•s^- lt barch IN THE HIGH GOURT GF K&DHX& PR&DESH S_A? uTAB&LPUB. CKIMZK&L ®PE&LKO, 05- 1994, ^' &ppa[£.AKrs t SccnsSD CS^3«^V) 6^ <<^ IK.I^I^- <yft fi^/s f''' tt^^—?' ( i'li ^rtfi<i.c£t, fcf RESPOHDEH2; S- l, Pramod Hinj, son of Stanis Iial, aged about 25 s-ears,. ^,. 2. Stepbea Tigga. soa of Sbs-l Tig'ga, aged 27 ye'srs .^. 3, Iiaarence Khes, son ef Pitrus, aged 36 ysars. 4> NeelamMiaj, son of Tbonhas Miaj, . aged 19 years» f All t.he appellants are residents of Villagepatratoli, Police Statiep » Jasfapurnagar, Eis-tt. B&IG&RH ( ). •*»Versus- ' • 1 St.a-te '©fKadbya Pradesh, t3"..rougb tbe Ststion House ©ffAcer.policeStatiOB - jashpurnagar, Bistt. B&IGftKti (KP)» < PEM. OHDE& SBCTtON 3?4 t2) OE* THE / 02DE QV gRIMIN&L PROGEDUBE S""Sife* ^s "-";.^j) /2/^M APPELLANTS RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. h/lr. JusticePritinker Diwaker) Criminal AppealNo. 1545 of 1994 Pramod Minj andothers VERSUS State of Madhya Pradesh Post for pronouncement ofthe order onjg .8.2010 Ssff pritlnkerDiwaj;er Jadge '•at%- !^';:' 'iE~"r"'T;^fS=3; !a» yy-^j ^// •SSs ^FR ||ii APPELLANTS HIGH COURTOF CHHATTISGARH AT BILASPUR (Hon. h/lr. Justic& Pritinker Diwaker) Criminal Appeal No. 1545 of 1&94 .Pramod Minj and others VERSUS RESPONDENT State of Madhya Pradesh Miss. Sharmila Singhai GQunsel forthe appellants. Shri Pankaj Shrivastava PL forrespondent/State. CRIMINAL APPEAL UNDER SECTION374 OF THE CODE OF CRIMINAL PRQCEDURE. JUDGMENT (1%.08.2010) This appeal is directed against the judgment and order dated 30.11.1994 passed by Additional Sessions Judge, Jashpurnagar, .iq Sessions Trial No. 66/1994 convicting the accused/appellants undei( Section 376 IPC and sentencing each of them to undergo rigorousi imprisonment for ten years and pay fine of Rs.2,000 in default of payment offinetofurtherundergorigorousimprisonmentforfourmonths. | 2. Case of the prosecution in brief is that on 09.01.1994 at about 3,3( p.m. FIR Ex. P-2 was lodged by the prosecutrix (PW-2)aged about 14-1£| years alleging that on 28.12.1993 af about 7 p.m. when she was returninc| from the Arhar field along with one Roshan, accused/appellant Pramocj met her on the way andall of a sudden caught hold of herwaist. On'thisJ when she raised cries in protest, accused/appellahts Neelam and SteephaFT'also came there and accused Neelam took Roshan towards the village. Thereafter,-~accused Pramod threw her on the groundj 'removed her undefgarments and committed forcible sexual intereours^ with her'as a resutt of which she wgg feeling pain. Whenshetried to get rid of accused Pramod, accused Steephan who was carrying knife in his hand covered her face with the gunny bag and committed forcible sexual intercourse with her. According to her, aecused Neelam and Laurenc^ Khes also.did the same act with her andthen all theaecused/appellant^ fook her'^o-the village and after leaving her there, they got back^ Thereafter she went to the ho.use of one Lila where she met her eleleff -^' •"V ll1i •1;IT-: iir 111 sister Isliya and narrated the entire .incident to her. AGC6Fding:to;fl-ie!' prosecutrix, she did not disclose the ineidentto anyone exGept Isliya ant Sangita. On 9.1.1994 when her mother had asked as to what hac| happeried to her, she had disclo$ed the incident to her also and then tl"i^ matter was reported to the police. After investigation, the police filed thd challan on 15.2.1994 undersections 376 (2) (g) IPCandthen the Court below framed the charge agairist the aecysed/appellantson 8,4.1994 under Section 376 IPC ! 3. So as to hold theaccused/appellants guilty, the prosecution ha^ examined as many as 11 witnesses in suppdrt of its case. StatementsyEij'^ the accused/appellants were also recorded under section 313 of^thej^ Code of Criminal Procedure in which they denied the chaFge 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/appellant as mentioned above. , ^ 5. Heardcounsel forthe parties and perused the material available pn record including the judgment impugned. 6. Counsel for the accused/appellants submits that there is an unexplained inordinate delay of about 12 days in lodging the FIR as the incident hadtakenptaceon 28.12.1993 but the report came to be lodged on 9.1.1994. She submits that the story put forth by the prosecutrix being highly improbable is not worthy of credence to ensure the conviction of the accused/appellants under Section 376 IPC. She submits that na. external injury was found on the body ofthe prosecutrix though gang rape! oFLheF is alleged ty'have been committed which alsofalsifies e entire|: case of e prosecution becausejf a girl aged about 14-15 yeaFs^iSi •1~^-;-.. " , .:.' .^.:_^'s subjected, to rape by four persons, some injury on her person is sure fdi be present. According to the counsel for the appellants in the FIR the prosecutrix has stated that she was subjected to rape by 1^ •accusecf/appellants onty once but in the Court statement she hag^ •in-ipFOved her version and stated that she was raped by them twiGej' Courise'hfer the appellantssubmits that in paragraph six of her'Gi-oss^ .f-:—?—^T7~-T:"^'Sl!.i:;.i.?.i.33r;?:';"'•'''''• ^ss^ El'l; tMf K —\\- ; ' . . examination the prosecutrix has stated that when her family member^ came to know about her affairs with one Roshan, they got annoyed with| the accused/appellants under the impression that it is they who spread this rumor in the village and thus decided to implicate them in ^ false case. She submits that from the evidence of the proseeutrix it is clear that even after being raped hy four persons, she kept roaming around and went to village Gholeng which also goes to show that entirestoryputforthbyherisacookedupone. 1 7. On the other hand counsel for the respondent/State supports thE jydgmentimpugned and submitsthat at the relevant time the prpsecutri^ was aged about 14-15 years and made a victim of the lust Qfthe! accused/appellants. He submits that even the doctor medically examining the prosecutrix hasstated that she wassubjected to rape and thus once thestatement of the prosecutrix is supported by the medical eyidencei the conviction of the accused/appellants under Section 376 IPG is just and prope'r warranting no interference in thisappeal. This apart, the State counsel submits that the prosecutrix tias categorically stated that the offence was committed on her atthe point of knife and as shewas scarec by their act, the delay of 12 days has oecasioned in filing the report. 8. Prosecutrix (PW-2) has stated in her evidence that on 28.12.199^ there was a marriage in the village and in the evening hours when sh& along with one Roshan was coming back to the village from the nearby watch-tower, accused/appellants Pramod and Neelam came from the opposite direction and caught hold pfher. In a bid to get rid of them, sh^ even bfl'onthe back of accused/appellant Pramod but even then he did not leave her. She..has-stated that thereafter accused Pramod took her to fhe Arhar fielcf, threw her on the ground, removed her underwear ancf commifted forcible sexual intereourse with her. According to •th^| prosecut^ix, whpn she tried to run away, accused Steephan showed her d j knife and afler covering her face with the gunny bag upto the waist, he| also did the same act as was done by accused Pramod. Subsequentlyj thffi same'act was-dbne by accused/appellants Neelam and Laurance^ She^-ias atso 'stated that -the Boy Roshan who was earlier with her waS; "^3^,, R^h.. vt^/ -s~- • ' taken by accused Neelam towards the village. The prosecutrix hasstatec| that thereafter all the four accused/appellants took her to a nearb% jackfruit tree and again subjected her to forcible sexual intercoursei Meanwhile, the gunny bag is stated to have been removed by someonel out of them from over her body and then she got back by walk to th^ house where the marriage was taking place. According to the prosecutrixj all the accused/appellants being of the said village were known to herj Thereafter, the prosecutrix is said to have informed the incident tc| Roshan (PW-3) and Sangita (PW-5) and also requested them to take heif to the house. According to the prosecutrix, all the fdui; aGCused/appellants had threatened her to life if she disclosed the incidenl to anyone and on account of this she did not inform the incident to any of her family members. According to her, after the newsof incident gcii spread in the entire village, her family members also came to know about the same. Thereafter, the report Ex. P-2 was lodged, the prosecutrix wa^ sent for medical examination, her skirt, blouse and underwear werg! seized by the policeunder Ex. P-3. In cross examination, the prosecutrik has stated that she was having affairwith one Roshan for last one yeaT thereto and it is acciused/appellant Neelam who had taken him towards the village. The prosecutrix admits that in the report she had not disclosed the fact that she was again subjected to rapenear the jackfruit tree. According to the prosecutrix, she had come back to the hous^ where the marriage was being performed at 4 a.m. She has stated that the people of the village could come to know aboutthe inGident a day or two thereafter and perhaps it is the accused/appellants who might have' made this news public. According to her, she had reached village Gholeng on 2.1.1994. She has stafed that she had close intimacywit^ Roshan who had mdde physical relatibn with her only once. In paragrapM 4 of her pross examination the prosecutrix has stated that Roshan had '~«» . . . : . . . • : i not made anyeffort to save her though she had requested him todo soJ Accordihg to heT, she had raised alarm but nobody turned up fbr he^ rescue. She has stated that though her face was covered with the gunny; ^ag^ she could see the accused/appellants out of its orifices. Her relatiQi-iSB' with Roshan were known to the villagers but not the family members and? onlyo account ofttie.news spread by the vijlagers her family m^mKerg^ tt\ / 1 ![^ '•f^T^\~^-^-^-^ '^ at. S SiS K .'fS ilt ,,•/''.,!?' —6- • : . ' had come toknow about thesame. In paragraph No.Sof her depdsitiort the prosecutrix has admitted that if in the village some unmarried girl hag an affair with some boy and if he makes the physical relationshjp with herj villagers do not like it. She has .stated that when her family members| came to know about the physieal relations with Roshan, they showeGJ ! ^ ' . '. . . i their annoyance towards the accused/appellants saying thatit must bg they who had spread the rumor and then after consultation with th< villagers the report was lodged. In paragraph No.8 of her depositionshel further admits that her fatherwas fhe Kotwar of some other village and h^ used to visit the police station frequently and was having go&d rapport^ with the police peopleand whatever suggestion he used to give, police people used to accept the same. She has stated that the report wa^ lodged by her at the instance of herfather and she also wanted to do thej same. According to her, after the incidentshe was not having any fear ii her mind. The prosecutrix has further stated that she had not assigned any reason before the police fpr lodging the report with an inordinatq delay and that she had washed her underwear and petticoat. Rosharj (PW-3) and Sangita (PW-5) to whom the. prosecutrix had narrated th^ entire incident of rape have not supported the case of the prosecutions Robort (PW-4) the father of the prosecutrix has stated that he came tQ know from his sister that the pi'osecutrix was subjected to sexua intercourse. Then the matter was taken to the village Panchayat frQFn| where the notices were issued to the villagers for being presentthere an^ in the Panchayat the prosecutrix had informed that shewas subjected td forcible sexual intercourse by the accused/appellants. According to himi the Panchayat took a decision to lodge fhe report in the police stationJ Thiswitness has also stated that he being the Kotwar used tovisit the| potice station frequehtly, his relations with the police people were gbod enough arjd Ke used to follow the advice of the police and vice versa| Julita Kujur (PW-7) hasstated in his evidence that initially the prosecutrix had not informed'the incident and when she came to know about the same through the viHagers, she had also disclQsed it. [n crossis .examination, this witness admits that rumor regarding the affair:Qfither prosecutrix with Roshan was afloatand that on the date of inGident e^ both~w6i-e;seen by.the.accused/appellants inan objectionable pOsitionK ^-1 1\ r •^"SKSf-"^^^ l*^w:^1:'' R;"""< Dr. U.P.S. Malviya (PW-8) who had medically examined thej aGcused/appellants has stated that they were capable of performing Sexyal intercourse. The reports given by this witness are Ex. P-13 to Exj P-16. Dr. Kumudini Kerketta (PW-9) who had medically examinett tt'te proseeutrix has stated in her evjdence that two fingers entered her vaginai with difficulty and she was feeling pain on her private part. Aceording td this witness, hymen of the prpsecutrix was torn and swelling was preseni there but no mark of struggle was seen by her. According to this Witness^ the prosecutrix was subjected to rape. For determination of age of the| prosecutrix, thiswitness had referred her for X-ray. 9. Thus from the record it is clear that the F/R was lodged with arf unexplained indrdinate delay of 12 days as the incldent had taken^plac^ on 28.12.1993 whereas the matter was reported to the police ori 9.1.1994. As per the record, though the prosecutrix is stated to have been threatened by the accused/appellants, she has admitted the fact thatafter the ineident she roamed ardund freely without any fear in her mind and came to village Gholeng on 2.1.1994 yetthe report was not lodgec promptly. This apart/there appearsto be inconsistency in the FIR and the Court statement of the prosecutrix as according to the FIR she was subjected to sexual intercourse by the accused/appellants once whereas according to the Court statement She was subjected to the sarne twice. 7n paragraph No.6 of her evidence the prosecutrix has admitted that her family members felt very bad that the appellants had spread the nimarin the village regarding the affair of the prosecuthx with Roshan and being annoyed on account of that, they had decided to implicate the^ accused/appellants in the 'case.and then the report was lodged. Thq record also shows^that the prosecutrix has admitted the fact tMaf her father being the Kotwar of some other village used to frequent to the '~n^ \ ! . . :: . police station and his relations witti the police were good enough and whatever. he us6d to suggest to the police people, they accepted the same. This admissionson the part ofthe prosecutrix is suggestive ofthe -facfrthat possibility offalse implication of the accused/appellants cannQ^ -beruledQut..Moreover, Roshan (PW-3) and Sangita (PW-5)to whom tMe pros&cutrK had -narrated theincident have not supported the case ofthe -g- ^ prosecution. Evidence of the prosecutrix further goes to show that whil^ she was being subjeeted tp rape, her facewas covered with gunny ba@| and this being so the theorydf idehtification of the accused/appellant^ taken by her appears to be highly untrustworthy. Medical report of the prosecutrix shows that the prosecutrix was feeling pain on her private part and it was reddish in colour with swelling thereon and it is on this basis only the doctor examining her has given the opinion that she was subjected to rape. However, the doctor examining the prosecutrix hag admittedin paragraph 6 of her examination that such type of injuriesare notieeable if the sexual intercoyrse is committed 2 or 3 days prior tcj 'examiriation. Ewctence oftoe prt)sei?u?nx afep goes to s/7ow a?s/7e fta4 physical relations with Roshan anc/ therefore possibility of rupture Qf. hymen and the injury being caused on account of sexual intercaurse b^ him, cannot be ruled out. As per the case of the prosecution, th^ prosecutrix was subjected to rape by four persons on two occasions iri quick succession but no mark was visible on her body, falsifies the version of the prosecutrix. ' 10. In view of aforesaid discussion, this Court is of the CQnsiderecl opinion that the findings recorded by the Court below convicting ancl senteneing the accused/appellants are based on mis-appreciation of th^ evidence avaflable on record and accordingly the same are liable to bej setaside. ' : . :: ';.'' ' : ' : :•• ^.:/'^ 11. Resultantly, the appeal is allowed. Judgment impugned is set aside. Accused/appellants are acquitted of the charge levelled against them. They are reported to be on bail. Their bail bonds stand discharged^ Fine amount ifdeposited, be refunded to the accused/apRellants. ~-1^- Sf</ Pritinker Diy/akcr Judge tM-^ [S •