Sulochni vs Motilal Panika And Ors

Ram Prasanna Sharma, J

Appellant would challenge the judgment of acquittal passed by the 1st Additional Sessions Judge, Surajpur acquitting the accused person from the

charges under Section 376 IPC.

For an incident happened at about 7 pm on 20.05.2009, the FIR was lodged at about 21:30 hours on 24.05.2009 vide written report (Ex-P-1) stating

that when she was returning on her bicycle, on which one bag of coal was loaded, at about 7 pm the accused came from behind and finding her alone,

he inquired about her friends and thereafter took the prosecutrix to the nearby forest, which was retaliated by the prosecutrix, but the accused slapped

and tore down her blouse and after lifting her saree and petticoat, he committed forcible sexual intercourse. The prosecutrix states to have informed

her daughter about the incident on the same day and to her mother on the next day. She also says that Surajpur SC/ST Police took down her report

but sent her to Jainagar Police Station for medical examination.

After appreciating the evidence on record, the trial Court held that the prosecutrix, her daughter and her father are making contradictory statement,

therefore, her case is not believable.

It is argued that her daughter is not an eye witness, therefore, her statement cannot be used to discredit the appellant, who has supported the

prosecution and moreover, the medical evidence in respect of injuries over her breast by teeth bite is also proved. It is also argued that from the FIR

itself, it is proved that the appellant was making effort for lodging the FIR, which was not taken down by Surajpur Police Station, therefore, the delay

in lodging the FIR is properly explained.

Having heard learned counsel for the parties and on perusal of record, we are of the considered view that the trial Court should have discussed the

evidence more elaborately. However, we find ourselves unable to disagree with the ultimate conclusion reached by the trial Court, because there is

enough discrepancy or contradiction in the prosecution case, which makes it unsafe to convict the accused.

In the FIR itself, the prosecutrix states that her FIR was taken down by Surajpur Police, however, in her case diary statement (Ex-P-4), she would

state that she had narrated the incident to her mother, her daughter and her brother Subhash as also to one 'Bagga Sardar of Vishrampur' and further

that Surajpur Police instructed her to lodge FIR with Jainagar Police Station without stating that Surajpur Police had taken down her report. One

Bagga Sardar appears to be the person who took the prosecutrix to one Dashrath Advocate for preparing the FIR, however, neither Subhash nor

Bagga Sardar is cited as a witness by the Police.

Be that as it may, the delay in lodging the FIR, as mentioned in the FIR (Ex-P-2), is for want of the certificate of Scheduled Caste, but that is not

the explanation mentioned either in the FIR or in the case diary statement. It is not stated in either of the document that she has lodged the report after

obtaining the caste certificate. In the written report as well as in the case diary statement, the prosecutrix would state that she had informed about the

incident to her daughter but her daughter Jyoti (PW-7) has turned hostile and not supported the prosecution. Had it been a case that the matter was

never informed to PW-7 Jyoti, her statement would have been insignificant, but since the prosecutrix herself informed the Police that the entire

incident was informed to her daughter Jyoti, her statement denying the knowledge about the incident assumes significance.

Even if we may not fully agree with the trial Court's opinion that it is a concocted case, still the quality of evidence available on record is unsafe to

convict the accused for an offence under Section 376 IPC. With the delay in lodging the FIR having not been properly explained and her daughter not

supporting the prosecution case and several persons with whom the prosecutrix interacted from the date of incident till the lodging of the report like

her brother Subhash and Bagga Sardar having not been examined, we are of the view that the accused is entitled for benefit of doubt.

On the basis of above stated discussion, we find no case for entertaining this acquittal appeal, it deserves to be and is hereby dismissed.