aw ^' IN THEHICTICOURTOF JUDICATURE.AT BILASPUR CHHATTISGARH CRIMINAL APPEAL. N0.^/2008 APPELLANTS :-1. Rajesh Singh alias Loha-Singh S/o Rameswar Singh Goutam Nagar Zone -1 Khursipar Thana Chhavni Distt. Durg (C.G). Accused in Jail RESPONDENTS :-1. State of Chhattisgarh Through D.M Durg. 2. Ram Nivas S/o Ramdas Chamar aged 30 years R/o Goutam Nagar Sector-11 Khursipar near Pump House, Zone -2 Bhilai Thana Chhavni Uistt. Uurg (C.Q). 3. Krishna Murari alias Bablu alias Dabbu S/o Ramchhabile , aged 25 years, R/'o Goutam Nagar e$'°near Pump House, Sector-1, Khursipar Thana Chhavni Distt . Durg (C.G). 4. Aiiil Kurnar Sharma S/o Ramashray Sharma aged 24 years R/o Goutara Nagar near Shiv iVlci.llUll, Camp-1, Khursipar Thana Chhavni Distt Durg (C.G) 5. Hasan aJi S/o Airvar Aii, Musalman aged 2Q years R/o near Goutam Nagar, Zone-1, Khursipar Bhilai Thana Chhavni Distt. Durg (C.G). 6. Vy'ay alias Badka S-/o Ranipant Gupta aged 22 years R/o ntear Ravanbhata pond , Supela Distt Durg (C.G'). (Absconded) CMMINAL APPEAL UNDER SBCTION 37<OF THE CODE OF CRIMiNAL PROCEDURE ^l HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 385 of 2008 APPELLANTS RESPONDENT VERSUS Ramniwas and another State of Chhattisgarh Shri M.D; Dhote, counsel for the appellant No.1. Shri Pravin Dhurandhar counsel for appellant No.2 Shri Neeraj Mehta PL for respondent/State. Cnminal Appeal No. 575 of 2008 APPELLANT RESPONDENT VERSUS Krishna Murari alias Bablu alias Dabbu State of Chhattisgarh Shri Arvind Dubey, counsel for the appellant. Shri Neeraj Mehta PL for respondent/State. Criminat Appeal No. 589 of 2008 APPELLANT RESPONDENT VERSUS Rajesh Singh alias Loha Singh State of Chhattisgarh Ms. Sharmila Singhai and Shri Sanjay Agrawal, counsel for the appellant. Shri Neeraj Mehta PL for respondenVState. CRIMINAL APPEALS UNDER SECTION 374 (21OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (05.03.2010) Since the aforementioned three appeals arise of the same judgment dated 14.2.2008 passed by Additional Sessions Judge (FTC) Durg in Sessions Trial No. 370/1999, they are disposed of by this common judgment: < 1 ;'33'-E'?n.33eBu,l»—lu« The appellants have been convicted under Sections 376, 324/34 and 506-11 1PC and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs. 2000 u/s 376, to undergo rigorous imprisonment for two years and pay fine of Rs. 500 u/s 324/34 and tQ undergo rigorous imprisonment for three years and pay fine of Rs. 500 u/s 506-11 IPC. In addition to this, accused/appellant Rajesh Singh (in Criminal Appeal No. 589/2008) has been convicted under Section 25 (1-b) (B) of the Arms Act and sentenced to undergo rigorous imprisonment for two years and pay fine of Rs. 500, plus default stipulations. 2. Case of.the prosecution in brief is that on 25.6.1999 at about 11.15 p.m. FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 24 years alleging that on 24.6.1999 at about 9.30 p.m. she was returning along with her husband on bicycle after taking treatment from witch doctor and when she reached near a brook in between Rajiv Nagar and Gautam Nagar, some boys who were standing there asked her husband to stop. It is alleged that when her husband stopped, she got down from the bicycle. Meanwhile, three- four boys came to them and started abusing and beating her husband. When she tried to cry, two boys gagged her mouth, took her to some distance and then both of them committed forcible sexuat intercourse with her thrice. tt is alleged that when those tw^ boys were committing the offence, other 3-4 boys were beating her husband. It is alleged that when some persons of Gautam Nagar locality came there, all the boys fled away from the ptace of inciden" It is alleged that as a'result of beating, her husband had received injury on the left eye and the fingers ofright hand. It is alleged that though she did not know the names of the boys, after seeing she would identify them. It is further alleged that as she was threatened by those boys, report could not be lodged by her on the same day but after being advised by the people of the vicinity the report was lodged on the next day i.e. on 25.6.1999. Case diary statement of the prosecutrix was recorded on 26.6.1999 whereas that of her husband Santosh was recorded on 25.6.1999 itself. After completion of investigation chatlan was filed before the competent Court. ./ //' —3- 3 . In order to establish the guilt of the accused/appellants the prosecution has examined 14 witnesses. Statements pf the accused/appellants were also recorded under Section 313 of the CQde 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 for the offence as mentioned above. However, as remaining twoaccused persons namely Hasan Ali and Vijay were absconding, the judgment impugned would not be applicable to them. 5. l-1eard counsel for the parties and perused the material available on record including the judgment under challenge. 6. Counsel for the accused/appellants submitted that there is delay in lodging the FIR as the incident is said to have taken place on 24.6.1999 at 9.30 p.m. whereas the report was lodged on 25.6.1999 at about 11.15 p.m. i.e. more than 26 hours thereafter. They further submitted that in the FIR (Ex. P-1) nannes of the accused/appellants were not mentioned though they are named in the case diary statements of the prosecutrix (PW-1) and that of her husband namely Santosh (PW-2). According to the counsel for the appellants it is a matter of surprise that when no test identification parade was conducted how the names of the accused/appellants have been mentioned in the case diary statements. It is argued that in the FIR it is alleged by the prosecutrix that she was subjected to rape by twounknQwn persons for three times whereas in the Court statement she improves her version and states that all the six persons had committed rape on her twice. It is argued that there are several inconsistencies in the statements of the prosecutrix (PW-1) and her husband Santosh (PW-2). According to the counsel for the appellants, statement of the prosecutrix is so ridiculous that it cannot be believed for the reason that though atthe time when she was raped by six persons twice she was carrying five months pregnancy but her not receiving any internal or external injury creates a doubt 6n entire story put forth by her. In support of their submissions, reliance is placed on the following decisions'of the Supreme Court: jo^ luspiyns si ^as}\ ui 4014^ SOIMI suosjad xi.s Aq sjnoij iiey pue OMI joi pedej SGM si|s leyi pue Aoueu63jd SIIIUOLU g-fr BuiAjjeo SEM xuinossojd 94} (ueppui ^o aiu!} 94} }e AipeuiLupe (eyi stiiuqns s|-| 'eoe|d US^BI peq sousyo qons ou leqi uoisnpuoo B 01 BUILUOO JO^ UO]JS}U3 S|OS ' SL|} Sq IOUUEO SOUSplAS JE|nOO 6UIIU|34/UU3AO 0} pje6aj SUIABLI Ajnfui p eouesqy 'sdej p a6jEL)o e , eAojd oi uou enb suis e )ou si xutnossojd si|i 01 Ajnfui leiii paujiuqns pue tsi. ndw (e) t'ooz ui psijodaj eiieteujex 10 aie»9•A ^eqioue pue qe§jioeisea jo jeyeui siii ui ynoQ siusjdng sqi 10 uoisipsp eiii uo aoueiisj paoejd SH •uoi^nossojd sq} p eseo 34) spoddns ijoniu AJSA xuinossojd 941 jo leooiuod 941 uo eozdieuujsds p eoussajd 31)} Buiuj-iyuoo isAjeue leoiiusqo ai|i ^o }jodsj 'iesunoo sieig SL|I o( 6u!pjo3ov 'siueiiadde/pasnooe SL|^ 01 iijsusq /(ue 8Ai6 IQU pinom uosjed jeij uo /Linfui ^o eoussqe 'ApE) peujeiu e sem xu)no9sojd eqi ~§e leq^ sijiuqns s|-| 'suosjsd pesnooe 94} 01 d|34 Aue p sq iou p|nom xuinossojd 9i)i j.o lusuusteis SL|I ui SUO!SSILUO pue suoipipejiuoo JOUILU ye\i} s)ituqns SH "Aep eujes 94} uo psBpo) eq )ou p|noo li 'suosjad pasnooe si|} Aq USMB ieajq»jo tunoooe uo leqi 'Aue ji Ae|9p 8i|i ioi UMoqs uasq seq esneo tusioiyns pue au 0416uiBpo| ui Ae[ap a}euipjoui ou si sjsq} }EI|} S}iiuqns pue peuBndLUi tueu)6pnf 94} syoddns sieisftuapuodssj avj\ jo^ issunoo pueii jsqio SLII UQ •^ •pSA|OAUi eje pasnooe ^o jaqiunu e6je| e sjsqM Aijeinoiyed 'uoiteoiiduji SS|BJ ^o ^iliqissod sq} isuieGB paps}0jd sq OS|B isnui pasnooe sqi '01941 01 Buipjooav "IISM se pssnooe 3L|i 01 sBeaiep pue uoiieiiiuinLi 'ssajisip |enbs esneo ueo sdej p iuo4e6a||e es|ej e aLuii siues 8L|) )B (nq tuipiA aqi 0} uoiieiiiuinq pue ssQjisip issiesjB siji sssneo sdej leqi pei 941 ^o iqBis is0) eq louueo }i }BL|} }iiuqns jaiiynj Aaqi -leninboe s/uesep s}ue||sdde/p3sno3e si|l auo|E eouspiAe isv^ yo psseq pue Aqijowqsmiun uoiinossojd aqi 10 eseo ejiius sijt SS>|BUJ 'puno^ SGM Apoq jeq uo ^infui ou inq soeyns i|6noj e uo ootieiii aoimi suosjad xis Aq ssjnoojaiui lenxes oiqp^oi o^ pape[qns sem SL|S leqixuinossojd SL|I ^o UOISJSA 941 leiii )iLuqns S}ue|i9dde aqi J,oi issunoo suoisioap piessjo^e sift uo Bui/([9y ('d'n jo SIEIS 'A SJ8410 pue oofey) 8S8 OS 600Z UIV (!") ('d'M P 3»EtS'A JSlltOUB pue IUEJ!|]E-|) 69 008 Oi (800Z) (!!) •BSSUQp 8)6)3 'A sjsqio pue ejsin deiejd) l.fr 033 £(U61) (!) -*?- •/: // —S-- convicting the accused/appellants under Section 376 IPC and absence of injury on her person would not be fata] to the case of prosecution. 8. The prosecutrix (PW-1) has stated in her evidence thaton the date of incident at about 8.30 p.m. she was returning from temple along with her husband on bicycle and when they got down from the bicycle near a brook, they were surrounded by the accused/appellants and also subjected to beating. She has stated that the three accused persons continued to beat her husband whereas other three took her to some distance by dragging and committed forcible sexual intercourse with her one by one and thereafter remaining three accused persons also came there and committed forcible sexual intercourse with her one by one. She has also stated that the accused persons had also threatened her to kill if she disclosed the incident to anyone. This witness has stated that as at the time of incident she being totally perplexed could not tell clearly as to who were those three persons by whom she was first dragged away and subjected to sexual intercourse. She has however stated that all the accused persons had raped her twice. According to this witness she had raised cries but nobody came there. This witness has also stated that on account of beating by the accused persons, her husband had sustained injuries on various parts of his body. She has stated that the accused persons had assaulted her husband with sword and club. She hasstated that as at the time of incident the accused persons were calling each other by name, she had heard the name of accused Rajesh. She has stated that on account of it being late night, the report could not be lodged on the same day. In cross examination this witness has stated that the incident had taken place while she was returning from the temple and not from the house of witch doctor as has been stated in the FIR. She has stated that at the time of incident she was carrying pregnancy of five months. She has also stated that near the place of incident there is an open ground where people go to ease themselves. She has stated that though she had not disclosed the incident to any person of the locality, they themselves had come to know about the same and accompanied her to the police station 1 -<roff"'"''.ftl!iB!nr.'te,I.IwiBi* : -&- also. According to this witness, she was not aware as to when her statement was recorded by the police. Just thereafter she has stated that her statement was recorded by the police immediately. She has stated that even at the time of lodging of FIR she did not know the names of the accused persons and therefore she did not mention the same in it. However, in the statement recorded by the poiice she disclosed the names of the accused/appeltants on being told by her husband. 9. Santosh (PW-2) - the husband of the prosecutrix has stated that on the date of incident he was retuming from the temple on. bicycle along with his wife and when they reached near a brook falling in between Gautam Nagar and Rajiv Nagar, one of the accused persons namely Rajesh, held his bicycle and started abusing and beating him. Thereafter, other accused persons also subjected himto beating. One ofthe accused persons assaulted him with dagger as a result of which his fingers were cut. He has stated that the accused persons took him to Gautam Nagar beating and then they again brought him back to the temple but at that time his wife was not there. Out of the total accused persons one used to be with him while the others used to commit sexual intercourse with his wife and in this way alt of them committed sexual intercourse with her one by one. Thereafter, they brought his wife to him and after making him to sit in the temp!e again started beating him and tooR—""" his wife to Rajiv Nagar and committed sexual intercpurse with her one by one. He has stated that on account of fear the report could not be lodged on the same day and on the next day when people of r the locality came to him anci advisedto lodge the report so that no such offence is repeated by the accused persons in future, the report was lodged. !n the cross examination, this witness has first stated that he and his wife had gone to the temple but subsequently he said that they had gone to the witoh doctor. He has further stated that prior to the date of incident the accused persons were not known to him. According to him, near the place of incident there was no light and that his wife was subjected to sexual intercourse by the accused persons for two and half hours. He has stated that near the S:i: ;/ .''"' —7- place of incident house of one Ramji Sharma was situated and at the relevant time he was present in his house. 10. Ramji Sharma (PW-3) has stated in his evidence that on the date of incident he heard the noise emanating from some distance and when he saw some boys were standing outside and thereafter he came back and after closing the door fell asleep. This witness has however been declared hostile. Dr. P. Dani (PW-4) who had examined the prosecutrix has given her report Ex. P-5 and stated that at the time of examination prosecutrix was carrying 4-5 pregnancy. This witness has stated that the prosecutrix had not disclosed the incident of rape to her. According to this witness, if a lady carrying 4-5 months pregnancy is subjected to rape by 5-6 persons, possibility of injury in the uterus is there.No mark of dragging was noticed bythis witness on the body of the prosecutrix. Raghunandan Das (PW-5) has not supported the case of the prosecution and therefore he has been declared hostile. Ganpat (PW-6) who is the witness of seizure of dagger from accused Rajesh has also not supported the case of prosecution and has been declared hostile. Dr. J.P. Meshram (PW-7) who had medically examined the husband of the prosecutrix namely Santosh has stated vide his report Ex. P-15 that five injuries were there on his body. Dr. Prabhat Pandey (PW-9) who had medically examined the accused persons has stated that they were capable of performing sexual intercourse. Balak Ram Thakur (PW-12) has also not supported the case of the prosecution and therefore has been declared hostile. Sub Inspector Bhavesh Sao (PW-13) who had registered the FIR and Investigating Officer P.C. Sonkar (PW-14) have fully supported the case of the prosecution. 11. Though in the report of the chemical analyst spermatozoa was found on the petticoat of the prosecutrix and undergarments of accused Anil, Vijay, Hasan and Murari alias Dabbu, it is mentioned in the same that sample collected by the prosecution was not sufficient for serum test. From the statement of the prosecutrix it is clear that there are material contradictions and omissions in the same. In the FIR it isalleged that when she along with her husband was returning after taking treatment from ^ witch doctor on bicycle, ^SSWS" , jfV'^^'^W^'wfssi'ssss , *!'TC"'353EK-'.. : . .";; -% - they were stopped by the accused persons whereas in the Court statement she has stated that they were returning from a temple and when got down from the bicycle near a brook, accused persons came there. Secondly, in the FIR she states that she was subjected to rape by two accused persons tum by turn for three timeswhereas in the Court statement she states that she was raped by all the six accused persons twice. Thirdly, in the F1R she states that while being subjected to rape some persons came from Gautam Nagar and aftel" seeing them, all the accused persons fled away whereas in the Court statement she does not say so. In the Court statement this. witness has stated that all the accused persons had accompaniec^ her and her husband up to some distance and then went away. Similar is the situation with the statement of the husband of the prosecutrix namefy Santosh (PW-2) which is also full of material contradictions and omissions. Most importantly, in the F1R, the prosecutrix has not named any accused whereas in her statement recorded under Section 161 of the Code of Criminal Procedure two days thereafter, she has categorically stated that the accused persons who had stopped her and subjected to sexua! intercourse were of the colony. In the Court statement the prosecutrix has stated that the accused persons were not known to her prior to the incident and their names have been disclosed to her by her husband Santosh and that is why at the time of recording of diary statemen( she had disclosed their names whereas husband of the prosecutrix Santosh has denied of ever disclosing the names of the accused persons to her. Husband ofthe prosecutrix has named the accused r persons in his case diary statement whereas in the Court statement he has stated that he did not know the accused persons prior to the date of incident. As per the statements of the prosecutrix and her husband (PW-1 and PW-2 respectively) the prosecutrix who at the relevant time was carrying pregnancy of 4-5 months was subjected to rape by six persons one by one and that too on the floor, absence of any external or internal injury on her body, as opined by Dr. P. Dani (PW-4), renders -the testimony ofthese witnesses to be totally unbelievable. Thus, in these circumstances, the conviction of the appellants under Section 376 IPC can not be maintained. Secondly, -^- from the statement of the witnesses it is not clear as to which of the accused/appellants had caused which injury to the prosecutrix and her hysband as according to the statement of Santosh (PW-2) darkness was prevailing at the relevant time, their conviction under Section 324 IPC is also noLfit to be maintained. Thirdly, no specific role has been attributed against any of the accused/appellants as they were not known to the prosecutrix or her husband; it is difficult to maintain their conviction under Section 506-11 IPC also. Fourthly, as the seizure witness has not supported. the case of the prosecution, convictiQn of accused Rajesh under Section 25 of the Arms Act is also not made out. 12. In view of the aforesaid discussion, this Court is of the considered opinion that the judgment impugned convicting and sentencing the accused/appellants as mentioned above is not in accordance with the evidence available on record and therefore the same is liable to be set aside. Accordingly, the appeals are allowed. Judgment impugned dated 14.2.2008 is set aside. Accused/appellants are acquitted of all thechargeslevelled against them. They be set free forthwith if not required in any other case. 13. Appeal is thus allowed. Sd/- PritinkerDiwaker g«i (^r\A^ ^ 'l^