Cg HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.16 of 2001 ‘ Sushil Knmar Vs. State of Chhattisgarh < JUDGMENT Post for 23.07.2007 Sd/- SUNIL KUMAR SINHA Judge HIGH COURT OF CHHATTISGARH BILASPUR Criminal Aypeal No.16 of 2001 A ance: Shri J. K. Shasin', counsel for the appellant. Shn' N.K. Mehta, Panel Lawyer, for the‘State. JUDGMENT (23.07.2007) SUNIL KUMAR SINHA, J. (1) By this appeal, a challenge is made to the judgment of convicu'on and order of sentence dated 21.12.2000 passed by the V'Ith Addl. Sessions Judge, Durg, in Sessions Trial No.244/2000, Whemby the appellant has been convicted u/s 376 85 323 I.P.C,, and sentenced to‘undergo R.I. for 10 years and to pay a hne of Rs.500/- in default of payment of fine, to further undergo RJ. for 3 months 85 RJ. for 3 months and to pay a nne of Rs.500/- in default thereof, to further undergo R.1. for 3 months with a further direction to run the sentences concurrently. (2) The brief facts a1e that the prosecutrix, Dukalhin Bai (P.W.2) is a married lady, having 4 children. She was residing in the house of her in~laws in village Pitora since long back as her husband had gone to earn his livelihood. The spot map and the other evidencewould show that about 25-26 persons, including the appellant, who is the brother-in-law Hem of the victim) were residing in did‘erent rooms of the common house which was the " / APPELLANT Sushjl Knmar s/o Kripamm Samami, aged about 36 years, r/o village Pitora, RS. Nandani, District Durg, Chhattisgarh. Versus RESPONDENT State of Chhath'sgarh, Through P.S. ~$ f Nandani District Durg, Chhattisgarh Cr.A.No.l6 0f2001 :ancestral property, in which the husband of the appeliant was also having a share. The allegations axe that on 12.6.2000 at about 1 1 p m when she was sleeping in her mom alongwith her 3 chlldlen, the appellant went them, thmatened her and oommltted forcible Intercourse against her She could not mse alarm at the hme of commssmn of the sexual mtexcoulse. However, when she started raising alarm after commission of the said act, by switching-on the lights,the appellant assaulted her with the wooden portion of Tangia) due to which, she received injuriesi Out of fear, she could not disclose the incident to anybody and she did not go out of the house on account of fear. HowAever on 15 6 2000 at about 4 a m she any how managed to escape nom the house and went to her parents place m Village Domar and narrated the story to her mother Chhalla Bai aunt Shaun Bai and uncle Ghasra Ram and thereafter, a tirst information report Ex.P.1 was lodged on 15.6.2000 at about 16.30 hours. (3) During the course of investigation, she was sent for medical examination‘and was examined by Dr.(Smt.) Pratibha Dhani (P.W.4) who prepared her report EX‘P.3. According to her, there was an abrasion of about 1/2cm x Vzcm over the led fore arm, back side the elbow and there was a contusion over the shoulder admeasuring 1” x 1". They were said to be caused by hard and blunt object within the duration of 4-5 days. No internal injuries were detected and vagina admitted two nngers easily. She prepared two slides from vaginal material and handed over for pathological examination. According to her, no dehnite opinion .could be given about recent sexual intercourse. The site plan of the place of incident was prepared under Ex.P.2. The appellant was also sent for medical examination and was ' examined by Dr.Sahas Pandey (P.W.5) who prepared his report Ex.P.4, according to which, no external injuries were found on the person ct appellant and the appellant was competent to perform sexual intercourse. Aiter completion of usual investigation, the charge sheet was nled. Cr.A.No. 16 of200l (4) The conviction of the appellant is based upon sole tnsn'mony of the pmsecuu'ix (P.W.2). (5) Learned counsel for the appellant axgued and mised many points assailing the testimony of the prosecutxix. 1(6’ 0n the other hand, learned State Counsel opposed these larguments and supported the' judgment of conviction and Older ‘of sentence passed by the sessions Court. (#f The prosecutn'x (P.W.2) has deposed that on the date of incident, her eldest son aged about 6 years had gone to the house of hex; paxents and she was sleeping alongwith her 3’ children. At about 11 p.m., the appellant entered into her mom land gagged her mouth, removed her clothes and committed sexual intercourse against her. She could not raise alarm because her mouth was gagged. She further deposed that after commission of the sexual intercourse, the appellant had threatened her that if she will disclose the story to any other person, he will kill her. She also made allegations that she was beaten by the. appeliant with the wooden portion of a Tangia, She further deposed that due to fear she could not disclose this story to any other person. She has very specidcally deposed vide para 3 that the appellant had locked the door horn out side the room, but on the 2nd day at about 4 a.m., when he went out in Gali, she could anyhow come out to Gali and went to the house of Radha Bai in the village and hem there she sent a message to her mother, who came to her village on the next day and then only she went to her parents place and from her parents place, she has gone to lodge the report. (8) Learned counsel hrstly argued that according to the evidence of the prosecutrix herself vide para 8 of her cross examination, about 25-26 persons including the appellant and hisfamily members also, were residing in a common house, therefore, it Was not possible to commit such an oEence in one room of the common house. He also argued that according to the prosecutrix herself, 3 children were sleeping in the room 4 @ Cr.A.No.l6 ¢f200l alongwith her and in this situau'on also commission of fomiblc ‘sexual intercomse was not possible. He also mfemd to para 1,4 of her evidence, in which she has’admitted that she had not come out of her hoose for two days and even she had not taken :water and had not attended the call of nature including release of bladder pmssum. Vida paras 18 65 19 of her cross examination, she was faced‘with the omissions made in the F.I,R., as also in her police statement Ex.D-2, to which she has denied. Vide para 22 of her cmss examination, she has admitted the fact that she was restrained in the house for a day and the main gate of the house was locked by the appellant, but ‘it was not told' by her at the time of lodging of the FILR‘ Learned counsel for the appellant also referred to those paragraphs in which suggestions weie given to her that she. had illicit Ielations with the younger brother of the appellant namely ‘ Mugandas (her Dewar), therefore she was beaten by the family members of the appellant, hence the report was lodged. (9) The conduct of the pmsecutn'x while recording such evidence appears to be quite unnatural. It does not appear to be natural or probable that in a small house of about 5-6 rooms, where 25-26 persons were residing, one of the female members would be raped by a male member, particularly in the night when all the members were present in the house. In that situan'on, if the alarm is raised by the victim, certainly the members of the house would be available to come to her rescue or atleast to ask as to what happened ’P Not only this, the conduct of not raising alarm even after her release after the alleged rape also appears to be unnatulal, particularly, when the prosecutrix is making allegations that thereaher she was beaten by thedapp'ellant by weapon due to which she received injuries. It is not a case in which it can be said that no body knew that the pmsecutrix is there in the room. If we believe the version of the prosecutrix, then she was restrained in the room by locking n‘om outside the room by the appellant for two days. If this is V true, the other family members, who were residing in the same house must have noticed that the particular member is locked in 5 Cr.A.Nu.16 of200l a room alongwith 3 childmn and they must have enquired about the reasons as to Why she has been locked. There is no such evidence on xecord Vto substantiate Vthis fact except that of the pmsecutrix which not only appears to be unnatural, but it clearly appeals to be false Such an event would only be possible when all the mmates of the house are umted not to take nonce of such fact Wmch was allegedly gomg on 1n thelr house In fact, it is quite unnatural and unbelievable. Besides the abpve, the deposition made by the prosecutrix vide para 14 also makes her testimony doubtful She has stated that for two days she had nelther taken water nor had gone to answer the call of nature or to release her bladder pressure, wlnch does not appear to be correct What the 3 children were doing, whether they were not malnng any ones etc for food or water are the factors to be considered alongw1th the story set forth by the prosecutnx Not only this, she has deposed that first of all, after her release, she went to Radha Bai, a lady in the same village, hem where she called her mother, but Radhabai has not been examined in this case. (10) So far as law is concerned, it is an old settled principle that overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, , cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the version narrated by the witnesses. Please see ’Bharwada Bhoginbhed Hitjibhd Vs. Statc__o£ Gujarat, AIR 1983 S.C. 753. It is also well settled that when the version of the prosecutrix inspires conhdence of the Court and the Court feels it proper to’ depend on her testimony, a conviction can well be based on it needing no corroboration thereof. (1 1] in the present case, if we examine the entire evidence of _ the prosecutrix, in’light of the other evidence on record and also in light of the all important “pmbabilities-factor", it would appear that her version and conduct are not natural and on /rl 6 Cr.A.No.16 of2001 account of many post incidental factors pertaining to her conduct and features of the case, her such version does not inspim oonodence of the Court so as to warmnt a conviction on her sole testimony. In the opinion of this Court, the Sessions Court erred in law in depending upon the sole testimony of the iprosecuh'ix for awarding the conviction to the appellant u/ss 1376 & 323' of the I.P.C. The,conviction and sentences awanied to the appellant on such testimony of the pmsecutiix cannot be ‘snstained. (12) In the result, the appeal is allowed. The conviction and sentences aw‘aided to the appellant are set aside. If the appellant is in jail, he shall be set at liberty forthwith, if not Iequiied in any other case. Sd/—. SUNIL KUMAR SINHA Judge