Basantram Bargah v. The State Of M.P.

NAFR HIGH COURT OF CHHATTISGARH. BILASPUR X CRA No. 1947 of 1997 -m Appe'llant Ve rsus 1.

State Of Madhya Pradesh (Now Chhattisgarh) = -~-- Respondent For AppeHant - Shri Jitendra Shrivastava, Advocate.

MW For Resgondent - Shri Avinash Singh PL Hon'ble Shri lustice Pritinker DiWaker ludgment on Board 22 (07(2016 This appeal is directed against the judgment and order dated 01.07.1997 passed by Additional Sessions Judge Ambikapur (Sarguja) Sessions Triai No.

275/1996 com/rating accused/appellant under Sections (1) 506-8 IPC sentencing him to undergo rigorous imprisonment for seven years with fine of Rs. IOOOI- u/s 376 and rigorous imprisonment for three years u/s 506-8 IPC, pius default stiulations. p

~:;- for answering the call of nature, the accused/appellant came there, inquired about husband, pressed neck when she resisted his act, he gagged mouth, took out knife threatened her of being finished in case she cried out. Thereafter, he is alleged to have thrown her on the ground.

upturned her sari petticoat, slid down his own full-pant and underwear to knee and committed forcible sexual intercourse with her and after the act was over, he left the spot. At that time, one Krishna Panika (PW-3) came house after informing him about incident she accompanied him her husband disclosed the him.

On next morning incident was disclosed Sarpanch of the village and when nothing was done by him, finally report was lodged'on 16.5.1996.

Based said report, offences under Sections 376 and 506-8 IPC were registered against the accused/appellant and the prosecutrix was medically examined on 17.5.1996 by Dr.

Pratibha Rajul Jain (PWv5) who gave her report Ex.

P-10 stating that she did not notice any injury on her person and that she was habitual to sexual intercourse.

After completion investigation, charge sheet was filed by police for offence punishable under Sections 376 and 506-B IPC followed by framing of charge accordingly.

3.

So as hold accused/appellant.guilty.

prosecution examined O6 witnesses support its case.

Statement of the accused/appellant was also recorded under Section Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

4, After hearing parties, trial Court has .convicted sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment.

5.

Counsel for the accused/appellant submits that there five days delay in lodging the FIR which has not been explained by the prosecution as required under the law. He submits that conduct of the prosecutrix is very unnatural because after being subjected to forcible sexual intercourse by the accused/appellant she went inform her husband but thereafter remained inactive and did not do anything till 16.5.1996 i.e.

date which report was t lodged.

He further submits according case prosecution incident took place 12.5.1996 i.e.

in summer season but the prosecutrix has stated that the occurrence was winter season. Counsel for the appellant submits that according to if the'pros'ecutrix accused/appellant was not known whereas her husband stated he used visit his house quite often. According to him, at the relevant time, apart from her children, maternal grand-father was also house therefore the story cooked up by the prosecutrix does not appear to be trustworthy for the reason presence of elderly male member, such incidents are literally impossible. Last but important submission counsel for appellant accused/appellant is alleged to have pressed her neck,'gagged her mouth, threw her down and committed forcible sexual intercourse with her, but medical report does not mention'any injury on body, external or internal, and therefore/the only inference which

'Li_ effort to come out of his clutches and the sexual intercourse withi can be drawn is that she did not offer any resistance or made any I.

her was consensu.

al 6.

On the'other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/appellants under Sections 376 and 506-B IPC are strictly in accordance with law and there no infirmity in the same.

7.

Heard counsel for the parties and perused the evidence record.

8.

(PW-l) has her husband was not at home and she was there along with children maternalgrand father.

She stated day at about 7 PM when she was to set out for answering the call of nature, accused/appellant pressed her neck and on the point of knife started threatening her to be finished in case she raised cry.

He then threw ground, slid down his full pant underwear, upturned sari petticoat, mounted over her, committed forcible sexual intercourse with her and on seeing the torch light he left the place. Just thereafter Krishna Panika (PW-3) stated to have come to her house whom she disclosed the entire thereafter next day when husband got back, incident was disclosed to him also.

ln cross-examination this witness admitted report was lodged by days after the incident but the reason therefor has been assigned to be absence husband who had gone attend some

-§__ marriage.

Incident, according her, had taken place courtyard front side of the said courtyard there a passage where peopie keep passing by.

This witness stated that she had three children who at the relevant time were sleeping inside whereas maternal grand-father was sleeping veranda. The is stated have taken place in the winter not summer.

Now changing her version she stated Krishna (PW~3) had come to call her and she accompanied him to see marriage procession where her husband also met her. She has stated that she informed the incident to her husband at the place of marriage and then in her house also. According to this witness, though the appellant was also there at the place of marriage but her husband did not ask him anything abut the incident.

She has admitted that when the accused/appellant was to leave the place of incident after committing the offence, she did not raise any hue and cry. Actording to her, on the date of incident she wore bangles her hands but they did not break and remained intact, nor did she suffer any injury.

She went state when accused/appellant pressed her neck, she herself lay on the ground for that she did not receive any injury.

Bal Sai (PW-2) is the husband of the prosecutrix who stated date incident he had to been to a marriage function in the village and when he was busy there, his wife came and informed him about the entire incident. According to him, he told his wife that he could i not go with leaving work half done when after completing the work he returned home, she again narrated l incident to him. Thereafter, the matter Was reported to Sarpanch

, "Q, @ and when nothing was done by him, FIR came be lodged.

According to this witness, whenever, the accused visited the village he used to come to his house.

Krishna Das (PW-3) is the witness who said have visited house prosecutrix immediately after the incident and after seeing whom the accused had left the spot, not supported the case of the prosecution and has been declared hostile. He however has stated that at the time it was getting dark when he reached house prosecutrix, she was standing at door being asked to accompany him place marriage she changed the clothes and came along with him along with her three children but she never disclosed the incident to him. Dr. A.K. Singh (PW-4) witness who medically examined accused 'gave his report EX.

P-9 stating that he was capable of performing sexual intercourse.

Dr. Pratibha Rajul Jain (PW-5) is the witness who medically examined the prosecutrix and gave her.report Ex.

P-lO stating that she did not notice any internal-or external injury on her person she was habitual sexual intercourse.

Arvind Sanyal (PW-6) is the investigating officer who has duly supported the case of the prosecution.

9.

lf seen as a whole, conduct prosecutrix since beginning appears be extremely unnatural full complexities.

Though 12.5.1996, instead lodging the report preference, she sat idle for five days without any compelling convincing reasons for same.

This inordinate delay lodging the report does not carry its fold a satisfactory explanation except that her husband was not at home. s

.._7..

Relevant to note here that her husband had not gone miles awa but was a marriage function in the same village.

Secondly, the prosecutrix has attributed so many things to the accused/appellant like gagging mouth, pressing neck, dragging, throwing on the floor, committing forcible sexual intercourse etc, but medical evidence does not suggest even a single injury body, external or internal; even the bangles in her hands remained intact all along this episode.

All this demonstrates that she did not offer any protest at all to the act of the accused/appellant and submitted herself to him readily. At all the places the prosecutrix has stated prior to the incident she was not acquainted to the accused but on the contrary her husband (PW-2) has stated that whenever he (accused) visited the village, he used to visit his house too. Here also the prosecutrix spoke incorrectly Going further, she is said to have disclosed the incident to Krishna Panika (PW-3) who came to house just after the but according said witness, prosecutrix did not inform him anything all the way.

At one place she has come to state that after the accused pressed her neck, she herself lay on the ground and for that she did not suffer any injury, and did not raise cry when the accused was leaving the spot. This utterance of the prosecutrix also falsifies the story brought forth by her regarding her subjection forcible sexual intercourse by the accused. Further, the incident had taken place in the month of May i.e. peak summer season but prosecUtrix says that it was in winter season. Everywhere she has been shaky and inconsistent in stating things. -That apart, at the time of inCidenther three children elderly maternal grand-father were/in house but nobody

",7".

_g_ could hear crieé.

rAli this sounds highly unnatural presence of so many people such an incident couldtake place.

Thus prosecution has thus utterly failed to proved its case beyond reasonable doubts and so also the Court below has gone wrong basing its finding an entirely unreliable shaky evidence collected by the prosecution.

Material this case not as such which could make sure conviction appellant under Sections 376 and _506-B IPC and for that the benefit has to go to the accused.

10.

Appeal is thus allowed. Judgment impugned is hereby set aside. Accused gets acquittal.

Being already on'bail, he needs no order to be set free etc.

Sd/u '

Pritinker Diwaker Judge ,,,;j;:

r Jyotishi