C9 ®< IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) Crimiiial Appeal No. 392 72004 APPELLANTS :1. Hariram, aged 40 ysars, (IN JAIL) 'S/o. Sukhdev, 2. Motiram, Aged 45 years W/ o. Raghunath Both R/o. village Aasana Dongaghat, Jagdalpur P.S.‘Kotwa1i District Middle Bastar (C.G.) VERSUS RESPONDENT 2 State of Chhattisgarh AN APPEAL UNDER SECTION 3 4 (2) CR.P.C. i x HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeai No.363/2004 Singh Bench: Hon'ble Shri Dilip Raosaheb Deshmukh, J. Harimm & ano'rher Vs. S‘I’a're of Chhaf‘l'isgarh Posf for- orders 30 =0! Low; \ Sdl- \\ Dilip Raosaheb Deshmukh Judge 5g /// k? g//// ' // HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeai No.363/2004 Single Bench: Hon'ble $hri Dilip Raosaheb Deshmukh, J. Hariram & anofher a f Vs. S'I’a‘re of Chhaf‘risgar‘h « PRESENT: - Shri D.R.Shorma, Senior Counsel wi‘rh Shri B.D.Badgayan, Ienrned counsel for The accused-appeHarifs. 5hri J.D.Bajpai, Govt Advoca‘re/Addi‘rioml Public Prosecufor' for The 5+a1'e. J U D G M E N T k (Delivered on 30—01-2006) This appeal is directed againsf ‘rhe judgmen‘r dufed 22-11-2003 delivered by Shri R. S. Shorma, $pecial Judge, 5.C. 6: S.T. (Preven‘l'ion of Affroci‘ries Acf), Basfar a‘r Jagdalpur in Sessions Case No.344/2003 whereby The appellan‘l's were convicted under 5ec1’ion-376(2)(6) of lhe I.P.C. and were senfenced To rigorous imprisonmenl of 10 years and fine of Rs.5,000/- and in defaul‘r of paymen‘r of fine ‘l’o undergo oddi'rional rigobrous imprisonmenf of 2 years. 6:7? Briefly sfafed fhe prosecu‘rion s‘ror'y is 1'ha'r fhe prosecufr'ix Kondi Bcxi aged abouT 32 years, a divorcee is deaf and dumb. Sirpa‘ri PW-1 is The bro‘l’her of 1he prosecufr'ix. On 29-05-2003, The prosecu‘fr‘ix Kondi Bai had gone wifh her- son Damr-u PW-Z 1'0 fhe house of Sirpa'ri PW-l. On 30-05-2003, Sirpafi PW-1 had gone To villoge-Kurkum wiTh some work and his wife Mula Bai PW—3 and The prosecuTrix were aT home. AT ibguT 4 P.M., The prosecuTrix Kondi Bai PW-8 along wiTh her son Damru aged abouT 7 years had gone To Mango PlanTaTion for picking Mangoes. The appeHanTs came There and £ ThreaTened Damru PW-Z, who ran away. ThereafTer, The appellanTs commiTTed rape on The prbsecuTrix one by one. The prosecuTrix reTurned home. On 01-06-2003 i.e. 2 days afTer The occurrence, The prosecuTrix informed SirpaTi PW-1 on his reTurn abouT The incidenT by signs. Damru PW-Z Toid SirpaTi PW-1 The names of The accused-appellanTs. The prosecuTrix idenTified The appeHanTs as The perpeTraTors of The crime. SirpaTi PW-1 accompanied by The prosecuTrix wenT To Police STaTion-KoTwaH, Jagdalpur which is siTuaTed aT a disTance of 5 K.M. and Iodged FIR. EXP-2 on::§2-06-2003 aT 11 PM. aT nighT. The prosecuTrix was senT for medical examinaTion. Dr. SmT. Hina Ahmed, PW—1O examined The prosecuTrix on 03-06-2003 buT did noT find any signs of sexual inTercourse on The prosecuTrix and expressed in-abiliTy To give a definiTe opinion. She did noT find any injuries on The prosecuTrix. The hymen had a old Tear and was of normal size. The UTerus was also of normal size and There was no injury in The privaTe parTs. Dr. Shri Sanjay Basak PW¥9_ examined boTh The accused-appellanTs on 04-06-2003and opined ThaT They were @ capable of performing The sexual infercourse. No exi-emal injuries or and no Vinjury on The geni‘mls of bo‘i’h accused/appellanTs/L was found. Affer complefion of invesfiga'rion, bo‘l‘h The accused~appelianfs were prosecu'red for fhe offences punishable under 5ecfion-376(2)(G) of fhe I.P.C. Bofh The accused-appeHnn‘rs abjured fhe guiH', pleaded innocence and led no evidence in defence. The prosecu‘rion exsgined as many as 10 wifnesses. The Trial Judge relying upon fhe‘ festimony of “the prosecu‘rrix and Sirpafi PW-1 <3: Damru PW-Z convuc‘red and sen'renced the appellanfs as shown m para-1 (Supra) Learned Senior counsel for The appellanTs Shri D.R.5harma has argued ThaT The evidence led by The prosecuTion does noT safisfy The legal requiremenT of proof under l SecTion-376(2)(G)1 of The I.P.C. IT was also conTended ThaT There was absoluTely no evidence of peneTraTion in This case. The prosecuTrix was a deaf and dumb person. Her evidence was recorded wiTh The help of inTerpreTer who did noT say ThaT The accused-appellanTs had caused peneTraTion of Their penis inside The vaginal orifice of The prosecuTrix. In The absence of such proof, The offence. of rape was noT esTablished againsT The accused-appellanTs. IT was also conTended ThaT There was no saTisfacTory explanaTion for The delay of 3 days in lodging The F.I.R., when The Police 5TaTion- ‘ KoTwali was siTuaTed aT a disTance of 5 KM IT was also largued ThaT Mula Bai PW-3 Wife of SIrpaT! PW 1 To whom The prosecuTrIx had informed abouT The incidenT by making gesTures, did noT supporT The prosecuTion sTory. On The oThetf’M i. hand, Shri JID‘Bnjpai, Govt AdvocaTe/Addi‘riona! Public Prosecufor for- ‘rhe 'STa'fe has argued in supporf of The impugned judgmen‘r of Lower Court Learned S‘m're Counsel has sfrongly placed reliance on Kanwar Pal 5. Gill Vs, Sfafe (Admn. U. T. Chandigarh) repor‘red in A.I.R.-$.C.W.—3590 and Sfafe of Punjab Vs. Ramdeo 5inq/1 repor'red in 2004(2) C.G.L.J.—66. while confenaing Thaf There was a proper eéplanafion for The delay in lodging The FIR. He also u con'I’ended j'haf The evidence of peneTraTion for The offence punishable under 5ecTion-376(2)(G) was merely a TechnicaliTy and noT a legal requiremenT and in The absence of specific proof Thereof convicTion under SecTion-376 (2X6) could be susTained. He also argued ThaT The prosecuTrix complaining of having become The vicTim of offence of rape is noT an accomplice of ‘rhe crime and There is no rule of law ThaT The TesTimony cahi‘ioT be acTed wiThouT corroboraTion in maTerial parTiculars. He sTrongly conTended ThaT absence of injuries on The person of The prosecuTrix did noT falsify her TesTimony since she was a married woman and was habiTual of sexual inTercourse‘ On These grounds, he? supporTed The impugned judgment s TN 4. Having considered The rival conTenTions and perused The evidence available on record, The firsT poinT which requires consideraTion is wheTher in an offence under SecTion- 376(2)(G)of I.P.C., The evidence of even The slighTesT peneTraTion of penis inside The vaginal orifice of T’ne prosecuTrix was necessary or noT. Rape is defined in SecTion-i/ 375 of I.P.C. as under :- “ 375~Rqp¢— A man is said m commH “rape" who, except in 1'he case hereinafter excepfed, has sexual infercourse wifh a woman under circumstances falling under any of fhe six following descriptions :- F/‘rsr -Aguins+ her will. Second/y- WiThouf her consent Mird/y- With her consent, iuhen her consen‘i’ has been oE'if’ained by puffing her or any person in whom she is inferesfed in-fear of deaih or of hurt Fourfh/y— Wl'rh her consenf when +he man knows “rho? he Is no? her husband and 1'ha'r her consenf Is given because she believes fha‘r he is anofher man fo whom she is or believes herself f0 be lawfully married. Fifiiwly- Wi‘rh her consent, when, af The fime of giving such consent by reason of unsoundness of mind or infoxica'rion or The adminisfra‘i'ion by him personally or 1hrough another of any s‘rupefying or unwholesome subsfance, she is unable ‘ro understand fhe nature and consequences of that to which she gives consent. Sixth/y - With or without her consent, when she is under sixteen years of age. Exp/anat/on— Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Underlined by me) Excepfion— Sexual intercourse by a man with his own wife, the wife being under fifteen years of age, is not rape. The Apex Court in Medan éapa/ Kakkad Vs: Naval Dwey & anafher reported in 1992sJLJ-377 has held that even/,/ slighfes1’ pene1'm'rion wifhou‘r emission of semen cons‘rifufes The offence of rape. Pur'rioi pene‘rm‘rion of fhe penis wifhin The Labia majom or fhe vulva or pudenda wi‘rh or wi‘rhou‘r emission of semen or even an affemp'r a'r penefra'rion is quife sufficienf for- fhe purpose of 'rhe law. If was, fherefore, quife possible +0 commif legally 1’he offence of rape wifhouf producing any injury To fhe g'eni‘rals or leaving any seminal {rains Thus, even The sligh‘resf pene‘rra‘rion cons‘riTufes The offence of rape. In Sfare of Kamafaka Vs. 5ureshbabu Puk Rgé Par-ml reporfed in A.I.R.—1994-5upreme Court-966, “the Sfa'l'emen‘t of vic’l'im of rape in examina‘l'ion—in-chief as well as during cross—examina‘rion was ’rha'r 1he accused did some‘rhing 1'0 her which he oughf no‘r 1'0 have done. She did no‘f disclose specifically as 'l'o wha'r exacfly 'l'he accused did on her. She had merely said 'rhaf fhe accused-appellanfs were having infercourse againsT her will. In fhe absence of evidence 1'0 supporf The prosecufion s‘rory Tha‘r fhe accused had commi‘r‘red sexual in‘iercourse wi‘i'h her, i'i' was held Thaf ‘l'he offence of Section-376 of The I.P.C. was no'l' made out i K‘ E: ‘ For proof of offence under Section-376 (2X6) of I.P.C., if is fhus absolufely essential for The prosecu‘rion To lead evidence of penefraTion of The penis by The accused-appellanT inside The vaginal orifice of The prosecuTrix. The prosecu‘l'ion has nof led any evidence in This regard. This requiremenT of law is noT a mere TechnicaliTy. The case law ci‘red by The learned AddiTional Public Prosecufor does no? apply To The presenT case since The facTs and circumsTances of The case law ciTed are clearly disTinguishabIe. IT is also The duTy of The//CourT, 1'0 elicif from fhe prosecufr-ix wha'r she mean‘r by using words Iike “ Eum Kaam", “Gakrf Knam", "Sambhog" and whe‘l’her pene'rrafion had Taken place. The Cour'r, while recording fhe evidence of 1'he prosecu‘l'rix in a case for an offence under Section-376 IPC is no? 1'0 act Iike a mere specfa'ror and 'I'o record evidence mechanically bu‘r has ‘ro sai'isfy Thai" The ques‘rions pui' 1'o fhe prosecu‘rrix have been unders‘l'ood by her befo‘refanswering. In a case Iike This where ‘rhe prosecu‘rrix is a deaf or dumb. person 1he CourT mus? record ‘rhe demeanor of fhe wifness as ‘ro wha‘r gestures or signs she made ‘ro 4 signify “Sambhog'hor “Bura Kaam". In “rhe‘presen‘l’ case, 1-he *esfimony of Dhaniram PW—5, Trina'l-h PW-4 and Mula Bai PW- 3 did no‘r show fhaf soon offer reaching home or even before The villagers Kondi had made any such gestures or signs To signify sexual infercourse wifh her. In her sfafemen‘r Para-1. Kondi Bai had sfa’red Thaf fhe accused-persons had commif‘red “ $a/af Kaam”. Wha‘r she meanf by “ Gala? Kaam" has no1' been explained. She sfa'red ‘rhaf “Gala‘r Kaam" was done near 'rhe fank buf in cross-examinafion para-'2 she has sfa'red fhaf sexual infercourse was commi’rfed onfler oufside the room. Kondi Bai PW-8 has in para-2 deposed fh rough an infer-prefer fhaf she had susfained injuries on her back, wais‘r efc. and lo'r of blood had also oozed from her body. She also sfofed Tha‘l’ her bangles were broken, clofhes were forned. However, fhe medical evidence of Dr.- S’m‘l’. Hina Ahmed PW—10 does nof corroborafe fhe above version. This renders her ‘lesfimony wholly unworthy of credi'r. The evidence led by fhe prosecu‘rion thus falls shorf of The requisife legal proof f9 // consfifu‘l’e fhe offence of rape. v.4 / 6. Coming To fhe evidence led by 1he prosecu'rion Sirpafi PW-1 in para-2 sfafed fha‘r afmr re’rur-ning home ‘rhe prosecu‘rr'ix had, ; by making signs Told him the? a man had commi'h’ed rape on her while ‘rhe ofhe’r" per-son had fhrem’ened ‘rhe chi!d Damru PW-Z. Thus even as per Sirpa‘l’i PW-1 no gang rape had been commih‘ed on Kondi Bai. $irpa+i PW-1 fur’rher sm‘red 1'ha1' he asked Damru as f0 whaf had happened whereupon Damru identified Moiiram as 1'he person commi‘r‘l’ing rape on Kondi ‘a Bafi and said fhai fhe oi’ner person Hariram had merely fhreaiened him. The iesfimony of Damru PW-Z fherefore ’ assumes relevance. Damru PW-2 has in para—27 sin-red Thai when he had gone with Kondi‘Bai for picking-up mangoes, ‘rhe accused-appeHan'r Hariram had caugh‘i’ hoid of her mofher and Threafened him wi1h a Danda and iook her mother away. In 1he nexf breath, he said fhai' Tio i.e fhe accused Motiram had fhreatened him, thereafter his mofher was faken in'ro the field and she returned home at night. In cross-examination para-10 he sharply contradicted the above by saying that Kondi returned within five minutes and he returned home with her. He had told Sirpati PW-lithat his mother was caught and taken away by Hariram. Ddmru PW—Z nowhere disclosed that he witnessed the sexual intercourse committed by the accused-appellants. In para-7, he'has denied that upon being threatened he ran away to the road and asserted that he was crying and standing at the place of occurrence. In cross-i examination in para—9, he has stated that since he did not see his mother he was crying and when his mother Kondi bai came after 5 minutes, he returned home with her. By any stretch of imagination, the evidence of Damru PW-Z does not lead to / an inference Thu? Kondi Bai was subjected 1o sexual infercourse by any of fhe appeilams. Tes‘rimony of SirpaTi PW-l, fherefore, fails To inspire confidence. Dhanir-am PW-5 has also sfo'l'ed ‘rha‘r Kondi had made gesfure by holding her‘ hair and poin‘red ‘l'o bo‘l'h fhe accused- appellan'rs. Tr-ina'rh PW-4 has s'ra‘i‘ecl that Kondi had merely poinfed 'ro bofh accused-appellants and had made ges‘rures dha‘r her hand was held by The accused persons. Thus, Kondi did no‘l’ make any such gesture so as ‘ro signify rape on her. Mijla Bai PW—‘3 has sTa‘recl ‘rha‘r Kondi Bai was frying To 1'ell her some‘ihing bylmaking gesi'ures but she could no‘i unders‘l'and whaf Kondi Bai wani’ed ‘l'o Tell her. She is ihe wife of Sirpa‘l’i PW-l and was presenf a? the house when affer fhe occurrence Kondi Bai had refurned wi‘l’h Damru. She has specifically denied 1'haf Kondi Bai had fold her fha‘i' 2 persons had forcibly lif‘red her and commii’fed rape on her when she had gone 1'0 pick-up mangoes. She fur‘rher sfa‘l'ed Tha‘r Kondi did nof idenfify fhe accused—appellan‘rs. IT is also per'rineni' To noie fha‘r despi'l'e The Police STqTipn being only 5 KM. away from The house of SirpaTi PW-1inei1’her Mula bai PW—3 nor TrinaTh PW-4 or Dhaniram PW-5 Took Kondi Bai To The Police STaTion To lodge any F.I.R. Having gone Through The prosecuTion evidence in iTs enTireTy, The following poinTsemerge :- (A)Damru PW-Z who was eye-wiTness did noT TesTify ThaT eiTher of The accused-appellanTs commiTTed rape on Kondi Bai. “ 4 w / @ 10 (B)The +es1’imony of Kondi Bai Tha‘l’ she has susmined several injuries on her body wi'rh blood oozing fherefrom is rendered unreliable in view of the Tesfimony of Dr. 5min Hina Ahmed, PW-10. (C)Mula Bai PW-3 who was presen‘l’ of home and To whom Kondi Bai had made cerTain gestures could nof make ou‘l' fha'i' Kohdi was subjected 1'0 rape. (D)The Tesfimony of Dhaniram PW—5 and Trina‘i’h ‘ PW—4 also does noT show fha'r on +he dafeof occurrence Kondi had made certain gesfure +0 signify rape on her. (E)The fes‘rimony of Sirpa-ri PW-1 in para-2 Tha'i' Damru had idenfified Mofiram as The person commi‘H'ing rape on Kondi Bai is rendered unreliabie since Damru PW-Z has nof corrobora‘red The above fac‘i. (F) There is no legal evidence Tha‘r even fhe sligh‘resf penefrafion had Taken place inside 'rhe vaginal orifice of The prosecuTrix. (G)The broken bangles ofrj‘i The blouse of The prosecuTrix which was Torn, was noT seized during invesTigaTion. 10. In The resulT, The convicTion of The accused-appellanTs under SecTion-376(2)(G) of The I.P.C. cannoT be susTained in The eye of law. The appeal is allowed. ConvicTion of The appellanTs under SecTion—376 (2)(G) of The I.P.C. and senTence imposed Thereunder are seT aside. The appellanTs are acquiTTed of The charge under 5ecTion-376(2)(6) of The I.P.C. The appellanTs vw.=' 11 sholl be se'f af liber‘ry for‘l’hwifh, if no‘f required in any o‘rher case. Fine, if paid, shaii‘be refunded 1'0 'i'he appellant /Ai hmukh / Sdi- Diiip Raosaheb Des Judge i Tumune I i,,