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Bhagwat Das vs The State Of Madhya Pradesh 19 … on 24 October, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.3344 of 1999

Judgment Reserved on : 26.7.2018

Judgment Delivered on : 24.10.2018

Bhagwat Das, S/o Budhri Das, aged 46 years, R/o Lakshanpur, P.S. Mungeli,
District Bilaspur
—- Appellant
versus

The State of Madhya Pradesh (now Chhattisgarh) through P.S. Mungeli,
District Bilaspur

— Respondent
——————————————————————————————————
For Appellant : Shri D.N. Prajapati, Advocate
For Respondent/State : Shri Arvind Shukla, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 2.12.1999

passed by the Additional Sessions Judge, Mungeli in Sessions

Trial No.61 of 1998 convicting and sentencing the Appellant as

under:

Conviction Sentence

Under Section 376 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.2,000/-

with default stipulation

2. Facts of the case, in brief, are that on 27.11.1997 at about 2:00

p.m., the prosecutrix (PW1), a married woman, aged about 40

years, was going towards her agricultural field. Allegedly, the

Appellant came near the field of Ghasiram and by catching her

waist caused her to fall down on the boundary of the agricultural
2

field and on being shouted by her, he gagged her mouth with a

cloth and thereafter he committed rape with her. Having heard her

shout, Asharam (PW6) and Premlal (not examined) came there

and saw the Appellant running away. On return to her house, she

told about the incident to her both Jethani Amrikabai (PW5) and

Rukmani (PW13). At that time, her husband was not present at

home. When he returned home, on 3.12.1997, First Information

Report (Ex.P1) was lodged by her. She was medically examined

by Dr. Ila Chandel (PW7). Her report is Ex.P6 in which she found

no injury on the body of the prosecutrix. She found that hymen of

the prosecutrix was old ruptured. She was habitual to sexual

intercourse. No definite opinion regarding recent sexual

intercourse with the prosecutrix could be given by doctor. During

the course of investigation, vide Ex.P3, clothes of the prosecutrix

and vide Ex.P4 underwear of the Appellant were seized. The

Appellant was medically examined by Dr. R. Bhattacharya (PW9).

His report is Ex.P7 in which he found the Appellant to be capable

to perform sexual intercourse. Statements of witnesses were

recorded under Section 161 of the Code of Criminal Procedure.

On completion of the investigation, a charge-sheet was filed

against the Appellant for offence punishable under Section 376 of

the Indian Penal Code. Charge was framed against him under

Section 376 of the Indian Penal Code.

3. To rope in the Appellant, the prosecution examined as many as 13

witnesses. Statement of the Appellant was also recorded under

Section 313 Cr.P.C. in which he denied the guilt and pleaded

innocence. 2 witnesses have been examined in his defence.

4. After trial, the Trial Court convicted and sentenced the Appellant as
3

mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel appearing for the Appellant argued that the

Appellant has been falsely implicated in the case. The First

Information Report was lodged belatedly. The alleged incident took

place on 27.11.1997, but the FIR was lodged on 3.12.1997. Delay

in lodging the FIR has not been properly explained. Allegedly, the

incident was witnessed by Asharam (PW6) and Premlal, but

Premlal has not been examined. He further submits that even if

the entire evidence is taken as it is, the prosecutrix appears to be a

consenting party. The FIR was lodged by her because Asharam

had seen her in a compromising position with the Appellant. He

further submits that though as stated by Amrikabai (PW5) and

Rukmani (PW13) that after the incident, the prosecutrix had told

them about the incident, in spite of that they have not disclosed this

fact to their husbands, who were the brothers of the husband of the

prosecutrix. Thus, the entire story of the prosecution is doubtful

and no offence under Section 376 of the IPC is proved beyond

reasonable doubt.

6. On the contrary, Learned Counsel appearing for the State

supported the impugned judgment of conviction and sentence.

7. I have heard Learned Counsel appearing for the parties and

perused the record minutely.

8. Case of the prosecution is mainly based on the statements of the

prosecutrix (PW1), Asharam (PW6), Amrikabai (PW5), jethani of

the prosecutrix and Rukmani (PW13), other jethani of the

prosecutrix.

4

9. The prosecutrix (PW1) has stated that on the date of incident at

about 2:00 p.m., she was going to her agricultural field. The

Appellant came there behind her and asked her about her

husband. When she told him that her husband had gone to the

house of his sister, he caused her to fall down and committed rape

with her. When she tried to shout, he gagged her mouth and at

that time itself, having heard her shout, Asharam (PW6) reached

there and saw the Appellant running away from there. Thereafter,

Premlal also reached there. She also told him about the incident.

She returned home and told about the incident to her both jethani

Amrikabai (PW5) and Rukmani (PW13). Since her husband was

not present at home, after his return, she lodged the FIR (Ex.P1).

In her cross-examination, she has admitted that she had not

sustained any injury on her body. She had sustained only one

abrasion on her hand. She has also stated that the boundary of

the agricultural field on which the incident had taken place was dry.

In paragraph 8, she has also stated that at the time of incident, she

had a Hansiya (an agricultural tool with which crop and grass is

cut) with her. She assaulted the Appellant with that Hansiya, but

no injury was caused to the Appellant. Then she assaulted him

with a rope which inflicted injury on his head. She denied the fact

that the Appellant, while committing rape with her, had gagged her

mouth with a cloth.

10. Asharam (PW6) has stated that on the date of incident, it was

heavy rainfall and much water was filled in the agricultural fields. At

about 2:00 p.m., he was returning from the agricultural field. On

the way, he heard the voice of a girl. On his search, he did not find

any girl nearby, but he saw the Appellant running away. When he
5

moved ahead, he saw that the prosecutrix was sitting and weeping

also. In paragraph 4, he has admitted the fact that having seen

him, the Appellant had run away after getting up and when he

reached near the girl, he recognised her to be the prosecutrix.

11. Both Amrikabai (PW5) and Rukmani (PW13) are jethani of the

prosecutrix. Both have stated that when the prosecutrix returned

home from the agricultural field, she told them about the incident.

Both have admitted the fact that the boundary over which the

incident had taken place was muddy. Rukmani has also stated that

the clothes of the prosecutrix were also smeared with mud. Both

Amrikabai and Rukmani have also admitted the fact that when the

prosecutrix told them about the incident, they did not disclose the

same to their husbands due to fear that a quarrel will take place.

12. Dr. Ila Chandel (PW7) examined the prosecutrix on 3.12.1997. She

has stated that her report is Ex.P6 in which she found no injury on

the body of the prosecutrix. She found that hymen of the

prosecutrix was old ruptured. She was habitual to sexual

intercourse. No definite opinion regarding recent sexual

intercourse with the prosecutrix could be given by her.

13. Dr. R. Bhattacharya (PW9) examined the Appellant. He has stated

that his report is Ex.P7 in which he found the Appellant to be

capable to perform sexual intercourse. He did not find any injury

over any part of his body.

14. Santram (PW2) is husband of the prosecutrix. He has stated that

on the date of incident, he had gone to the house of his sister. On

his return to home, he came to know about the incident. Then he
6

went to the police station along with his wife (the prosecutrix) for

lodging of a report.

15. Fudu (PW3) is the witness of seizure memo (Ex.P3). He has

stated that vide Ex.P3, a petticoat and a lungi of the prosecutrix

were seized. Bisundas (PW4) is the witness before whom

underwear of the Appellant was seized vide Ex.P4. Chhannudas

(PW8) has stated that in his presence, vide Ex.P3, petticoat of the

prosecutrix and vide Ex.P4, underwear of the Appellant were

seized.

16. Assistant Sub-Inspector H.S. Dwivedi (PW11) is the witness who

recorded the FIR (Ex.P1) lodged by the prosecutrix on 3.12.1997.

Assistant Sub-Inspector V.K. Awasthi (PW10) was the Investigating

Officer of the offence in question. He has stated that he

investigated into the offence. During investigation, he seized

petticoat of the prosecutrix vide Ex.P3 and underwear of the

Appellant vide Ex.P4. He also recorded statements of witnesses

under Section 161 of the Code of Criminal Procedure.

17. On a minute examination of the above evidence, it is clear that the

prosecutrix (PW1) has stated that the Appellant had committed

forcible sexual intercourse with her, but from her statement, it is

clear that at the time of the alleged incident, Asharam (PW6) had

reached at the spot and having seen Asharam, the Appellant ran

away from there. As stated by the prosecutrix (PW1), at the time of

incident, she had suffered an abrasion on her hand, but in her

medical examination by Dr. Ila Chandel (PW7), no abrasion was

found on her body. The prosecutrix has also stated that she had

assaulted the Appellant with a rope which had inflicted injury on his
7

head, but in medical examination of the Appellant, no injury was

found on the body of the Appellant. The incident took place on

27.11.1997, but the FIR was lodged on 3.12.1997. Reason of

delay in lodging the FIR has been stated that the husband of the

Prosecutrix returned home on 3.12.1997 and then the prosecutrix

lodged the FIR. From the statement of the prosecutrix, it is clear

that immediately after the incident, she disclosed the incident to

her both jethani Amrikabai (PW5) and Rukmani (PW13). But, this

fact was not disclosed by any of the two jethani (sister-in-law) to

their husbands which is not natural. When the prosecutrix could

tell the incident to her both jethani immediately after the incident,

she could also lodge a report immediately after the incident as she

had already disclosed the fact to her both jethani, but, she did not

do so. Asharam (PW6) has also admitted the fact that at the time

of incident, when he, after having heard voice of a girl, reached to

the spot, at that time, having seen him, the Appellant ran away.

Asharam also did not disclose the incident to anyone. As per the

statement of the prosecutrix (PW1), the place of incident was a

boundary of the agricultural field which was dry. But, Asharam

(PW6), Amrikabai (PW5) and Rukmani (PW13) have stated that

the said boundary was muddy and as stated by Rukmani, the

saree of the prosecutrix was also smeared with mud. But, on the

petticoat of the prosecutrix, no mud was found.

18. From the above, it is clear that the FIR was lodged belatedly.

Delay in lodging of the FIR has not been properly explained by the

prosecution. From the evidence on record, it is clear that any such

incident had taken place is doubtful. It seems that either such

incident had not taken place or if such incident had taken place,
8

the prosecutrix was a consenting party and on Asharam (PW6)

seeing the prosecutrix in a compromising position with the

Appellant, the report (Ex.P1) was made. In my considered opinion,

the prosecution has failed to prove the offence beyond reasonable

doubt. The Appellant is, therefore, entitled to get acquittal.

19. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellant is acquitted of

the charge framed against him under Section 376 of the Indian

Penal Code.

20. It is reported that the Appellant is on bail. His bail bonds shall

continue for a further period of six months in terms of the

provisions contained in Section 437A of the Code of Criminal

Procedure.

21. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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