HIGHCQURT OF CHHAmSOARH AT BUASPUR CRUIINAL APPEAL NO._193Z3006 APPELLANT VERSUS RESPONDBNT Manfhir Yadav, S/o Khorbahra, Aged about 46 years, - Oecupation Agriculturist, R/o Tedai Kondal, Police Outpost Kachche, P.S. Bhanupratappur, District Kanker. State of Chhattisgarh, Through Police Station Bhanupratappur, District Kaxiker. Presenfc- Shri Brijesh Singh, counsel for the appellsnt. Shri Paakaj Shrivastava, P.L. for the State. i:;s" Dhlreadra Mtshra, J ORALJUDGaUBWT (18th March 2008) The apgellant has preferred this crimmal appeal under Section 374(2) of the Code of Criintoal Procedure agaiast tfae judgment of conviction -and order of sentence dated 3rf March 2006 passed in S.T.No. 76 f'2005 whereby leamed Special Court under S.C./S.T. Act, Bastar at Jagdalpur, has convicted the appellant under Section 376 of Indian Penal Code and sentenced him wlth RI forsepen years, pay a fine of Rs.3,000/- and in default thereof, to undergo additional RI for stos months. 2. Case of fhe prosecution, in brief, is that fhe prosecutnx, aged about 30 years, a married lady, belonguag to scheduled tnibe, was receiving treatmeat fi-om the appellant as she did not bear child aad fhe appellant was treating her by practicing sorcery. Ori 15.12.2004 at about 10.00.p.m. the appelleuit visited the house of the prosecutrix in Village Bhirawahl in connecfls s 2$ t- -J. with her treatment. He lit an earthen lamp in the kltchen garden of the prosecutrix and asked her husband to remain fherc and see that the earthen lamp continues to buma. Thereaflfcer, he took the prosecutrix towards forest and coimnitted rape with her. After some time, fhe appellant returiKd and fied from there on hls motorcycle. The prosecutrix narrated about the mcident to her husband Aghan Singh and Mangal Singh. After the incident a meeting was coiwened in the viUage, fhe appellant was ateo caUed in the sald meeting and he confessed his guilt In the presence ofvUlagers. 3. Report (EX.P/ 1) of the mcident was lodged on 25. 12.2004 at about 18.00 hours at P.S. Bhanupratappur. The prosecutrix as also the appellant were sent for medical examination. Dr. Sarita Goti (PW-5) examined the prosecutrix and gave her report of Ex.P/4. Slides Of vaginal swab were prepared during mvesti^ttion and sent for chemlcal examination to Foi^nsic Science Laboratory, Raipur. 4. After completing investigation charge sheet was filed against fhe appellant under Section 376 of IPC and Section 3(1)(12) ofthe Scheduled Castes and Scheduled Tribe (Prevention of Atrqcities) Act, in the Court of Judicial Magistrate First Class, Bhaaupratappur, who in tum, committed the case to the Court of Sessions Judge, Jagdalpur and fhe same was received on transfer by the leanaed Additional Sessions Judge for trial. 5. Durii^ trial fhe prosecution examtned 7 wltnesses in all. Thereafit.er, statem.ent of fhe accused /appeBant was recorded under Section 313 of Cr.P.C. in which he deiiied ttie circumstances appearmg against hiin in fhe prosecution evidence and pleaded that husband of the prosecutrix had demanded 'Rs.5,000/- fl?om him for payment to fhe labourers and on his refusal a false complaint weis lodged against him. He was conflned in his home from 1st Decem.ber to l8ttl December 2004 n' 3 as he was sick. He also exammed Banshilal as DW-1 and his wife RekhaYadav as DW-2. 6. Leanaed trial Court after hearing coiinsel for fhe respective pardes, convicted and sentenced Che appeUant as mentioned in paragraph one ofthis judgment. 7. Leamed counsel for the appellant submits fhat the story given by the prosecution i? hlghty improbable. It is atteged that the appeUant coinmltted; rape wifh the prosecutrix while her husband was sitting tn hls kitehen garden, merely at a dlstaiice of 65 meters arid he was aware of the lact that his wife has gone with the appeUant to the place of incident. The incident is of l5<11 December 2004, her husband caine to know munediately after fhe incideat aad fhe meeting was allegedly convened after 2-4 days of the Incident. However, report of fhe incident was lodged only on 25U1 December 2004 at about 6.00 p.m. The trial Coint has based fhe conviction on fhe evidence of the prosecutrix (PW- 1), Aghan Singh (PW-2), husband of ttie prosecutrix and Ramji (PW-3), brother of husband of fhe prosecutrix in reladon, who was present in the above meeting. Though 20 pereons were present tn, the said ineeting, but none of the independent witnesses has been examined during trial. Moreover, there is material discrepancies in fhe statements of fhe prosecutrix and her husband, however, leamed trial Court ignormg the above y^ ^yBte^^friff^ ^/ inconsistencies ui fhe'' prosecutriK case, has convicted and sentenced the appeHant by the impugnedjudgaent. 8. On the ofher hand, leamed counsel for the State has supported unpugned judgment of the trial Court. 9. I haye heard leamed counsel for ttie parties and perused the records ofthe trial Courtas also fhe napugnedjudgment. 10. Fu-st Infonnation Report (Ex.P/1) was lodged by the prosecutrix on 25.12.2004 at about 6.00 p.m. mentionir^ fherein that.fhe-incident occiuTed on 15.12.2004 at about 10.00 p.m. ^-' 1 and callmg of the meeting in tfae village has been assigned a reason for lodging fhe report belatedty. 11. PW-1 fhe prosecutrix, ui her evidence, has stated tfaat she is married for the last e^ht years. However, she could not bear chUd. They called fhe appellant some 2-3 months before the iacident for her treatment by practicing sorcery. The appellant came to fheir home at about 10.00 p.m. on motorcycle and asked her husband to sit before ffae earthen lam.p, took her on foot to a distaace on the pretext of^performingsom.ejngcE-pacrt, fhrew her on fhe ground and raped her aflter ga^ing her mouth. Thereafter, the appellant fled from fhere. She narrated about fhe uicident to her husband after retuming hom.e. After 2-4 days of the above incident, a meetmg was convened in the vUlage and the accused was also called in the said meeting. However, he was avoiding coming in fhe meeting and ultimately, when he came in the meeting, the prosecutnx informed the Panchas fhat he has robbed her honour. On being, enquired by the Panchas, fhe accused confessed in fhe meeting havuig commltted mistake. She hasStated in her cToss-exanunation in paragraph-8 that she suffered pain on account of being fhrown on fhe earth, however, there was no tdeedit^. She had mentioned to the doctor about the paui, who examined her. She has admltted that she dld not offer resistance as she is of weak stature. A meeting wsus convened 2-4 days before lodgng ofthe report. 12. FW-2 Aghan Sin^i, husband of fhe prosecutrix, has also deposed ui the smular lines and stated fhat after the incident his wife retumed alone and urformed him. fhat fhe appellant has raped her after inserting clothe in her mouth. At that time fhe accused also retumed and went away on his motorcycle. The accused adinitted before the Panchas fhat he had committed mistake. In cross-exammation, he has stated that 50-60 persons were prcsent in fhe meetmg. He has denled fhe si:^estion that a demand of Rs.50,000/- or any amount was inade flxMn the appeUant. .. •Qf inoqe IB simjq Jiaq^ w ameo pasnooe aq^ ^eq^ uopispdsp jsq m paapeys s^q xu^noasojd sip 'aseo ^UB^SUI sq^ ui •/.T •aouapguoo sandsm asiAiaipo •fiji 'xuinoasojd ai^ jo UOTSJSA arp y»adsnso^ sauK^STanoJp B aq IOUUBO auo]B ^jodaj ai.1} 3m3po]: ui yfeiap 'qgnoqj, •yisppm aip ^flB SABp oi 's'i t'OOZ.'ST 'SE; uo A[UO p^po^ SBA -)jodgj axp. 'jaASMOH "llin3 siq passajuoo 3ABq 0^ pTes si tuenaddB sq^ qoiqA ui 'iuappm sip jo sAep ^-g jagre pauaAUoa A[p^3HB SBA Supaam B pue ^s^Bipsmmi i.uappui sq^ ^noqB MOVSSl C4 3UIB3 OS^B Sja8B[[(A wf^ 'jiss^l t'OOS'ZI'ST uo tusppui sip jayB ^atBipamnii sdBj jo ^uappui sip jo aiBAre SBA i[8ms UBC^V XLQnoasojd aipJ°pireqsnq 'AIO^S uopnoaso.id jsd sv "91 ^sdBJjo souajgo aipjo Atnitg SBA VSByadd-B sq^ fsv^ ppq ^SAisnpuoo sq pyioo yi qoiqA jo sisaq atp uo 'souspguoo sandsui xu^noasojd aip jo souapus 'SSBO aiR jo ssaue^smnaip pire s-pej sq^ ui jaipaqA jo aouajgio 31^ jo uoissimuioo guipjega.! xutrioasoLid STRJO Auouipsa^ AJB^HOS sip uodn SugoB ui pagpsnf SBA ijnoo IBLQ aip jaq^aqA - si iBadda srq^ jo asodmd ai^ joj uop.^.iapisuoo joj uopsanb svjj, 'Q^ •Apoq J3q JSAO ured ^UB p3ure[dmoo xuinassojd sip jou xiqnaasojd aip jo uosjad JSAO AinfiiT iBiuatui jo iBiuapca Are aoi^ou ym pip sqs ^.Btp pa^Bis OSTB geq aqs pue ad^-i ynocpB iionndo a-tTugap AUB U3A6 tou SBq 'xu^noasojd aip psuimBxa oqM '(e-A!kd) Tto0 B^l:reS '-VI "suosjad Jisrn uo paopou SEBA satCTBUuouqB jo Amfai ou 'yaByaSde SIQ. puB xutnoaso.id sip jo ijodai uoT(BuimBX3 leSai ooipsia sip ui -^t •33{Ktsim panimmoo SBq sq ysi^ pavays pasnooB sqt spa3(SB guiaq uo pue jnouoq jsq psqqoj pasnaoB aip tBip-p383HB peq xu^noasojd siy, •gupasm pies aip ui pajsqyeS paq saosjad og yioqv •^uasaid aiaA pzieqsnq jsq pue xirpiossojd sip ^UBiiadd^ WQ gnpaata pres srp ui VBXf^ pasodap seq 'Suitaam aqi jo SSSITIIA B OSIB si oqA 'UORBIM m xu}noas<ud ai^ jo pueqsnq sip jo jaipojq 'irurea 8-Ad '61 •-r.' p.m. on m.otorcycle whereas in the FIR she has stated fhat the appeUant came to her hoine in (he effening at about 4.00, at that time the laboiirers were present in the home and after departure of the laboiirers, the offenoe was couunltted by the appellant. From fhe evidcnce avaflable on record, it appears fhat husband of the prosecutrix was sitting in fhe kitehen garden near the earthen lamp and the rape was atlegedfy commltted at a distance of only 65 meters fi-om hnn. The prosecutrix and the appellant had gone towards the durection of fhe place of inddent in fhe presence and knowledge of her husband. The independent witnesses, who were present in the meeting, thou^i available, have not been examined except one Ramji, who is hrofhcr Qf the husband of the prosecutrix ui relaUon. The prosecutrix has claimed that she was suflRsrmg body paui on account of being thrown on the earth and she had told fhe doetor, who examiiied her about the pain, but her version is not corroborated fl~om the inedical evidence ofDr Sarita Goti (PW-5). 18. After closely scrutinizing the evidence of the prosecutrix aad ofher two witnesses namety A^ian Singh (FW-2) and Raa^i (PW-3) and further considering the inordmate delay of 10 days in lodgmg itf,e report, in the consldered opmlon of this Court the tnal Goiut was not justified in placing impllcit reliance on the version of the prosecutrix in convicting the appellant under Section 376 of IPC by the impi-^ned judgment. The Court below ought to have extended benefit of doubt to fhe appellant. 19. ta the result, fhe appeal succeeds. Convlction of the appellant under Secdon 376 ofIPC and sentence passed thereon, are set aside. He is acquitted offfae above charge. He be setat Uberty forthwith, ifnot required in any other case. ^——^—-~ Sd/- DbirendraMishra Judge ^?,r^i;?;@S:T3T;B»^TK-i