I-:" ./<" ,. V '~7 ..hW•¥-!:• ^'&^- IW TH5 HIGH COU.RT OF MAOiYA PRADESH AT JABALPUR Gr.A.I'b. j/^of1994. ^ (_TAt>He.lLA<-^ APpa-LA!3TS2-1.?Ainnilal son of Jatihatlal Sweeoej ?lTT7aU^— aged about 31 years, residentof ., Sadhopur, F.S. Basoda^-Distrlc-t Sanda (U.P.), present address-Rraqati I'iagar . Jhopad Patti P.S. Oarrih District Bilasour.. 2.8abboo iilias Baboolal Sweeper son of JaBhai'iLal aged about 19 years, resident ClHUtlft^ L*0 of Sadhopur, P. S. fesoda Distric-t: Banda,(U.).), present address -Pragati Nagar Jhopad Patti, P S. Darrih Distt. ES.lascur..- r" m:^ \y to n^' w Versus RESPO?®ENr;-The.;-Stateof M.P., (Through police Station Darrih, Tahsil Katghora,Distt. E&laspur/' .^' GRIMISW._APP&'4L U?®PRSH;TCiN374~ OF CSIMimL pBoemfflE ! - '«»- SPNTPFCK •• '. COTWICTJQN Under; Sec.456 I.P.C. Three years R.I. S fine of Bs.lOOO/- or in default to andergo further S.I, 01 3 month(to each) ^ - r^. ~-1 '•• in <ft ' '^:;' ^y tii-^CT'ibp .r^S^ |i®SSal iil A-F^ HIGH COURT OF CHHATTISGARH ATBILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 115 of 1994 APPELLANTS RESPONDENT VERSUS Munnilal and another State of Madhya Pradesh Shri Shailendra Dubey,- counsel for the appellants. Shri Neeraj Mehta PL for respondent/State. CRIh/IINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (06.05.2010) This appeal is directed against the judgment and order dated 6.1.1994 passed by Additional Sessions Judge, Bilaspur, in Sessions Trial No. 387/1992 convicting the accused/appellants for the offences punishable.under Sections 456 and 376 (2) (g) IPC and sentencing each of them to undergo rigorous imprisonment for three years with fine of Rs. 1000, in default of payment of fine to further undergo sim'ple imprisonment for three months u/s 456 and to undergo rigorous imprisonment for ten years with fine of Rs. 5000, in default of payment of fine to further undergo simple imprisonment for one year u/s 376 (2) (g) IPC. 2. Case of the prosecution in brief is that on 27.7.1992 FIR Ex. P-10 was lodged by the prosecutrix (PW-3) aged about 18 years alleging that on 26.7.1992 at about 10 p.m. when her husband had "gone to his workplace, she was in her house along with her father-in- law Munnu;''Lal (PW-5) and brother-in-law Avdhesh (PW-6), accused/appellantNo.1 called her father-in-law, took him outside the s«» house and along with other persons he made him drink liquor. When she was 'preparing meals and her brother-in-law Awdhesh (PW-6) was sleeping in.the house, accused/appellant No.1 came there and ctemanded Rs. 10 from her. When she refused to give him the moriey, he'put offthe earthen lamp, removed her sari, bolted the eioqr from inside, threw her on the ground and after upturning her petticoat committed forcible sexual intercourse with her. 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He submits that as per FIR prosecutrix was subjected to rape by the accused/appellants one by one and after commission of the offence by appellant no.1 he left the place and then appellant no.2 came there and committed sexual intercourse with her twice whereas as per the Court statement of the proseeutrix both the appellants were inside the house and when one was committing the offence, the other was helping him by gagging her mouth.. He submits that in a case of rape by two persons that too.twice by each of them, the prosecutrix ought to have sustained injuries on her private part but the situation is not so in the case. He submits that even the medical report does; not support the version of the prosecutrix. According to him, even the brother-in-law of the prosecutrix (PW-6) has not supported the case of prosecution. 7. On the other hand supporting the judgment impugned counsel for the respondenfState submits that the medical report of the prosecutrix very much supports her version as the doctor who had medically examined had noticed the bite injury on her both cheeks. He submits that the contradictions and omissions if any, in the statement of the prosecutrix may be ignored. 8. Prosecutrix (PW-3) has stated in her evidence that on the date of incident at about 8 p.m. when she was in her hut, accused/appellant Munnilal came there and demanded Rs. 10 from her for liquor but she refused to give the same. Then she has stated that in the evening she had given Rs. 10 to him though her father-in- law had refused for the same. She has stated that thereafter both the accuse^f/appellants came to her hut and accused/appellant Mynni Lal put off the earthen lamp. On being asked as to why he '-'«>. had put off the lamp, both the accused/appellants who happen to be brothers;'caught hold of her hand and accused/appellant Babbu gagged her mouth with a piece of cloth. According to her, accused/appellant Munni Lal committed rape on her after making her Ije. down on the ground and then accused Babbu had removed her ^.cloths and committed forcible sexual intercourse with her. She has u.. ill:!!'l rit -aoal 1 ^v ^^ssss^-* llaiill •M- stated that in spite of her efforts, she could not come out of their clutches.She has stated that when accused Babbu was committing the offence, accused/appellant Munni Lal had pressed her mouth. She has stated that though she wanted to go for urination, accused/appellants did not leave her and both of them had committed sexual intercourse with her for about half an hour each. According to her, she had become unconscious and by the time she regained consciousness, accuse.d/appellants had fled away. According to her, as the accused/appellants had made her brother- in-law to drink liquor, at the time of incident he was asleep. She has stated that even her father-in-law was made to drink liquor at the' hands of the accused/appellants. According to her, when her brother-in-law woke up and asked for the food, she was unconscious and seeing her so he called her father-in-law from the house of the accused/appellants and even after his arrival she was lying in an unconscious state. However, after regaining consciousness she narrated the incident to her father-in-law. She has stated that each of the accused/appellants had committed forcible sexual intercourse with her twice and pressed her mouth. Thereafter, she was sent for medical examination and her sari, blouse and petticoat were seized by the Police. She has stated that on her cheeks being bitten by the accused/appellants black scars had appeared thereon and she had sustained injuries on her private part also because of which she was not in a position to walk. She has stated that on account of medical cleansing of her abdomen she had pain for about two weeks and that as she was thrown on the ground by the accused/appellants she had sustained injuries on her back also. In her cross examination, this witness |ias ^tated that as her father-in-law had refused to give Rs. 10 td l^unni Lal, she had not given the same to him. She has stated thaf she had disclosed to the police about her having been subjected to rape by the" accused/appellants for about half an hour each after being thrown on the ground but if it is not written by the polLce, she cannot say anything with respect thereto. Even the fact thafwhile she was subjected to rape by the accused/appellants she -1-iad Become unconscious was disclosed to the police, but if the same is not mentioned- in the FIR she cannot tell the reason there- ll !;il: i"-ll'w1;:"="l' ^'.-sl.si.iBIBi.- ^^ y-~ 3E »g ili? for. In cross examination, the prosecutrix has admitted that the hut in which she was residing was owned by accused/appellant Munni Lal. However, she has denied the suggestion that she has falsely implicated the accused/persons as they wanted her to vacate the hut. In paragraph 24 of her cross examination she has stated that she had told the accused/appellants that the entire amount towards rent would be given after rainy season and the hut would also be vacated. She has stated that though the incident had taken place in the dark yet she could identify the accused/appellants. Munnu Lal (Pw-5) - the father-in-law of the prosecutrix has stated that the accused/appellants-were his friends and they had made him drink ? liquor in the evening as a result of which he was not in senses. In respect of material contradictions and omissions, this witness has stated that he had disclosed all the things to the Police but if they are not recorded by it, he cannot tell the reason for that. Awdhesh (PW-6) has stated that at about 4-5 p.m. the accused/appellants had come to his house and made him drink the liquor but when refused to drink liquor, by force they made him to do so. According to him, after consumjng liquor, he had fallen asleep. Dr. C.S. Tiwari (PW-1) who had medically examined the accused/appellants hasstated that they were capable of performing sexual intercourse. Ramesh (PW-2) is the seizure witness of Exs. P-5 to P-9 by which the cloths and other articles belonging'to the prosecutrix were seized. Moolchand (PW-4) - the neighbour of the prosecutrix has stated that at about10 p.m. after hearing the cries when he came out of the house, he was informed by the father-in-law of the prosecutrix that his daughter-in- laKv was subjected to rape by the accused/appellants. This witness had also accompanied him to the police station for lodging the report. Sifafii Lal (PW-7) one of the relatives of the prosecutrix has not supported the case of tte prosecution and has been declared hostile. S.N. Pateria (PW-8) is the Investigating Officerwho has fully supported the case of the prosecution. Dr. Rashmi Singh (PW-9) who had medically examined the prosecutrix has stated that bite .injury on her cheeks wasnoticed by her but she had noticed no Jnjury oh fter pther parts of body. She has stated that no fresh injury vs.m^ .y^'^' -c- was present on the private part of the prosecutrix and she could not give any opinion regarding recent intercourse with her. 9. Close examination of the facts and facets of the case brought forward by the prosecuticm clearly reveals that the prosecutrix did not remain consistent in making the statement before the Court. In the FIR she has stated that she was subjected to rape by the accused/appellants one by one and that when after committing the offence accused/appellant No.1 went out of the house, the other accused/appellant came there and committed the offence of rape and then they repeated the same for the second time also in the same manner whereas in the Court statement she has stated that both the accused/appellants were inside the house and while one was committing the offence the other was helping him by holding her hands and gagging her mouth. In the FIR and the case diary statement she has stated that both the accused/appellants had committed the offence twice whereas in the Court statement she has stated that when she was subjected to rape by the accused/appellants, she had become unconscious and when she was lying in that state, her brother-in-law Awadhesh (PW-6) woke up and had asked for the food but Awadhesh (PW-6) has not supported this statement of the prosecutrix and stated that he saw the prosecutrix being taken out ofthe house by the accused/appellants. Prosecutrix has stated that she had become unconscious and was lying in the house whereas her father-in-law Munnu Lal (PW-5) has stated that the prosecutrix herself had come to the house of the aecused/appellants and narrated the incident to him. Further the prosecutrix has atated that she had sustained bite injuries on breast and cheeKs whereas according to the doctor who had medically examined fter no injury on-~tier breast was noticed by her. Even the jnjury on her private part as stated by the prosecutrix, has not been noticed by the doctor who had medically examined her. The statement of fhe prosecutrix that two persons committed forcible sexual intercoursewith her four times but as no injury on her body or ,..private part was hoticed toy the doctor, it appears to be doubtful and »1II ^^ .<;^i^^^ -'•3'i^"l^SS^S ^ - 7 does not inspire full confidence of the Court. Similar is the position with other witnesses also. 10. Thus on the basis of such a shaky evidence available on .record and pari:icularly the statement of the prosecutrix being ridden with material contradictions, omissions and inconsistencies, this Court is of the considered opinion that benefit of doubt has to be extended to the accused/appellants. Secondly, the prosecutrix herself has stated that there was some dispute between her and the accused/appellants regarding vacation of the hut, possibility of appellants' being falsely implicated in the case cannot be ruled out. Having thus seen the entire testimony of the prosecutrix and other witnesses from every possible angle, conviction of the appellant appears to be an impossibility. The Court below has not given its thoughtful consideration to the contradictions, omissions and exaggerations embedded in the statement of the prosecutrix. 11. In the result, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellants are awarded acquittal of all the charges levelled against them. As appellants are already enjoying the bail, their bail bonds stand discharged. Sd" pritinkerBiv/aker Judge '; <i