w" y- y ' ^O.t ^J^LgJ ^^n 'mftN. ^ . i ^r^m^^i^ IN 'IHB HIGli COU'RI OF/MADSIA PBADESli : A2 JABALPUR. CBIMlHAL ArPii.AL KO.^I>^?/1995. .^' ^ ^- 1•-Husram alias Husruram Sahu, aged /'. 22 ye^rs son ofJethu^am Sahu, Agriculturist, 2. Bhagwa-fc^lias Bhagwati Kurmi^aged 32 years ^ Agr iculturist ^ 3, Cnhannulal DhJLmar aged 22 years son of Natburam Dhimar, Labour^r, ~ •" ' All Residen-bs of village: Anandgaon, police -^ Station Berla Districf Du.cg (MP). ^" APPELLAHES IIN JAIL) VBBSUS Ihe s'bate of Madhya Pradesh KESPOMBICT.' ^. CBM1IAL 4PPBAL Ut®BRSBCIION 374(2) OF IHE GRIMZNAL FRQC&DURB. CQM. COURT OP CHHATTISGARH AT BILASPUR SB : HON'BLB MR. JUSTICB PR1T11WKBR CR.A< N0. 5-78/1995 APPELLANTB RBSPONDBHT versus Husram (S) Husniram & Others StateofM.P. Shri Praveeu Dhuraiider, counsel for fhe appellaiits. ShriVivek Shamia, P.L. forfhe State. APPBAL_'U/S_374i2| OF THE CmBSINAL PROCBDUHE_ CODE JUDGMENT 102.02.2011) The prese.nt appeal is directed agaiiist the judgsneiit aiid'order dated 30.3.95 passed b;/ th.e VI111 Additional Sess.i.oD.s Judge, Durg io. •Sessions Trisl No. 313/93 convictmg fhe accused/appeliaiits -SDT thc offence punishable under Section 376 (2)(g) ofthe IPC and sentericio.g them to zinderRo RI for ten vears. 2. Brief facts of tlie case are that 01-1 9.4.93, FIR (Ex.P/1) was lodged by the px'osecutxix (P,W.-1), a maiTied lady, aged about 22 years, allegin.g ia it tliat 011 or aboiit, 5.3,93 a.t abo'tit 6.00 p.m., accused/appeUauts apprehended her< took her aeaj* tlie field aiid committed rape on her one by one. Shc has further afleged tliat thereafter for about 6 days she was ravished bv the accused/appellants fhrice in tlie fieM aiid subsequeufiy, thiice in. tb.e hoiise of one Da.sodiya Bai. After iiTvestigatIon, chaUao was ffi.ed on 19.5.93 under Sections 376(2)(g), 450, 354, 506-B & 342 ofthe IPC. However, while fram.io.g charges, leam.ed •trial. Court has fraio.ed the ch.ai'ges ouly under Sectbn 376 (2)(g) of tlie IPC agaiiist tlie accused/' appellaiits. 3. So as to hoM fhe accused/appe.llants guilty, fhe pix>secution Iias exaBiiaed seven wituesses. Stateiiient ofthe accused/appellajits'were also recorded UD.der Section 313 of1±i.eCod.e of' Crimin^l Procedure in ^. -T<^S. which they denied .th.e charges leveli.ed agaio.st them. an.d pleaded fh-eir iB.noceB<'e and false iiirplication io. th-e ca.se, 4, Atter heariBg ffae parties, the trial Court 'has convicted fh:e a.ccused^aDpellaiits for the offence as meiitforied above, Hencx this appeaJ. 5, Contention of S3iri Dhuraiider, counsel tbr the appellaiits is ttiat present is a case offalse miplicatic^i, He siibm.ite that fb.ere is an inord.iQate de^lay in iDdgiiig the FIR l^ecause accoi-(l:mg to the case of th.e prosecutrix herseK on 5.3.93 for the first tmie, %he wa.s si.il-)jected to gao.g :rape by the accused/appellants aa.d fhereafter ou s:bc occa.sions she was raped but the report has been lodged after al^oiit a inonth i,e, on 9,4,93. He failher siibmits that fb.e iiieclical report of tiie .proseciririx does not support fhe ca.se ofth.e prosec'ution. 6. On' tii.e om.er hand, su.pportmg ttie impugned. judgnient it bas been argued. by the State counsel tb.at as ttie pi-osecutrix was ftireatened by the accused./appeBao.te, sh.e co'iiid not lodge tb.e report and th.is delay has to be ign.ored by tb.is Co-art c'onsideriB.g tiie pathetic act ofthe appeUants. He nirtlier.siibmits tli.at one old iujzuy has been foTiud on the back ofth.e prosecut3:bc and fh.at cleariy shows fhat she was siibjected'to rape by th.e accused/a;ppeUaB,.ts, 7. I have heai'd counsel. for th.e pa-rties and perused th.e judgni.ent impu.gned as weU a.s- tiie m.aterial avail.a.bl.e OD, recoixl. 8, Prosecutdx (P.W,.-ll in her court statemeut has stated fhat she knev^' all the a£?ciised persons axid fhat on the first dav of tte incideiiLt, iu. the eveniiig, wh.eii stj.e was retuniiiig aiter attendiiig the caJl of nafctire, tlie accused persons caaght h.old of her, accused/a.ppell.^jit HusraLm @ Husnii'aiB was holxl'big axe aiid fhey asked h.er not to disclose aiivfh.iiiR at her house otlieiwise stie wiU be kiBed aiid. fhereafter fhev took her to a nearby fie'id ao.d committed rape cn her one by one, She has fuxther state.d fha.t on tlie iiext day also when she 'had gpne towai'ds fhe sam.e field, accused/appeUaiits appreheiided her aad aft.er threateniiig hei\ took her to a fhreshnig ^t:^< "'^ t^ .....-. ^ ^i M '^:;: ^./S^'h ^ ^-^.^ J y^" ^" "'^.^^^' field aad comiEiitted rape 011 her one by oiie, Accord.m-g to the prosecutrix, on the siibseqii.CB.t fh.ree days, sh.e was caUed by tlie accused/ appeUants to the house of one Dasodiya Bai by tlireateiiing her an.d. m. her presence; she was siibjected to 1'ape, She has sta.ted. tliat she coiild not report. the incident. eaiii.er oiit. of feej' as the' ajccused/appellaii.ts were roaniiiig 'by carryiiig axe, She has also stated that she had narrated tlie ent.ire incideiit to the wife of Kenrani and 'her husban.d enqiiis'ed. Irom th.e accused persons but they did not staled aoythiB.g. She has categoricaUy stated th.at th.e accused persons had never th.reaten.edh.er husband fbr lodgm.g the FIR. She b.as sta.ted. tliat cn the date of iiici.den.t, she had n.ot seen anyone iiear th.e place of iiicid.ent aiid fiirther stafced. th.at tlie accused/appellants used to call her Bhahhi (sister-iii-law'l aB.d before tlie date of iiicident, th.ey never misbeha-ved. wi.th her aiid her hiisbaiid was also havm.g good relations with th.e accused/appeUsiits. She has also stated that norm.aUy she used to retura with.io- 5~],.0 inin-iites after atteBdiiig the call ofn.auire but cn. th.e first day ofm.cident, she fDok about 1 hour to retiini to h.er boii.se but nobody en.qixired from. her, She admits th.at noiin.aUy she used to go alongwidi her sister-m-laws' or mother- m.-law for attendm.g the call. of n.atu.re but on th.e frrst day of m-cid.eiit she went aU aloB.e. She also adxiiits that h.er liusbaiid, iather-m-law and moth.er-iii-law al.so ^ stopped, her n'om. visitm.g the house of Dasodiya. Bai. In pai'a. 1 I of her cross-exammatioB. sb.e has ad.ro.itted the fact fhat aiter about 3-4 davs of the .niciderit, there was a niraour iii t.he vfflage that Dasodiya Bai was spoilin.g. the wtfe of Goverdhaii (hiisbaiid oftJie prosecutnx). Goverdh.an (P.W',-2) husba-nd ofthe prosecutrix, has stsled fhat he wa.s nifos'm.ed by the prosecutrix that for abou.t sbc days she was subjected to rape by the accused/appe.llan.ts. KejraBi (P,W,-3) has stated fhat Goverd.haji, h-u.sbaiid of t'he prosecutnx was shoutirig cn fhe roe.d sayirig. that fh.e accused/appellaots ha^e raped his wife aad ftien he asked him. iiot to iiiitiate a quan'el hi the night as tliey have to' reside ia tlie saxiie villaRe, PuB.araiii Verma (P.W.-4) is fte seizure witness of Ex.P/2 'bv w'hich. tlie axe was se.ized from. accused^ appe.llaat No.l Hu-sraiii., Dr, K.amlesh. SlirwaBtava (P.W.-5't wno haci. examiiied the ^ \ "•^ ;1I .^ .-/ ^•^" ..^- ^,';'^" ^^ a.ccused/appeUaiits, given his report Ex.P/3,4 & 5 sta.ti.ng that ttiey were capable of perfbiTDmg sexual iolercoiii'se, Dr. J,Gurubakshajii (P,W,-6) is the witaess who had iQ.edically examiiied the prosecutrix aiid given lier report Ex,P/(5, statm.g tliat she did not find aiiy sign of rape upoii the prosecutrbc but tbund one old iojuxy on tlie back ofthe prosecutrix. V.K.Shai'm.a (P,W,-7) is the Ixivestigatiag Officer, 9. Miiiute exainijiation of the evidence of the prosecutiix shows tl3.at tiiough she was siibjected t.o rapc for six. days, she did not rai.se an.y alann nor did she iBform any one includiog her husband or otlier fam.ily inembers aboiit tlie .iiicideiit. The enure story put forth by the prosecutrix appears to be too jjaiprobable to be relied uposi ejiid th.at beiag so, it does not m.spii'e the confid.ence of tliis Court to uph.old th.e convictlon of th.e accused/appeUaB.t uader Sectlon. 376 (2)(g) of the IPC. This apail, tliere was uiordio.ate delay ofaboiit one mon.th i.n. lodgiiig the FIR aad fiiis delay has not been expleiB-ed by tlie proseciitrix. Even the sts.tem.ent offtie otlier witnesses also does not iaspire contideiice of fhis Court. .10. In conclusiou, the appeal is aliowed. I.mpugned judgmeiit convictnig aiid sentenciiig the accused/appeUajits is set aside. They ai-e acquitted ofthe charges leveUed agahist thein, The appe'Uaiits ai'e on bail, fheh' bail bonds staxid discharged, Sd/- Pritinker Diwaker Judge