:ss a^ffiai%iiii®ii ilii i!i !^m-^!^^'^ii::^ %^^^c^;c^'i^:^^.^c^..!-.^ UiiSW ^^^^^v-^^:^;^^,^<^ ^^<:c''-^'';''>i'-'^ w^&tew^^ ^^^ ^:£:' ^w y SSi^- ^.S^^^^M •-^'M'm^^-^ ::;%it^e.y- 'M^NS^^^,' •:^"^t^:^^'i'ff^r f^':.''©•.':a):'Q:."N'-'Q}. '-,fS'^l^"&:^Tt- ,^S^''^.\^'^-:Q .M. -•~:^^:.3 % :C^^^-'.y-r:iMM^'^^'-"^^:^'^^^^^, i®^--,:.,./^l^|^^^^^^':^: ^',:.^: '^.1.',' -v ::"'5T ^ ;;^^:^^ .^-'^^•-r-^'J^^'•••?'/; ^w^ ^s& % r:.iSSi^: '^ss.. "^^ -W3Si- ''fiSS ^ISM- 'iife "..^yy';. ..fy"i^^.;;;; ws^ •tft^ Q ^. :^m:: •^ '%'s ..;*u<^j.i. '%' N3 :::w-lw '^^. B® mM KS^ WSSS5:SW^i iss&fi^^ KSSS^^.^ KS^^^^Mi.^'- ISiitiSK?ft";??'' sis^^si^^ss^^- is .(^3 ;"-N1 8agiig';il»l&lil^li^^^€:'!y^^ ^afi|ttglSS^IBSta.^^^&... jSi^^^i^S^^^s^^^^^'^^'-.;:;^^^ Y^: HI^H COURT OF CHHATTISS^RH AT BILASPUR Single Bench : Hon'bie Mr. Justj'ce Prltsnker Dwaker CriminGJ AppeQJ No. 627 of 1996 APPELL^NT RESPONDENT Madhu Singh Soni Versus Stote of Madhya Pradesh Shri Sunil Sahu,counsei for the appelJQnt. Shri Ashish ($upta, Panei Lawyer for the Stote. CRIMINAL ^PPEAL SECTIGN 374 (2) OF THE CODE .OF (24.02.2011) This appeai is directed against the impugned Judgment and order dated 20th AAarch, 1996 po^sed by 3rd Upper Sessions Jud9e, Raipur in SessiQns Triai No. 240/1994 convicting the Gccused/appeliant under Sections 342 and 376 of the Indian Penai Code and sentencing him to undergo rigorous imprisonment for six rnonths u/S 342, rigorous imprisonment for five years u/S 376 IPC. Both the sentences were ordered to run concurrently. 2. Case of the prosecution, in brief, is that on 11.8.1993 at about 2.30 p.m.. F.I.R. (Ex.P-5) was iodged by the prosecutrix (PW-3), aged about 17 years dieging that on the previous day i.e. 10.8.1993 when she WGS going to witness the Ramayan GT the eve of Janmashttni aiong with her mother, on the way, when she was crossing the house of accused/appeilant, he took her inside the house ond after boiting the door from inside committed forcible sexuai intercourse with her. She has stated that offence WGS committed by the Qccused/Gppeilant despite her prote.st and she was ke.pt inside the roorn for about '"^'^^ ^ // A& i 1.—^ 1 ;^.s^| "i ^.^ .i 'v^^^^1| @ '^.o/ i- an hour. Upon hearing her cries, her brother and brother-in- iaw rescued her. After compjetlon of investigation chalianwas fiied under Sections 376 and 342 of the Indian Penai Code. 3. So as to hoid the accused/appejiant guilty, prosecutlon has examined as many as 11 witnesses in support of its case. Statement of the ciccused/QppelJGnt was aiso recorded under Section 313 'of the Code of Crimind Procedure in which he denied the chorges leveiled against him and pieaded his innocence and faise impiicotion in the case. 4. After hearing the parties the tria! Court has convlcted ond sentenced the accused/appeilant .for the offences as mentioned above. Hence th.is appeal. 5. Heard counsei for the parties and perused the materia! Gvailabieon record inciuding thejudgrnent impugned. 6. Counsei for the Gccused/appelicnt submits that present appears to be a co.se of consent where unfortunateiy the mother of the prosecutrix has seen the accused/appeliant and the prosecutrix is an objectionabJe condition and that is why the report has been lodged. He further submits that a very improbabie story has been put forth by the prosecution where prosecutrix spent about ? hour with the accused/appeijant and did not raise any ajarm during the sdd period ond raise aioirm onjy after completion of the act. As per the medical report of the prosecutrix no injury whatsoever has been found on her private part. He submits that there is no FSl report in the present case and thi-s it-self proves that the appeilQnt has not committed any offence. He further submits that most important witnesses of the prosecution cose i.e. mother and ./•/<'^ ^SK^ .'^. '•t^&?.-.-^^ ^^iA^ ^ (^ by the prosecution and, therefore the benefit of doubt is to be extended to the accused/appeliont. 7. On the other hand, supporting the impugned judgment it has been argued by the state counsel that inconsistency in the statement of the prosecutrix is oniy because of her tender age and this minor lacuna in the case of the prosecution is to be jgnored. He submits that os per the medjca! report of the prosecutrix (Ex.P-lOA) injuries have been found on her both the wrists. He further submits that the statement of the prosecutrix has been du!y supported by Devraj (PW-4) - brother of the prosecutrix and Satyawan - panch witness. 8. I have heard counsei for the parties and perused the material avdiabie on record inciudlng judgment impugned. 9. Prosecutrix (PW-3) a9ed about 18 years has stated in her evidence that she knows the Gccused/appeliant os he is from her viiio.ge. According to her, at the eve of Janmashtmi festiva! when she was going to MatQgudhi dong with her mother who was about 100 yards behind her, accused/appellant came there and took her inside his house and, thereafter, she was subjected to sexuaj intercourse by the accused/appeilant. Upon hearing her cnes, her brother Devraj (PW-4), PGrmGnand-brother-in-iaw (not exGmined) and mother (not examined) came there and took her from the house of the accused/appeijont. She has further stQted that when she was being subjected to rape by the accused/appellant, her bangies of right hand were broken. She has stated that on the next mornlng, viilage meeting was called where she and the accused/appeliant both were caiied but the accused/appeilant did not attend the said meeting and thereafter, she iodged the F.I.R. (Ex.P-5). She has further stated that as she was thrown 1 ^-.. <ff by the accused/appeilant, she sustained injuries on her both the wrists. In cross-examination, prosecutrix has stated that she WGS going to witness the Ramayan and the piace of Ramayon is about 100 yards from the cKcused/appeiJant's house. She has further stated that in between hc3use of the accused/appe! lc.nt and the place of Ramayan, number of houses are there and at the time of incident, viliagers were moving on the road. She has furt-her stated tho-t upon hearing her cries, oniy her fGmiiy member have come to the piace of incident and no other outsider came there. In poragraph 9 of her cross examination, shehos stated that before the date of incldent, she never had sexua! intercourse with anyone cnd when she was subjected to intercourse by the Qccused/appejiant, she was bieeding and her blood stained ciothes were also seized by the poiice. She has further stated'that when she was taken to the hospitai, at that time dso biood was oozing out from her private part which was seen by the doctor. She has stated that she was not. having any previous affair with the accused/appelSQnt. There appears to be mGterial contradictions in the court statement of the prosecutrix from that of her case diary statement Ex.D-1. In paragroph 11 of her cross- examination prosecutrix has stated that had the Qppellant agreed to morry her, she wouid not have lodge the report but the appellant had absconded. Dr. Usho ^upta (PW-11) who had medically exomined the prosecutrix and given her report Ex. P-10A has found her to be about 17 years of age and dso found some scratches on her right and !eft wrists. She. has categoricaily stated that she had not found any injury on other port of the body, her hymen was torn and no opinion can be given about the recent sexud intercourse. She has further stated that wrist injury couid be ^. self inflicted a!so. She has categoricaiiy stated that she had not found any biood on the privote part of the prosecutrix and then she has again ciarified that hymen was old torn. Devraj (PW-4) - brother of the prosecutrix has stated in his evidence that on the date of incident, J'anmas/itm/fest'wa^ was being ceiebrated in the viiiage and he was witnessing the same. He has stated that his mother came to him running and informed him that the accused/appellant had taken the prosecutrix and then he, his brother-in-iaw Parmanand and mother went to the house of the accused/appellant ond raised hue and cry and then the accused/appeliant took out his sister from his house. Thereafter, the pr''osecutrix informed him that the accused/appeiiant had committed forcible sexud intercourse with her. He has stated that in the next morning the village meeting was cailed, however, the same was not attended by the accused/appeilant and then the decision was taken to lodge the report. In the cross-examination, he has stated that the house of the accused/appellant is about 15 yards away from the piace where the festivai was being celebrated and if somebody roises his voice from the house of the accused/appellant, the same can be heard from the pjace where the festivd was being celebrated. He has also admitted the fact thot had the accused/appeliQnt would not have absconded and married to his sister, he would not ,have lodge the report. Satyawan (PW-5) is a witness to the viliage panchayat has stated in his evidence that in the vilioge poinchayat prosecutrix has narrated the entire incident which was reduced to writing vide Ex.P-6. However, in cross exomination he has stated that the document (Ex.P-6) WGS written by him on the instructions of tha Station Houss Officer. y^ 1 %-^11 -»^5 ^ ^ ;^.~,^.,^^t' c- c. Admittediy, F.S.L. report is not there on record to establish the fact that the appeliont committed the offence of rape ond the important witnesses j.e. mother and brother-in- jaw of the prosecutrix have not been examined by the prosecution. 10. Minute examination of the evidence of the wltnesses refjects that the accused/Gppeibnt and the prosecutrix were having some reiations and on the date of incident the prosecutrix was found in the company of the, accused/appeiiant in his house and, therefore the report was lodged. Thus the possibility of false implicGtion of the accused/appellant cannot be ru!ed out. Furthermore, the statement of the prosecutrix is not corroborated by her medica! report Ex. P-10A. As per the prosecution case on the date of incident for the first time she WGS subjected to sexuai intercourse and biood was oozing out from her private part whereas report of the Dr. Usha (5upta (PW-11) who had medically examined the prosecutrix is just contrary to that of the prosecution cose. Devraj (PW-4) - brother of th©prosecutrix has categoricGJIy stated that had the accused/appejiant wouid have morrled her sister, report couid not iodged. Likewise the prosecutrix has ajso stated that had the appeiiant agreed to morry her, she would not have lodged the report. The evidence as adduced by the prosecution in particuter that of prosecutrix does not inspire confidence of this Courl- and on the basis of material avaiSable on record, this Court finds it difficult to uphoid the conviction of the accused/GppeilGnt under Sections 342 and 376 of the Indian Penai Code. .€^ ji^^1'1-:,. 1 1 T 91 ''''^^s^"' 11. In conciusion, the appeoi is ailowed. Impugned judgment dated 20.3.1996 is hereby set aside. Appeilont is acquitted of the charge ieveiled against him. Since appelianf is aiready on baii, his bail bonds stand discharged. [ Sd/- Pritinker Diwaker Judge