CF0000061947 IN THE HIGH COURT OF JUDIC&TURE AT JABALPUR CRIMINAL APPEAL N0. 3'S'^ OF 1999 APPELIANTS: sngle iisnch (Lrraing!) l.Peelaram S/o Khorbabara Ram Nishad, / aged 24 years,R/o Samoda,Police Station Arang. Distt.Raipur (M.P.) 2.Shashidhar Rao S/o late Y.M.Mohanrao Telgu, aged 22 years,R/o Janta CoJ.ony,H.No, 419, Gudiyari,Rafj.pur,Police Station-Gudiyari, Raipur,Dlstt, Ra'lpur (K.g.) VERSUS RESPONDENT: State of Mad-hya Pradesh • CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODS OF CRIMINAL PROCEDURE,1973. __.__ _~ ^ _-- /l f^.1' •' i,: iUC *B ^) ^llJIO HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 951 of 1999 APPELLANTS RESPONDENT VERSUS Peelaram and another. State of Madhya Pradesh (now Chhattisgarh). ;Ni^|sas:M Bllsi!isi8!i«aN Shri Yogesh Pandey coynsel for the appellants. Shri Vivek Sharma PL for the respondenVState. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGIVIENT (06.01.2010) This appeal is directed against the judgment dated 23.3.1999 passed by the Special Judge, Raipur in Sessions Trial No. 551/1996 convicting the accused/appellants for^he offences punishable under Sections 376 and 342 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs. 200 u/s 376 IPC and rigorous imprisonment for one year u/s 342 IPC plus default stipulations. 2. Case of the prosecution in brief is that on 7.11.1996 FIR (Ex. P-14) was lodged by the prosecutrix (PW-1) aged about 24 years alleging that on 6.11.1996 when she was returning after answering the call of nature, accused/appellant Shashidhar Rao came there from behind and took her to the nearby school and after closing the doors committed forcible sexual intercourse with her. It is alleged that when the prosecutrix raised an alarm, number of villagers came there and the appellant Shashidhar Rao was caught hold of by them. Subsequently, in her statement recorded under section 161 of the Cbde of Criminal Procedure, the prosecutrix has made improvement and alleged that it was the appellant Peelaram who first committed the offence and thereafter appellant Shashidhar Rao did that. Thereafter, she was sent for medical examination to J?'^,.!^^ ^ K-.Ssf'" Primary Health Centre, Mahasamund where she was examined by Dr. Anita Jha (PW-4) who vide report (Ex. P-1) has opined that there was no injury on her private part. On the basis of the FIR lodged by the prosecutrix initially the case was registered under section 376 against appellant Shashidhar Rao but at the time of filing of challan it was registered under section 376(2)(g) IPC against both the accused/appellants. Subsequently, the trial Court framed the charges under sections 376/34.and 342/34 IPC. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 08 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 charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants; for the offences as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants submits that present is a case of false implication where the prosecutrix while lodging the FIR had made allegations only against accused/appellant Shashidhar Rao whereas in her statement recorded under Section 161 ofthe Code of Criminal Procedure she has improved her version as a result of which accused/appellant Peelaram has also been made accused. He submits that on 25.4.1997 even in the Court the prosecutrix had made an allegation against both the accused but subsequently on 18.11.1998 she gave an affidavit in the Court that she was not subjected to rape bythe accused/appellants and her initial statement in the court was merely on account of the pressure of her husband who used to doubt her character. He further submits that the statement of the prosecutrix was again recorded on 15.3.1999 in .S;!.i;-?^i.y= /F l^^^l^l -3- which she has stated that no rape whatsoever was committed by the accused/appellants and she had falsely implicated them in her previous statement recorded on 25.4.1997. According to the counsel for the appellants the subsequentstatement of the prosecutrix is good enough to acquit the-accused/appellants. 7. On the other hand counsel for the respondenVState supports the judgment impugned. -/ 8. From the statement of the prosecutrix it is clear that initially on 7.11.1996 when the reportwas lodged by the prosecutrix, allegation was made only against appellant Shashidhar Rao but in her statement recorded under Section 161 of the Code of Criminal Procedure, she made an allegation against appellant - Peelaram also. In her statement recorded under section 161 Cr.P.C. she has alleged that it is accused/appellant Peelaram who first committed rape on her and then appellant Shashidhar Rao did the same whereas in the FIR she has state'd that it is appellant Shashidhar Rao who committed rape on her. Further in her Court statement recorded on 25.4.1997 she has stated that when she was returning after answering the nature's call, appellant Peelaram came from behind and thereafter both the accused/appellants caught hold of her hand and took her to the nearby school and during this period her mouth was gagged and then in the school after closing the doors both of them also entered the room of the school. Thereafter, accused/appellant Peelaram removed her Sari and committed sexual intercourse with her. She has alleged that accused/appellant Peelaram had threatened her to kill her if she disclosed the matter to anyone. She has further stated that when the other accused Shashidhar Rao was committing the offence, appellant - Peelaram was guarding the situation. From the record it appearsthat subsequent to recording of statement of the prosecutrix on 25.4.1997, she has filed an affidavit before the Court on 18.11.1998 stating that she was not subjected to rape by the accused persons and on the pressure of her husband she had lodged the report wsWii. -L<- against them. After the order of the Court dated 22.1.1999, statement of the prosecutrix was again recorded in the Court on 15.3.1999 in which she took a somersault and stated that her statement recorded on '25.4.1997 was not correct. She has categorically stated that.she was not subjected to rape by the accused persons and she has made false allegations against them on account of the pressure exerted on her by her husband as he used to doubt her character;', She has also admitted the affidavit (Ex. D-4) having been filed by her in the Court. It is thus clear that the statement of the prosecutrix becomes doubtful and in view of the subsequent admission in the court that she has falsely implicated the accused persons, there remains nothing in the statement of the prosecutrix. It is also clear from the record that even while lodging the FIR there was no allegation against appellant Peelaram and it is after statement under section 161 ofthe Code ofCriminal Procedure was recorded, while filing the challan both the accused/appellants have been arrayed as accused. Ttpugh Kewalram Patel (PW-2) - the husband of the prosecutrix has stated that he had rushed to the spot after hearing the cries of the prosecutrix where he was informed that his wife was subjected to rape by the appellants, in view of the statement of the prosecutrix, statement of this witness loses its value. Similar is the statement of Rameshwar (PW-3). Setlal Patel (PW-6) and Mithileshwar (PW-7) have also not supported the case ofthe prosecution. 9. Thus the conduct of the prosecutrix in making the statement and then turning back from the same and again giving another statement shows that she has taken recourse to a fabricated stand of her having been raped by the accused/appellants. Her statement being shaky cannot be safely relied upon to sustain conviction of the appellants. Moreover, no independent witness has supported the statement of the prosecutrix fhat she was subjected to forcible sexual intercourse by the accused/appellants. In these circumstances, this Court is of the view that the judgment impugned .•"?• convicting and sentencing the accused/appellants as mentioned above is unjust and contrary to the evidence available on record. 10. In the result, the appeal is allowed. Impugned judgment passed by the trial Court is set aside. The appellants are acquitted of the charges levelled against them. They be set free forth with if not required in any other case. pritinker Diwaker Judge ^t^