeing him the accused/appellant ran away from the spot. In these circumstances, it was the only option with the prosecutrix to disclose the incident to her husband and lodge the report with the police. Secondly, there is two days' inordinate delay in lodging the report which has not been satisfactorily explained by the prosecution. Non-availability of the Sarpanch in the village does t I! .-.-^^s^ ^ not sound to be a proper explanation for the delay so occasioned in lodgment of the FIR. More so, the story put forth by the prosecutrix that when her husband had gone in search of a rope, accused/appellant immediately reached there and had sex with her against her wishes appears to be highly untrustworthy to be retied upon for the reason that how it was possible for the appellant to sense the momentary absence of her husband at a particular point of time facilitating the act alleged. Apparently, as per the evidence available on record, this appears to be a case of consent and nothing more. The Court below has failed to appreciate the evidence of the witnesses in a proper way and arrive at the conclusion holding the accused/appellant guilty. Findings so recorded in the judgment under challenge do not receive the approval of this Court. 10. In view of what discussed above, appeal succeeds. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. He is already on bail. Bail bonds stand discharged. Scl/- Pritinker Diwaker Judge sKSffSW •'M0