3S _^^fe a~ Seact 'ti'iBsi&a'l IN THB HIGHC OORT GF MADH% BI%DBSH aT 3&miEB&.. CSXHIEal, APPffiL N0.) 3 >~>OF 1996 AEE®(IABT s- aiagat-s.ga-'aE Ourga Sin^i Sced aged (In Jail)^ 2g yeacsei, resldent aE' fisilway •tfolony, fiajhara, DigtrietBurg (M.P.) • •VEESSS RBS?gt©BNT t- 'Ehe:State oE Madhya Prqa/esh thrcagh 7" P.S. Bajhar^ Olstriet (M.P.) . >. / ^s"'x Wm^ ^&" . ,:^f-^ ''i.i.sa^" "'t! AP1 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1505 of 1996 APPELLANTS RESPONDENT VERSUS John and others State of Madhya Pradesh Criminsl Appeal No. 1553 of 1996 APPELLANT Bhagat VERSUS RESPONDENT State of Madhya Pradesh ^S-Sfe Smt. Kiran Jain.Shri Pankaj Agrawal and Shri U.K.S. Chandel counsel for the appellants. Shri Akhil Mishra, Dy. G^i for respondent/State. CRIMINAL APPEALS UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. J U DG MENT (05.07.2011) Since the aforementioned two appeals arise out of the same judgment and order dated 27.8.1996 passed by Additional Sessions Judge Durg, in Sessioas Trial No. 281/1995 convicting the accused/appellants under Section 376 (2) (g) IPC and sentencing each ofthem to undergo rigcrous imprisonment for ten years and pay/'fine of Rs. 1000, in defau.'t of payment of fine to further undergp rigorous imprisonment for three months, they are disposed of by this common judgment: 2. Case ofthe prosecution in brief is that on 30.3,1994 FIR Ex. P-3 was lodged by the' prosecutrix (PW 4-A) aged about 14 years at the relevan.t time alleging that on 29.3.1994 at about 8 p.m. when she wasreturhing after answering fhe call of nature from behind the fences of one Jhadurarh, accused/appellant Bhagat l-n ,i;t»... tsfn< •^ —-2-— • came there, caught hold of her hand, asked her to accompany him to a nearby barren field and on refusal by her, he slapped her twice and threatened to kill her in case she raised cries. Thereafter, it is alleged that he gagged her mouth with the handkerchief, lifted her away near the beshram .shrubs, threw her dowri and after removing her salwar and underwear committed forcible sexual intercourse with her and when she tried to raise an alarm, he gave two-three slaps to her. It is further alleged that after the act was over, the accused/appellant was leaving the spot with her underwear and salwar but when she started weeping, he put the same back and ran away. Thereafter, she went to her house and narrated the incident to her maternal aunt, one Jhaduram (PW-5) and Samari Bai (not examined) and then fell asleep. It is the further case of the prosecution that as father of the prosecutrix had gone to her sister's house, the report could not be lodged on the same day and it was lodged on the next day after he got back there from. Based on this FIR, offenee u/s 376 IPC was registered against accused/appellant - Bhagat. On 3f.3.1994, statement of the prosecutrix under Section 161 Cr.P.C. was recorded in which she has alleged that on the date of incident at about 8 p.m. she had gone to answer the eall of nature, accused Palu, Kanahiya Quvenile), Radho and John were cleansing their teeth near a bore well and while getting back as soon as she reached near the said bore well, all four lifted her away near the beshram shrubs where she was subjected to forcible sexual intercourse first by Palu, then by accused Kanhaiya (juvenile), then.by accused John and then'by accused Radho and when she tried to raise alarm, all of them had ./ threatened to- ktil her. It is alleged that her salwar and underwear .were removed by accused John*and rest three had held her. While leavipg the spot after their act was over, all the four had threatened her to do away with in case she lodged a report naming them. It is alleged that in the incident, her bangles were also broken. She went on alleging that after the four accused i.e. Palu, Kanahiya (Juvenile), Radho ahd John Had left the place of occurrence and when she wasgoing to herhouse, accused/appellant Bhagat who ^g?lt:T.^Si;'< •i^, was standing near the bore well, asked her to accompany him to the nearby barren field and on refusal by herhe gave her two slaps, gagged her mouth with the handkerchief, took her near the beshram shrubs, threw her on the ground and after removing her underwear and salwar commltted forcible sexual intercourse with her. When she started weeping, he gave her two-three slaps and started leaving the spot with her undervi<ear and salwar but when she started weeping he left the same and went away. It is alleged that in the incident her bangles were broken and she had sustained injuries on her cheeks and left wrist. It is alleged that when Jhaduram (PW-5) and one Kanti asked accused Palu, Kanahiya (juvenile), Radho and John as to why they had ravished the prosecutrix, they bagged pardon, and then after reaching home she fell asleep and on the next day when her father got back, she narrated the entire incident to him and then the report was lodged. Subsequently, on 5.4.1994 her'statement under Section164 Cr.P.C. was recorded in which it is alleged that on the date of incident at about 8 p.m. when she wa's returning after answering the call of nature, near a bore well accused Bhagat met her and lifted her away. It is further alleged that on alarm being raised by her, he inserteda pieceof cloth in her mouth and took her near beshram shrubs where accused Palu, Kanahiya (juvenile), Radho and John were already present. Then after being undressed by accused Bhagat she was subjected to forcible sexual intercourse by all of them one after another.it is alleged that first she was subjected to rape by accused John, then by accused Kanhaiya, then by accused Radho, then by accused Palu and then by accused BhaQaff. After investigation, challan was filed by the police on 16.4.1994 for the offence under Section 376 (2) (g) IPC against all the accused persons include juvenile Kanhaiya. 3. In order to establish the guilt of the accused/appellants the prosecution has exammed 09 witnesses. Statements of the accused/appellantswere also recorded under Section 313ofthe Code of Criminal Procedure in which they denied the charges '^ ^^r.iiftfe"-'^ -tf— levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants as mentioned in paragraph No.1 of this judgment. 5. Heard counsel for the parties and perused the material available on record including the judgment under challenge. 6. Counsel for the accused/appellants submit that a very improbable story has been put forth by the prosecution because initially in the FIR lodged on 30.3.1994 the allegation of rape was made only against accused/appellant Bhagat whereas in her statement recoded under Section 161 Cr.P.C. the prosecutrix has made the allegations agairist all the accused/appellants including juvenile accused Kanhaiya-^They further submit that in the FIR and in the statements recorded u/s 161 and 164 of the Code of Criminal Procedure three different versionsi have been given by the prosecutrixand in this view of the matter the entire case of the prosecution becomes doubtful and the conviction u/s 376 2 (g) IPC cannot be based thereori. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting and sentencing the accused/appellant being in accordance with the evidence of the witnesses, are just and proper and cannot be interfered with in these appeals. "—ih. 8. Proseoutfix (PW-4A) has stated in her evidence that on the date of incident at about 8 f*M. white she was returning after answering the call of nature-, all the accused/appellants met her near the bore well; took her to the field; when she tried to raise an alarm, accused Palu inserted a piece of cloth in her mouth, all the four had removed hersa/ivarand underwear and then first accused Palil.committed forcible sexual intercourse with her which then was fotlowed by accusea Bhagat and Kanhaiya (juvenile) also. Then f;!yf:s::.it'ei,.,. .......duMuaatau* f.:' f'"" ^y ^'' 1^^ 1 she has stated that could not tell the sequence as to who committed the offence first but according to her other two accused persons have also committed rape on her. Thereafter, according to this witness, she came weeping and narrated the incident to Jhaduram (PW-5). She has stated that after her father retumed home from her sister's house in the next morning, she narrated the incident to him also and then the matter was reported to the police. According to her, in the FIR she had made allegation against all the accused persons but if it is not recorded against all, she could not tell the reason for that. She has further stated that she narrated the entire incident to Jhaduram (PW-5) and Samari Bai (not examined) while she was returning to her house. She has further stated that at the time of incident it was dark, that she knew the accused persons even prior to the incident thou.gh she did not know their names and address which however were later disclosed to her by her neighbours. Then this witness has stated that near the place of incident, no houses were there. According to her, while being subjected to rape by the accused persons, blood was oozing from her private part and this was also ,disclosed to the doctor who had medically examined her. Jhaduram (PW-5) whom the prosecutrix is said to have narrated the entire incident, has rfot supported the case of the prosecution and has been declared hostile whereas one Samari Bai whom also she is stated to have narrated the incident has not been examined by the prosecution.,Vishwanath (PW-6) - the father of the prosecutrix bas stated that when he returned home next day ./ of the incicterrf, the prosecutrix narrated the entire incident to him and then the-report was lodg^. Dr. H.K. Joshi (PW-1) who had m^dically examined the accused persons and given his report Ex. P-2 has stated that they were capable of performing sexual intercourse. Dr. Alpana Agrawal (PW-2) who had medically examined the prosecutrix and given her report Ex. P-9 has stated that there were certain jnjuries on the person of the prosecutrix and she was nofhabitual to sexual intercourse as on entering two ^ BS'UI \ ^l fingers in her vagina, she was complaining pain. Dr. G.S. Thakur (PW-3) who had doneossification test of the prosecutrix and given his report Ex. P-12 has stated that at the relevant time she was aged about 15 years carrying three years margin on either side. Sub Inspector - Patiram Netam (PW-4) is the witness who had done part of the investigation. Anup Kumar (PW-7) is the Patwari who had prepared spot map Ex. P-15. Inspector - R.K. Sharma (PW-8) is the investigating ofRcer who has supported the case of the prosecution. 9. Having thus closely seen the material available on record including the evidence of the witnesses, it becomes apparent that from very beginning the prosecutrix has been very inconsistent in stating the things. In the FIR she has stated that she was subjected to rape only by accused/app6llant Bhagat but in her statement recorded under Section 161 Cr.P.^. she has stated that first she was subjected to rape by accused John, Palu, Radho and Kanahiya (juvenile) and when s.he was returning home, accused/appellant Bhagat also took her to the field and committed rape on her. In yet anotherstatement recorded under Section 164 Cr.P.C. on 5.4.1994 she has given altogether a different story that allthe five accused persons met her near the bore well, took her to the field and after removing her cloths committed forcible sexual intercourse with her. Thus at three places she has given three different versions which makes very difficult for this Court as to which of these has to be believed. The prosecutrix has further stated that at the time of incident it was dark and though she knew the accused/appiellants, their names and address were not known t6 her which subsequent were informed to her by her neighbours "'^ but there is no evidence on record to this effect. Though, during the incide.nt the prosecutn'x is said to have sustained injuries on her person.but merelyon that basis it will not be safe for this Court to up-hold the findings'of the Court below convicting the accusQd/appeHants under Sectiorr 376 (2) (g) IPC. Such ineonsistent statement of the prosecutrix assuming three forms on -•-7 _ three occasions i.e. at the time of recording FIR and the statements u/s 161 and 164 Cr.P.C. does not inspire theconfidence of this Court and that being so the benefit of doubt goes in favour of the accused/appellants. 10. Consequently, the appeals are allowed. Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charge levelled against them. Appellants'^re on bail. Their bail bonds stand discharged. —" Pritinker Biwaker Judge '.y ». /