'^•z^-y^ Wi4 1 <-'• f»? HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal ADpeal No.588 of 2006 APPELLANT: (InJail) RESPQNDENT: Jamal @ Jamaluddin Versus State of Chhattisgarh J"..-i:si..,l,W POST FORJUDGMENT ON»S -8-2010 Sd/- Dhirendra Mishra Judge Ifa ^ n HIGH COURT OF CHHATTISGARH AT BILASPUR CFiminal Appeal No.588 of2006 APPELLANT: (In Jail) RESPONDENT: Present: ShriS.C. Verma, counseli Shri Rajendra Tripathi, Panel Jamal @ Jamaluddin, S/o Abdul Majid, Musalman, aged about 20 years, R/o Police Line Raipur, P.S. Kotwali, Raipur, DistriGt Raipur (CG) Versus <4 State of Chhattisgarh, Through •'i District Magistrate, Raipur, District Raipur, (C.G.) for theappellant. Lawyer for the State/respondent. Sincile Bench: Hon'ble Shri Dhirendra IVIishra, J. JUDGM£NT (Delivered on^2"August, 2010) The following judgment of the Courtwas delivered by DhirendraMishra, J. 1. Thiscriminal appeal under Section 374 (2) of the Cr.P.C. is directed against the-judgment dated 22 June, 2006 passed in Special Sessions Trial No. 114/2000, whereby learned Special Judge under Scheduled Castes and Seheduled Tribes (Prevention of Atrocities) Act, 1989, has held the appellant guilty of committing gang rape with the prosecutrix under Sections ,366 and 376 (2)(g) of the IPC and sentenced, him videorder of sentencg dated 31 July2006 to undergo R.l. for 7years & to pay a fine of Rs.3,000/- and to undergo R.l. for 10 years & to pay a fine of Rs.10,000/- respectively.In default of payment offine additional R.l. of qne year and two years respectively has been imposed. Both the substantive sentences have been directed to run_ concurrently whereas, sentence on default of payment of fine is an addition to the above, sentences and have been directed to run consecutively. 2. Briefly stated, case of the prosecution is that the prosecutrix lodged a reporton 5-10-1996 mentioning thereinthat she came to Raipur on 4* October, 1996 from her village at 7 pm and stayed at Kiran Hotel. Since she had failed in ^lass-10 examination, she purchased examination form from the office of the Board at 1 1 am on the next day and returned to h'otel, collected her back for going back, purchased a watch from the nearbyi shop and enquired about any doctor for treatment of stomachache, went to the dQctor near taxi stand, however, she was told that itwasia clinicof a Dentist. At that time, both the accused persons came |there and tolct her fhaf their bus goes to Jagdalpur and the same will drop her at Keshkal. They placed their bag on their white jeep. She went inside the hotel and ordered some snacks, however, whenshe tendered payment, she was told that he has already teceived the payment. Both the accused persons took her in the jeep on the pretext that they will take her to the doctor for treatment of her stomachache, closed the black tinted;side windows of the jeep and took her to a school. She came to know their names that they were Jamal and Raju, 93 fhey werecalling each other by their names. Jamal asked her to alight f^om the jeep and on her refusal, he threatened herwith kniferand took her in a room and bolted the door from inside. Jamal committed rapewith her after undressing her and tiimself, after gagging her by his hands and by threateninq her with .^; B! ffi gs»1!r knife. When she tried tb resist, she sustained one abrasion on her palm caused byknife. 3. After she was ravished by Jamal, Rajualso foFcibly raped her. At that juncture, one dark complexion person peeped though the broken glass panel of door and went away. She could memorizethe number ofjeep as M.P.-23G/8305. She somehow fled from there from theother side, scaled the boundary wall and took a rickshaw, narrated about the ehtire incident to the rickshaw puller, who took her tothe police station. She had left her underwear on the place of the ineident. 4. On her report, crime was registered in Woman Police Station, Raipur, vide Ex.-P/1 against the 376,506 ofthe IPC and Section 3 (1)(xi) ofthe Seheduled Castes and Scheduled Tribes (Prevention of Atrocities) Aet, 1989 (for short 'the Act'). 5. During investigation, underwear of the pro&ec Black coloured bag of sheet (Ex.P/33) & paper of mathematics, prosecutrix and other P/17. The medico legal P/25 and Ex-P/23 apparels is Ex.-P/24. possession vide EX.-P/19 accused persons under Sections 363, 366, wearing apparels of the prosecutrix and icutrixwere taken into possession vide Ex.-P/12. the prosecutrix containing herclass-10 mark- appliGation form of the Board (Ex-P/4), question money bag, oneshawl, wearing apparels pfthe aiticles were taken into possession vide Ex.- examination reports ofthe prosecutrix are Ex- A respectively. Th^-examination reportofherwearing jeep used in the crime was taken into Underwears of accused Jamaluddin and The Rajesh were taken into possession vide Ex.-P/14 and P/22 respectively and the examination report ofthe same is Ex.-P/15. \ ; 6, After completing usua] investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Raipur and the same was received on transfer fortrial by thellearned Special Judge. 7. The charges were framed against the accused persons under Sections 363,366, 376/34, 506-ll.'&f thelPC and Sections 3 (1)(xii) and 3 (2)(v) oftheAct read with section 34 of IPC. 8. The prosecution examined 18 witnesses in all. Thereafter statement of accused Jamal wasrecorded on 20-2-2006, who denied the circumstances appearing against him in the proseGUtion case and pleaded innocence and false implication, as his father is also in the police services. He also examined one Nakul, son of Keshav, resident of Keshkal in his defence. 9. The trial Court after Hearing counsel for the respeetive parties convicted ^appellant Jamal @ Jamaluddin by the impugned judgment asmentioned inparagra|3h-1ofthisjuclgment. 10. Learned trial Court, after setting out the issues for consideration in para-8 of the judgment, held that the age of the prosecutrix cannot be held to be less than 18yea'rs on the basis of her school certificate, as the same is not conclusive proof of age and it is proved that the prosecutrix was above 18 yearsat the time of the incident. On the basis of evidence of the prosecutrix and further corroboration from the evidence of rickshaw pullerRam Chandra (PW-10) in his cross- - examination, it has been^held that on 5-10-1996 the presence of the^ *. '•A a?3 ^s s ^' .^ prosecutrix at rickshaw sent the prosecutrix for Bose (PW-4), Dr. Smt. stand near St. Paul's School, Raipur is established beyond reasonable doubt. The seizure of black coloured \ ' • ' ' ' , bag containging testimonialsand clothings of the prosecutrixvide Ex.- P/17 on 7-10-1996 has been also held to be provedon the basis of evidence of Sunil Singhj;PW-14)and A.D. Ganjeer(PW-S). Referring to the evidence of Ragini Mishra (PW-9), 1.0.,who medical examination to the Medical College Hospital, Raipur and further on the basis of evidence of Dr. Smt. A. Pratibha Chouhan (PW-16) and Dr. Dipti Nagaria (PW-15), it has been held thaton her examination on 6-10- 1996 superficial scratoh was foundon her right palm which could be caused by any hard and| sharp edged weapon. The prosecutrix has sustained one abrasion qn both her legs below knee arid she had also sufferedone lacerated wound on the lower part of her vagina from which blQod was oozing. Dr. Dipti Nagaria (PW-15), onexamination of her private parts found onesmatl red colour superficial linear abrasion of size 3 mm on perineum region which extended frpm middle line of fourchette on the margin of hymen. It has been observed that the above finding of the doctor has not been challenged by the defence. On the basisof aUove medical evidence, it has been held that the version of the prosecutrix in paras-7 and 8 that the accused persons discharged after completing intercourse and blood secreted from her private parts stands confir(ned. Taking the cognizance of the FSLreport marked as Ex.-C/1, it has been held that the presence of human sperm on the underwear, Salwar, Kurta, slide and cotton is confirmed by the chemicalanalysis. Similarly the presence ofiblood on underwear seized from the place of •'S . -: . ' ; . " . .. . ; '.•.... ...'... the incident, salwar and slide is also confirmed. On the basisofeyjdence of Dr. A. Bose, who found one injury on the right palm Qfthe prosecutrix caused by sharp edgedweapon.it has been held that the allegation ofthe prosecutrix that she was ravished onthe knife point and when she resistedthe attempt, she sustained injuries on her right hand s'tands confirmed. Referring to the cross-examination of hostile witness Prakash Masih, watohman of the St. Paul's School and who witnessed the incident, it has been held thatthQugh this witness has resiled from his diary statement of EX.-P/13, he has admitted that at the time of the ineident it was holiday ini the school. The school was also closed on the next day and wheh the blaek bag was recovered from the compound of theschool, the school was running. 11. Shri S.C. Verma, tearned that the appellant has gang rape by the poliee, department and on father. counsel forthe appellant vehemently argued been impticated in a falseandfabricated case of as his father is also an employee in the police account of some service related dispute with his 12. The defence has cross-examined the l.0. Ragini Mishra at tength. On close scrutiny of her evidence, ,^ find that there is no suggestion from the defence that the appellant is being falsely implicated in the aforesaid crime only on|account of service related dispute with his father, who is also an employee of the police department. The only suggestion givento thisiwitness in para-17 is that the father ofthe appellant protested before Ragini Mishra as to why she is implicating his son in a false case which has been denied by her. Further to her that when the accused was called for suggestion has been given interrogation, the tone.in was disapproved by thiis the aforesaid crime. iwhich he talked with the investigating officer witness and out of anger she implicated him in 13. It was vehemently arguect.',ttiat the proseeutrix was medicalty examined at 1.30 pm on 6-10-96 by-Dr. Smt. Pratibha Chouhan. Thereafter she was again refej:red to another lady doctor whtf examined her at 6 pm which shows the personal interest of the investigating officer. 14.Fromthe evidence of Dr. Pratibha Chouhan, which has been elaborately detailed in the impugned judgment, it is clear thatshe noticed abrasions on both her legs below knee as also one irregular shape lacerated wound on the lower part of her vagina from which bloodwas oozing. This witness had referred the prosecutrix tosome Gynecologist forfurther examination whereupon she was examined by PW-15 Dr. Dipti Nagaria, who confirmed the finding of Dr. Pratibha Chouhan. 15. Referring to para-1 5 vehemently argued that disctose the names of af sihe the on the same day, which thus, first information the evidence of the prosecutrix, it was has categorically admittedthat she did not accused persons while lodging the report, however, their names appears ir^the first information report recorded establishes manipulation by the police and ireport is highly doubtful and suspicious Kfr document. The prosecufion has suppressed the genesis 6f Ihe crime and implicated the appellantin afalse case. 16. Itis true that in para-15 this witness has deposed that she did not tell the narrTe of the accused persons at the time of lodging the repoFt, as she did not know their hames andshe only gave their description, However, in para-16, she hasclarified that she could khow the names of the accused persons asth^ were calling each pther by their names. Her examination-in-chiefi was recorded on 14-3-2001 andat the request of the defenee that she is to be cross-examined by a senior advocate, her evidence was stopped. Thereafter she was cross- examined on 18-2-20Q5 i.e. after 9 years of the incident. In these circumstances, the aforesaid firstinformation report cannot be doubted solely on the basisofher admissionin the cross-examinafion that she did not disclose the names of the aCGUsed persons at the time of lodging report particularly when she has clarified the position in her subsequent cross-examination. 17.The version of the prosecutrix is duly corrdborated from promptly lodged first information Feport asalso from the medical evidence in which corresponding injuries have been found on her right palm which she sustained by sharp edged weapon while resisting the attempt by the accused persons, She 'also sustained lacerated wound on her vagina from which bloodlwas oozing. The seizure of underwear from the class room where rape was committed has been duly proved. Even the seizure of bag from thesehool compound has also been proved containing her personal testimonials and wearing apparels has been duly established. The ^ FSL has confirmed blood stains and human sperm in her uhder garments, wearing apparels, vaginal slide. Her version is substantially \ :' - . ! . - '- corroborated from the evidence of hostile witness Ram Chandra (PW- 10), rickshaw puller, who-has admitted in para-4 that on 5-10-1996 at 2 pm when he was present in the rickshaw stand with his rickshaw, a frightened and weeping girl asked him to take herto the police outpost and when she was being ipterrogated in the police station, he was ^; ' - standing. l8,After close scrutiayof the going through the impugned Court, after elaborately and after proper appraisal the appellant. Thefinding ofthe evidence available 3arve entire evidence available on record and after jydgment, 1 am ofthe opinion that the trial dealing with the evidehce available oh record ofthesame, has recorded a finding against so recorded is based on prbper appreciation on record and the same does not call forany interference of this Court.i 19.1n the result, the appealbeing devoid of substance deserves dismissal and thesame is hereby dismissed, Sd/- DhirendraMishra Judge A