„ !<ii!8 :;l||?^\i;^l£ CF00000578S9 IN THc U.i.iAi GJUai OF MAOHyrt fcAOESH AT JABALPtaf. Cr.Appea.1. . l^2-2^_/1994. s^..., prea Siayh a^ed about 45 years . son of Oev -ii ii^h Gorxi, H/a Chitajhor Poi-di, Pd Poiieii, ctistric'fc Sarguja M.p. Appi-i-LANr Ri.spjiiii-iEyr ,^ ^•^^, • ..'SL... ^^^^jLJLit-Eil^ -Versus- 3'fca'te of aladhya Pradesh iAPPaAliJJ4S_iZlL2i-£r^.Si. I- y- '•i, "^r/y ~f7 » a-Bfl » |l!iS:1 t? isae VERSUS itate of Madhya Pradesh Shri Vivek Sharma, P.L. for the State, ^^SL* Vl^y^'^-.ilfV •'s *a ^ n ^~B"» This appeal 13 directed against the impi order datsd 01.12.1994 passed by lons Judge, Manendragar'n, District - San offence under Section 376 of IPC and sentencing him to 2, Brief facts of the case are that on 05,05.1993 at about 9.30 a.m., FIR Ex.P-8 was lodged by the prosecutrix (PW-1), 'a marned tady aged about 35 years alleging in it that on 11-3 Idren, the appellant vvho hsppens to be her 29,04.1993 wlth hef- nephew ca; the same, came inslde the house. The appejiant asked her to call one Kothrihan but shs refused. She has stated that they sed the appellant to refused to sleep in asked her to show the light so that he might go ?leep in her .her house ai aDpelias —%~ -'-s-SS B ,.-,:.„: ' 3^T^^I- to his houss. After going up to some distance along with th< told him that moment the appeltant caught hold her hand^ the field and the house of the prosecutrix. She has stc time she agatn took a lamp from her house, picked up the knife which was lying at the place of occurrence and went to the mother of the appellant to whom shi entire incident. She showed the knife to the^ said knife from her. As got a letter sent by registered post to him and when he did not come, she lodgec! narrated the mother of the offence under Section 376 of IPC was regjstered aga.inst the filed against him on 14.06.1993 for the said offence. So as to hold the accused/appellant has examined 08 witnesses in support of of the accused/appeiiant was also recorded under sectlon 313 of the Code of Crimjna) charge levelled against ^ ,/ false impiication in the c; and pl This apart, two witnesses namely Pan/ati (DW-l) and 6xarnjned by the defence 1-2) have sl ts case, 4. After hearing the parties the triai Court has convjcte< the accused/appellant for the offence under Section 376 of •3- Heard counsel for the parties and perused the materi avajlable on record Induding thejudgment impugned. »a..acss,r tn Dy sordinate e)ay h'as not been Sh'ri Jain; !earned counsel appear t ^ very improbable story jtrix. He submits that days in.lodging the FIR ai IX. He regsstered ietter 'to her husband whereas no such the Drosecution. It has bt •fr-^ tnere are in particular that of prosecutrix. Lastly at' against him. 7 On the other hand supporting the impugned judgment it has been argued by Shri Sharma,, iearned counsel appearing for the State that there is absotutely no reason for the tsely implicate the appeltant, He submits that proper'y expiai tne aeiay tfae witnesses have ietter was sent So come, the report was lodged. He submits that the statemept of the prosecutrix whlch has been support.ed by Nanka-(PW-2) insptres the confidence of the appellant is fullv .Prosecutrix (PW-l) fn her Court statement has stated I'at the a.i3De'!!ant is. h.er neDhew and at the relevant time he B^i-a ^--L^^-^-'ri^ -4- ately along with his fa stated that on date of children, working at Bastar and on the date of incident he was not at she was night, the appeliant for water. Thereafter the appellant iver she refused to cali call one that she remained sitting for an hour and then asked her for light so that he might go to his houss. the lamp and proceeded towai hjm. Sl after and she and her that after going asked her to take the same, Tfte appellant further asked her son to go back to his house and his son took a turn towards her house. She has stated that as soon as she picked up the lamp, the appellant caught hold her and switched off the sa<d lamp. Thereafter he took out his knife and on account of fear she could not raise her crles and then she was subjected to sexual intercourse by him. After completion of the act she snatched the knife from the appellant and thereafter bcth of them went to their respective house. She has further stated that after taking another lamp from her house she again went to the house of the appellant and made a complairit to his parents who scolded him and mother of the appellant took the knife from/tier. On the second day she sent a registered letter to her husband mentioning about the inddent with the help of Aajam (PW-3) and waited for his arrival and when her husband did not come, the FIR was lodged, She has stated that in the morning she narrated the entire incident to her neighbour Sampat and went along with the brother-tn-law Nanka for lodging the report. According to her, in the night jtself she had called the appeliant's mother and brother-in-law :^^v -s' -2) and narrat She has stated that as the father of his house she could not narrate examination she has stated that she ls' not aware about entjre incident to them, appeliant was not at to hlm. In cross- is the third wifeof her the fact that the had not infonned the pollce that she hsc) asked the appellant to sleep in her house and if the same ss FIR she CQutd not tel! the reason. Similarly the police that when she had gone to drop the appeilant, her son was aiong with her and ff the same is not recorded in her case diary statement she could not tell the reason. According to her, she had not suffered any scratch bangles were broken while she was being •f- completion of the act.. she stood the hand of the appeliant and the appellant went to his stated that the appeltant atso fo house. She has denied the fa< police that the knife of the app< Incident. There appears to b? court statement from that of j:his fact is clear from paragi examination. Further she has money t6 Azam (PW-3) for up and snatched knife from she has again and came to hsr •sad infonned fche e other contractictlons in her 25 & 26 of her cross- stated that she had given a reaistered letter to her -2') while supporting the case of the prosecutrlx has stated that at about 2 O'clock in the night the with her and he was hurling called the mother and brother-in-law went to the of the appetlant and all prQseeytrix R-ambai where the ^F^,'^^•:..;i "y »?i.i*M- ^'.i;^'" ^?§;?§^;g appellant was atso standing and was hurting abuses. He has stated that the appeilant had asked him not to interfere in the matter and then the mother and brother-in-taw of the appellant took him along wlth them. On the second day, the registered letter and it is he who had asked Azam (PW-3) to write a registered letter to nis brother (husband of the prosecutrix), however his brother had not come. He has stated that the aunt of the appellant was married to tha husband of the prosecutrix and as they were nbt having sny issue, the appellant was adopted by the husband of prosecutrix. He has stated that in the night itself tl prosecutrix had informed him that she was subjected to bad work by the appeltant but in his case diary statement if 'Gaddari' word tsas been mentioned in stead of 'bad work' he could not tetl the reason. Further there appears to be material .contradictions in paragraphs 7 & 8 of hls cross- examination from that of his case diary statement He has admitted the fact that he had asked Azam (PW-3) to write a ietter to the husband of the prosecutrix mentioning thereln about the quarrel in the family and not about the commission of rape. He has stated that two registered letters were sent to the husband of the prosecutrix on 29th April and 2nd of May. 10, Dr. Md. Nayer Azam (PW-3) has statect that while he ••/ etter her her weepirig and asked her that he woutd write a husband. Thereafterthe prosecutrix had informed him that she was subjected to bad work by the appetlant and requested him to write a registered letter to her husband. He has further stated that on the same day, the brother-in-law of the prosecutrix Nanka (l the husband of the prosecutrlx and requested letter to him mentioninq therein te eome him to write a immediately as there .7- is serious dispute in the family and one ox has died, stated that when the prosecutrix again came to htm days enquiring about the letter, he suggested her to report if she was subjected to bad work, He has stated that he is not ver/ sure about the date of because sufficient tsme has elapsed a registered letter to the hus&and of He has ar 2-3 lodge a registry had sent 11. Sampat Kumar (PW-4) has stated that on the second day of the incident the prosecutrix had informed him that she was subjected to bad work by the appellant and he advised her to inform her husband and to todge a report. He has further stated that a knsfe was seized from the appetlant vide :x.P-l and like wise the receipt of the registry was seized vide Ex.P-2. Dr. S. N.. Suhane (PW-5) who had medicatly examined the appellant vide Ex.P-3 has stated that the appellant was capable of performing sexuai jntercourse. The Investigating Officer Ramcharan Verma (PW-6) has supported the prosecution case. C. S. Sharma (PW-7), the Sub Inspector had registered the FIR (Ex. P-8). Dr. Rajni Sharma (PW-8) who had medically examined the prosecutrix vide Ex.P-9 has not found any external or internat injury on her person. According to her, the prosecutrix was habitual to sexual intercourse. \e prosecution clearly reflects of about 6 days in lodginc has been made by the prosecution to explain this delay by adducing the evidence husband of the prosecutrix in lodging the FIR but no the prosecution nor from it is clear that it is the same receipt by sent ta the husband af the that th^re is an the FIR. Though that a letter and that is such tetter De< le-A' nicn a •Q&tf&SSS ^":ii;??;'''i7""" a:t:w B .--e'- prosecutrix. In fact, there is no mention of date in the ssid receipt nor any witness of the postat department has bee.n examined by the prosecution.- Even the husband of the prosecutrix has not been examined to establish the fact that any registered letter was sent to him and as per the statement of Dr. Md. Nayer Azam (PW-3), the receipt of the registry was lost by him. Further, as per the evidence of the witnesses, it was nofc informed to the husband of the prosecutrix that she was subjected te rape by the appellant and the alleged information was given only to the effect that there is some quarrel in the family and one ox has died. That apart, there appears to be material contradictions in the statements of the prosecutrix and her brother-in-law, Nanka (PW-2). Accordlng to the prosecutrix when she had gone to drop the appeltant, she wasaccompanied by her son whereas the said son has not been examined in the Court, Further, evidence is not very clear on the point as to where the knlfe was kept by the appetlant while he was allegedly committinc the offsnce. According to the prosecutrix, immedlately after compietion of the act she snatched the knife from the hand of the appeliant whereas she had not made any such elfort while she was being subjected to rape by the appellant. The evidence does not reflect that the prosecutrlx ofFered any resistance or made any effort to come out from the clutches of the appeltant when she was being subjected to rape. The evidence/also makes it ciear that the appellant was adopted by the husband of the prosecutrlx and the prosecutrix was his third wife and therefore possibility of false impltcation cannot be ruled out. Thus defence taken by the appetlant does not appear to be improbable defence, In fact, the statement of the prosecutruc does not inspire -eonfidence of this Court and she does not appear to be a trustworthy witnessi therefBre» in these Gireumstances, the " ! :it B ^^&^s^- -cf- accused/appellant is entitled to get the benefit of doubt as on the basis of material coltected by the prosecution it would not be safe for this Court to uphold his conviction recorded by the Court below. » 13. In the result, the appeat is atlowed. Impugned judgment dated 01.12.1994 is hereby set aside. Appellant is acquitted of the charge leveiled against him. He is on baii. Bail bonds so stand discharged. -—-—~~ Sd' Pritinker Div/akcr Judge .