ova ZWW’ APPEAL or PRISONER mm “NM Ill||l|l|l|\1lll\||l|\| L gh (0mm (W1 H v $ILA%FUR 2 TMAY'YUUE Rag. Ne 71%..." -No. HQ;/&‘L Fa thar’ s nam Na ‘le 3%‘9 wWMf i W177; Residmc’é 7m 1%Ffwa? 94W W V SentW‘ d "3‘76 E gage $F€€T/%’K $/°L “F7 """"‘ 341 n " “/.s.”,.‘é_...2@.7*..-m ' ‘ Under :ectlon W é £73: [Q d& by mo 3““ (:5; r141”; ‘JWT ~~2¥W¥w KD‘ 1W> #f~7 ”f- it 1g exnlalned‘to the pr‘soner that if he ‘tates or wi‘ he§ to be re‘gresented by legal practitioner the Ay f. VlyiZET ‘eliate Cour: will ‘ not pz‘oceed witli the base for seven days uniess the legal. practidoner appears. If the legal practit‘oncr doiswb '“__ appear with—in seven days he may rno& heard prisoner states that he da es mt w=b to ‘ legal [ngagtiotioner the o urt: may proceed 3w u awn ll .he I: G? nted Dy mace with ”m3 \ case and will‘ not_be obliged to give a hearing to any legal . 7* i practitioner who should anaear. a ; ; l. Date of Application for copy of Judgemexi; 2. Date of whiéh copy rec aived . 7;...L3 x, mm. cent~_ lg >. 2e17, ‘ 4. whether the prisoner vglshea to be reprcz: mtec‘l or noun-YeK/No. NO. w ‘ 3. Date on which appeal lone _ £77 em 4! c W (12/ Continued in “J Jail Evi+l-9 5EK o- .Xgs:&_ ‘ . Dateda’ as—OS’ 19 .. .. a. ' ,. v ‘7 ‘ 3x1) ,W/éM/gyQ e m§ orwaru to the M€ it; for I vour #WM of trausmlsol , 7%5 yWLN/WLV n to the Dro ,q er {m)-r?z/ r we “wate CL,“ a Suyerintendent Date of receipt in C.J.M's Office > Date oi receipt fecord to accompany Memo of Appeal of: the Appeliate Court No. > " Dated Forwarded to the C.J. mgietra w Date of receipt i'gn Appelia’ire Court Vi) to gather whicn a copy of lrder oaeoed an t w . " [ n e W W WWW WW $etfa'qwém "t r APPELLANT v 3.‘ ',,.’ RESPONDENT APPELIANT RESPONDENT 4. 10.2007 , HIGH COURT OF CH TTISGARH AT BILASPUR S.B. HON’BLE SHRI JUS ICE DHIRENDRA MISHRA J . CRIMINAL ‘éPPEAL. NO. 471-[2005 'Moti Ram @ Gutaru Aged — 27 yrs. S/o Ganga Ram m£mv¢mtww~¢-my ‘1 ””§mmiémw£wm g "m ‘ ”J - V' ERSUS x$wu‘‘w....... State of C.G. And CRIMINALAPPEEAL. No. 298(2006 Ram Kishun @ 'Bhordul Aged — 20 yrs, S/o Bhordul R/Q. Chirai Pani, P.S. Manendra Garh — Distt. Koriya C.G. V ERSUS‘ State of C.G. Shri Rakesh Sahu, cou nsel for the appellants. Shri Arun Sao, GA for whe State/fespondent. Mém:zh;mwmw " ’. ‘ ‘ s W H ’mw-. Ha“. aw w mwiiwm éwtia‘nm Heard M.Cr.P. condonation of delay in flli been flled With a delay of 13 days. 01'1 For‘the reasons indie ted in the above application and also considering the fact th t the connected Cr.A.No. 471/05 a t ‘ preferred} by appellant adjudication, delay in filing t e instant appeal'is condoned. _ 4/ . a ‘ Cr.A.No. 471/05 prgfe 85 Cr.A. 298/06 preferred b§ are being dispoged of by this appeals are directed agains order of sentence dated 15 whereby learned Additional Distt. Koria has convicted th Ramkishun @ Bhordul und: each of them to undergo ] Rs.200/- imprisonment for two mont and Ramkishun @ Bhordul Sections 376, 376/34 of IPC been sentenced to undergc Rs.1,000/- and in defau imprisonment for five month and in default o. 882/ 06, for the instant appeal as the same application otiram @ Gutrur is pending ‘ wwu Wmw'wewmm ~ red by appellant Motiram @ Gutru ' appellant Ramkishun @ Bhordul . common judgment as both these : the judgment of conviction and: 6.2002 passed in S.T.No. 03/02 Sessions Judge, Manendragarh, 3 appellants Motiram @ Gutru and 2r Sections 342 of IPC, sentenced {I for six months, pay a flne of thereof, to undergo additiona‘l 1s. Appellants Motiram @ Gutru p have been also convicted under respectively and each of them has RI for 10 years, pay a fine of lt thereof, o further undergo ‘ . sh In w’mu ” um * m t 2. Case of the prosecutim about 12.00 noon the prose v going towards fleld for trar appellantsc'aught her hgar t1" and took her inside his hOt ' confined ’her' by bolting 'the 'Mbtiram committed rape Witl” arid gagging herH Whereas R‘ kept in fconfmement upiito 6 when Ramkishun shouted th incident; The prosecutrix ‘W incident, however, she narrai also the neighbourers. The: following day in Police Statior 3. During investigation th examination to Govt. Hospita Tirki examined her and gavi apparels of the pro‘secutrix i EXP/4 and Sent for chemicz advised chemical examinatio semen. After completing in against the appellants in the Class, Manendragarh and tl for trial by the learned Additional Sessions Judge; i 1, in brief, is that on 6.8.2001 at :utrix, aged about 12 years, was 1Splantation of paddy when the .e house of Ramkishun @ Bhordul 'se where RamkiShu‘n @ Bhordul d00r from outside; Appellant her after lying her onthe ground imkishun stood guard. She'was “00 p.m. and she was freed only at ‘villagers have learnt about the i as threatened not to disclose the :ed the incident to her parents as ‘eafter, report was lodged on the , Manendragarh vide Ex.P/ 1. e prosecutrix was sent for medical . Manendragarh where Dr. Neelam 3 her report of EXP/6. Wearing vere taken into possession under l examination to the doctor, who n for confirmation of presence of vestigation charge sheet was filed Court of Judicial Magistrate First te sarne was received on transfer maj Wi‘mw‘h“’‘- ???aw ‘ eW :.. , mm %€tmn $a1fanm m 4. During, trial seven witnesses were examined ‘by the atements of the accused persons 3y denied the material appearing 1tion case and pleaded innocence lwever, learned trial Court after 'espective parties convicted and mentioned in paragraph 1 of this judgment.‘ . x _. . w 5. Learned counsel for tli no evidence - that the prosect on the date of incident as nc been adduced by the prose( Court has also not recorded the prosecutrix. The prosec only against appellant Mo Ramkishun is that he COnf door from outside and facil' with her. Referring to state that the allegations are that at'12.'00 noon and freed o persons, that too, when the the prosecutrix are confin The prosecutrix has claim injuries over her person o prosecution. Thereafter, st were recorded in which th‘ against them in the proseCI and false implication. Ht Vfhearin'g Counsel for the ‘1 Sentenced the appellants as e appellants submits that there is ltrix was less than 16 years of age oral or documentary evidence has :ution in this regard and the trial any finding with respect to age of utrix has made allegations of rape :iram whereas allegation against her inside hisrhouse, bolted the ated Motiram in committing rape ent of the prosecutrix, it is argued e she was confined inside the house 1y at 6.00 p.111; by the accused villagers learnt that Motiram and inside the house of Ramkishun. d that she sustained numerous account of dragging on the floor ’umqw ' i e d WW mm éa‘wmm and assault by belt, but thére is no medical corroboration to the above allegation as Dr. 1‘ internal injury on her person. lay, has not found any external or , 6.7 .On v the other ha1 V‘s eelam Tirki (PW—6) who examined ‘ the prosecutrix on the same ~ State/ respondent Supported Court. a . I. $ . . H ‘ . 7 7. Conqiction of the appe prosecutrix (PW—3) and her n 8. Prosecutrix has stated that she was going alone t( about 10.00 a.m. as the oth< 70—75 steps away from hc accused Bhordul, where acct her inside the house. Both 0 cloth and thereafter, appell and Moti committed rape Wi outside. At 6.00 p.m. the came out and saw her moth hands were untied by her fled from there. Her mother house. She narrated abou was gagged by the accused 1d, learned counsel for the impugned judgment of the trial lants is based on the statement of Lother Jahida (PW-4) in her deposition before the Court ) village Banji from Chiraipani at r labourers had gone ahead. Just ;r house, there is the house of used/appellants met her and took fthem tied both her hand with the t Bhordul came out of the house h her.- Thevhouse was belted from i oor was opened, whereupon she’ r and accuSed Bhordul there. Her her.‘ However, accused Moti had took her along with Bhordul to her the incident to her mother. She Moti by inserting pieceskof cloth. wa“ i igwhnmmwwwq, - - mumr.. t t XI—HC—ZZ n: hwgwww‘mng “W'gmT n V. ’The fact of tying both of her hands by cloth is not mentioned in the FIR. In paragraph 9 of her deposition she has stated that she was dragged by the ace sed persons for a distance of 20 steps, as a result of‘whioh s e sustained injuries over her back ’ and her jumper was 'staine ‘ with blood. ‘Sh’e also sustained «‘4;- injur‘ies over her leg and t es. " Gudda .is adjacent‘to' the being‘take’n to the room, s e had shouted. In paragraph 11 = . s she has ‘s‘tated that it is cor ect to say that BhOrdul was taken by her mother because Bhordui and her parents did meeting With appellant ‘Moti she has denied any acquai paragraph 13 she has state( intercourse for the first tim had no experience 0f inter injuries over her back and medical examination. 9. ‘PW—4 Jahida, mother ‘ her daughter went from the did not return Itill evening, she enquired from the neigh of the prosecutrix, has stated that house on the pretext of going to work. However, when she urhood and at that time she overheard some people tal ing near'the house of Bhordul. When she asked who was t lking, accused Motri and Bhordul The house of Ramdas and While she was use of Bhordul. ;%m.vw~$..' h otiram resided in the house of not approve her acquaintance and However, immediately thereafter ntance with accused Motiram. In l that she was subjected to sexual 3 by Motirarn and before that she ’She has told about the toes to the doctor at the time of 30urse. ’ l l n’ -V .. u,. . . ” " 'came out of the house an started running away. However, she caught Bhordul, but Moti'ran away. The Villagers had gathered hear her house; er daughter narrated about the incident that Moti took he; o Bhordul’s ’houserand committed 'rahe with her after tying 'oth the hands and gagging her. 4‘. {Omissions and contradictio s present in her diary statement of V ExD/L—havé also been p0 nted out in paragraph 5 of her statement ‘She has also stated that the prosecutrix was éutting‘on' Salwar 85 Kurta and there was blood on her back — rand her Kurta was’stairied With blood. The prosecutrix had told her that Bhordul has as aulted her with belt. 10. Dr. Neelam Tirki (PW has examined the prosecutrix on 7.8.2001 and gave report o EXP/6. She has stated that she had examined the prosecut ix and did not notice any external or internal injuries on her na vate part. There was no mark of injury present on-her pers . No sign of intercourse was found on her person and she se med to be'accustomed to sexual intercourse. Two vaginal ides were prepared and sent for examination to Forensic ience Laboratory. However, no report of F.‘S.L. is available 11. After close scrutiny o statements of the prosecutrix and her mother, the same d not inspire confidence for the following reasons: l c record. d - ) i o a ’‘u‘*yy'y.w-v» *m :w a(: max, ‘ (i) (ii) according to case of the prosecution the prosecutr‘u was bodily lifted at 10.00 am. while she s proceeding to work to Village Batiji’ ,al ng with other labourers and co’n'fmed' the house of Bhordul along with Moti Wher as appellant Bhor’dul stood guard in 'front the door and freed only at 6.00 'p.m{ -The above fact is to be viewed in the backgrou d of her admission in paragraph i 11 wher 'n she has admitted that her parents dd not approVe her‘ acquaintance and inee ng With accused Moti The fact that both of her hands were tied w1th the cloth,- is ssing in the FIR of Ex.P/ 1. It 1s highly im robable that the prosecutrix while lodging t e report immediately after the incident ould not mention this fact This is a clear 1m rovement made by the prosecutrix deliberate y to Justlfy her inaction while she‘ was 1n co finement for a period of 8 hours. 'categorically stated that she sustained injuries on her back, toes and leg of dragging by the accused persons d she had mentioned these n 'a i '~ o i t XI-HC—22 m'mmm ‘ WWiwm éswm injuries to the investigating officer as also to the doctor 'at ‘the time of medical examination. However, her version is not eorrobqrated by the medical evidence as the doctor whj examined her immediately after w f 1 U ’ Y i ' the incident has not found any injury on her ll ~‘ i person or private part. In View of the above ' ‘ K ’ ' fact, the allegation of the prosecutrix in-her statement that she was dragged by the accused p rSons and thereafter, confined in the house of Bhordul Where appellant Moti committ sexual intercourse With her, does not inspir confidence. ' (iii) The claim of the prosecutrix that it was the ;.p first inter ourse with Moti and prior to that ‘she had experience of sexual intercourse, is also be ed from the version of Dr. Neelam Tirki (PW 6) who has opined that she is accustom d to sexual intercourse, her vagina admitted wo fingers easily and there is no sign of ra e. 12. Thus, in View of total ty of the facts and circumstanCes and the evidence availa on record, possibility of the prosecutrix being a consent ng party cannot be ruled out. The e be mfiw évwaném $ *trial Court was’not justified appellants by the impugnew 13f In the result; béth I» appellants are allowed. . The ' .Sections 342‘, 376,. 376/34 acquitted of thC above charge $if not required in any other c n in convicting and sentencing the i. judgment under Sections 342, 376,, 376/34 of IPC and the dame cannot be sustained. .the appeals preferred by the ir conviction and sentence under of IPC are set aside. They are s. They be set at liberty forthwith, 1S6. SdF DI—MENDRA MISHRA Judge mm ", :.