IGH COURT OF CHHATTISGARH AT BILASPUR " (Hon. Mr. Justic Pritinker Diwakr) Ciinal Appeal No. 121 2 of 1994 Vinay Prakash ad another APPELLANTS n State of Madhya Pradesh RESPONDENT Ms. aila Singhai and Ms. Sudh Agrawal for the Shri Vaibhav Goverdhan PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 12! OF THE CODE OF Shrm a appellants. CRIMINAL PROCEDURE. JUDGMENT (0.07.2010) This appeal is irected aginst the judgment and ore dad d a dr te Raiarh in Sessions rial No. 77/1993 nvictig the accuse/apellants under Sction 376 IPC and sntencing each of them to unrgo gorous inpriso’nnient for ten years and pay fine of . 2000, in defult of payment of fine to further undergo rigorous imprisnme for fo‘ months. 2. Facs of he case in rief are that on 14.7.1992 FIR (Ex. P-1 was odgd by the prosecutrix aged o 16 years alleging that on 13.7992 she alg with. er friendnamely-hito Milapi (PW—7) had gone to Jahpurnagar or getting the caste certificate prepared and while returning in the evening, they met two boys near a place known as Bakedipa an e he r d t he v tem they ain put th same question for the second time, 07.09.194 passed b ditional Sessions Judge, Jashpurnagar, District I accused/appellants asked scene. H .villa‘ge Lokhandi on his bicycle. Thereafter, the accused/appellants too her to the nearby jungle by dragging and committed forcible sexua a e e rm VERSUS 6 9 y Ad g T con dp e e de ri r Rs a ont ur t t b ) le abut .1 on h Ks s f on of tm was carying a bicycle. Those boys aske hem as to where they were going but ty did not gie any reply to h. Thereafter, when t prosecutrix said to them s to why they were asking t sae. Whn the prosecutrix and her friend reched near village ortega’, the accused/apellant gain met d he ga e a he m e them and caught hold of the osecutrix. On prtest being made, the her to keep quiet or else she would be killed. While this altercation was going on, one boy’ of villag‘e Lokhandi came there but he too was asked by the accused/appellants to get away from the owever. the friend of the prosecutrix had accompanied that boy of a P ps a pr o k l UG -3_ 8. Undisputedly, on the date of incident prosecutrix (PW-1) was a major girl aged about 18 years. in her Court statement she has stated that accused/appeilant Vinay haiiedi from her village whereas other accused/appellant was of village Mangal. AccOrding to her, on the date of incident she along with her friend Khisto Milapi (PW-7) had gone to VJashpurnagar for getting the photo copy of her mark sheet done. When they were coming back on foot, accused/appellants met them on the way near a place caiiedvBakedipa. Accused Kusumkant asked her as to where they were going and when no reply was given by her, aCcused/appeiiant Vinay also put the same question to her. On this, her friend Khisto Miiapi asked them as to why they were asking the same time and again and then they went ahead. According to her, they were not aware that the accused/appellants were following them. After they reached near village Portega, accused/appellants again came there and stopped them. Accused/appellant had caught hold of her hand and started pulling her giving a threat for not raising hue and cry otherwise she would be stabbed to death. At that time, one boy of village 'Lokhandi reached there but the accused/appellants had asked him also to get away or else he would be stabbed with knife. Thereafter, her friend Khisto Miiapi sat'on the bicycle of that boy and went away. According to her, Ishe was then taken to the nearby jungle by the accused/appellants but as they were threatening to stab her with knife, she could not raise the cry for help. Thereafter, accused/appellant Vinay first made her lie on the ground and committed C forcible sexual intercourse with her and then accused Kusumkant also did the same act. She has stated that before committing the rape, the accused/appellants had not removed her undenNear but it was simply slid 7 down. Then accused/appellant Vinay took her to village Ghoieg on bicycle where also he had committed sexual intercourse, with her and asked her not to disclose the incident to anyone or else she would be beaten by him. However, by this time, accused Kusumkant had gone to his house. According to her, she spent the whole night with accused/appellant Vinay ”and in the morning he took her to village Rupsera by bus and after leaving her there itself, he got back. On the way to home, she met two, persons namely Lakhan and Sudarshan andfdisclosed the incident to them who then took her to the house of Norvet and she had disclosed the incident to ‘ him also. in cross examination, he has stated that when she was tau i ._¢'_ talking to the accused/appenants, her friend Khisto Milapi (PW-2) was standing at the distance of 2-3 yards. She has stated that her friend had asked her to proceed as the sun was about to set and when she did not listen to her, she Ieft the spot by sitting on the bicycle of one.boy. According tdher, neither she kicked nor bit the accused/appellantswhile being subjected to rape by them. This witness has stated that she did not receive any injury and before’going to the doctor for medical examination, she had taken a bath. First this witness has stated that Norvet (PW-2) is her brother—in—law but later she said that she was not related to him in any manner. According to this witness, she had not offered any resistance while being made lie on the grOUnd or at the time when her underwear was removed. No resistance is said to have been offered by her even while being subjected to rape by accused/appellant Kusumkant. She has also stated that when the accused/appellant had asked her to remove her underwear, she had done the same and did not shake her hand at the time of‘commission of rape for the reason that had she done so the penetration could not have taken place. She has also stated that she had made the statement before the police as was told to her by Norvet (PW-2). Norvet (PW-2) has supported the case of the prosecution an'd stated that the prosecutrix had informed the entire incident to him and then the report was lodged by her. This witness has stated that in number of cases pending in the C0urt he is one of the witnesses. According to him, the prosecutrix had ot disclosed to him the name of the accused persons. Jagannath Singh (PW-3) on whose bicycle the friend of the prosecutrix namely Khisto Milapi (PW-7) had gone away has stated that he had seen two boys eve teasing with two girls one of them was from his village. According to this witness, when he asked the accused persons as to why they were harassing the girls, they threatened him to do away with.Shyamlal Sarthi (PW-4) is the Patwari of the village who had prepared the spot map. Khistb Milapi (PW— 7).who was in the company of the prosecutrix at the relevant time has not /,i supported the case of the prosecution and has been declared hostile. Dr. i oKumudini Kerketta (PW-5) who had medically examined the prosecutrix and given her report Ex. P-1O has stated that the prosecutrix was complaining slight pain in her vagina, hymen was ruptured and fresh blood was coming out of the same. This witness has opined that the prosecutrix I / n l —L/.. was subjected to rape. Inspector 3.8. Shukla (PW-9) the investigating efficer has supported the case of the prosecution. 9. Statement of the prosecutrix that while being subjected to sexual intercourse bythe accused/appellants she did not raise any alarm clearly goes to shomLthat she was a consenting party to the act of the accused/appellants. The prosecutrix went on saying that she remained in the company of one of'the accused/appellants for the whole night but she did not raise any hue and cry and that she had removed her underwear when accused‘lappetlant Vinay had asked her to do so and she did not offer her protest by shaking hand etc. at the time of sexual intercourse because had she done so, insertion of his male organ into her vagina could not have been possibte. According to her she even did not try to get away from the bicycle of the accused while being taken to village Gholeg. Moreover, when the accused/appellants met her for the first time, in spite of the request of her friend she did not leave their company and continued to have talks with them. According to her she had made the statement before the police as was asked by Norvetr(PW-2). All these things lead to the only conclusion that the’prosecutrix, who undisputedly was major at the time of incident, Was a consenting .party to the act of the accused/appellants and in these circumstances medical evidence alone would not be sufficient to uphold the conviction of the accused/appellants and they must have the benefit of doubt. g 10. Consequently. the appeal is allowed. Judgment under challenge convicting and sentencing the accused/appellahts is set aside. Accused/appellants are acquitted of the charge levelled against the. Appellants are already on bail. Their bail bonds stand discharged. // a“ / / .. \\\ moiwam‘ sai— tax pytt‘m gudQe ’ . Q a” ‘\ x \ l > ‘ l l .\ ‘ .