HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: RESPONDENT: Criminal Appeal No.451 of 1993 Durga Charan alias Durga son of Shri Badai _Mali aged about 38 years, resident of village Bargaon, P.S. Sariya, Distt. Raigarh. . ; Versus State of Madhya Pradesh (now Sfate of Chhattisgarh) through Distncf Magjstrate, Raigarh. {Crjminal appeal under Section 374 (2) ofthe Codeof Criminal Procedure, 1973} Present: Mr. Afroz Khan, counsel for the appellant. Mr. U.K. Singh Chandei, Panel Lawyer for the State/responclent. Sinale Bench: Hon'ble Mr. T.P. Sharma. J ORALJUDGMENT (23-7-2010) 1. Challenge in this appeal is to the judgment of conviction & order of' sentencedated 17-4-1993 passedby the 1st Additional Sessions Judge; Raigarh in Sessions Trial No.1 16/92, whereby & whereunder learned Additipnal Sessions Judge after holding the appellant guilty for commjssion of offence under Section 376 of the I.P.C., sentenced him to undergo R.l. for seven years & pay fine of Rs. 1 ,000/-, in default of payment offinetofurtherundergbR.l.fbrsix months. 2. Conviction is impugned on the ground that without any iota of evidence forcon.viction of the appellant, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case ofthe prosecution, in brief, is thaton 13-4-92 atabout 5 p.m.the prosecutrix (PW-15),aged about 19 years, was present in her house alone, the appellant entered in the houseof the pposecutrix and trjed to snatch her clothes and thereafter, he comitiitted forcefuj sexual intercourse with her. The prosecutrix made resj^tance and as a result of such resistance her bangles were broken. After commissibn of sexual intercourse, the appeltant threatened her and left her house. The prosecutrix was under shock, she did not take meals for three days and on being asked by her husband, she narrated the incident to her husband. Thereafter, she went to the Police Station on 16-4-92 at a»bout BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:09 +0530 ^^^^ /^-' .^/%\ l' •'"^^y •• ^ .^J '^-^/ '%^^y. (^ 8.30 p.m. andlodged F.I.R. vide Ex.P-13. Broken bangles and stained clothes were seized vide Ex.P-3. She was sent for medical examjnation and was examined by Dr. Jyoti Tripathi (PW-10). She was founcl, accustomed to sexual intercourse. Two sljdes of vaginal smear were taken, sealed and handed over to the Constable and same were seized along with pubic hairs cut and sealed by thedoctor vide Ex.P-1. The accused was also examined by Dr, P.K. Tripathi (PW-11) vide Ex.P-7 and he was found capable to commit sexual intercourse. Glothes of the accused & the prosecutrix were examined and same were sent for chemical examination. , 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion ofinvestigation, charge sheet was fited befpre the Court of Judicial Magistrate First Class, Sarangarh, who committed the caseto the Court of Sessjons, Raigarh from where learned Additional Sessions Judge received fhe case on transfer for trial. 5. In orderto prove the guilt of the accused, the prosecution has examined as many as seventeen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. 6. Afteraffording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 7. I have heard learned counsel for the parties, perused the judgment and recQrd of the trial Court. 8. Learned counsel for the appellant vehemently argued that in the present case, F.I.R. has been lodged after three days of the alleged incident and no explanation has been offered relating to cause of sych delay. The prosecutrix is a marrjed woman and she has not narrated the incident even to her husband for more than three days. There is contradiction and inconsistency between her evidence recorded in the Court and the F.kR,, lodged by her. Evidence of the prosecutrix dbes not inspire confidence, it is not trustworthy and safeto rely upon. 9. On the other hand, learned State counsel opposed the appeal and submittecl that the prosecution has proved its case beyond all reasonabte '"f^.5 ^.y doubts and the trial Court has rightly convicted & sentenced the appellant » as aforementioned. 10.1norder to appreciate the arguments advanced on behalf of the parties, 1 have examined the evidence adduced on behalf of the prosecution. In the present case, age of the prQsecytrix was 19 years onthe date of commission of offence. 11.As perthe evidence of the prosecutrix (PW-15), while she was workin^ ' inside her house, the appellant concealing his posjtion entered in her house, caught hold of her and after thrusting cloth in her mouth and throwing her down on the floor, committed forceful sexual intercourse with her, thereafter he fled away from the spot. She was under fear and did not tell the incident to her husband. Her clothes were torn. After two days, she narrated the inQident to her husband and then, she went to the Police Station and lodged report. 12.Ghasiyaram (PW-1) - husband of the prosecutrjx has depQsed in his evidence that his wife has narrated the in6jdentfo him. In para 5 of his , ' cross-examination he has admitted that on second day of the incident while he was sleeping with her wife, she narrated the incident to him and thereafter, he lefthis house, . 13. The prosecutrix (PW-15) has admitted in para 7 of her crQss-examination that the accused used to come to her house frequently. She has admitted jn para 8 of her evidence that her husband has left her on account ofthe said incident. 14.As per the F.I.R. Ex.P-13, at the time pf commissipn Qf offence the prosecutrix shouted for help, but nobody came to her house and atter commissjon of the incident the accused threatened her. The F.1.R. furtheF reveals that the prosecutrix did not narrate the incident to her husband, but she was not taking meals for last three days on which her husband asked asto why she is not taking meals whereupon she narrated the jncident to her husband. However, as per her evidence recorded in the Court, the accuSed thrusted cloth in her mouth but she has notstated relating to any threat. As per the F.T.R., she was not taking meals for last three days, but she has not stated in her evidence that she did not take meais for last three days and therefore, her husband asked herthe reason for nottaking meals. Interalia, her husband has deposed / that whilehe was sleeping with his wife, his wife narrated the incident to ^y"^. ?,- ;wfr ^';' I1;'1- . .. Soma . 4 him. As per the case of the prosecution, the accused commjtted rape with a married woman aged about 19 years. As per the F.I.R., the accused threatened the prosecutrix after tlie commission of incident, but as per the evidence ofthe prosecutrix the accused did npt threaten her. Evidence and the F.I.R.relating to threat; thrusting of cloth, shouting for help and state of shock are self-contradictory to each other. Even her husband has not corroborated the case of shockof his wife. 15.1n case of grown-up lady, the prosecution is required to prove the essential ingredient of absence of will and consent. In such cases, medieal evidence would not normally possible. In the present case, the prosecutrix has not narrated the incident to her husband on same day and she narrated the inddent after three days. She has not supported the case of shock and threat in her evidence. Evidenceof the prosecutrix and her previous statement i.e. the F.I.R. lodged by her are self- CQntradictory and in absence of corroboration from independent soyrces, her statement is not safe to rely for conviction of the appellant for the offence of rape. While convicting & sentencing the appellant, learned Additional Sessions Judge has not considered the aforesaid aspect and thereby committed illegality. For the foregoing reasons, conviction & sentence of the appellant under Section 376 of the I.P.C. arenot sustainable under the law. ./' 16.Consequently, the appeal is allowed. Conviction & sentence of the appellant underSection 376 of the I.P.C. are hereby set aside and the appellant is acquitted of thesaid charge. He beset at liberty at once, if not required inany othercase. Fine, ifpaid, shall be refunded to him. Sd/- T.P. Sharma Judge