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2. Brief facts of the case are that, prosecutrix (PW1), aged about 36 years, has lodged FIR (Ex.P1) to the Police against the appellant, alleging that on 07.07.2002, when she was in her house alone, her servant i.e. the appellant, came inside her house, and committed rape upon her in the kitchen and fled away. Immediately after the incident, she informed it to the neighbour, Chitrangad, thereafter, to Sarpanch- Hemant Sahu, and Ramlal. In the next morning, she went along with the Kotwar to lodge the report at Magarlod Cra 883 of 2003 Police Station. On the basis of report lodged by the victim, Police registered the offence under Sections 450 and 376 of the IPC. She was sent for her medical examination to the Government Hospital, Magarlod, where she was examined by Dr Smt Sharda Thakur (PW7), who gave her report vide Ex.P6. While examining the victim, the doctor has not found any external injury or scratch on her body and she opined that she was not able to confirm diagnosis about hymen cut. She referred the victim to Mekahara hospital, Raipur for Gynic test. Two slides of her vaginal swab were prepared and handed over to the Police for FSL examination of the same. Her petti-coat and pair of shoes of male member were seized from the victim vide Ex.P2. Spot Map (Ex.P15) was prepared by the Police, and another spot map Ex.P10 was prepared by the Patwari. Appellant was arrested on 09.07.2002 and he too was sent for his medical examination to the Government Hospital, Magarlod, where PW8 Dr TR Dhruv examined the appellant, and gave his report vide Ex.P8, in which he found the appellant to be capable for sexual intercourse. No injuries were found on the body of appellant also. The slides prepared from the vaginal swabs were seized vide Ex.P13, and sent for FSL examination. The clothes of prosecutrix and the appellant were also sent for FSL examination to the forensic Science Laboratory, Raipur. The statement of prosecutrix as well as the witnesses have been recorded under Section 161 CrPC. After completion of Investigation, Charge-sheet was filed against the appellant for the offence punishable under Sections 376 and 450 of the IPC.

8. Heard learned counsel for the parties and perused the record.

Cra 883 of 2003

9. PW1, the prosecutrix has stated in her deposition that the appellant was her servant who was working as Milkman in her house, and maintain the cattle, he also milking the cattle of her house. On the date of incident, at about 7 pm, he came to her house, put the cow milk in the almirah, closed the outer door of her house and entered her kitchen and committed rape upon her. She raised alarm and rushed towards the door. She rushed to the neighbour of her house Lachanu Satnami, but he was not there in his house, and his daughter Neetu was there in his house, she informed the incident to her that the appellant has thrown her on the ground and fled away. Thereafter, she went towards the house of Chitrangad, who was taking his dinner at that time, and she informed him about the incident, then, he advised her to go to the house of Sarpanch and then, she went to the house of Sarpanch-Hemant, and informed the incident to him, and then, the Sarpanch has advised her to go to the house of Ramlal, who is the president of Sahu Community. Then, she went to the house of Ramlal but he went to sleep, and his wife asked her to come in the morning. From there, she again came to the house of Sarpanch, and then he sent her to the house of Lakhan Kotwar, to whom she disclosed the incident. Lakhan Kotwar said that he will go to the Police Station in the morning, and she will accompany him, if she wishes to come with him. She was being taken by him to the house of Arjunlal and the Kotwar informed Arjunlal about the incident and then, the Kotwar was advised to lodge the report. On the next day, at about 12 noon, Kotwar went to the Police Station to lodge the report along with the prosecutrix. After lodging the report, she was sent for her medical examination to the hospital.

In her cross examination, she stated that the appellant was doing the work of maintaining her cattle and taken them for grazing. She admitted that Cra 883 of 2003 she used to talk to the appellant and about her offering tea to him, whenever she was taking tea. She further stated that she is residing along with her nephew and niece. Her niece has eloped with another person from the date of incident, her nephew is not residing with her and at the time of incident, he was not at the house but she has disclosed the incident to him also. She further stated that she kept the door closed when she was inside the house. The appellant has come after closing the door of gali and verandah. She was cooking food in verandah and the place where she was cooking her food and the appellant committed rape on the very place. In Paragraphs 16 to 20 of her cross examination, she described the manner and act of the appellant. She stated in her deposition that she received injuries on her private parts as well as other parts of the body and disclosed the same in the FIR, and if it is not there, she could not tell the reason. She further stated that after putting the milk in the almirah, the appellant closed the door of her house, has not been informed to the Police but if it is there in her police statement Ex.D1, she could not tell the reason. She again reiterated that she disclosed the incident to Lachnu, Neetu, Chitrangd, Ramlal, Sarpanch-Hemant and Lakhan Kotwar. She admitted that she was canvassing for the BJP party in favour of one Deep Saha who was the Ex.MLA. She admitted that she was the Ex-MLA and therefore, there is rivallary in between the two groups. She further admitted that mother of the appellant is the ward member of the village.

15. PW3, Arjunlal is the person the prosecutrix had gone to inform the incident after informing the same to PW2 Lakhan Kotwar. PW3 stated in his deposition that the prosecutrix has informed him about the incident of rape committed by the appellant. In his cross examination, he had stated that the prosecutrix has not informed about the manner in which appellant acted. He admitted that Lakhan Kotwar has not informed any incident to him.

16. From the evidence of prosecutrix PW1 it reveals that immediately after the alleged incident she went to the house of her neighbour, Lachnu, father of PW5-Neetu, from where she went to the house of PW4-Chitrnagad, then to the house of PW6-Sarpanch, thereafter, to the house of PW9-Ramlal Sahu, then to the house of PW2-Lakhan Kotwar and PW3-Arjunlal, but none of these Cra 883 of 2003 witnesses have supported case of the prosecution that they were informed by the prosecutrix about commission of rape by the appellant upon her. They only informed about the quarrel raised by the appellant with prosecutrix, and fleeing away. PW3 has stated that prosecutrix has informed him about the incident but prosecutrix has not stated in her deposition that she informed PW3 about the incident. In para 4 of her deposition, prosecutrix had stated that PW3 was being informed about the incident by PW2 whereas PW2 has not stated anything in his deposition that he had been informed about the incident by PW3. No one is there to support the case of the prosecution that the prosecutrix has informed about the incident immediately after the commission of alleged rape.