ANIL MISHRA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Fir (Ex.P-2) lodged by the prosecutrix (PW-1) a mother of two children alleges that on 05.12.2005 in the night hours when she was sleeping in her house, the accused/appellant came there, threw her on the cot and committed forcible sexual intercourse with her in spite of the resistance made. FIR further says that half and hour thereafter when her husband returned home she narrated entire incident to him and in the next morning report was lodged. Thereafter, she was sent for medical examination and after completion of investigation charge-sheet was filed against the accused/appellant under Sections 456 and 376 IPC and Section 3 (1) (xii) of Scheduled Castes and The Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Special Act") followed by framing of charge.

(2.) After appraisal of the evidence adduced by the prosecution, the Court below vide judgment impugned dated 26.06.2009 passed in Special Sessions Trial No.9/2006 acquitted the accused/appellant under the Special Act but convicted him under Sections 456 and 376 IPC and sentenced him to undergo RI for 3 years with fine of Rs.500/- under Section 456 and RI for 7 years with fine of Rs.500/- under Section 376 IPC, plus default stipulation. Hence this appeal.

(3.) Counsel for the accused/appellant submits that the evidence adduced by the prosecution is inadequate to convict the accused/ appellant under Sections 456 and 376 IPC as all the important witnesses including the husband of the prosecutrix have not supported the case of the prosecution and declared hostile. He submits that even the medical report does not corroborate and that even the FSL report has not been filed by the prosecution in support of its case. He further submits that according to the prosecutrix herself at the relevant time she was in her house along with her two 5 and 10 years old children who were awake at the relevant time, but there was a serious flaw on the part of the prosecution in their non-examination.