HIGH COURT OF CI-IHATTISG-ARH, BELASPUR Cr§minai AppeaE Ma. 805/ 199$ R.L. Jhanwar Judge ;/9f2009 ‘x ‘ w. AppeHam: Baboolal and another u - Versus : Respomient State of Madhya Pradésh (now CG.) J U D G M E N T Post on 3 Ssptember, 2009' ' 1 i Sd/- HEGH CGURT OF CEEEEAWE$G§§RH: BELA$§UR A.ppe11ant$ eximinal Aweal Nascw‘mw ‘ G Baboolal, S/ 0 Mo‘tilal Chandrakar, ag€d 32 years 2. ishwan', S/ o Vishwas Ram Gémariya, ag€d 30 years, Both R/o Bhilai, Both smployéas of S{A.D.A.. Bhilai District: Burg (MP) (110W Chhattisgarh} Vewsas Resgondent State ofMadhya Pradesh {now Chhattisgarh) @peai HIS 3‘74 (2) of the Code of Cfimiaal Procedme ?xesent.= Shn Vlshnu Koshta counsel for the appcHailtS Shm U.K S Chanda]. P L for the gtate JUDGMENT (Delivered on #9] 2009) i. This criminal appeal is directed against the judgment of conviction and order (if 'SentenCE déted 3. 8. 1990 passed by the learned 3rd Additional Sessions Judge, Durg in ST. No.51} 89, whereby the learned Addi’iional Sessions Judge has comlicted the appellants for commission of oifence punishable under Section 3’76 (2) (g) of the IPC and sentenceci each of them to undergo R.I. for 10 years and to pay a fine of Rs.i000/—,"in default of payment of fme to further undergo RI. for 1 year. The prosecution story; in brief is that the prosecgtrix namely Ramabai sent a letter, Ex-P.3, to the Chief Minister, Bhopal ”that came to Superintendent of Police and from Where it was sent to Special Police Station Raipur for investigation and thereafter investigation took place. . Prosecution story, in brief, is that. Sint. Ramabai (P.W.4) was a daily labour in S.A.D;A. Bhilai (West region) and appellant No. 1 Baboolal was timekeeper. Appellant No.2 Ishwari Gadariya was supervisor. On 13.6.1987, Ramabai along with other workers was doing her job in Faridnagar, where the appellant lshwari was supervising their Work Appellant lshwari at about 6:30 in the evening toid tr 1e prosecutrix to go to the house of Baboolal to wash utensils. Ramabai was not knowing the house of Baboolal therefore ishwari took her in his bicycle. She SENQEF‘ EENCtI HGWBLJJ SEEK RAJESHWM LAL JI-IANWAR J. . 6 .. weni with Ishwari @d instEaci 0f taking to the houS€ of Baboolal he took 116:“ to pump-housc am} asked har to brmg matarial from the pump—house for depositing the same in the office. Ramabai Wen? mside the pump—house. inside the pump—house Chabilal, Ganesh 313(i Baboolal were present. When she entered, Ganesh ami Chabilal lefi the pump—house. ishwari entered inside the pumpehouse a11d bolt ihe deor. Inside the pumpehouse appeiiant Ishwari caught Ramabai and gagged her mouth. Appenant Baboolal committed sexua} intercourse with her. Ishwan' threatened Ramebai ahd asked her not to report the matter otherwise she will be thrown out of the job. . Ramabai lefi the pump—house and came back to her house. After 2 Cla‘§'s‘ she repoxted the matter to Bhajan Singh Nirahkari (P.W.5) Chaiiman, S.A.D.A., Bhilai,‘ who sent her Wiitten compliant to the police station. The prosecutrix Went to Police station ,Supeia, however her repmt was neither recorded nor any action was taken against the accused persons. When prosecutlix felt that police is not takihg any action against the accused persons she sent a written complaint to the. Chief Mim'ster, Bhopal. She became pregnant as a result of intercourse committed by Baboolal and gave birth to a female child on 6.3. 1988. .Prosecutrix’s complaint, EXP—3 has been received by the Superintendent of Police and he sent it to Harijan Thana, Raipur and on the basis of complaint, police recorded FIR, EXP—11 and investigated the matter. During investigation spot map has was prepared. Birth certificate, discharge ticket were seized. Both the appellants were medically examined by the doctor. Statements under Section 161 - Cr.P.C. have been recorded. Asfter completion of investigation, charge sheet was filed against the appellants and other accused persons namely Chabilal and Ganesh before the Chief Judicial Magistrate, Durg, who, in due course, committed the case to Court of Sessions ‘Durg. Learned Sessions Judge made over the case to the learned 3rd Additional Sessions Judge, Durg for trial. ;. The learned 3rd Additionai Sessions Judge, Durg franled charge under Section 376 (2) (g) against the appellants and Chabilal and Ganesh and read over and explained it. to them, all accused persons abjuned the guilt and pleaded that they have been falsely implicated in the case. . The learned 3rd Additional Sessions Judge after evaluating the evidence available on record and after hearing learned counsel for respective G “W paxties, convicted the appeHants undér Section 876 (2) (g) of the’ IPC a11d sentenced than, as above, and acquitted the acctised Chabilal and GaneSh of the charge under Section S76 (2) (g) of the IPQ 8. I have heard leaned counsei for both the parties at length and perueed the record of the trial Count. 9. The lieained trial Court, believing the statemeet of prosecutrix Ramabai (P,W.E4) and holding that her statement has been corroborated by the Witnesses Bisru (P.W.3), Kavita {P.W.7), Bhajan Singh Nirankaxi (RWB), haS moorded the order of conviction against both the appe11 ants , 10. Bism (P.W.3) in hie statement deposed that at about 5:30 in the evening, appellant lshwarl came and relieved proeecutrix Ramabai from her work. Thereafter, Ramabai went from there, but he did not know where she had gone thereafter. He further deposed that appellant lshwari had supervised their Work. From his uncontroversial testimony it can be accepted that Rambai had been relived from her work at 5:30 and it appears that the appellant lshwari had not left the site and remained there. His statement in fact establishes that appellant Ishwari neither went with Raniabai nor he was involved in the matter. 1 1. Kavita Bai (P.W.7), mother of the prosecutrix has only stated that on the next day of incident Ramabai came and complained that appellant Bahoolal committed “g I Ch 33V. Her statement has been contradicted by‘ Rama‘oai (RWA). Ramabai in her statement has stated that after the incident she came to her house and did not complain any body due to ‘ ‘ ’1 fear neither on that day nor on the following day. She further deposed ‘ that thereafter she did not go to her work. Bhajan Singh Nirankari {P.WS} in his statement deposed that prosecntrix Ramabai came and complained about misbehaving by some persons. He forwarded her report to police station. Ramahai (P.W.4—) in her statement has stated that Bhajan Singh‘ Nn‘ankan (P.W.5) after reading her report said that ”she is implicating Babodfal today and may implicate some other persons tomorrow. 12. From the above discussions, it is clear that statement of Bhajan Singh Nirankari (P.W.5) and Kavita {P.W.7) are not accepted to be correct and their evidence are also not corroborating with the evidence of prosecuting. So far as the statement of Bisrn (RV/7.3) is concerned, on ; t We tha vane hand hE did not sugaport the pr0$ecution Wirsion axld 0:1 thE other hand he establishes That appdlant Ishwari mmamed on me sitts at the time of incident and was not involved in the offence. '13. Now si'atement of iiie prOSeeutrix Ramabai rexiiaiiis for consideration. According to her statement on Monday, she weut to Supela Poiice staiion aod handed over the copy of her written report, However, she was sent to Police Station — Chawani. On Tuesday, police arrested 3 accused persons ajld also detained them in the police statics up to 9:00 pm. Thereafter, left the prosecutrix with a direction to come on the aext day at 11:00 am. She further stated that on the next gay accused persons sent one Baghel, a cashier, who came and threatened her. She went to Police Station Chawani and saw all the accused persons inside the lockup. There also, she was given alluremént of RsBOOO/ — and permanent service for doing compromise. At Police Station —Supe1a one Niimal Shanna, hiend of accused persons, attempted to get her signature forcibly but he did not succeed to do so. Thereafter, she went to Harijan Thana and reported the matter and sent application, EXP—3 to the Chief Minister, Bhopal. , From perusal of the application, EXP—3 it is clear that no such material has been complained by the prosecutrix in EXP-3 as she has stated in her deposition. in her cross—examination she admits that she did not report in her application regarding the act of Nirmal Shanna, who attempted to get her signature on the paper. She stated that Baghel cashier offered her Rs.5000,’- for compromise, but this fact was also not. stated in her application of EXP—3 and why it is not in that application she could not say. e 14. She has stated that she reported the matter to Bhajan Singh Nirankari (P.W.5), but why this fact is also not in her report she did not say. She, in her cross examination has stated that appellant lshwari took her on his bicycle to pump—house. She asked him that the house of Saheb is situated at Neharu Nagar and why he is taking her to pump—house, d1en‘lshwad401d her to bring some material from the pump—house. She, believing his version to be true went inside the pump-house. Ganesh and Chabilal left the pump house. lshwan' came behind her and closed the door of pump house and caught her hands. She raised out cry but he gagged her mouth. She has stated that she in her report and deposition has stated this fact, but the same is not found in thé application, ExVil3. She calmot giVc: amy reason why if is not in EXP—3. 15, Ramabai in her statEment statéd ‘rhat if her mouth was not closrsd and haildS were not pressed by Ishwan’, it was not possible for Babooial to outrage her modesty. She has stated that she in her report a11d deposition has stated the same, but the same is 110i found in the aimlication, EXP-3, She caxmot give axly reason why it is not in EX.P.3. Ramabai in her statement deposed that she did not agree to accept Rs.5000/ ‘ and permanent service for compromise. She also stated that she has given the same in her statement, EX.D-1, but it has not been mentioned therein. The prosecutn'x was confronted with portion ‘A’ to ‘A’ of her statement under Section 161 Cr.P.C. recorded by RD. Tiipathi, (P‘W.6), Investigating Officer. 16. From the above discussion, it is evident that she has exaggerated her statement in the Court. Her statement in the Couit on the main point is contradictory to her apph'cation, EXP-3. No other report was produced in the Court recorded by the police. FIR reconied by police on the basis of EX.P~3 clearly shows that FIR was recorded after a period of 1 year. From the statement of Ramabai (P.W.4) it is also clear that she became pregnant and gave birth to a female child. She was suggested by Baboolal to abort pregnancy. She has also stated that after two months of the incident Baboolal and Nirmal again suggested her for abortion and allured her for permanent job. It clearly indicates that the sexual intercourse, if any, committed by appellant—Baboolal might be with the consent of prosecutrix. Even hem her own statement it is clear that the sexual intercourse committed by Baboolal was with the consent of the prosecutrix. l7. From the aforesaid discussions, l am of the considered View that witness Ramabai (P.W.4) is not a witness on whom reliance for convicting appellant can be placed. Her statement is not trustworthy and cannot be acceptedmto be proved. Her statement, as discussed above, does not find support from other witnesses. The learned trial Court holding that the statement of Ramabai is dully corroborated by the statements of Bisru (P.W.3) Bhajan Singh Nirankari (P.W.5) and Kavita Bai (P.W.7) and thereby accepting and believing her statement, has recorded its finding against the appellants, is erroneous and cannot be sustained. E C\ 18. In ilm msult, the appéal is allowsti. The conviction recorcied by fhe mal Court against both the appeHalnS and sen‘teace imp0$ed upon them is set asids. Th€ accused/ appellants are acquitted ofthe charge framed against them. n w “i i; / \ i s Sd/- RIL. JhanWar Judge /- T