:^ % 11111111UIIIIII i CF0000057843 © 8®wh(Cn'mwff, IN THE. HIGH CQURT OF WAOHYA PRADESH AT 3A9ALPUR. Cr mina1 A ppe a 1 N o.|M.€^L_._Or 1 994. ,^, ^•^ t^6' APPELLANTS H1iT'JA~lTT G^WOX^ Wfc^^<a^,^,^ ^,^, ;- S^itoEs^.tM - RESPOP^DENT -\dvc R. to.D. R. € 1 Bhupsndra Kumar son ofUishnu '• Prasad Sharma^.aQed abou't 27 yeBrs, Residont orGujra^ P^S^and ir^ Hasaud, Tahsil & District RAIPURo 2 Nathur-am son of Uishnu Sahu<, aged about 35 y,9ars$Resid©nt o,f Dhamni, P^S^^-andir .Hasaud^ Tahsil & District RAIPUR. ^ Versus State of f^adhya Pradesh through P^Se!v!andir Hasaud^Distr ict RAIPUR. ?)'^<.;./J.:5.q ^JwiML^JPP^ALJ.lNDEiLSLLCIioN-A21^L^^ CRI^INAL FROCEDURE. BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 13:01:20 +0530 HIGH COURT OF CHHATnS@ARH AT BIU4SPl^ Sir^i®Bench : Hon'ble Mr. Justic®Pritinker Dhwaker ^ Criminol Appeal No, 1453 of 1994 APPELL4NTS RESPONDENT Bhupendra Kumar <& another Versus State of ^Aadhya Pradesh (now Chhattisgorh) Shri Profu!! N. Bharot, counsej for the appellants. Shri Vaibhav A. ^overdhan, P L for the State. CRIMINAL APPEAL UNDEft SECTION 374 (2) OF THE CO&6 OF C&IMINAL PftOCEDURE JUDeMENT (23.03.2010) This appeal is directed Qgoinst the impugned jijdgment dcted 21.11.1994 passed by 3 Additiona! Sessions Judge, Raipur in Sessions Tridl No. 42/1993 convicting the accused/appelJGnt No. 1 for the offences puni^hables under Sections 448 <& 376 of the Indicn P©riaiCode and sentencing him to undergo rjgorous imprisonment for 6 months u/S 448 IPC, to undergo rigorous imprlsonment for severs years u/S 376 IPC and Qccused/appei!ant No. 2 for the offences punlshosb!® under Sectlons 448 cmd 376/34 of the Indian Penal Code and sentencing hjrn to under9o rigorous imprlsonment for six months u/S 448 IPC, to undergo rigorous imprisonment for seven years u/S 376/34 of the Indian Pena! Code. 2. Brief facts of the case are that on 29.6.1992 at about 9.30 am F.I.R. (Ex.P-2) wos lodged by the prosecutrix (PW-4), aged obout 22 yeo.rs aileging jn it thcd on 28.6.1992 at about 6 pm when she was ai! alone jn the house, h@r mother had gone to attend the cajj of ncrfure, the accused/appellants entered hsr house and had demanded for woter ond when she has osked ^:-... them to go out, accused/appeSlant No. 2 Nothurom gagged her mouth and, there^ifter, the accused/Qppeljant No* 1 Bhupendra Kumar tom her blouse, threw her on the flour and after removing her and his undergarments, commltted forcible sexual intercour^e with her. Sh@ ojieges that appejjant No. 2 had not committed rape on her and had gagged her mouth. She furt'her olteges that ot tho.t moment h©rmother came from outside ond the door of the house wos opened by the accused/appellants and Immediateiy thereafter, they fled QWOE/ and then she narrotsd the entlr®incident to her mother. 3. So ois to hold the accused/appellants guitty, prosecutjon hoss exomined QS mony as 12 witnesses In supporl' of its case. Statements of the accused/appetlcnts were also recorded under Section 313 of the Code of Crjmind Procedure in which they denied the charges levetled agajnst them ond p!eo.ded their jnnocence ond false imptication in the case. This apart-, witness nomeiy L-a?(mi Chond So.hu (DW-1) has ateo been examined by the defence in support of its case. 4. After hearing the parties the tpial Court- has convict^ and sentenced the accused/appettants for the offences as mentioned above. 5. Counsei for the appellants sybmits thot present oppeors to be a case of consent where incidentally the mother of the prosecutrix Sukhia Bai (PW-5) had seen the accused/appfellants in the company of the prosecutrix and, therefcre, the reporl- has been jodged. He submjts th.Qt a very Jmprobabte ^tqry has been given by the prosecutrix where shc states thot on the date of incident, she does not (<now the accused persons by their names cmd their noimes were informed to her by JoQeshar 1 ''^'^y. ^^^^y' but the said Jageshar has not been examined by the prosecution. He submits that jn respect of knowjng the name of the accused persons, ^•atement of the prosecirt-rix is very inconsistent and mokes it cleor that she has folsely jmpticated the accused pe-rsons. He further submits thQt the Doctor who had examined the prosecutrix vide Ex.P-7 has aSso not been examined by the prosecution in th®Court'. 6. On the other hond counsel for the State supprl'ed the impugned judgment and submits that minor contrctdictlon in the statement of the prosecutrix or her mother does not help th@ accused/QppetSant.s. He submits that theory of cQpsent cannot be accepted because at the time of jncjdent, the prosecutrix ; was carrying 8 months' pregnoncy and at the advance stc^e of pregnoncy, no woman woutd permlt anyone to have sex with her. . He submits that tokJng advcntage of th©helpjessness ond physical condition of the prosecutrix, she has been raped by the accused/appellant No. 1 Bhupendra ond in the sdd act, the accused/appeSSant No. 1 Nothumm had hejped h.im. 7. I have heard counsei for the parties and perused the motenaj avdlabje on record. 8. Prosecutrix (PW-4) - marrled lady, aged obout 22 yeors states that she had gone to her matemoj house for her delivery and on the date of incident jn between 5 -6 pm wh?n her mother had gone to dttend the cajj of noture ond when she was cooking food, the accused/appellonts entered the bouse ond had ask©dfor water. She states that she had refused to give them water, however, she was thrown on the flour by accused/appeltant No. 1 Bhupendra Kumar and then he committed sexual intercourse with her. She states that her 4 ^^^^^•-' mouth was gagged bythe accused No. 1 NathurGm. She furt'hcr stotes thort- after completion of the entire ©ct,her mother came in the house ond then she nerrated the entire incident to her. In the cross-examination, prosecutrix states that she knows the accused/appeljcnts prior to the date of incident, however, she was not aware with Their nomes. She further..,: stotes that it is the Jageshcr, who had informed her obout the name of the accused/persons but she also states thdt ort' the time of incident, Jageshar was not present. Sh®states that , she had informed the incident to Jageshcr and then Jageshor ho.d told her about th®name of the accus@d persons. 9. Sukhia Bai (PW-5) - mother of the prosecutrix ho.s stoted that on the date of jncident when sh@ had gone to att'end the cal! of noture, her daughter was olt olone jn the house ond when she returned, her house WQS bolted from inside and then she called upon the proseeutrix, however, the door was opened by the accused/appetlants and immedieitejy, thereafter, they fled away. She states that, thereafter, entire incident was narrated to her by the prosecutrix. In the cross-examination, th.ss witness stcri'es that when she had entered the house, her daughter was weorlng her clothes ond before thort" when she had reached to the door of the house, she coujd heor the chotting between h@r daughter ond.the occused persons, however, she c.ou!d not gort-her os to what they were tdking. She stcri'es that when she was standing near the door, accused/appe'jants eame out from the house and then fled awoy, thereafter; she started shouting that the thieves hdye entered her house. s^= ^^.:%:.^..i'-.' '^•^^L-^ "<-?.^g/^-''' ^ 10. If the stcrt'ement of the prosecutrix (PW-4) and her mother Sukhia Bai (PW-5) is taken into consideratjon, two different versions ore being given by them, Prosecutrix (PW-4) stotes that she was subjected t@ forcjble Intercpurse by the accused/appeljont No. 1 ond that pomt of time the appejjant No. 2 had gagged her mouth whereas the moth@r of the prosecutrix (PW-5) states thcrt' from the door itself she could hear the chotting between the accused/appelloints and her daughter and, thereafter, the accused/Qppettonts came esut from her house ond fted away. She states that when she had entered her house, her daughter was wearlng her ciothes. Prosecutrix (PW-4) hos categorjcally stated that she was not aware with the name of the accused/persons and their nomes were disclosed by Jageshar whereo®th©soj^l Jageshar has not been exomined. M-oreover, the mother of the prosecutrix stort-es that it is th®prosecutrix who had informed her about the name of the accused persons and it js the prosecutrix who ho.d jnformed Jageshar with the narpe of the accu^d persons. Thus, the statement of the prosecutrlx and mother not only appeors to be controKiictory but from the same, possibility of consent cannot be rul@d out. Both these statements do not inspire the ful! confidence of the Courl- and, therefore, on the basis of the said evid©nce,it would be unsafe to conyict the accused/appeliants. 11. Though the prosecutrix (PW-4) was medicalty ©xosmined yide Ex.P-7 but the Doctor who had e?<&mined her, h.os not been examined in the Court, moreover, even as per E?€.P-7,no injury whcri'soever was found on th@ externd or internal part' of the prosecutnx and no opinion has been given by the Doctor 6 f^ regarding recent sexual intercourse* Seesfom (PW-1) & Bauwa @ Ramcharcm have stated that they saw th@ accused persons 9oing from the house of mother of the prosecutnx Sukhia Bai but merely on that basis no presumption can be drawn again^t the accused/appellants. 12. The evidenc®of the prosecutrix if read in toto makes this Court' to reoch an irresistibte conclusion not to rule out the possibility of her bejng a consenting party and when nothing pmpointed has been placed on record o-gainst the accused/appejlonts, benefit of doubt has to go to them. 13. Consequently, the appeaj is dlowed. Impugned judgment dated 21.11.1994 is hereby set aside. Appellonts <are acquitted of the charges {evelled against them. They are on bo.Il. Bai! bonds fumished by them stond discharged. Sd/- Pritinker Diwaker Judge