HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 633/2007 APPELLANTS Santosh Kumar and others Versus RESPONDENT State of Chhattisgarh Shri Neeraj Mehta, Shri‘Arvind Sinha and Shri Vishnu Koshta counsel for the appellants. Shri Vaibhav Goverdhan PL for the State. CRlMlNAL APPEAL UNDER SECTION 374 (1) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (23.03.2011) This appeal is directed against the judgment and order dated 13.7.2607 passed by Additional Sessions Judge, Sakti, District Janjgir Champa in Sessions Trial No. 207/2006 convicting the accused/appellants for the offences punishable under Sections 363, 366, 376 (2) (g) and 506 (Part—II) IPC and sentencing each of them to undergo rigorous imprisonment for five years with fine of Rs. 500 under sections 363 and 366 on each count, rigorous imprisonment for ten years with fine of Rs. 1000 u/s 376 (2) (g) and rigorous imprisonment for three years u/s 506 (Part—ll) IPC plus default stipulations. 2. Facts of the case in brief are that on 11.12.2005 written report Ex. P-1 was lodged. by the prosecutrix (PW-1) aged about 18 years at the relevant time to the effect that on 25.11.2005 at about 1 O’clock in the night when she had gone to Kola Badi to answer the call of nature, accused/appellants out of whOm accused Santosh held a knife in his hand, came there, took her outside the‘said Kola Badi by dragging, threatened to finish her in case she raised an alarm and then committed forcible sexual intercourse with her one after another. Thereafter, they allegedly took her to Sakti on a motorcycle and from there accused/appellant Chandra Shekhar (appellant No.3 herein) took her to Jammu by train where in the railway station her uncle namely Ramesh Kumar Chandra (PW-4) J Wm met her and on seeing him he ran away. Thereafter, it is alleged that she immediately narrated the incident to her uncle (PW—4) and then went to his house and after staying there for 4-5 days she was brought back to her home by him where she narrated the entire incident to he‘r parents and then the report came to be lodged. On the basis of this written report, FIR (Ex. P-2) was registered on 11.12.2005 and after completion of investigation the charge sheet was filed by the police on 10.2.2006. 3. So as to hold the accused/appellants guilty, prosecution has examined 19 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges 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 above in paragraph No.1 of this judgment. 5. Counsel for the accused/appellants submit that present appears to be a case of love affair between the prosecutrix and accused/appellant No.3 Chandra Shekhar and the accused/appellants No. 1 and 2 namely Santosh Kumar and Chandra Kumar alias Lushu had merely assisted him in the act alleged against him. They further submit that there is an inordinate delay in lodging the FIR which has not been satisfactorily explained by the prosecution. They further submit that admittedly the age of the prosecutrix at the relevant time was 18 years and therefore offence under Section 363 IPC is not made out against them. As regards the offence under Section 366 IPC, they submit that as there is no allegation by the prosecutrix that the accused/appellants had taken her away for marrying accused/appellant No.3, their conviction under this section is also illegal. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that looking to the manner in which the prosecutrix was abducted and subjected to forcible sexual ,3, @ intercourse by the accused/appellants, there is no infirmity or iiiegality in the judgment impugned. ’3__ 7. Prosecutrix (PW-1) has stated in her evidence that on 25.11.2005 when she had gone to Koia Badi to answer the caii of nature, accused/appellant No.2 namely Chandra Kumar alias Lushu had pressedher mouth whereas accused/appeliant No.1 Santosh was holding knife and at that time accused/appellant No. 3 Chandra Shekhar was also present there. Thereafter, they took her outside the said Kola Badi where accused/appellant No.3 Chandra Shekhar removed his and her clothes and committed forcible sexual intercourse with her and as at that time accused/appellant No.2 Chandra Kumar alias Lushu was pressing her mouth, the voice raised by her could not come out. Then according to this witness, accused/appellant No.1 Santosh Kumar also subjected her to forcible sexual intercourse after removing his clothes. After this, they took her to Sakti on a motorcycle being driven by accused/appellant Santosh and from there accused/appellants Santosh and Chandra Kumar alias Lushu got back whereas accused/appellant No.3 Chandra Shekhar moved ahead to Jammu by train along with her. This witness has further stated that after spending 4-5 days in Jammu, her uncle Ramesh Chandra (PW—4) met her. Immediately thereafter, she has stated that as soon as they alighted the train. in Jammu railway station, her uncle had met her and on seeing him accused/appellant - Chandra Shekhar fled away and then she narrated the entire incident to him. She has further stated that after staying for 4—5 days in her uncle’s house he had come to drop her at home where she narrated the entire incident to her parents and a day thereafter duly signed written report was lodged by her in Jaijaipur police station. Subsequentto this, with her consent she was sent for medical examination and spot map Ex. P-4 was prepared at her instance. ln cross examination, this witness admits that after the incident that took place on 25.11.2005 she had accompanied accused/appellant Chandra Shekhar to Jammu and since then she did not have sex with anyone. She has denied the fact that the accused/appellant Chandra Shekhar used to visit her WWtWy: \ @ house frequently and she was in love with him. Various suggestions put to her by the prosecution have also been denied by this witness. She has admitted that before the date of incident, she was not subjected to sexual intercourse by anyone and that she was aware that if a gi’rl is subjected to sex for the first time, she feels pain and it starts bleeding. She has further admitted that in Kola Badi where she was subjected to sexual intercourse, presence of weed, small plants and pebbles is common. She has stated that while the accused/appellant Chandra‘Shekhar was having sex with her, accused/appellant Chandra Kumar alias Lushu had pressed her mouth and accused/appellant Santosh was holding both of her hands and all these things have been stated by her in the written report, FIR and the police statement and if they are not mentioned therein, she could not tell the reason thereof. She has admitted that after being subjected to sexual intercourse by they accused/appellants, she had bled profusely. According to her, while accused/appellant Santosh was having sex with her, accused/appellants Chandra Kumar alias Lushu and Chandra Shekhar were pressing her mouth and hands. She has stated that while being taken to Sakti by motorcycle, she had not disclosed the incident to the persons she came across as the accused/appellants had threatened to finish her. She has further stated that after reaching Sakti they did not get the train for Jammu immediately and it was on the next day they boarded the train therefor. According to this witness, during their stay at Sakti railway station number of trains had passed, passengers were getting in and out thereof but as the accused/appellants had put her under threat, she did not disclose the incident to anyone. She has stated that the train they had boarded at Sakti was not directgup to Jammu. According to this witness, during her journey up to Delhi neither she eased herself nor took any snack. According to her, as accused Chandra Shekhar was threatening her by knife, she did not disclose the incident to anyone and all these things were stated by her in the written report, FIR and the police statement but if they are missing therefrom, she could not tell its reason. According to her, when they boarded the train at Sakti, she was not aware that she was being taken to Jammu. She n ,Q_ 69 admits that at Jammu neither she nor her uncle had lodged any repon and that though she stayed in her uncle’s house for 4-5 days, he had not given any information to her parents regarding her presence there. According to her,.only after reaching her parentai home along with her uncle, she disclosed the incident to her parents. This witness has further stated that on the second day after reaching her parental home, written report was lodged by her in the police station and 18-20 days thereafter she was sent for medical examination. She has expressed her ignorance to the fact that her uncle had told her and the accused Chandra Shekhar that as they had left for Jammu without disclosing to anyone, after reaching home he would get them married and that due to the ‘fear of defamation, her uncle had first sent back the accused/appellant Chandra Shekhar and 4-5 days thereafter he brought her home. Jamuna Bai (PW-2) — the mother of the prosecutrix has stated in her evidence that on the date of incident when she was sleeping in the verandah along with her husband, her husband told her that the prosecutrix was not in her cot and when she was not traced'even after search, missing report was lodged and 10-15 days thereafter she was brought home by her brother—in-law. According to this witness, after arrival of the prosecutrix, she narrated the entire incident to her and 7-8 days thereafter the report was lodged. This witness admits that accused Chandra Shekhar belongs to her caste and he being the resident of her village was known to her since his childhood. She has admitted that in Kola Badi the plants had grown up and brickbats and pebbles were strewn. In paragraph 8 of her deposition, this witness has admitted the fact that her brother-in-law Ramesh Chandra was living at Jammu for his livelihood and they used to have talks frequently. She has stated that her brother-in—law was also informed on the second day itself about missing of the prosecutrix who in turn had informed her that she was with him. According to this witness, her brother-in-law had also informed her that the prosecutrix was taken to Jammu by accused/appellant Chandra Shekhar. Balbhadra Prasad (PW-3) — the father of the prosecutrix has stated that his daughter had gone missing from the ms ; ® night of 25.11.2005 and after being brought back by his brother on 10.12.2005, she narrated the entire incident to him. According to this witness. on 26.11.2005 itself, missing report was lodged in police station Jaijaipur. This witness has denied the fact that he had informed his brother at Jammu about the. missing of the prosecutrix. He has stated that he was not aware about the fact that three days after the incident his brother had informed him about the presence of prosecutrix with him. He has further denied the suggestion that as news regarding the prosecutri‘x and accused/appeiiant Chandra Shekhar running away was spread in the village, the report was lodged. Rames‘h Kumar Chandra (PW-4) — the uncle of the prosecutrix who at the relevant time was residing in Jamu has stated in his evidence that on 28.11.2005 when he was going to his workplace via railway station, he saw the prosecutrix and accused/appellant Chandra Shekhar and that when after seeing him accused Chandra Shekhar had run away, the prosecutrix had narrated the entire incident to him. This witness also admits that there was no direct train to Jammu and one could reach there by changing the train at Delhi. He further admits that he saw the prosecutrix and accused Chandra Shekhar in Jammu railway station at about 8 a.m. whereas normally the train reached Jammu at about ’*' 5—6 a.m. and that to reach Jammu from Delhi by train it takes about 12 hours. This witness has stated that though the prosecutrix stayed with him for about 4-5 days, he had no‘t informed to any of his relatives in the village about the same during this period. He has categorically stated that he had not informed his brother and sister- in-law about the presence of the prosecutrix with him at Jammu. He has denied the fact that he used to talk to his relatives on telephone. He admits that if any crime is committed. in the railway station or even in the train, the matter is to be reported but in the case in hand though the incident was narrated to him by the prosecutrix, no report for the same was lodged by him and he could not tell the reason for this. He has further denied the suggestion that as the prosecutrix was in love with accused Chandra Shekhar, no report was lodged by him. Tundi Lal (PW-5) - the witness to the seizure of cloths of the prosecutrix made under Ex. P-5 has not supported the case of the wép. 7 ‘ @ prosecution and has been declared hostile. Yadiyus Kujur (PW-6) is the witness who had taken the prosecutrix for medical examination and sent her clothes for chemical examination vide Ex. P-7. He is also the witness to the seizure of vaginal slides vide Ex. P-8. This witness had also taken the accused/appellants Chandra Kumar alias Lushu and Santosh for medical examinatibn vide Ex.P-10 and P-11. However, he has not stated anything specific against the accused/appellants. Manual Mini (PW-7) is the police constable who took certain articles to Forensic Science Laboratory for chemical examination vide Ex. P—12 and Ex. P—13 who has supported the case of the prosecution. Dr. K.L. Uraon (PW-8) is the witness who had medically examined accused/appellants Chandra Kumar alias Lushu and Santosh and given his report Ex. P-15 and Ex. P-16 stating that they were capable of performing sexual intercourse. Retram (PW—9) and Ved Prakash Chandra (PW—10) are the witnesses to memorandum Ex. P—21, seizure vide Ex. P-22, arrest memo Ex. P—23 and Ex. P-24 who have not supported the case of the prosecution and have been declared hostile. Surendra Kumar Sahu (PW-11) is the witness to seizure of certain articles vide Ex. P— 26 and Ex. P-27 who too has not supported the case of the prosecution. Dr. saroj Kachhap (PW-12) who had medically examined the prosecutrix and given her report Ex. P-28 has stated that there was no internal or external injury on her body, her hymen was old ruptured and that no definite opinion regarding rape on her could be given. She has however stated that as per the medical science if a virgin girl is subjected to rape by three persons, she is bound to suffer some injuries on her private part and she may not be in a position to walk properly. According to her, on urine examination of the prosecutrix, she was found to be pregnant and therefore she- was referred for sonography. S.P3 ‘Khakha (PW-13) is the investigating officer who has supported the case of the prosecution. Ramesh Prasad Sahu (PW-14) is the Patwari who had prepared the spot map Ex. P-4. Suresh Pathak (PW-15) is the police constable in whose presence seizure of certain articles was made. Mahesh Chandra (PW-16) is the witness who had accompanied the prosecutrix to hospital for medical examination. Dr. R.L. Thakur vx ag\ \\ vwa 6? (PW-17) is the witness who had medically examined accused Chandra Shekhar and given his report Ex. P—36 stating that he was capable of performing, sexual intercourse. Sub Inspector M.L. Shrivastava (PW-18) is the witness who has done part of the investigation in this case. Dr. G.M. Khakha (PW-19) is the radiologist who had done sonography of the prosecutrix and given his report Ex. P-39 stating that she was not found to be pregnant. ,%~ 8. Close scrutiny of the evidence available on record particularly ’ that of the prosecutrix makes this Court hold that the story put forth by the prosecution being highly improbable and untrustworthy does not inspire confidence of this Court. According to the prosecutrix after being subjected to rape by all the accused/appellants she was taken to Sakti on motorcycle and during her two hour long journey she came across many people but did not raise any alarm attracting their attention toWards her. Likewise, in the railway stations at Sakti, A Delhi and Jammu as well as in the train she might have been in the midst of co—passengers but this time also she kept silence and did not do anything to wriggle out of the clutches of accused/appellant Chandra Shekhar. According to her, she met her uncle at Jammu railway station but it becomes a matter of surprise as to how he reached the railway station all of a sudden to receive the prosecutrix and though the incident is said to have been narrated by her to him, he did not lodge the report in spite of her stay with him for 4-5 days. Likewise, evidence of mother and father of the prosecutrix shows ‘ that the missing repot was lodged immediately but in fact no such report is on record. According to the evidence of Ramesh Chandra (PW—4) who happens to be the uncle of the prosecutrix, he never had any talk with the parents of the prosecutrix on phone after she reached to him whereas as per the evidence of her mother and father information was given to him immediately about the missing of the prosecutrix who in turn had informed them that the prosecutrix was with him and he himself had come to drop the prosecutrix at home. Moreover, the record shows that the incident had taken place on 25.11.2005 whereas the written report came to be lodged on 11.12.2005 i.e. with an inordinate delay of about 16 days which has Q9 not been satisfactorily explained by he proseution. This apart, had the prosecutrix been subjected to rape by three persons on 25.11.2005, he ould have Iodged the report at the earliest, in any case by 27.11.25 after reaching ammu. According to the prosecutrix herself, she as sbjected to rape by the accused/appellants for the first time and before that she did not have physical relations with anybody whereas as per the lady doctor who had medically examined her, no injury was found on her person and this way the version of the prosecutrix stands falsined. There appears o be material contradictions ad omissions in the statements of the prosecutrix and other witness and being so it would not be’safe for his Court to plac implicit reliance hereon and thereby uphold the tindings of the Court below convicting and sentencing the accuse/appellants as detailed above. As regards the age of the prosecutrix, she herself has stated that on the date f incident she was 18 years of ae and even the prosecution has not brought forward anything to the contrary showing that she at the relevant time was minor. vq, . ln view of the afosaid discussion this Court arrives at an irresistible conclusin that the evidence of the witnesses particularly the prosecutrix, her mother, father and uncle being replete of contradictions and omissions is too untrustworthy to inspire the confidence of this Court so as t uphold the judgment impugned. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charges levelled against them. Accused/appellants are reported to be in jail. They be set free forthwith if not required in any other case. Sd/- " s \kPritink‘er Diwaker Judge t c s w 00 J w u t n se t e t d o g 9 re O o