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2019 DIGILAW 795 (CHH)

BISAHAT v. STATE OF MADHYA PRADESH NOW C G

2019-07-10

RAJANI DUBEY

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JUDGMENT Rajani Dubey, J. - This appeal is directed against the judgment and order dated 15.06.1999 passed by the Third Special Sessions Judge, Special Court, Raipur in Session Trial No. 29/1998 convicting the accused/appellant as described below: Conviction Sentence Conviction Section 450 IPC R.I. for five years with fine of Rs. 150/- in default to undergo RI for 3 days Section 450 IPC However, appellant has been acquitted of the charge under Section 3(1)(xii) of the SC/ST (Prevention of Atrocities Act). 2. As per prose/34,cution case, on 9.03.98 at night, prosecutrix PW-2 and her husband Sukalu PW-3, were going to another house situated in the outskirts of village Bhatapara for sleeping after taking their meals. On the way, her husband went to attend the natures call, and she went to her house and laid in the cot without locking the door. It is stated that at about 7.00 p.m. appellant Bisahat Bawat of the village entered the house and after gagging her mouth, forcibly committed rape on her. When her husband came, he ran away from the spot leaving his lungi and club on the spot. On the next day, prosecutrix and her husband along with some of the villagers went to the police station and lodged the FIR (Ex.P-1) against the appellant under Sections 452,376 IPC and Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act. Prosecutrix was medically examined by Dr. Neelima Sharma (PW-9), and she gave her report vide Ex. P/8. After completion of investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 366 and 376(1) of IPC followed by framing of charge by the trial court accordingly. 3. So as to hold the accused/appellant guilty, prosecution examined as many as 11 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial court has convicted and sentenced the accused/appellant in the manner as described above in Para 1 of this judgment. 5. Counsel for the accused/appellant submits that the learned trial court has erred in law as well as in facts in convicting the appellant and sentencing under Sections 450 and 376 IPC. 4. After hearing the parties, the trial court has convicted and sentenced the accused/appellant in the manner as described above in Para 1 of this judgment. 5. Counsel for the accused/appellant submits that the learned trial court has erred in law as well as in facts in convicting the appellant and sentencing under Sections 450 and 376 IPC. She has submitted that the trial court has mis appreciated the statement of the witnesses on the basis of which conviction has been held. She has also submitted that there is vital contradiction between the statement of prosecution witnesses, and the whole findings of the trial court is based on unreliable evidence and the conclusion of reasoning is contrary to the principle of law. Prosecutrix (PW-2) has admitted in para 21 of her statement that and her husband PW-3 admitted in para 6 that he had informed the Kotwar about the appellant entering his house for committing theft and lodged the report. 6. On the other hand, State counsel supports the impugned judgment and submits that conviction of the appellant is strictly in accordance with law and there is no illegality and infirmity in the same. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-2) has stated that on the date of incident when her husband had gone to attend the natures call and she was sleeping in her house situated in the outskirts of the village, at about 9.00 p.m., accused/appellant entered the room. As the house was under construction, there was no door, he removed her clothes, gagged her mouth and committed forcible sexual intercourse with her. She raised cries but the appellant gagged her mouth. When her husband came, he also raised cries but the appellant fled away from the spot leaving his lungi and club at the spot. She has stated that she informed her neighbour Firantin Satnami about the incident and on the next day, report was lodged at the police station. Thereafter she was medically examined. Sukalu (PW-3), the husband of prosecutrix, has stated that on the date of incident, when he returned after attending the natures call, he saw accused appellant coming out of his house after committing rape of his wife. He has also stated that the next morning he along with his wife and village Kotwar went to the police station and lodged the report. He has also stated that the next morning he along with his wife and village Kotwar went to the police station and lodged the report. Ramratan (PW-4) has stated that he is a witness to siezure Ex.P-2, by which sari and petticoat of the prosecutrix was given effect to. He is also a witness to siezure (Ex.P-3) of lungi and club. Trilochan (PW-5) has not stated anything against the appellant. He is a witness to seizure Ex.P-4 by which one underwear of the appellant was given effect to. Dr. Neena Thakur (PW-9) has opined that no definite opinion could be given because intercourse might have done on her but there is no sign of struggle on chest, face or abdomen. Dr.Shridhar Rao (PW-9) Dr. Basant Singh (PW-1) medically examined the appellant vide Ex.P-1 and has stated that he was capable of performing sexual intercourse. 9. After going through the entire material available on record including the evidence of the witnesses in particular that of the prosecutrix and the Doctor who medically examined her, it appears that no resistance was made by the prosecutrix and that the prosecutrix and her husband had earlier made complaint of theft. 10. XXX XXX XXX 11. XXX XXX XXX 12. Prosecution has thus not been able to prove the guilt of the accused beyond all reasonable doubt by adducing cogent and reliable evidence in support of its case. Evidence of the prosecutrix does not get corroboration from the other material available on record including the medical evidence. In the present case, the circumstances taken as a whole, create doubt about the correctness of the prosecution version. Looking to the above mentioned facts and circumstances of the case, this court finds that the prosecution has utterly failed to prove the charges under Sections 450 and 376(1) of the IPC against the appellant. 13. The findings recorded by the court below are thus not based on proper appreciation of the evidence of the witnesses and being so, the same is hereby set aside and the accused stands acquitted of the charge levelled against him. As he is already on bail, no order to set him free etc. is required to be passed. 14. Thus, appeal is allowed.