'C;FO"000059022 Htf^ t,..«..-i ®F'WS.i1?- IM' HE, HIGH COBRT ©Fr®&IE&PRA&ES.H MC JAB&LPUR C?r.&.No. to^O of 1991 -;-" I- pooraa &DpellaB't:s. ficcusedes. "(^ 2- J'agsai aged abo-ut 35 years son of Mahilal R/o MahaEpwa^Haneadrag^'h . r 3- Kamalsai/aged .about 25 years son of.. Bholsai R^o Ptarani Basti I&nendragfeh (Sl.!>fG..t6f-i- ' /1.'-'' 4—(P?arelaIyaged about 24 years^S/o' Bsa aB Gond R/o Puranl Bastit .^Bendragarb Bistrict Sarguja M.p. ( &t pr^sent all in Jail ) V E R S US ' . : ^" Ttae State of M.P. throngh P.S. nendra- . garh .Bistrict Sarguja. ResDQBdaat CK.It'iENM, M'PEBii U EP>. SB.CTIOH 374 CV P.C. CONV.I^IOB UNE1@R SECTION 37^ .P.C.S£ CB,NCEie_JEBBSE.I. E&SH ^^— ^ -^—^- HIGH COURT OF CHHATTISGARH AT BILA8PUR SB LHON'BLE MR, JUSTICE PEaTENKER DIWAKER APPELL&NT8 RBSPOBTOBBT CR.A.NO. 1090/1991 Pooran & Others versus State of Madhva Pradesh Siat Sudha Agrawal, coiinsel for the appellants. Shri Akhfl Mishra, Dy. G.A. for fhe State. APPUC^TION U/8 374 (21 OF THE CR.P.C. JUDQMBNT The prescnt appeal is directed ^ainst the judgment dated 3.12.91 passed by fhe Additional Sessions Judge, Manendtagarh iu Session Trial No. 09/90 convicting fhc accused/appeUaats for fhe offence puiushable under Sectlon 376 (2)(^ offhe Indian Penal Code and sentencing thein to undei^o rigorous imprisoiunent for ten years. 2. Brief facts of fhe case are that on 24.10.89, PIR Ex.P/ 24 was lodged by fhe prosecutrix aged about 22 years aBeging in it fhat a day before fhereto i.e. on 23,10.89, between 10-12.00 p.m. wfaen she was sleepiug along with her husbaad aBer takmg meals at fhat tune, the accused/appeUaats kaocked the door aad after enterinj th.e house, brutatly beat her husband aad whea she tried to intervene, she was caught hold by fhe accused/appeUaat No.l Poor^o./ dragged her near the Mahua tree, where all the accused/appeUaats have coimautted rape on her. 3. So as to hold fhe accused/appeUauts guilly, fhe prosecution r has examined nuie wituesses but the prosecutrix and her husband bofh have not been examined as it .has coiae m. fhe order sheet fhat after lodgiag fhe FIR toofh of fh.eia couM not be teaced. Stateiaent of fhe accused/appellants were also recorded under Sectiori'313 of fhe Code of Crunmal Procedure in. which fhey l;^8:;;:':'.i 1 ~!:.y deiiied ffae charges levelled against thein and pleaded their. innocence aad false implication in the case. 4. After hearing the parties, ffae trial Court has convieted the accused/appeUants for the offencc as inentioned above. Hence this appeal. 5. It bas been aiyied by tfae counsel that in absence of tfae stetenient of fhe prosecutrix tlie accused/appeBants caanot be conncted, their conviction is solely based on thc statements of Laxman (P.W.-2) and R.N.Yadav (P.W.-9), Investigatmg Officer but the saine caanot be taken iuto consideration because fhey are not the eyewitEiesscs who have sceu ttie incident f.1iti*1 6. On the other hand it has been ai^ued by fhe State counsel that fhe accused/appcUaiits cau be convicted on the basis ofthe stateinent of the Invest^atmg Officer in particular, fhe fact that the FIR has been duly proved by him. He further submits that Laxman (P.W.-2) has seen the accused/appeUaats entenng the house ofthe prosecutrix. 7. I have heard counsel for the parties and perused fhe judgment iiapugned as weU fhe material available on record. Dr. Sint Padma Gupta (P.W.-l) is fhe lady doctor who had examiaed fhe prosecutrix and has given her report Ex.P/l-A has stated fhat she has not found any uitemal or extemal injuiy on the person of fhe prosecutrix and no definite opinion can be given about fhe recent sexual intercourse. Laxman .{P.W.-2} is the neighboiir of fhe prosccutrix, has / , , stated that ori fhe date of incident when he was at his residcnce and was takiag tus ineals ia ttis house, accused/appeUants came there, two of fhern ha.ve entered the house of fhe pTOsecutrix whereas two were staadiag outside the house. He has stated fhat the accused persons who have entered the house ofthe prosecutrix had beaten her husband SuMu-am aad then his wife was draggcd outeide tbe house and .ater about 1-2 hours fhe piosecutrix catne back to her toyse- aad uifonned Tiim that aU fhe accused persons have cominitted rape on her. In cross examination. ftns witness -•%'<.'- p^y ..^f :y ^) has stated fhat as to wtto were the two accused persons standiag outside fhe house aad who have entered the housc of fhc piosecutnx, fhis he coidd not say as he could not see thein property as it was dark in fhe n^ht Ramji Siagh (P.W.-3) is the Patwrariwho prepared fhe spot map (Ex.P/3). Mahadcv(P.W.-4) is the wltoaess of seizure ofthc undei^anaente ofaccused/appeUants. Dr. S.N.Gupta (P.W.-5) who had examined fhe accused/appeUants has stated that fhey were capable ofperforming sexual iatercourse. Dr. P. D. Soni (P-.W.-6) who had examined tfac husband of the prosecutrix Sukhram aad had given his report Ex.P/12-A has stated that he had fouad five iajuries on Tasa body and he was coinplamiag paia. B.M.Puri (P.W.-7) is fhe Town Inspectorwho had s^ned Ex.P/7 & lias also iccovered certain articles. Thonias Kujur (P.W.-8) is fhe poUce constable. R.N.Yadav (P.W.-9) fhe Invest^atmg Of&cer bas supported fhe prosecution case. 8. Admittedty, in the present case neifher fhe prosecutrix nor her husbaad Suldtuaia havc been exaaained aad (bc entire prosecution case hingcs upon fhe stateiaent of Lasanan (P.W.-2) but evcn fhis witness has not seen fhe occurrence of ineident aad has inerely seen the accused/appellants enteruig fhe housc of the prosecutrix aad then two of fheia draggiag her outsidc fhc house. In tais cross examination, fhis witacss has also stated fhat on account of dark ni fhc night he could not sce thc accused/appeUant properly. 9. Considering fhe totality of fhc facts, ia particular fhe non- exaimnation of the prosecutrix and her husband it wfll not be safe for fhis,Court to convict fhe accused/appeUaats on fhe basis of the eviden.cc adduced by flie prosecution. -*.<-• 10. In conclusion, fhe appeal is atlowed. Impugned judgment convictmg asd sentenciag the accuscd/appellants te set aside. They are acquitted of fhe charges lcveUed ^amst them. Tfae appellants are on bafl, their bail boiids sland dischaiged.^_^ S(</ Pritinker Diwa&er Judge I