i CF0000694ST6 BEFORE THE HIGH COURT OF JUDIC/'.TURE. ?.T JABALPUR. CRIKENAL APPEAL N0. ^\ of 1997 AEESli^£t$ l.Sanjay s/o^TilakramYadav.studentlOth (In Jail) / Ramanram 2^Jawahar s/o^©®@^®c Yadav student llth R/o Gram-Kardoni^Thana-Dhorpur^ Distt-Sarguja (M.P.) . , vs— Respondents Sfate of Madhya Pradesh ' \ CRIMINAL ^PPEAL-UNDERSECTION ^74(2) OP THE CRIKCN^L PROCEDURE CODE. .^' -B HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 71/1997 APPELLANTS Sanjay and another RESPONDENT Versus State of Madhya Pradesh < Dr. Shailesh Ahuja counsel for the appellants. Shri Pravin Das Dy. GA for the State. CRIMINAL APPEAL UNDER SECTION 374 (11 OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (06.04.2011) This appeal is directed against the judgment and order dated 6.1.1997 passed by Additional Sessions Judge, Ambikapur in Sessions Trial No. 150/1993 convicting the accused/appellants for the offences punishable under Sections 376 (II) (G) and 342 IPC and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs. 1000 u/s 376 (II) (G) and rigorous imprisonment for one year u/s 342 . IPC, plus default stipulations. 2. Facts of the case in brief are that on 5.5.1993 at about 6 p.m. FIR Ex. P-5 was lodged by the prosecutrix (PW-4) aged about 13 years at the relevant time alleging that on 4.5.1993 while she along with her classmates was returning from the school, accused/appellants apprehended her on the way; accused/appellant No.1 Sanjay caught hold of her hand with bad intention and started dragging her away towards jungle and that even after the protest made by her he did not leave her. It is alleged that when her friends Rajkumari and Navinlata also followed her, accused/appellant No.2 Jawahar apprehended and tied them to a tree with the help of dupatta (kind of scarf) of Navinlata. It is alleged by the prosecutrix that after taking her to the nearby jungle, accused/appellant Sanjay committed forcible sexual intercourse with her. Based on this FIR, offence under Section 376/34 IPC was registered against the accused/appellants and after completion of jnvestigation, challan was filed by the police on 28.10.1996 under Sections 376/34, 341, 342, 506-B IPC and 3 (1)(V) ofthe Scheduled Caste and Scheduled ^) - 2-— Tribe (Prevention of Atrocities) Act (for short the "Act"). However, the Court below framed the charges under Sections 342, 506-B, 376/34 IPC and3(1) (XII) oftheAct. 3. So as to hold the accused/appellants guilty, prosecution has examined 13 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them *and pleaded their innocence and false implication inthe case. 4. After hearing the parties, the trial Court has acquitted. the accused/appellants of the charges under Sections 506-B IPC and 3 (1) (XII) of the Act but convicted and sentenced them as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that in spite of the fact that the prosecutrix herself admitted that she was not subjected to rape, the request made by the public prosecutor to turn her hostile has not been considered by the Court below and based on her shaky evidence the accused/appellants have been convicted by the Court below which is not sustainable in the eye of law and that being so the judgment impugned is liable to be set aside. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below are based on the material available on record and therefore the same being just and proper need not be disturbed. 7. Prosecutrix (PW-4) has stated in her evidence that on the date of incident she was studying in class VII and used to go to village Kundi Kala for studies from her village Kardoni. According to her, at the time of incident she was aged about 11 years. She has stated that on the date of incident when she was returning from the school along with her friends Raj Kumari, Navinlata (PW-5) and Maheshwari, on the way near the jungle, accused/appellants stopped them and when they were trying to take another path, accused/appellant No.1 Sanjay caught hold of her hand and despite her protest he did not leave her and was trying to take .,^ft^j ^ her to jungle. When her friends also followed her, accused Jawahar chased them for beating, on which Maheshwari ran away towards her house. Thereafter, according to this witness while accused/appellant Sanjay was pulling her away with the help of scarf, she snatched it from him and gave to her friend Navinlata. Accused Jawahar then tied her friends Navinlata and Rajkumari to a tree with the help of said scarf. Thereafter, accused Sanjay took her near another tree pressing her breasts, slid down her skirt and committed forcible sexual intercourse with -1. her. According to her, seeing one Ramroop and Goverdhan approaching to the place of inddent, accused Sanjay fled away. Thereafter, she came back to her friends Raj Kumari and Navinlata who were tied to a tree and subsequently let free by one Ramroop and while going to her house she had narrated the incident to them and after reaching home she also narrated it to her aunt, mother and grand-father and then on the next day the report was lodged. In paragraph 11 of cross examination, this witness has stated that the accused Sanjay had not committed any rape on her and he had merely caught hold of her hand. She has reiterated that accused Sanjay had not subjected her to rape and that report was lodged by her out of anger. At the time of her Court statement being recorded, a request was made by the public prosecutor to the Court below to declare the prosecutrix hostilebut it was not done. In paragraph 12 of her cross examination, she has further stated that she did not understand the meaning of rape and when a question was put to her whether after removing her undergarment accused Sanjay had inserted his private part into thatof her, she has stated that nothing like that was done by him and that she was merely dragged by him and on cries being raised by her he had left her. When again a question was put by the Court whether she was making incorrect statement before the Court, she replied that she was not telling lie but narrating the fact before the Court. On another question being put to her regarding compromise being arrived at between her father and the accused appellants, she replied in affirmative. Ku. Navinlata (PW-5) - friend of the prosecutrix has not supported the case of the prosecution and has been declared hostile. Dr. D.P. Shandilya (PW-1) who had medically examined the accused/appellant Sanjay and given his report Ex. P-1, has stated that he was capable of .\ -^A^ 1 -</- performing sexual intercourse. Dr. M.K. Jain (PW-2) who had conducted ossification test of the prosecutrix and given his repot Ex P-2 has stated that at that time she was 14-16 years of age which may carry the margin of two years on either side. Constable namely Ashwani Kumar Pandey (PW-3) is the wjtness who had taken the prosecutrix for medical examination. He is also the witness to the seizure of vaginal slides of the prosecutrix made under Ex. P-4. Dev Prasad (PW-6) - the father of the , prosecutrix has not supported the case of the prosecution and has been declared hostile. Mahto Ram (PW-7) is the witness to the seizure of scarf of the prosecutrix made under Ex. P-8 has not supported the case of the prosecution and has been declared hostile. Parashnath Singh (PW-8) is the Patwari who had prepared spot map Ex. P-13. Ramroop (PW-9) - the cousin of the prosecutrix and Man Lal (PW-10) - another witness to seizure, have not supported the case of the prosecution and have been declared hostile. A.K. Tiwari (PW-11) is the Sub Inspector who had recorded the statement of Roopram (PW-9) and filed the charge sheet. R.L. Mishra (PW-12) is the investigating officer who has supported the case ofthe prosecution. Dr. (Smt.) S.N. Kujur (PW-13) who had medically examined the prosecutrix and given her report Ex. P-15 has stated in her evidence that she was a fully developed girl, her secondary characteristics were developed, no injury was noticed on her person, two fingers easily entered her vagina, her hymen was old torn and she was habitual to sexual intercourse. 8. Minute examination of the material available on record makes it clear that the prosecutrix had been very inconsistent while making statement before the Court because at the first instance she stated that she was subjected to rape by the accused Sanjay but later resiling from her stand has stated that no rape was committed on her by him and that he had merely caught hold of her hand and dragged her towards the Jungle. Even the evidence of other witnesses including the doctor who had medically examined the prosecutrix does notsupportthe caseofthe prosecution. Thus on the basis of the evidence collected by the prosecution, according to the considered opinion of this Court, the appellants' conviction slapped by the Court below in the judgment impugned cannot be sustained. -^ .A. —r'— 9. Consequently, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charge levelled against them. Appellants are already on bail. Their bail bonds stand discharged. Sd/- Pritinker Diwaker Judge