^IT^T^ R'lJcb 1sb^icb \. T5ST "^l^l^-q, yiTfi-M^Ko, fsf(»!»l^^< ^ A.^o. iCL/^03 NINdl <b^i«b"••"—"""""•""—•••••""•"""•-"•••" ^ 200 3^91 XTST^ ( 4c(^<i?T) 09 '^nw^rf^T 3?n^r SB: HON?BLE SHKl DHIRENDRA MISHRA, J. APPELLANT Peefli-ial S/'o Dhani Ram Lakada, aged about 23 | years, R/o village Pathrai, P..S: !<arij|aleshwarpur, Distt. Surguja(C,G. Vs. RESPONDBNT 30-8-200'7 Shri V.K. Pandey, Advocat. Shri Sushil Dubey, Addl. F Stat^ of Chhattisgarh, through Kan'|a1eshwarpi3r, Difttt. Siirguja (C.G.) .^ for the appellaiit. Tubiic Prosecutor for the State. 2. The appellaiit has prefei~|t conviction anci orcier ol senteit 395/2001 whereby learned 1st convicted the appellant under him to undergo R.I. for 7 year^ payment ol ime, to luitlier uncieilgo 3. Aliegation against the ap^' while the prosecutrix had gone sister Phulkunwari (P.W. 2), the| her to the house of Virendra and the night and thereafter went a^ not go to her home and sat unc|< when her husband saw her, sli neignbours ana also to iier lodged on 6-S-2001 at 10.00 l^: examination where Dr. (Smt.; CM<if<n<flTi +ii+i<yff ^f f^»<l <FJi<^i< '^3TRpT3TT^T P.S. 'eci tnis appeal against tlie jucigment ol ;e dated 14-6-2002 passed in S.T\ No. 4dditional Sessions Judge, Ambikapur has |ection 376(1) of the I.P..C. and sentenced with a fine of Rs. 1,000/'-, in default of additional RJ. for 6 months. ^llant is that on 4-8-2001 at about 8 p.m. Lo attend the call of nature along with her appellant came there and foi'cibly dragged raped her, He repeated the crime twice in ?ay at a'bout 5-6 a.m. The prosecutrb^: did er a tree upto 3 p.m. on the foilowing day^ narrateci tiie incident to Her sister ancl hy^band and therealter report ol Ex. P-1 was 's, The prosecutrix was sent for medical Shrivastava (P,W. 7) examined her and GRPRJ — FS/246—2/2007— 50,UUO. i XI-HC—78 ^TT^T ^T f^'ljch TCT'sn^r ^mNr \ 3:S^" ^jl-qicr-)^, ^Tn'M^Ko, (sx^l'yy Gf-A.MC?- l^/^GOS "RTO^T gb^Jch •••••••-••'"•-••—•••••"••—•••- ••-"•-•^ 200 3Tlt?T'q^? (<icstl<s<<^) ® '^fTW^ftPT 3?T^T ijio gave her report of Ex. P-9, prosecutrb^ and she opined ths(l as the prosecutrix is habitua|i charge sheet was filed. 4. During trial, the prosejc thereafter statement of the examined Linus Ekka as D.W counsel for the parties has mentioned above. 5. Learned counsel for th( appellant is based on the stc husband Nageshwai' (P.W. 3). y who is stated to be present at| case of the prosecution and ha^ perusal of the evidence of th^ manifestly clear that the proset Trial Court has wrongly held tl~{ sexual intercourse against l-ie| >4t' baseci on improper ^gpinpnaq 7. I have heard learned COLI cbi^i<n<i1ri "HFRTf ^T^fe^ <Pn<^i< ^r ^ffipRf 3?n^r injuiy was found on the person of the t no definite opinion can be given about rape to sexual intercourse. After investigation, cution examined 12 witnesses in all and Lccused was recorded. The appellant also r.l. Learned trial Court after hearing the ^onvicted and sentenced the appellant as na^ tl'lat appellant submits that conviction of the Ltement of P.W. 1 the prosecutrix and her >.W. 2 Phuikunwari, sister of the prosecutrb^ the time of incident has not supported the turned hostile. He further argues that from prosecutrix as also other witnesses, it is ^utrix is a consenting pai'ty and the learned the appellant subjected the prosecutrbc to wishes. The finding of the trial Couit is loii of evidence available on record and the same cannot be sustaineci. 6. On the other hand, }ear|-ied counsel for the State has supported the impugned judgment. [nsel for the paities. XI-HC—78 3?I^?T^Tf<^N? ^iT ^RT^T ^pNr \ 3:5^' ^lj^)^, ^^i«S,fa01^^< *11Ndt <b^l<h c^.A-^. i^ ^s 3ii^?f ^SSF ('if^y^) ^^TW ^I^a 3?I^T 8. As per the case of tl'] 2001 at about 8 p.m. in pij< prosecutrix. it is ailegeci mtercourse tlince in tiie int4 offence ts alleged to have the owner of the house has tJliat be^n l-t)t ^otie 9. The prosecutrbc (P.W.j Katghora. She had gone to where she resided with her date of incident, she had go|-ie where the accused caught iij her thrice in the night after in the morning. She has furti incident to her husband Karhil the same day, however the report of Ex. P-1 was recordejd examination, tms witness n^ never talked with him, her s| teil her sister that she is goi km. away from the place wl-|( there walking. They did not that they were talking properj cioti-ies. 10, P.W. 2 Phulkunwai-i, s case of the proseeution an <=M<4l^l<il<1 "W^f '^jfe(^ ifa^K ^ ^iRiH <^i^i prosecution, the incident occurred on 4-8- ^sence of Phuikun-wari (P.W. 2), sister of the the prosecutrbs: was subjected to sexual i-vening night of 4m aiid 5m Augast, 2001. The committed in the house of Virendra however been examined. 1) has stated that she is a resident of Jatga |viliage Pathrai Menpat to earn her livelihood ^ister Phulkunwari and her husbaiid. On the to attend the call of nature with her sister sr and took her to Pathrai Mission and raped p-irowing her on the ground and left the house |ier stated that after returning she naiTated the rjiil, thereafter they went to lodge the report on t'eport was not recorded on that day aiid the on the following day. in para 10 of her cross- \LS stated that she knew Pai'imal however she jster had gone away from there, she could not ig with Parimal. The place Mission is some 1 |ere she was standing and both of them went ]|neet any one on way., However she has denied jy on way or that she had herself taken out her ^ister of the prosecutrix has not supported the fcl has turned hostile aiid has been cross- XI-HC—78 ^IT^T ?FT ^ich 'TOT ^Ti^T sft*4|cn 1 \ 3:ScT ?3TRI^T, ^Tfi'y'Ko, isf^iyy ^,A.^^ ^/ ^3 ^z 'WERW ^b^lcb -^ 200 3n^?r-q?w (^eilyg^) ^RiTW^f^^TT^T examined by the public pro( prosecutrb^: stayed in her hoi|. Nageshwai'. in cross-examinc^t prosecutrb^: informed her that] ;11. P.W. 3 Nageshwar, hy^ prosecutrb^ resided with her year,.on the eve of Raksha ^ house, in the evening Phulk^ whereupon she went with return late in the night, he Phulkunwari. On the next da^l Phuikunwari had taken her nature and there she left her, the Mission Colony and rapec| stated that his house and th( 7-8 p.m. the prosecutrix went from where the prosecutrix foiiowing day, the prosecutrb^: returning home out of his fes the home. 12. P.W; 7 Dr. (Smt.) S, St has stated that she had exam notice any external injuiy on examination, she has opined <^<^{<y1^'1 ^W^ ^fe^ <I^tScl< i5'3?f^:r^?y^f scutor. She has stafced that last year, the se for a nionth and thereafter she went with :ion, she has denied the suggestion that the ^ie accuseci lias rapecl ner in tiie nigi'it. rband of the prosecutrix has stated that the 3.nd he has kept her as his wife. In the last iandhan, the prosecutrix was present in his inwari came there and took her for a walk F|hulkun~wari. When the prosecutrix did not went to enquire about her in the house oi when he asked the prosecutrix she told that (3ut on the pretext of answering the call of |where Pai'imal caiiie and forcibly took her to her. In para 5 of cross-examination, he has house of Phulkunwari is adjacent. At about 1 from his house fco the house of Phulkunwari Iwent with Parimal. At about 3.30 on the |was sitting under the tree and she was not ^i', however after some time, she returned in tji'ivastava who has exaiiiined the prosecutrix i|iied the prosecutrbs: on 7-8-200 1 and did not |the person of the prosecutrix, After internal jthat the prosecutrb^ was habituai to sexual XI.HC—78 3^ -qi^l^ ^Tfl-H'Ko, R|0|-y^< ^^ ?FT 'R^Jch 'cT^ ^n^r $h^i<=h -^' ^ ?] . C^- (\. ^o,\^|^^3 •qro^ir sh^icb •-••-—-••-••-•••••"•-••""•"—""-^ 200 W^T XRW (^cif^l^) ^RTTW^rit^ 3?n^T intercourse and therefore, n|o definite opinion about sexual intercourse cai-i be given. 13. 11 we examine the sta] otiier witnesses exai'iimecl possibility ol' the prosecutri^ ii'itercourse cannot be rulecl she was subjected to rape| inspire confidence and the accused on the basis ofthe ^ 14. In the result, the a conviction and order of sent the charge under Section 37 requirecl in any otlier case. CM<<f<yi<fli Tn'R^f ^f^^l <fa^i< ^3ti?W3TI^f :ement ol prosecutnx and ti-ie statements o! tlie by the prosecution in support of its case, ^: Deing a consenting paity to tlie act o! sexuai out and the allegation of the prosecutrix that by the accused without her wishes does not trial Court was not justified in convicting the ^vidence ofthe prosecutrix and her husband. ppeal is allowed. The impugned judgment of mce are set aside. The appellant is acquitted of 6(1) of I.P.C. He be set at liberty forthwith if not Sd/- Dhirendra Mishra Judge