///I °%%% © IN THE HIGH COURT OF JUDICATURE AT JABALPUR CRIMINAL APPEAL N0. -9 c^ ^ OF 2000 ^,,,.^ (l:jlm^-,^ ^s^\ CRIMINAL APPEAL UNDER SECTION 374 (2) OF THS CODE OB' CRIMINAL PROCEDURE/1973. APPELLJUSFT; (IN JAIL) \y^ \°)^ :^.. ^' ': ^" ^ ^5^.^ ^:uu" ..^ ^ RESPONDENT: ^""" Raml§jff@ Raju Satnanii ^ ^-"' S/o Lakhanlal Satnami^aged 27 years^ R/o Sudela^ Police Station- Baloda Bazar^Distt.Ralpur (M^P^) VSRSUS /'^ State of Madhya Pradesh, / Through - Police Station-Baloda Bazar^ Disfcrict - Raipur (K.P.) ^•^ '-0 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 984 of 2000 APPELLANT RESPONDENT VERSUS Ramlal alias Raju Satnami State of Madhya Pradesh. Shri Vivek Rathore counsel for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. J UDGM E NT (27.01.2011) This appeal is directed against the judgment and order dated 31.3.2000 passed by the Additional Sessions Judge, Baloda Bazar District Raipur in Sessions Trial No. 456/1999 ^onvicting the appellant under Section 376 (1) of the Indian Penal Code 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 1.9.1999 FIR (Ex. P-5) was lodged by the prosecutrix (PW-7) - a married lady aged about 25 years at the relevant time alleging that on 31.8.1999 at about 9.p.m. when she was sleeping in her house along with her three children, someone caught hold of her hand and when she tried to raise an alarm he inserted a piece of cloth in her mouth and also threatened her of life in case of her again raising cry. Thereafter, he took her to the verandah and committed forcible sexuat intercourse with her. She has stated that in spite of her raising a cry for help nobody turned up as there was no house in the nearby area. It is alleged that when the accused/appellant was committing rape on her, her husband reached there along with his colleagues namely Mahesh Yadav and Jagat Verma and handed him L h^. -3-- over to Mahesh but he slipped away.After investigation, challan was filed on 2.10.1999 for the offences under sections 376 and 506-B IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 13 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. This apart, two persons namely Laxminarayan (DW-1) and Kamleshwar (DW-2) have 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 506-B IPC but convicted and sentenced him as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that prima facie it appears to be a case of consent but unfortunately as the husband of the prosecutrix along with his companions reached the spot and saw the accused/appellant and the prosecutrix indulging in sex, the matter came to be reported to the police roping the accused/appellant in a false case. He submits that the judgment impugned being not in consonance with the material available on record, is liable to be set aside. 7. On the other hand counsel for the respondent/State holds the judgment impugned to be just and proper and pleads for no interference with the same by this Court. 8. Prosecutrix (PW-7) has stated in her evidence that on the date of incident at about 9.30 p.m. when she was sleeping in her house along with her three children, the door of the houseWas simply closed but it was not bolted. According to her, after entering her house, the accused/appellant had bolted the door from inside, caught hold of her ^. ^^-^A, • ^ ./"' ~^% ^ t :^|'W£| ^^^eS^^ -3. hand, took her to the verandah and when she tried to raise an alarm he inserted a piece of cloth in her mouth and committed forcible sexual intercourse with her on the point of knife. Thereafter, her husband accompanied by Mahesh and Jagat came there and on hearing sound of bangle he turned the torch on and saw the accused/appellant in its light. After handing the accused/appellant over to said Mahesh, husband of the prosecutrix went to inform the Sarpanch aboutthe incident but in the meanwhile the accused/appellant managed to flee from the spot by jumping the wall on the pretext of urination. In cross examination this witness has stated that the distance between her house and that of the accused/appellant is around 100 meters. She has admitted that house of one Khikram is situated beside her house. She has stated that she is the first wife of her husband and the other one is Usha and both of them live in the same house. She has stated that on the date of incident said Usha and her mother-in-law were not in the house. She has stated that when the accused/appellant had bent her down, she did not offer any resistance by kicking him. According to her by that time her husband reached home, the sexual intercourse was over. She has stated that when the accused/appellant was having sex with her from back side, she had not resisted the same either by biting with teeth or scratching with nails. Dev Prasad (PW-8) - the husband of the prosecutrix has stated that on the date of incident at about 9 p.m. when he reached home along with Mahesh and Jagat he saw the accused/appellant committing sexual intercourse with his wife (the prosecutrix herein) and that his wife was keeping silence. According to this witness, the prosecutrix had asked him not to beat the accused/appellant. He has stated that after handing the accused/appellant over to Mahesh, he went to call the Sarpanch of the village. Mahesh Ram Yadav (PW-9) who had accompanied the husband of the prosecutrix to his house has stated in his evidence that on hearing the voice of bangles he turned the torch on and saw the accused/appellant and the prosecutrix indulging in sex. In paragraphs 12 and 13 of his cross examination this witness has stated that accused/appellant was performing sexual i";-^^L^3^' --<^- intercourse with the prosecutrix in standing posture taking support of the wall and after the intercourse wasover, he was wiping his organ with the help of cloth. Dr. N. Bajpai (PW-1) who medically examined the prosecutrix and gave her report Ex. P-1 has stated that she had not noticed any external or internal injury on the body of the prosecutrix but redness and swelling was present on her private part. Sukhiram Sahu (PW-2) is the Patwari who had prepared the spot map. Satyanarayan (PW-3) is the witness to seizure of underwear of the prosecutrix made under Ex. P-4. This witness has not supported the case of the prosecution and has been declared hostile. Pradip Kumar Sahu (PW-4) is the witness to seizure of underwear of the accused/appellant made under Ex. P-3. Ishwar Prasad Toppo (PW-6) is the witness to seizure of vaginal slides of the prosecutrix made under Ex. P-6. Dr. Pramod Kumar Tiwari (PW-12) is the witness who medically examined the accused/appellant and gave his report Ex. P-11 has stated that he was capable ofperforming sexual intercourse. S.K. Pradhan (PW-13) isthe investigating officer who has supported the case ofthe prosecution. 9. Thus the overall conspectus of the facts and circumstances of the case as well as the evidence available on record particularly that of the prosecutrix herself, her husband and one Mahesh Ram Yadavwho had accompanied the husband of the prosecutrix along with her husband, make it clear as broad day light that present one is a clear- cut case ofconsent. Husband ofthe prosecutrix and said Mahesh Ram Yadav, both have stated that after hearing the voice of bangles they turned the torch on and saw the accused/appellant and the prosecutrix in a compromising position. None has stated about any resistance being made by the prosecutrix at the relevant time. More so, husband of the prosecutrix has stated that after the sex was over, the prosecutrix was keeping mum. The evidence also shows that the prosecutrix had asked her husband not to beat the accused/appellant. All this leads to an inevitable conclusion that as the husband of the prosecutrix and two other persons appeared in the scene all of a sudden and caught the accused/appellant and the prosecutrix red- handedly, the consent assumed the form of implication of the ^M ^ ^^ ^ -r~- accused/appellant. However, these material particulars have been ignored by the Court below which needs a corrective treatment from this Court. 10. Appeal is thus allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As he is on bail, his bail bonds stand discharged. Sd/- Pritinker Diwaker Judge