CF0600058469 m» m TBE HIGH COU&T OF MADffiA FfiADESS AT JABALPUB CR. APPSiLNO. \^\^ OF 199?. Chhotelai. son b.E' Kedarnath ^ Batlior<,aged 10 y'ears, r/o DbarashiT PS Paagar-K, Distt. .BllaspuT.^ PJP 7S. IHE SIASE OF HADHZA p£iU3E8E .. APPELLAI^ (IN JAIL) .BgSpQ £M'r CK3HBIAL APPEAL WDER SECTIQN 374(2) OF TBE CR3MMAL PEoGESUaE. GQDEs ^ / fa :.e^ •^s^~ HIGH COURT OFCHHATTISGARH AT BILASPUR (Hon. h/lr. Justice Pritinker Diwaker) Criminal Appeal No. 1443 of 1995 APPELLANT RESPONDENT VERSUS Chhotelal State of Madhya Pradesh. is^ssl /i;:!i!.!W-3) Shri Dharmesh Shrivastava counsel for the appellant. Shri Neeraj Mehta PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODEOF CRIMINAL PROCEDURE. JUDGMENT (12.01.2011) This appeal is directed against the judgment dated 7.10.1995 passed by Additional Sessions Judge Biaspur in Sessions Trial No. 236/1990 convicting the appellant under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 2000 in default of payment of fine to further undergo simple imprisonment for three months 2. Case ofthe prosecution in brief is that on 19.3.1990 FIR Ex. P-2 was lodged by the prosecutrix.PW-3 - a married lady aged about 25 years at the relevant time alleging that on 18.3.1990 at about 11 p.m. when she was sleeping in her house, appellant knocked at the door which she opened thinking that it might be her husband. However, on opening /the door she saw that it was none else but the accused/appellant who was standing outside her house. It is alleged that the accused/ap'pellant then gagged her mouth and within no time threw her on the ground and aftej^upturning her sari and petticoat committed forcible sexual intercourse with her. It is alleged that after completion of the offence, her husband Bali Ram (PW-2) came there and after seeing him fhe accused/appellant ran away from the spot feaving behind his slippers, a small towel and a torch. It is alleged that in ttie light'of bulb her husband had recognized the accused/appellant. After investigation challan was filed on 19.3.1990 for the offence under section 376 IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 09 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 charge levelled against him and pleaded his innocence and false implication in the case. tiis:»?issg» 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment jmpugned. 6. Counsel for the accused/appellant submits that present appears to be a case of consent and as the husband of the prosecutrix had seen the appellant and the prosecutrix in an objectionable condition, the report has been lodged. He submits that statement of the prosecutrix and that of her husband do not taliy with each other. As per the statement of the prosecutrix, she was thrown on the floor and then the offence was committed whereas as per the statement of her husband Bali Ram (PW-2) he saw the accused/appellant and the prosecutrix in a compromising position on a cot. He submits that medical reportofthe prosecutrix also does not support the case ofthe prosecution. '~T> 7. • Dn the Qther hflrid counsel for the respondent/State supports the judgment impugned -and submits that-«very prompt report was lodged by the prosecutrix and that no evidence has been brought forward by the defence to show as to why the prosecutrix would falsely impticate the accused/appellant. He submits that minor variations in the staternent of the prosecutrix and her husband would not entitle the aceused/appellant to have any benefit entailing his acquittal. ^ \y F: »';ia•gi 8. Prosecutrix (PW-3) has stated in her court statement that as the accused was from her village she knew him. According to her, on the date of inddent at about 10-11 in the night she was sleeping in her house alone and her husband was at Bilaspur as he was working there in a Spinning Mill. According to-this witness, her husband used to visit home every 4-8 days during night hours. She has stated that if on his arrival the door was found to be bolted, he used to get the same opened. According to this witness, on the date of incident in the night hours when she was sleeping in her house, she heard someone knocking at the door and thinking it to be her husband when she opened the door, she saw the accused/appellant standing there. She has stated that the accused/appellant did not speak at all and after gagging her mouth straightaway took her inside the room, made her lie on the ground, removed her cloths but without undressing himself fully, he took out his private part and committed forcible sexual intercourse with her for about 5-10 minutes. She has stated that while the offence was being committed, accused/appellant had pressed her mouth and at that very time her husband had also come there and on seeing him the accused/appellant ran away from the back door leaving his slippers, a small towel and a torch there itself. She has stated that when her husband asked as to the person who had come there, she told him that it was the aGGUsed/appellant who had come there and committed forcible sexual intercourse with her. On being asked by her husband whether the accused/appellant was called by her, she denied the same. Thereafter, the husband of the prosecutrix informed his parents about the incident on that very day. On the next day, the incident was infori)ied"to the other villagers including the Sarpanch of the village and tfien a decision was taken to lodge the report. After seizure of certain articles she vfas sent for medical examination. In cross examination this witness'has reiterated that immediately after the incident she had narrated the entire incident to her husband. In paragraph 14 of her evidence this witness has stated that normally her husband used to visit home in every 5-6 days but on the date of incident he turned up suddenly. According to this witness, when the \ \ -^- door was knocked, she did not make any enquiry and opened the same thinking that it might be her husband but saw the accused/appellant standing there. According to her, when someone enters her house, first falls the room of her in-laws after crossing which he can reach her room. The house of her brother-in-law is situated 15 ft. away from her house. She has stated that as her mouth was gagged, she did not raise the alarm..She has stated that as the appellant was mounting on her, ,she Could not offer any resistance. Then improving her statement she has stated that while the offence was being committed a small towel was inserted in her mouth and after seeing her husband she removed the said towel. She has stated that at the time of commission of the offence, her bangles were broken and this fact was disclosed by her to the police at the time when her statement u/s 161 of the Code of Criminal Procedure was being recorded but if the same is riot mentioned therein she could not tell the reason therefor. She has stated that the accused/appellant had not pushed her husband while running away from the spot. This witness has denied the suggestion that she was having illicit relations with the accused/appellant previously also. Bali Ram (PW-2) - the husband of the prosecutrix has stated in his evidence that on the date of incident he had gone to Bilaspur as he was working there in a Spinning Mill and at about 10-11 p.m. when he returned home, he found the appellant committing sexual intercourse with the prosecutrix and after seeing him he fled away from the back door by pushing him aside. Then, according to this witness he narrated the entire incident to his parents on the same day and in the next morning the incident was disclosed to the people ofthe village also and then the FIR came to be lodged. This witness has also stafed that at the time of incident, his 8-9 month old son was also sleeping with^e prosecutrix. He has stated that the appellant was committing'the offence on a cot without removing his half pant which he was wearing at the relevant time and was gagging her mouth with one hand. Dr. (Smt.) Suba Mukherjee (PW-6) who had medically examined the prosecutrix and given her report Ex. P-7 has stated in her evidence that she did not notice any injury on her body »i •c."- and that she was accustomed of having sexual intercourse. Dr. J.K. Bhutani (PW-8) who had medically examined the accused/appellant has stated that he was capable of performing sexual intercourse. Station House Officer S.P. Sirigh (PW-9) is the investigating officer who has supported the case of.the prosecution. 9. Having discussed the factual aspect of the case in the light of the statements of the witnesses examined by the prosecution particularly that of the prosecutrix and her husband, prima facie it appears to be a case of consent. It also appears to this Court that had the husband of the prosecutrix not appeared on the scene suddenly and seen both of them in a compromising position, lodgment of the report would not have surfaced. Even otherwise, there are contradictions and omissions in the statements of the prosecutrix and her husband in plenty shaking the conscience of this Court to affirm the view taken by the Court below convicting and sentencing the accused/appellant under Section 376 IPC. According to the prosecutrix the accused/appellant had sex with her after making her lie on the ground whereas her husband had seen both of them in a compromising position on a cot. According to the husband of the prosecutrix while running away the accused/appellant had given him a push but the prosecutrix says that no such push was given to him and that way the evidence of the prosecutrix and her husband being contradictory to each other does not inspire full confidence of this Court. 10. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant gets acquittal. Appellant being already on bail, his bail bonds-'stand discharged. Sd/- Pritinker Diwakar Judge