@ HIGH COURT OF CHHATTISGARH, BILASPUg (Single Bench: Hon’ble Shri Sunil Kumar Sinha, J) 863 of 1995 Criminal Appeal No. y v Dili- Klimar p Vs. f h State of Madya Pradesh (Now State o Chhattisgarh) JUDGMENT Post for Judgment : /é/O6/2011 i ‘ "" sw— \ . Sunil Kumar Sinha ; Judge n if y ‘ (Single Bench: Hon’ble Shri Sunil Kumar Sinha, J) Criminal Ap‘ geal No. 863 6f 1995 PPELLANT Dilip Kumar, aged about 25 years, 1 son of Lakhan Yadava, resident of Telitola, P.S. Gatapar, District Rajnandgaon ESPONDENT “rs $tate of Madhya Pradesh (Now State of Chhattisgarh) Through the ‘ District Magistrate, Rajnandgaon. p‘pearanc : Advocate for the appellant. Mr. Rakesh Pandey, Mr. Satish Gupta, Govt. Advocate for the State. (1) This appeal is directed against the judgment dated 15.6.95 No. 27/95 by the Additional Sessions passed in Sessions Trial Judge, Khairagarh, Sessions Division Rajnandgaon. By the impugned judgment, the appellant has been convicted u/s 76/511 IPC and sentenced to undergo R.I. for 31/2 years and to pay fine of Rs.500/—, in default of payment to further undergo R.I. for 3 months. 't:.;\ (2) The facts, briefly stated, are as under:— , Versus JUDGMENT ( [g 36.2011) '$'~ On 24.10.94 at about 2.00 p.m., the prosecutrix (PW— 1) had gone to work in her fleld. The field was situated at HIGH COURT OF CHHATTISGARH BILASPUR @ ‘ (A‘pipeal under Section 374 (2) of The Code of Criminal Procedure, 1973) A R A 3 Criminal Agpeal No. 863 of 1995 some distance from her house. Banshiram Yadav was also along with prosecutrix. The appellant came there and asked : Banshifam‘ for cigarette. Banshiram stated that he is not ‘ feeling well and he left the fleld. The allegations are that thereafter the appellant tried to overpower the prosecutrix ‘ and he also tried to commit sexual intercourse against her. A written report was lodged on 26.10.94. The prosecutrix was sent for medical examination to Dr. S.S. Chhabda (PW- 3), who noticed one abrasion on her right leg. She was not 1 sent for vaginal examination to any lady Doctor as she did ‘n‘ot make allegation that a penetration was attempted by the appellant against her. She simply stated that the appellant tried to overpower her and he wanted tQ commit forcibl sexual intercourse,‘ but he did not do so because she obstructed and she tightly covered her priyate part with the help of her saree. The appellant took defence of false implication. It was contended that since the prosecutrix had illicit relations with one Pardeshiram and the appellant had seen Pardeshiram entering into the house of the prosecutrix and he made hue and cry at that occasion, therefore, the prosecutrix has falsely implicated him. The learned Sessions Judge relied on the testimony of the prosecutrix and held that the appellarit had attempted to commit forcible sexual intercourse against the prosecutrix, therefore, he was liable for punishment under the aforementioned Sections of IPC. _ (3) Mr. Rakesh Pandey, learned counsel appearing on behalf of the appellant, argued that the Version of the prosecutrix was not reliable, therefore, the conviction based on her sole testimony cannot be sustained; though the case of the prosecution was that e 3 Criminal Agpeal No. 863 of 1995 @7 the appellant came to the place of occurrence in presence of one Banshiram who was also working on the f1e1d along with the .prosecutrix, but Banshiram was not examined to support her ‘G version. He also pointed other discrepancies in the evidence of the prosejcutrix and assailed the judgment passed by the Sessions Court. (4) fOn the other hand, Mr.‘ Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) I have heard learned counsel for the parties at length and have also perused the records of the sessions case. (6) The prosecutrix (PW—1) was a married lady, aged about 30- 32 years. According to her version she was working in the field along with her servant— Banshiram. The appellant came there and asked Banshi for having cigarette, on which, Banshi left the field saying that he is not feeling well, and thereafter the appellant tried to overpower her and he also tried to commit sggrual intercourse, but on account of resistance of the prosecutrix, the saree could not be removed and the semen of the appellant was discharged even before penetration on the cloth of the prosecutrix. In the gross-examination, in Para-7, though the prosecutrix denied that on an earlier occasion, the appellant had ,noticed that one Pardeshiram had entered into her house and he had made hue . Q 4 and cry, but she admitted that on account of the above incident relaing to Pardeshiram, a village Panchayat was organized. t (7) The prosecution has examined Gajadhar (PW-4). Gajadhar is ‘ husand of the prosecutrix. He eposed th he was told by the b d at proecutrix about the said incident on 4.10.94. In the evening a s 2 ville Panchayat was organized, but the appellant did not attend ag the anchayat, therefore, a written report was lodged on 26.10.94. In te eros-examination, he admitted that at an early occasion an incient had taken place relatin to his wife and Pardeshiram. d g Later o, he also admitted that in the Panchayat te pellant n h ap wa present and he denied the alletions. si ga (8) Fersingh (PW-5) is another villaer examined by the g prosecution. He very clearly admitted in te cross-examination that at an earlier occasion, the prosecutrix had caled Pardeshira in her house and it was noticed by the appellant who made cries an o is account relations beteen te appellant d n th w h an the rosecutrix were tense. d p G (9) Mr. Rakes Pandey has pointed towards ome minor h s discrepancies in the evidence of the prosecutrix. I have gone through her entire evidence. Minor discrepancies which do not go to the root of the matter cannot be annexed with undue importance. It is wellnsettled that when the version of the on it needing no corroboration thereof. Criminal Appeal No. 863 of 1995 P p h s h l m 5 x\& Criminal Appeal No. 863 of 1995 (10) On due appreciation on the evidence of the prosecutrix in light of the other probabilities-factor, it does not inspires confidence of this Court. The prosecutrix was a major lady, aged about 32 years. In the day time at about 3.00 p.m. she was working in the field along with her servant— Banshiram. She makes allegations that the appellant came there and tried to corrfmit sexual intercourse. .In fact, she makes allegations regarding scuffle with the appellant, but all this went unnoticed V a by any other person, whereas the field is said to be in the locality of the gillage. The servant of the prosecutrix has also not been examined by th‘e prosecution to support the version of the prosecutrix. The husband of the prosecutrix also admitted in the cross-examination that in fact, the report was written by him on the instructions of the Munshi of police station. A11 this creates a doubt on the version and conduct of the prosecutrix and conviction based on her sole testimony in light of the above attaining circumstances and probabilities-factor in the inimical background between two families cannot be sustained. a (11) For the forgoing reasons, the appeal‘iis allowed. The Conviction and sentences awarded to the appellant u/s 376/511 IPC‘ are set-aside. The appellant is acquitted of the charges framed against him. Sd/- l . Sunil Kumar Sinha Judge i n)- ._L vatti