.iili R-NC-:.:<a-ufeb2^^^ .esente!i-»^n;-;-cra'^:Hi"- S:~";..:.l9.l4;a^;-, ^ ^(^^ 4 IN THE HIGH COURT OF JUDICATURE AT BILASPUR. •mm- . "'%.'• APPELLANT IN JAIL 01.02.07 RESPONDENT Criminal Appeal /2009 (DB) VERSUS Kalua, S/o Vriksha, 19 Years, Res[dent of'Village Shahpur, P.S. Chando, District-Surguja, (Chhattisgarh) State ofChhattisgarh, Through, Police Station Chando, District - Surguja (C.G.) APPEAL UNDER SECTION 374'(2) OF THE CODE OF CRIMINAL PROCEDURE ,!l!t:iS!» '^ !SiE:>*' ~'% '^::-'s^?: ^v^ m^ HIGH COURT OF CHHATnSGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwateer) Criminal Appeal No. 149 of 2009 Kalua lii i||SPi! VERSUS RESPONDENT State of Chhattisgarh Shri Prakash Tiwari, counset for the appetlant. Shri Vaibhav Goverdhan, P.L. for fche State. CRIMINAL APPEAL UNDER SECTION 374 f21 OF THE CODE OF CRIMINAL PROCEDURE. 3 U D G M E N T This appea) is djrectedagainst the Impugned judgment and order dated 28.11.2007 passed by Second Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions TrialNo. 164/2007 convicting the accused/appellant for the offence under Section 376 (1) of IPC and sentencing him to undergo rigorous jmprjsonment for seven years and pay fine of Rs.1,000, in default of payment of fine to further undergo rigorouslmprjsonrnent for three months. 2. Brief facts of the case are that on 31.01.2007, FIR Ex.P- 6 was lodged bythe prosecutrix (PW-7) aged about 16 years alleging in it that on 30.01.2007 in between 1 to 2 p.m. when she had gone to attend the eall of nature near village pond, the appellant aiong With Nanka and Dhirnafh (DW-l) atso reached there. It is alteged that the appellant eaught hold of her hand, took her to the jungle by pulling her and when she tried to get rid of him and to raise alarm, the appeliant th.reatened to kill her by showing a knife. Thereafter the appellant first removed her frock and at about 7 p,m, threw ^^ ^:[^^^i ^ ..^ ^ y^ .^9<:" -9-- her on the ground, removed her underwear and committed forcible sexual intercourse with her. She has stated that at about 10 p.m. she reached her house however on account of fear of her parents she spent the whole night in the bath room of her house. In the mornlng she went to the village pond and on seeing her when her father calted her, she narrated theentire incident to him, After returning home she narrated the entire incident to her mother thereafter to the Sarpanch and then the report was locjged. Based on this RR, offence under Section 376 of IPC was registered against the appellant. The prosecutrix was medically examined on 02.02.2007 vide Ex. P-14 by Dr. Smt. Padmni Singh (PW-8). After completionof investigation, Challan was filed on 07.03.2007 for the offence under Sectlon 376 of IPC whereas the Court below framed charge against the appeltant under Section 376 (1) of IPC. 3. So as to hold the accused/appellant guilty; prosecution has examined 08 witnesses in support of its case. Statement ofthe accused/appellant was also recorded under sectlon 313 of the Code of Crimina! Pnscedure in whlch he denied the charge levelled against him and pleaded his innocence and false implicatton in the case. Thls apart, one witness namely Dhirnath (DW-l) has also been examlned by the defence In support of its case 4, After hearing the parties the trial Court has convicted and sentenced the appellant for the offence under Section 376 (l)of IPC. 5. Heard counsel for the partles and perused the material avaflable on record includlng the judgment impugned. 6. Contention of Shri Tlwari, learned counset for the appellant is-that present appears ts be a ease of eensent ^? -3- where the proseeutrlx went along with the appellant wfthout offering any resistance and remalned with him for about 7-9 hours which makes it clear that she was a consentlng party. He submits that the medical report of the prosecutrix does not support the prosecution case and no external or internat injury was found on her person, Even there is no F.S.L report in the record. It has been argued that when the prosecutrix was thrown on the ground and subjected to forcible sexual intercourse in the jungle, she is bound to sustain some injury, Lastty it has been argued that the appellant is in jail since 01.02,2007, he is a very poor person, this appeal is being prosecuted through legal Aict and on tliese grounds also the appeltant may be acquitted. 7. On theother hand supporting the impugned judgment it has been argued by Shri Goverdhan, learned counsel ft>r the State that a very prompt report was lodged by the prosecutrix and there was absolutely no occasion to falsely implicate the appeltant. He submits that in the case of rape when the statement of the prosecutrlx inspires confidence of the Court/ the injury to the prosecutrix becomes insignlflcant and even without positive medical report or FSL report the appellant can be convicted. 8. Prosecutrix (PW-7), a major girl, in her court statement has stated that she knew the appeltant whose name is Katuwa and he is resldent of her village. At the time of incident she wasstudding in 10"' class. On the date of incident at about l p.m. when she had gone to the village pond to attend the call of nature, the appellant reached there, caught hold her and took her towards the Jungle, She has stated that the appellant showed a knlfe by saying that she would marry him and also threatened to kitl her parents. Thereafter the appeltant started arguing with her and the same continued till '•I II •^^s^!s" .-4- evening. According to the prosecutrix, at aboi* 7 p.m. the appellant subjected her to sexual intercourse against her wish. At about 10 p.m. she was Set free by the appellant and she returned her house. On account of fear she did not enter her house and spent the whole night in the bath room of her house. in the morning when she went to vtllage pond, on seeing her, her father took her to the house. Thereafter she and her father went to the village Sarpanch and her father told the Sarpanch that he could not tolerate any more and went to lodge the report. According to her, the police authority sent her to Balrampur hospital for n'wdical examination but the same was not done there and ultimately she was medically examined at Ambikapur. In cross- examination she has stated that when she hact gone to the village pond, no one was present there and whlle she was being taken to the Jungle, she did not raise cry and thereafter she herself has stated that her mouth was gagged by the appellant. According to her, normally the vitlagers moved near the pond but on the date of incident no one was there. From l to 7 p.m, she was along with the appellant and whenever she made an attempt to raise her cr/, the appellant used to gag her mouth. In paragraph 10 she has categorically stated that she never offered any reslstance to the appellant. She has stated that her father first consutted with the village Sarpanch and then the report was lodged. In paragraph-13 she has stated that she does not know Nanka and Dhimath (DW-l) and on the date of incldent these two persons were not present near the village pond however in the FIR, their names were disclosed by her, 9, Awtar Kujur (PW-6), father of the prosecutrix has stated that on the date of incident after returning from work place he and his wife fbund their three chilc|ren present in the house but th,@ prosecutrix was missingand when he asked his i»il ^lll -s- children about the prosecutrix, they informed hlm at they were not aware about the same and thereafter he slept. In the moming when he went to vidage pond, saw the prosecutrix standing there and on seeing hlm the prosecutrix started weeping. Clothes of the prosecutrix were torn and blood stains were present on them. He has further stated that in the presence of Sarpanch the prosecutrix narrated the entire story to them. The Sarpanch called the appellant and again on being asked by him, the prosecutrix totd that the appellant had threatened her by showing a knife that if she raised cry, he would stabbed it in her mouth and threw her In the jungle. In paragraph-7 he has admltted the fact that when the prosecutrlx was being taken by the appetlant, she did not raise her cry nor offer any protest. He has stated that her daughter never asked him to lodge the reportand the report was lodged by hlm and his wife. He has admitted the fact that normally the villagers used to move near the vidage Vinay Khalko (PW-l), the Sarpanch of the village has stated that on 30th January 2007 the prosecutrix and her father had informed hlm about the incldent. Dr. N. K. Dutta (PW-2) who had medicalty examined the appellantvlde Ex.P-2 has stated that the appetlant was capable of performing sexual intercourse. Nakul Slngh (PW-3) is the Patwari who had prepared the spot map Ex. P-3, Atendra Kumar (PW-4), the Police Constable had taken the appeltant for medical examination, Illiyas Ekka (FW-5) is the Investigating Offjcer. Dr. Padminl Singh (PW-8) who had medically examtned the prosecutrix vide Ex. P-14 has stated that at the time of her medical examination she was having her menses period. Accordtng to her, the prosecutrix was a fully developect girl, her hymen wasotd tom and no deftnite opinion c»uldbe glven about th@ cammission of raoe; Admittedly though under S'SIBJitil garments and slldes of the prosecutrlx were sent for FSL but no report is avaitabte on the record. 11, Dhirnath (DW-l) whose name was mentioned in the FIR by the prosecutrix has stated that on the date of Incident the appellant was in his house and no such incident had taken place. 12. Minute examlnatlon of the evidence in particular that of prosecutrix reveals that on the date of incident at about 1 p.m. the prosecutrix was taken by the appellant to the Jungle and she remained with him titt 10 p.m. Evidence also reflects that no resistance whatsoever was offtered by the prosecutrix when she was subjected to rape by the appellant. Though in some places the prosecutrix has stated that her mouth was gagged but she has atso admitted In a very categoricalty term that she never offered any protest when she was being subjected to sexuat intercourse by the appellant. It is not the case of the prosecution that on the clate of incident the prosecutrix was minor. According to own saying of the prosecutrix she was above 16 years of age and was studying in lQth class at the time of incident. Thus her consent becomss materiat. The prosecutrix further admitted the fact that while she was being taken to jungle she never offered any protest. That apart the medical examination of the prosecutrix does not support her case and no injury whatsoever has been found by Dr. Padmini Singh (PW-8) who medically examined the prosecutrix. As per the lady doctor, hymen of the prosecutrix was old torn and no definite opinion coutd be given about the commission of rape. Further as per the FIR when the appellant first met with the prosecutrix at village pond, he was accompanied with Nanka anct Dhirnath (DW-l) whereas in her Court statement the prosecutrix has not said so rather she has categorically denied about the .iijiar ,-•7- ' presence of Nanka and Dhirnath. Even father of the prosecutrix Awtar Kujur (FW-6) has admltted the fact that when the prosecutrix was being taken to jungle by the appellant, she did not raise cries nor she offer any protest. 13. Considering the overall evidence of the prosecutrlx arxl the other witnesses, the possiblllty of the prosecutrix belng a consenting party cannot be ruled out, Statement of the prosecutrbt does not inspire confidence of this Court and she does not appear to be a trustworthy witness, therefore, in these circumstances/ the accused/appellant is entitled to get the benefit of doubt as on the basis of materiaf cotlected by the prosecution itwould not be safe for this Court to uphold his conviction recorded by the Court below. 14. Accordingly, the appeal is adowed. Judgment impugned is hereby set aslde, Accused/appellant is aajuitted of the charge levetled against hlm. The appellant is reported to be in jail slnce 01.02.2007. He Is directed to be set free forthwith !f not required in any other case. — —— Sd/- Pritinker Diwaker ^i--^^ ^ Jy4ee . r