^ IN THE HIGH COURT OF JUDICSH'URE AT JABA1PUR Crininal ^peal No. tS~'Z3 Of 2000 CRIMIBM. APPEAt. UmiER SECTIOH 374 (2) OF THE CODE 0V CRIMINAL PROCEDURE, 1973 APPEL.LANT .Kartikeshwar @ Kartik, Aged about 19 years, S/o Gulabchand R/o Khutgaon PS Deobhog District Raipur MP sa .'1- 4'^ .; -^ ?" 'f RESPONDENT CONVICTION Under section 3'76 IPC VERSUS The State Of Hadhya pradesh Through S.H.O. Police Station Deobhog District Raipuc MP SENTEMGE Rigorous Imprisonment for 7 years and fine of Rs.1000/- ( 3 months' simple imprisonment in case of default of fine) r; ^.p.k L HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. hflr. Justice Pritinker Diwaker) Criminal Appeal No. 1579 of 2000 APPELLANT RESPONDENT VERSUS Kartikeshwar alias Kartik. State of Madhya Pradesh Shri Rajnish Baghel, counselfor appe!lant. Shri Rajendra Tripathi PL for respondenVState. CRIMINAL APPEAL UNDERSECTION 374 (2) OF THE CODE OF CRIMINALPROCEDURE. JUDGMENT (24.02.2010) This appeal is directed against the judgment dated.23.5.2000 passed by Additional Sessions Judge, Raipur, in Sessions Trial No. 07/2000 convicting the accused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and p3y fine of Rs. 1000, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Case of the prosecution in brief is that on the basis of written repori: lodged by the prosecutrix (PW-5) FIR (Ex.P-6) was registered against the accused/appellant alleging that on 17.10.1999 when the prosecutrix aged about 16 years was cleaning the earthen oven in the house of father of the accused/appellant, accused/appellant came there, took her to another room by catehing hold of her, inserted a piece of cloth in her mouth and after removing her cloths committed forcible sexual intercourse with her. On cry being raised by her, Umakant (PW-6) and his wife Jalanbai came there. Meanwhile, father of the accused had also come there and consoled her saying that he would get the matter decided in the meeting of the society. Thereafter, she came back to her house and narrated the entire story to her mother but as her father was not at home, the repori: could not be lodged in time. When her father came after about ^-8:I^ :! 1 """"•l' i ^s^S^ :SP;.SSSfe3SgSs. —2.- one month, incident was narrated to him. Thereafter, a meeting was called in which a decision to lodge the report was taken. 3. So as to hold the accused/appellant guilty, prosecution has examined 10 witnesses ir) support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe 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, one Sundarlal (DW-1) was also examined by the defence in support of its case.' 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. 5. Heard counsel for the parties and perused .the material available on record including the judgment under challenge. 6. Counsel for the appellant submits that prima facie it appears to be a case of consent where frie report was lodged by the prosecutrix two months after the date of incident. According to him, in this case the incident had taken place on 17.10.1999 whereas the prosecutrix was medically examined on 14.12.1999 and it appears to be very surprising that even after such delayed medical examination the doctor has opined that the prosecutrix was subjected to rape and had had sustained injuries on her elbow. He submits that no independent witness has supported the case of the prosecution and therefore the conviction based on the evidence of the prosecutrix and the doctor who had medically examined her after a sufficient long time, is not sustainable in the eye of law. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the prosecutrix has categorically stated in her evidence that while she was deaning the earthen oven in the house of the father of the accused/appellant, accused came there and committed forcible sexual intercourse with her after taking her to a different room. According to the State counsel the statement ofthe prosecutrix being duly supported by the fe ?:;^":s»l? doctor who had medically examined her cannot be disbelieved and the Court below was right in convicting the accused/appellant for the offence mentioned above. 8. Prosecutrix (PW-5) has stated in her evidence that on the date of incident at about 6 a.m. she had gone to the house of the father of the accused to do the house-hold work which she was doing for about 2 years there from and when she was taking out the ash from the earthen oven, accused/appQllant who was sleeping in a different room came there and took her to a different room by lifting her. This witness has stated that when she tried to cry, he inserted piece of cloth in her mouth, removed her cloths and that of his own and thereafter committed forcible sexual intercourse with her. In her cross examination, this witness has stated that when the accused/appellant had removed her cloths, she was simpiy lying on the floor and did not.raise cry. She has stated that while being subjected to sexual intercourse for about half an hour, she did not raise any cry nor did she try to escape there from. She has further stated that earlier to the incident, father of the accused had lodged a report of theft against the members of her society and the police had come to enquire into the said matter but, the incident of rape Was not disclosed to them as her father had said that the matter would be decided in the meeting of the society. She has stated that after 4-5 days of her father's arrival to the village, meeting of the society was called and when no solution could be explored even in the second meeting, two days thereafter the report was lodged by her. According to her the report (Ex.P-5) was not written by her but by someone else, about which she had no idea. This witness has however admitted that there was some dispute between her uncle namely Vishwanath and the father of the accused. She has also admitted that her grand father had asked her to lodge the report. Paanbai (PW-3) - the mother of the prosecutrix has supported the statement of the prosecutrix stating that on the date of incident when she came back to her house at about 8 a.m. after fetching water, the prosecutrix came to her weeping andnarrated the entire incident to her. She has stated that as her elder son and husband had gone to •i'"^'^ ••,':vt*^:'':^ :s'':\ yfMSffSgiS^ -^- Raipur for earning livelihood, report was not lodged promptly. According to this witness, she had written two letters to her husband and when he reached the village and no decision could be taken in the society meeting, the report was lodged by the prosecutrix 8 days thereafter. Admittedly, no such letter allegedly written by this witness to her husband has beep produced by the prosecution. This witness has admitted that before the report being lodged by the prosecutrix, the father of the accused had already lodged a report against them saying that his son was defdmed by them. This witness has further admitted that there was some dispute between her brother in law and the father of the accused. Kriparam (PW-4) - the father of the prosecutrix has also made almost similar statement to that of his wife. He admits that the report was lodged when he came from Dhamtari. He however has denied of having received any letter said to have been written by his wife. According to him,. e report was lodged by the pros'ecytrix three days after the society meeting was convened. He admits that prior to lodging of the report by the prosecutrix; a report was lodged by the father of the accused/appellant. He also admits that relations between his family and the father of the accused were not cordial and that there existed a dispute between his nephew Vishwanath and the father of the accused/appellant. Umakant (PW-6) who is said to have gone to the house of the father of the accused/appellant after hearing the noise, has not supported the case of the prosecution and has been declared hostile. Damrudhar (PW-7) - one of the members of the society of the prosecutrix has stated that in the society meeting the accused was also called but had denied the incident of rape and as no decision could be taken in the meeting, complainant was advised to lodge the report. 9. In respect of the age of the prosecutrix, after appreciating the evidence of Dhannu Ram Sahu (PW-1), Paan Bai (PW-3) and Kriparam (PW-4), the trial Court has arrived at the conclusion that on the date of incident she was more than 16 years of age and as the said finding remains unchallenged, this Court also proceeds to hold that on the date of incident she was more than 16 years of age. »^;s^ Though the prosecutrix alleges that she was subjected to rape and her statement is supported by her mother and father, there is no reasonable explanation for the delay of about two months in lodging the report as the incident had taken place on 17.10.1999 whereas the report was lodged on 12.12.1999. An attempt has been made by the prosecutrix to say that the.report could not be lodged in time as her father was not at home, the report could be lodged only after his arrival. This explanation regarding such an inordinate delay of about two months in lodging the report dbes not appear to be satisfactory. Moreover, even after the arrival of her father from Raipur, the report was not lodged promptly and a period of 7-8 days more was consumed before lodging the report. Further, the prosecutrix and her mother have stated that two letters were written to the father of the prosecutrix who was at Raipur but Kriparam himself has denied any such letter having been received by Nm. It is thus apparenfethat the prosecution has nbt been-able to satisfactorily explain the delay in lodging the FIR. This apart, it has been admitted by the prosecutrix and her parents that it is the father oi'the accused who had first lodged the report in the police station against the complainant party and then only report was lodged by the prosecutrix. It is also admitted by these witnesses that on the basis of the report lodged by the father of the accused, investigation was done but even at that time the incident of rape on the prosecutrix was not disclosed to the police. This creates a doubt in the mind of this court. Further, it has been admitted by these witnesses that there was some dispute between the two families and therefore possibility of false implication of the accused cannot be ruled out. Most importantly, father of the prosecutrix namely Kriparam (PW-4) has categorically stated that relations between the two families were not cordial and they were not even on talking terms creates a doubt regarding the fact that the prosecutrix was working in the house of the father of the accused for more than two years. . 10. In view of the aforesaid facts and circumstances of the case and Inordinate delay of about two months in lodging the FIR, this Court is of the opinion that the statement of the prosecutrix being full 5 ^^ ^ fc of contradictions and omissions does not inspire confidence of this court to convict the accused in this case under Section 376 IPC. Accordingly, the appeal is allowed. Judgment impugned dated 23.5.2000 is hereby set aside. Accused/appellant is acquitted of the charge levelled againgt him. He is reported to be on bail. Bail bonds so executed stand discharged. —— -—- Sd/- Pritinker Diwaker Judge Si^-^S'^ \SK^«^!^asSSS p3;t?2---—-: