f^. •^" ©• :x:;.::-:..--^ CF0000057649 H^ QW» (w-imri'! '€ ^p BEFCP.E 1HS HON' BLS HIGH COCTRT ,QE.KADHY^ PRADBSH AT JABALPUR* •C'RIMINAL APFEAL.NO. .•'-'— /94- Appellant,s- ^ >^zS&.-- ' <^»-.«-.<<^---—-—-"-^v/oc^€ Resporidents- R..^D.R, :. • :;', Ol,-...M'K- ...._.. ^" . .-.- Govind Ram son of Mulla 'ram aged s* ,,,43 years ^ re sident of •^" vtlla.ge R^ngle ^P* S< Baghicha •Distt< 'Raigarh,KP» r'" ' ^ \ . .. '<^". Versus» State o.f.M*?-. Criminal: Appeal :TI/s. - •374'., Y.o.f Crxminal'' ProGe^u^ Cp^e^fe^xH^x^ '. ..' . .- , .;•, .'; , BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 11:48:44 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR SB : HON»BLBMR. JUSTICB PRITINKBR DIWAKBR CRA.NO. 1400/1994 APPBLLANT RB8PONDBNT versus Govind Raxa State ofChhattisgarh Shri L<P.Yadav, counsel for fhe appeUaat Shri Neeraj Mehta, P.L. for the State. APPLICATION U/S 374 OF THB CR.P.C. JUDGMBNT (03.02.2010) This appeal is directed agaiast fhe jiidgment dated 19.10.94 passed by tiie Additional Sessions Judge Jashpuraagar ia Session Trial No. 53/94 convicting tihie appeUaat for the oflfence punishable under Sectioiis 376 of the Indian Penal Code and sentencing hixa to undergo ri^orous imprisonnient for seven years aad to pay fisie of Rs. 2,000, ia default of fine to further undex^go additioaal impnsonxnent fbr four nionths. 2. As per fhe case of the prosecution, on 29.8,93 FIR Ex.P/1 was lodged by the prose^utrix, a married lady aged about 28 years, allegiag m it fhat fhree days before thereto i.e. on 26,8.93, at about 10 a,m. while she was gomg towards ffae field, on fhe way, when she reacfaed near fhe new house of accused Govmd Ram, he gagged her mouth and forcefully took her iaside fhe house and fhereafter he closed fh.e door, fhrown her on the floor aad comixiitted rape on her. She has farfher alleged fhat after commission of fhe said oflTence, she was locked iaside fhe room and when fhe accused cacae out from the house one ThuUu (this witness has not been exammed by tiie prosecution in the Court) was standmg outside fhe house. The accused asked him to gb away from fhe spot and thereafter he opened fhe room aad t?S asked her to go whereupon she raa away to her hozise and mformed about fhe mcident to her father-m-law aad mofher-in.-law. Thereafter, when her husbaad came fix>m outside, she mformed her husbaad about fhe iacddent aad then the report was lodged. After iavestigation, fhe cliatlaii was filed against the accused under Section 376 IPC; charges were framed and fhe appellaat was prosecuted. 3. So as to prove tlie guilt of tlxe appeUaat/accused, fhe prosecution has exaxniaed as xiiaay as seven witnesses. Statenient of the accused was also recorded under Section 313 Cr.P.C. ia which he denied titie chajrge levelled against Tiini aad pleaded his ianocence. 4. After hearmg counsel for fhe parties, fhe trial Court has convicted aad sentenced the appellant/accused as mentioned above. Hence fhis appeal, 5. It has been argued on behalf of fhe appeltaiit that present is a case of consent where imfortunately fhe appeUaat aad tihie proseciitrix were seen by one ThuUu axid fhereforc the re.port was lodged. Furfher it has been argued tihiat the prosecutrix has not niade any atteinpt to save herself fix>ia flie clutches of the accused and her conduct itse]f shows fhat she is a consentmg party. Purther it has been submitted that in fhe Court, fhe prosecutrix has improved and has exaggerated her version wNle implicatmg fhe accused. It has also been argued that Thullu who could have been fhe best witaess of fhe case haa not been deUberately exaiaiaed by the prosecution because it is fhis witness who had seen fhe accused aad the prosecutrix iaside the house. Lastly, it has been argiied that tlie report has been lodged after about three days of fhe iacident aad fhis mordmate delay has not been explained by fee prosecution. 6. On the ofher haad counsel for fhe State supportmg| fhe judgment impugned submite fhat the statement of fhe prosecutrix is trustworfhy aiid she has explaiaed as to why :'^^ tliere was delay ia lodging the PIR, She has stated fhat her husband was not present m fhe village at the time of the iacident aad fhereforc fhe niatter coiild not be lodged proniptiy. Ciounsel for the State furfher submits fhat t^o scratch mLarks were found near ffae left breast aiid this shows fhat she was subjected to rape by the accused/appeUaat 7. I have heard counsel for the parties at tength aaid perused fhe record uicludmg titie impugned judgment 8. P.W.-l, the prosecutrix has stated fhat on 26.8.93 after fiaishing her household work when she was gomg to her field on the outskrrts of the vfllage^ fhe accused whose house is also near her field, took her iaside the house and covered her face wifh clofti aad thereafter coiaiuiiitted rape on her. She has furfher atleged ftxat after coxmxiission of fhe ofiTence she was kept iaside fhe rooni aad when fhe accused caxne out froni the house he saw one Thullu who was staodiag outside his house, he asked him to go away, She has also stated tiiat as her nioufhL was gagged she cozild not shout She has stated fhat fhereafter ffae accused had asked her to go to her house and not to disclose to aayoiie however she told about tih.e iacident to her ixiofher-iEi-law aad father-in-law, She has furfher stated fhat at fhe time of fhe iacident her husbaad was uot present at honie aad when he caaie back on fhe next day i,e. Friday she iaformed about fhe iacident whereiipon on Safcurday she wexxt atong with her husbaad to fhe poUce station Bagicha for lodgKig the report but due to some dispute she could not lodge fhe report aad lateron on Sunday fhe rcport was lodged vide Ex.P/1, Thercafter she was sent to fhe hospital for medical exanunation, In fhe cross exammation, fhe prosecutrix has stated fhat when she had entercd tiie house of fhe accused/appeUaat no one was fhere aad when the accused cacae out froin fhe house she was slient aad she also states fhat fhe appeUant made her iinconscteous. She however states fhat she got teared fhat he would kill her aad she has -^- oxily asked him as to why he was domg so and neitlier she has scratched nor bitten hisn. When on fhe way sfae was caught by fhe accused she has not raised alarm aad he dragged her inside. 9. P,W,-2 Dileshwar,, husband of the prosecutrix has stated that on Priday when he came back to fais house, his wxfe told him about fhe iacident and on Saturday, he went along with his wife to lodge tlie report but due to some probleia ia tibe poUce station fhe report was lodged on fhe next day i.e. on 29.8.93. In his cross exaiainatioii^ fhis witaess has stated that his fafher had also accompaoied him & his wife to lodge the report. 10. P.W.-3 DhobU Bai fhe mother-m-law has merely stated fhat ftie prosecutrix had mformed her fhat tiie accused had caught hold of her, iasulted her aiid comaiitted rape on her. In her cross examiaation this witaess has stated tfaat fhe prosecutrix has only iaformed her that she was insulted by fhe accused/appellant. 11, P,W.-4 Baleshwar Ram is fhe seizuiie witaess. of the petticoat & P.W.-5 Martaad Tiwari who 1s a seizure witaess ofEx.P/3, P/4 8& P/5. P.W.-6 Lakhan Lal Sahu, fhe Patwori has prepared the spot map. P,W.'"7 Dr. Smt, Vmodmi Bakhla who had exaixiuied the prosecutribc has steted tbat she found two scratch iajunes on the brcast of fhe prosecutnx however fhere was no ofher iiyury on fhe person offlie pxosecutrix aad her report is Ex.P/7. She has farther stated fhat the iajury could be self i&flicted tajury also or caa be caused if soxaeone comesi ia contact wifh the buahes, 12. The stateiaent of tilie prosecutrix creates a doiibt because on fhe one hand she states ftiat she was subjected to forcefdl rape by the accused aad on fhe ofher haiid she admits fliat she did not made any attempt to aave hersetf froni fhe clutches of fhe accused, She has categoricaUy ^ '^ ^ V.. "•^...^K ^— stated that she did not xaade a&y cry or any attenipt to escape froxa the accused/appellant She admits tliiat she did not even tried to resist. The prosecution has even not exaaxiaed Thiillu who in his statemeut under Section 161 Cr,P.C. has stated fhat he had seeu fhe accused aad fhe prosecutrix iaside fhe house oftiie accused/appeUant and it has also been admitted by fhe prosecutrix also that ThuUu was present outside tihie house. She has categorically stated fhat when fhe accused caine oiit firom. hia house he saw Thullii staadiag outside his house whereupon he asked hini to go away. Purther the prosecutrix has stated fhat after comLUiission ofthe offence, fhe accused asked her to go. 13. The statement of fhe prosecutdx does not iaspirc the fiiU confidence of fhe Court. So far as fhe iajury part is concemed, it has been stated by the doctor that the iajuxy could be setf mflicted injiuy or could have been caused if sonieone coines ia contact with fhe biishes, AccordiEigly, fhis Court is of fhe considercd opiaion fbat the evidence of ftie prosecutrix does not iaspire confidence of fhiis Cozirt aad lookiag to her conduct it caa be said fhat she was a consentiiig party aad therefore ffae appeUaat is entifled for benefit of doubt 14. In view of fhe facts and featares depicted above being seen in tiie Ught ofthe evidence adduced by fhe proseciition, fhis Court is of ftie opiaioii fhat fhe Coxirt below has not given a fhoughtfid consideration to the niaterial available 0x1 record in its proper perspective and fhus has fallen in. a legal error in eonvicting fhe accused/appellant as described above aiid fherefore the same is liable to be set aside. Accordnigly, the appeal is allowed, impiigned judginient dated 19.10,94 is hereby set aside, AppeUant be set firee at once tfnot reqiiired ui aay ofher case. Sd/- Pritinker Diwaker Judge