aa.^I-HC-22 ^ sirS^i^ 'fewSII?!1! W:lWHfel T^ •aMiw?,1 WteTre. t^rffy1 3TI^?T •qaRF •cnn^T'amrai' "Wt; 200 '"'fare^s}' ^rafwft--( trp:i?ff •? fest ^7 3lf-?rq'3TR^I HIGH COURT OF CHHJATTISGARH AT BILASPUR S.B. HON'BLE SHRI JUS'lriCE DHIRENDRA MISHRA, J CRIMmALAPPiEAL, N0. 471/2005 APPELLANT Moti Ram@ Gutaru Aged - 27 yrs. S/o Ganga Raip. V&RSUS RESPONDENT State ofC.G. And CRIMINALAPPJEAL. N0. 298/2006 APPELLAN'I v RESPONDENT 4.10.2007 Shri Rakesh Sahu, coujnsel Shri:Arun Sao, GA for Ra.sa. Kishun @ Bhordul Aged - 2Q yrs, S/o Bhordul ;, | • R/o. Chirai Pani, P.S. Manendra Garh - Distt. Koriya C.G. ;1 | ;RSUS . ' State ofC.G. for the appellants. he State/respondent. lilt !'< STI^I^I f^iwsnt'sn WTiw^afei y- IKffi': sss^ asffi.5; 1 sss1 ^ ^s}!?IT!^,''gTf T5.,rs«Yl]till< ir; ;::1. :-:!:: ': '\1::1' 3T[^iT"1cr?ran Ij'ffWvrr'sfflW'""""""""""""""""""^ 200 i!li i:! i^! •condoriation of delay in filinj 'Wiferan iffTcif t) fe%r •ri^TC ^ s#m aro'fl Heard : on ': M.Cr.P.^Io. 882/06, applicatiori g the instant appeal as the| s been filed with a delay of 134)9 days. For the reasons: indic;|i alsol considering the fact th<|i preferred ! by appellant tf adjudicatipn, delay in filing t^ Cr.A.No. 471/05 prefe^red by appellant Motiram @ G]utru & Qr.A. 298/06:preferred b^ appellant Ramkishun @ Bhch'dul are being disposed of by thi^ appeals are directed: agains) order: of sentence dated 15[ whereby^ learned Additional| i;!i:: : . ; Distt. Koria has convicted tht : 11,: :' ! taffildshun @ Bhordul undj ea.ch !of them to undergo Rs.200/- and in default iinpl'ison.ment for two I'n.ontj-is and Ramkishun @ Bhordu| Sections 376, 376/34 ofIPC) beqn sentenced to undergc| Rsil,QOO/- and in imprisonment for. five month [: the judgment ot' conviction ted in the above applica-;on t the connected Cr.A.No. .'71 lotiram @ ic instant appeal is condoned. for -irne and /05 Gutru is penj^ing appellant Ramkishun @ Bhc] comrnon judgment as both i]hese and 6.2002 passed in .S.T.No. Op/02 Sessions Judge, Manendra i^arh, appellants Mottram @ Gutn^ and ?r Secdons 342 ofIPC, senu r^ced il for six months, pay a : i'iiie of 'thereof, to undergo adcUUonal Appellants Motiram ©^'utru have been also convicted,i|.lnder respectively and each of'thei RI for 10 years, pay ia li defaullt thereof, to further un •i has 'ie of -lergo -^.r~""-—:r""l':'f'. •• tl-d ili 11 !l I^^sS"^^. SS IBjSE'^ l^t%3"?'^<' ^^^;^' -HC-22 SIT^I-Ef^ Ri-iitti snsv *t|i+ ~Qff3 ^rCT^rr'aTqta?' ^ •:^TqRra;:®^ftwis.^wwy m^?r T^cs ''TPT. 200 1%R?<ir' 3 3?ft?i'renw?ifN 2. i Casp of the1 prosecutio^ aboyt^ :12.00 nopn !/the prosef: going towards field for; traiji appellants' caught:her near tt| andi .took :her inside his; confined her by^ bolting the( Mo^ram. coininittetl rape witl-j and;;gaggirig -her; whereas kepfi in !confinement upito 6| when Ramkishun shouted incident.. The prosecutrix incident,, however, she narral also the ^neighbourers. Thel followiag day in Police Statio^ 3. ' During investigation thj examination to Govt. Hospita^ Tirki, examined her and!gav( apparels of the prosecutrix Ex.P/4. and sent for chemic41 advised chemical examinaticln seinen. -After completing in^. against'the appellants in the| Class, Manendragarh and tt| for trial by the learned Additijinal Wlf?Fit^ 1W9 ^ ftizt tpiR^Tt ^7 S(f:<n 3ITOT . ;iofi, in brief, is that on 6.8.2001 at |:utrix, aged about 12 years, was isplantation of paddy when \ the house of Ramkishun @ Bhordul. ho^se where Ramkishun @ Bhordul door from outside. Appellant her after lying her on the ground R^mkishun stood guard. She.was .00 p.m. and she was freed only tl-i|at villagers have'learnt -about| the wbs threatened not to disclosel the [ed the incident to her parentg as eafter, report was lodged on Manendragarh vide Ex.P/1. the prosecutrix was sent for meclic.al :Manendragarh where Dr. Neelam her report of Ex.P/6. Wearing t/ere taken into possession under. 1.1 examination to the doctor, who for confirination of presence of jvestigation charge sheet was filed 'Court ofJudicial Magistrate First ie same was received on transfer Sessions Judge. - ; ;HC-22 W^TWI feipff siit?i !.bt(i<*i 'HfetI •.":.^^^^::.i^.i^<-^ffifr^:^!^-J:'<^^l'1'i.')^l'i^:'1^(^;'^te'1:''^l'ri>'^ 7£T^TPncra, 'l^ftWTS. 'f^WHy 2'^;?%^ \\ • '^ 3Tr^?r ira^7 •(rrwiTtfTtri-a?' ''fT^ 200 fe^tT' A_ 4. ,' \ During:; trial seven •prosecution. Thereafter, were recorded in : which th<i agairist them in^the prosecijition and 'false 'implicatiori. hearing lcounsel for the i|- sentenced the 1 appellants as | judgmerit.' ' ' . : vj^itnesses were examined by the st^itements of the accused pci-sons iy denied thematerial appearing case and pleaded innocence H((wever, learned trial Coiirt !after fespective parties convicted and menfioned in paragraph 1 of this tHe prosec|utrix 5. ! :1 ; :Learned counsel for no ^evidence that the proseci)i on the date of incident as nc| been'addi-iced by the/prose^ Court has also not recordedl the prosecutruc. The only ^against appellant- Mo| Ramkishun is that he confinl door from outside and facili with her. Referring to that'the allegations are that at'rS.OO noon and freed person's, that too, when the| the prosecutrbt are confinecjl The 'prosecutrix has claimi injuries over her person on statenlient iirR^ff ^ fest ^fw5n '^aifeciaTK'ff appellants submits that there is ;i)ttrix was less than 16 years of age oral or documentaliy evidence has ^ution in this regard and the ^ trial [.any finding with respect to age of has raade allegations of rape tiram whereas allegation against ;d her inside his house, bolte ' the ijtated Motiram in committing rape of the prosecutrix, it is argued Ishe was confined inside the Kouse o|ily at 6.00 p.m. by the accused villagers learnt that Motiram an'd inside the house of Rarnkishun. <td that she sustained numerous account of dragging on the floor (S [ ',( ! ;' ; ': i tKI^^ i!~%^Ss:^ •i^^-i^'-?' ^S^SSs: w. •'^^^:^ ^i:^';;^.; sss^ ,;HC-22 3^'iB1! ft:IW3^ a^iN;'Rfef B^^XA-.::-..-:.— ': i3=r •-4]<<)(ri^, ^flwre. 'feroy sn^yr^sra? tiTdW^wW "S^ 2 tsre^a' s~' ihdre and assault by .belt; but the :above allegation as Dr. M the prosecutrb; on^ the same internal injury on lier perspn| 6. . On the other hail St^te/respondent supported| Coyrt. ' ;• ;•-1 ^ 7. ; ; ^ 'Conyiction of the appe] prosecutrix (PW-3) and her n) is no medical corroboratibn to (eelam Tirki (PW-6) who exaniined play, has not found any external or d, learned counsel for ;! the impugned judgment of the i trial lants is based on the statemQnt of other Jahida (PW-4) 8. : Prosecutrbi has statedl that sh,e was: going alone t(( about110.00 a.m. as the 7Q-75:'steps: away from: accused Bhordul, where her inside thehouse. Both: o| cloth and thereafter, appellaj and Moti committed rape wi< outside. At 6.00, p.m. the 'came outland saw;her mothij hands were unfied by her fled'from there. Her mother house.:^ 'She narrated about| was;gagged by the accusedj ^raiwfrTwfi tf 'f^zt •(fe?T! q? WPffq SITCCT in her deposition before the Court village Banji. from Chiraipa]j).i;at oth4r labourers had gone ahead.; jjJust h4r house, there ,is the ,hou^s .of accji.ised/appellants1 mef her:and'|took them tied both her handiwitj-1-the lalm; Bhordul came out of the:bQu'se {h her. The house was bolted^irom ;i': |door was opened, whereupon|she i"!' [;r and accusr.; ^hordul there;|Her !i!5!' mjather. Howrver, accLisi. . .vlot:i|^ad i! ' took her iiiungwith Bhoi.i i..il (K|her the incidi-'iii to her [UOth i ^itie ^MuU by i;,-,-; !,l,,<,pi.-i.;t;^ !!' ciyLh... •i \m si;'1.; \l 1 'l n ^.••'•.'f' liI-;' XI-HC-22 W^I^I K-ii'* sntn *>1\<h •Hfig ^•y.fs.VS.'^^s-'S.I..' f.^'.v^'-.'":'.".""'"!":-.'.-^."^::- y=i ^TPTCTO, t?tftms. feiray 3T1^T •q^a? tnwffstwra?' 'M 200 Rre^g' (f- accUsed The faci; of tying both of her ^ the FIR. In:paragraph 9 of}; she was dragged by the steps,:as-a result ofwhich sl-k and her jumper was 'stainec| injuries: over her leg and Gudda is adjacent to the beingl:taken fo the room, she has stated that it is con|- by her inother because 1^( Bhordul and her parents did| meeting with appellant Moti| she has denied any acquai) paragraph 13 she has statec^ intercourse for the first timj had no experience of interj injuries over her back and medical examination. tbes, hbuse sHe 9. PW-4 Jahida, mother her daughter went from th^ work.: However, when she| enquired from the neight|i overheard some people tal^ When she asked who was ti •~TP:[?ff'tffBTZt q; 3TPW 3TCTI ?T( (lands by cloth is not mentioned in jier deposition she has staied thaf persons for a distance of 20 ic sustained injuries over her back with blood. She also sustained The house of Ramdas and of Bhordul. While she was had shouted. In paragraph 11 ;ct to say that Bhordul was taken iotiram resided in the house of |not approve her acquaintance and However, immediately thereafter btance with accused Motirain. In that she was subjected to sexual ^ by Motiram and before that she :ourse. She has told about the Itoes to the doctor at the time of [af the prosecutrix, has stated that house on the pretext of going to did not return till evening, she :ht|ourhood and at that time she dng near the house of Bhordul. i|ilking, accuscd Motri and Bhordul i XI-HC-22 sn^riEn f^N' sni?T ^TRN)"Hf?^ -s-si ^nq'ir'ra. i§"tflwre.^?Tray HT'cfyf t)-5fcR Tim-CTr^TiTrcR' '~<T:[, 2BO {q^»'" 'cnwff 'q fyzt Tfe;^ ^;.3if;<ra swn came out of the house and| started running away. However, she caught Bhordul, but IVfoti ran away. The villagers ha^ gatherecl near her house. incident that Moti took her to Bhordul's house and committed. rape: with her after tying 1j Omissions and contradictiorl Ex.D/1 have also been po statement. She has also ^er daughter narrated about the ioth the hands and gagging her. s present in her diary smtement of ^nted out iii paragraph 5 uf hcr stated that the prosecutrix \vas putting on Salwar & Kurta\a.nd there was blood on ner back and her Kuria wa.s stained|with blood. The prosecuu'ix liad told ber that Bhordul has asfaaulted her with belt. 10. Dr. Neelam Tirki (PW-IJ)) has examined the prosecutrix oh.| 7.8.2001 and gave report ol| Ex.P/6. She has statecl that she^ had examined the,prosecuti|ix and did not notice any externa.l| or internal injuries on her ^pivaxe part. There was no mark o^\ injury present on her persor . No sign of intercourse was found on her person and she set|:med to be accustomed ta sexuali intercourse. 'Fwo vaginal ^lides were prepared and sent for| examination to F'orensic $cience Laboratory. However, no; report of F.S.L. is available qn record. 1 11.; After close scrutiny oi] her: irnother, the same dcj following reasons: statements of the prosecutrix and ( not inspire confidence lor the:, ^A^: • BISsft' XI-HC-22 \ ^-ss ^.i(?n?rq. si'a'ra'Te'. fifi'iray 3TT^T TR'^ •miwwtfrsK'""""""""""""""""""^ 200 "•fW^EC 311^1^1 f^ri^ 2F(T^T sf>*iich yFgfl $ airoi'^Rnwafei (9 111) Moti wher •t(TCMI ^ •f^ZI tl^E?I< v svf^n wpf according ] to case ot the prosecution the prosecutri)< was bodily lifted at 10.00 a.rn. while she was proceeding to work to Villagej Banji alcjng with other labourers aiicll confined iti the house ot'Bhordul along v.'ith] sas appellant Bhordul stood guci!'d| in f'ront o[ [he'door and freed only at 6.00i 1 p.m. The| above fact is to be viewed in tne| backgrourld of her admission in paragraplii 11 wherdin she has admitted that her' paren.ts d^d not approve her acquainiancej and meetj that bothl ng with accused Moti. The faci) of her hands were tied witli che cloth, is r<iissing in the FIR of Ex.P/1. Ic i;.| liighly imiprobable that the prosecucrix vvhila lodging t.ie report immediately aiter thc incident njould not mention this fact. This isj a clear im deliberate was in coi She has sustained oersons provement made by ihe prosecutn/i iy to justify her inaction while sh'. ifinement for a period of 8 bours. categorically stated that ;;;ht{ injyries on her back, toes ancl le,| on accoujnt of dragging by tiic acc^i,~;fct uid she had menuoned clieii l':"r" ,';:t! l'! |lil!'( i' i:i;;l,: I 1 XI-HC-22 sn^T^iT k-U'b SVJ^V *^i<* 'gfN -s^s •^[rqTrR, -g^rffire. r«RTra3'i: 3TF^?T v^cK iTtwiT'anre?' "HT. 200 fq^W' -7, injunes to[ the doctbr exammatictn. corroboratfed doctor the incideifaf person or fact, the ejl statementl accused pt the housel committec) not. mspin (iii) The claiml first inter.itourse she had nb is also beled Tirki (PW[ accustomftd admitted sign of ra^e. 12. Thus, in view of totalj and the evideiice availabl prosecutrix being a consent^ WifepN TITOyi? 'q fs^t '(1=ST(?R, ^ alPtfq a'lRi'I the investigating officer as also to br at the time of medical However, her version is iiot ^d by the medical evidence as the examined her immediately al'ter has not found any injury on her Iprivate part. In view of the above jllegatioii, of the prosecutrix in her that she was dragged by the srsons and thereafter, confined in' of Bhordul where appellant Moti sexual intercourse with her, does 1 confidence. of the prosecutrix that it was the with Moti and prior to tliaii experience of sexual intercourse, from the version of Dr. Neelam 1-6) who has opined that she is to sexual intercourse, her vagina :wo fingers easily and there is no .ty of the facts and circumstances ,e on record, possibility of the ng party cannot be ruled out. The b> .M ! ii i't- III ~' "M li'S' II1 f.':':r' 1, StI^F^iI h-U^i 3WRI sh^i* VfW \cl ^er ^OTRTO,. -^FPT®.'ferroy 3ir^?r TRrg? tIITRTTg^j^-------------^ 200 fq'e'^a""" sw^n ws\wi.^ trial Court was not justified| appellants by the impugneij: 376, 376/34 ofIPC and the in convicting and sentencing the judgment under Sections 342, ^ame cannot be sustained. 13. In the result, both appellants are allowed. Thcjir Sections 342, 376, 376/34| acquitted of the above chargf it' not required in any other c^i i3ij !SI<if?rqh T-Wf ^ f£V^T(?R fe sfRm 3^;^ the appeals preferred by thc conviction and sencence Lincicr of IPC are set aside. They are y. The}' be set at liberty Ibrthwith, i.se. , 11 sd/- Dlliruiitlrii Mislu'a Juclgt' lii !il III ?'-::1't .* ; i- ;i ':) :i!