HIGH CGURT OF CHHATTISGARR BILASPUR Criminal Aggeal No.55a/1998 Anil Mishra - Versus - S+a+e 0f Madhya Pradesh (now Chhq‘h‘isgarh) Criminal Aggegl No.779/1998 ‘;Vinay Singh - Versus - +a+a of Mndhya Pradésh (now Chha‘H‘isgnrh) JUDGMENT FOR CONSIDERATION Sdl- z / L.c.BHAD00 ' Judge H -9-200é HO'BLE MR. JUSTICE V.K. SPRIVASTAVA. N WM 05T FOR JUDGMENT ON 15*“ sEPTEMBERI ”2006 wry/{ r Sd" ’\-~ M L.c.BHADOO f/xf Judge , r, 9 f‘ ‘b‘: I l E ' r ""A” 14-9-2006 5 ‘ HIGH COURT OF CHHATTI5GARH. BILA5PUR Criminal Appeal No.55&/199& Anil Mishra — Versus — Sfafe of Madhya Prudesh (now Chhaffisgar‘h) Criminal Appeal No.77911996 Vina‘y Singh 13 — Versus — i Vf i } Sfnfe of Madhya Pradesh (now Chha++isgarh) ’Presemi: — i Mr. Govlind Rum Mirri, Advt with Mr. Rumn Pusty, Adm: For appellant in Cr. Appeal No.558/1998. u Mr. MK Baig, Advocate : For appellanf in Cr. Appeal No.779/1998 Mr. UN1.S. Deo Addl. Public Prosecufar wiih Mr. DlKl Ewalré, Dy. 60w. Advoca’re : For fha Sm’re/respondent l DIVISION BENCH: - HON‘BLE MR. L.C. BHADOO AND HON'BLE MR. V.K. SPRIVASTAVA, JJ. J U D G M E N T (Delivered on 15* Sepfember, 2006) The follawinq iudqmen+ of “the Cour'i' was delivered by LC Bhadoa. J:— l 1. lCriminal Appeal No.558/98 filed by appellan'l Anil Mishra and Criminal Appeal No.779l'98 filed by appellani Vinay Singh are being disposed of by +his common judgment as bofh fhese appeals ore‘arising ouf of fhe same judgmenf passed in Sessions i Trial No.419/95 rela‘l‘ing +0 fhe same incideni‘. .liThese appeals are direc+ed againsf H1e judgmenf of convici‘ion and order of seni'ence daied 3"“ February, 1998 passed by learned 15* Addifional Sessions Judge. Ambikapur/ Dis/frid- Sarguja in Sessions Trial No.419195 whereby’learned Addi‘iionnl Sessions Judge affer' holding +he accused/cppellanfs guiHy for fommission of offence under Sec+ions 363, 366 & 376 (2) (g) of i‘he Indian Pena! Code, senfenced each offhe accusedfnppellanf o undergo R.I. for 7yeor's, R.I. for 7years and imprisonmenf for life respeefively. Learned AddifionalSessions Judge direcfed fhaf all The senfences shoH run concurrenfly. ‘ he case of prosecufion, in brief, is‘fhof in fhe nigh? of 13.8.95 he prosecu‘rrix along wifh her family members i.e. her fafher, ofher, grandfafher and fwo sisfers was sleeping in her house ifuai‘ed of Nehru Ward, Ambikapur. Ai' abou'i' 23.30 hrs in +he i‘ghf fhe accused persons knocked fhe door for opening fhe jsame, bu'i' fhe mo'rher of prosecufrix did noi' open fhe door. However, offer some‘i'ime younger sisfer of prosecufrix wanfed fo answer i fhe call of nafure, +herefore, when fhe mo‘i'her of prosecufrix opened fhe door in order 1'o fake her daughfer pLi+side fhe house for answering fhe call of na‘i‘ure, The accused persons forcibly enfered +he house and bol‘i'ed The doors from inside. Accused persons sfar'recl ossaulfing her moi‘her di fafher land fhereaffer commii‘fed rape on her mofher. They forcibly fook jfhe prosecufrix and her sisfer ‘5' ouf of fhe house and a+ fhe ldisfonce of abou’r 10 sfeps from her houselgfhey fhrew her on The ground and commiTTed rape on her afTer removing her cloThes‘ Her sisTer ‘5' was seeing The acT of accused persons. ThereafTer, They Took her and her sisTer 'S’ in a house siTuaTed aT Gangapur, They broughT The key from The landlady and Took Them in a room and There also ‘rhey commiTTed rope on her Twice. When abouT i300 a.m. boTh The accused persons wenT for sleep, she alongwiTh her sisTer ‘5' ran away from There. ReporT of The incidenT was lodged by The prosecuTr-ix ‘V' in The Police STaTion Ambikapur on 14.8.1995 aT 7.50 o.m. On receiving The reporT, The $ToTion House Officer, Police STaTion Ambikapur regisTered F.I.R. (Ex. P—8) for lcommission of offence under SecTions 363, 376 (2)(g) dt 366 r/w‘ x$ecTion 34 of The Indian Penal Coe andxTook up Th invesTigoTion; 3“ Ur*‘ i i l l i d e kw -@ 4. Agccused Vinay Singh & Anil Mishra were sen+ +0 The éovernmem‘ Hospi‘ral Ambiknpur for medical examing‘l‘ion regarding fheir c mpe'rency +o have sexual in‘rarcourse where fhey were examined i ‘o b$ Dr. 3.5‘ Sengar (PW-5), who affer' examina+ion prepared fhe r porf Ex‘.P—1 £1 Ex.P-2 respecfively and opined fhaf bofh 1-he a cusecl persons are campefen'f +0 have sexual infercourse. ¥ 5. TLe prosecu+rix ‘V' was also sen‘r for medicai examinafian To A sisfanf Surgeon (Female) fo‘ 1‘he Governmen‘l Haapi'ral, A bikapur where Dr. Pral-ibha Rajul Jain (PW—5) examined fhe pqosecufrix and prepared The repor'l' Ex.P-9. She no‘l'icecl 'l'hree g wf p Iihear abrasions over righf breas‘i‘ in fhe size: of 2 1’0 3 cm x Ollcm, fhere was lacera'l‘ion in The vagina a‘i 5" clock, 6° clock& 7” cllocklposiiion.‘ Lacera'iion area was congesfed. Bleeding at idnderness on Touch was presenirClo‘ihes of 1'he prosecu'i'rix and acjcused persons were Taken info possession. 6. Afler complei‘ion of inves‘iigafion, charge sheei was filed agoinsf +hie accused/appellan'i‘s in fhe Courl‘ of learned Chief Judicial Mhgisfra‘l‘e, Ambikapur, who in fur-n commi‘i‘fed 'lhe case 1'0 leprned Sessions Judge, Ambikapur from where learned 1‘”: Addifional Sessions Judge, Ambikapur reeeived fhe case on fransfer for ‘l'rial. i . 7. The prosecufion in order To es'i'ablish The charge againsT The accusediappellanTs examined 6 wiTnesses. On The oTher hand, leprned AddiTional Sessions Judge recorded The sTaTemenT of aclcused/appellanTs under SecTion 313 of The Cr.P.C. in which They degnied The maTerial appearing agai/nsT Them in The prosecuTion evidence and sTaTed ThaT They are innocenT and have been falsely implicaTed in The crime. 8.9Learned AddiTional Sessions Judge afTer hearing The argumenTs of‘lea‘rned counsel for respecTive parTies, convicTed & senTenced l l i The accused/appellanTs in The manner as menTionedin ?ara-1 of This judgment ‘ (12$ We have heard Mr. Govind Ram Mirri wi‘rh Mr‘ Rafan Pus+y, learned counsel for appeHan‘r—Anil Mishra, Mr. MK. Baig, [earned counsel for accused-Vinny Singh and Mr. U.N.S. Deo, Addl. Public Prosecu'l'or wi+h Mr. D.K. Gwalre, Dy. GA. on behalf of fhe 5+a’re/r‘espondenj. 1C‘Learned counsel for The accused/appelianfs argued fha‘r in This case fhe sfct‘i‘emenf af independenf‘ivi'rness Le. fhe landlady,who saw The accused persons commiHing rape on +he prosecu’rrix ‘V* was no1' recorded by The Ihyesfigofing Officer, whereas, in fhe FIR if has been men+ioned +ha+ in Gongupur The said londiady also I inamely ‘5', who waeminor of fhe 'Hme of”incioen+ and so‘id 1'0 be ‘:kidnapped by The accused persons, has nof been examined, ifherefore, i Hre convic+ion of fhe accused persons under Sec‘Hon 363 of IPC is bod in .law. They furfher argued +ho‘i‘ as per cross— ‘Eexamino‘iion of prosecu‘i‘rix, a person was residing in fhe neighbourhood and of some disfance infhe vicinify ofher persons were also residing, buf fhe inves‘i’igo‘iing Officer did noi‘ examine ”them. They also argued Tha‘l‘ as +he prosecui-rix is fhe Woman of ieasy viri'ue, “the evidence of +he prosecufrix canno''i be believed and fhe accused persons have been falsely implicofed in +he crime. They have also invi‘ied a'i‘ien'rion of ‘ihe Courf aboui- some confradicfions befween The sfo'l-emen‘i of prosecu‘irix before The police auihoriiies and courf evidence of fhe prosecufrix. I lll Having heard learned counsel for fhe accused/appellanfs,we have ‘perused fhe evidence and records of The frial cour'i‘. As far as fhe argumenf regarding non—examinafion'of independenf wi‘iness and wifhouf corrobora‘i‘ion of fhe evidence of fhe prosecu‘l‘rix by fhe independenf wifness, Same cannof be relied upon is concerned, The law on This poinT is well seTTled by caTena of judgmenTs of The Hon'ble Apex CourT ThaT The vicTim of sexual assaulT cannoT be TreaTed os accomplice and Thereforel her ievidence does noT require corroboraTion from any oTher evidence including The evidence of a docTor and if in a given case even if ‘E‘o‘me \ ond saw The offence. Moreoverl fhe 5isfer of prosecu+rix x i i i i i i x i l i i i .‘ § JThe docfor' who exdmined fhe vicfim does nof find sign of rape,i+ Eis no ground +0 disbelieve fhe sole fesfimony of fhe prosecu+rix. The prosecu+rix is a compe'fen'l' wH‘ness as per provisions of Sec-Hon 118, fher‘efor‘e, her evidence mus+ receive fhe some ‘weigh‘r as is aH-oghed +0 on injured in cases of physical violence and some degree of eare and cau‘l‘ion musf aHach in The evaluofion of her evidence as in The case of an injured I complainan'l' or wi'fness and no more. However, +he Courtmusf be conscious of 1'he faci- +ha'f‘i1' is’dealing wi‘l'h fhe evidence of o pe-rso‘n who is inferesfed in +he oufcome of fhe charge levelled by lh‘eg. If fhe Cour'l' keeps ihis facfor in mind and feels snfisfied fho'r i'i‘con‘aC'i on The evidence of ihe prosecu'irix, There is no Erule of law or pracTice incorporaTed in The Indian Evidence AcT similar i To illJsTmTion (b) To SecTion 114 which requires iT To look lfor corroboroTion. However, in o case, if for some reasonThe l Cour-T is hesiTanT To'pluce impliciT reliance on The TesTimony of The prosecuTrix iT may look for evidence, which may lend ‘assuronce To her TesTimony shorT of corrobornTion required in lThe case of an accomplice. The naTure of evidence required To {lend assurance To The TesTimony of The prosecuTrix musT necessarily depend on The facTs and circumsTances of eachcase. The convicTion can be based on The sole TesTimony of The prosecuTrix, if The evidence of The prosecuTrix inspires confidence and does noT suffer from any infirmiTy and unTrusTworThiness‘ When The ToTaliTy of circumsTances appearing on The record of The case discloses ThaT +he prosecuTrix does noT have sTrong moTive To falsely invoive The person charged, The CourT should ordinarily have no hesiTaTion in accepTin’g her evidence. The Indian woman has Tendency To conceal such offence l because iT involves her presTige as well as presTige of her family. IT is common knowledge ThaT large number of criminal cases , againsT women remains unreporTed To The police on accounT of fear ThaT reporTing a maTTer To The police noT only damages The lrepuTaTion of The prosecuTrix, buT shall desTroy The whole repuTaTion of her family in The eyes of socieTyi I l i l i swtnr sew-es _ 12.Now we shall examineihe evidence available on record in The (ligh'r of +he above principies Iaid down by ‘H'Ie Hon'ble Apex our‘r. The pros‘ecufr'ix ‘V’ (PW—3) has cdfegor-icaHy s1‘a1‘ed in her vidence +ha+ fhe accused persons forcibly enfered fhe house, bol‘l‘ed fhe doors from inside, accused Anii Mishra commi‘Hed rape on her mo‘rher and fhereuffer, accused Vinny Singh fook her I‘n a room and commi'H‘ed rape on her. Thereafi‘er, bo‘i‘h “the accused persons forcibly Took her and her sis-fer ‘5‘ ou‘rside +he Prouse and a‘i' some disfance under a Tree bo'i-h The accused persons commiHed rape 'on her ‘affer undressing her. Thereafi‘er, fhey fook +hem 1'o Gangapur, where in a room 1'he ajccused‘perso'ns again cammii‘fed rape on her. The above evidence df +he prosecui‘rix sfands corroborafed by +he medical evidence of Dn. Profibh‘u Rajul Jain (PW-5L who has sfofed in her evidence 1%ha'r +here wer‘e abrasions on The chesf of prosecufrix in‘ihe size o§f 2 To 3 cm +o 0.1cm,'1'here was lacera‘rion in fhe vagina in ai‘ 5° cLlockl 6° clock (St 7” clock posi'l'ion, same was congesfed and on liouch 1‘here was bleeding di ienderness. Prosecui'rix was a married woman even fhough fhere were fresh lacera'fions in'her uagina and on fouch +here was bleeding, which suggesfs fha'i‘ +he l wh__‘__‘ I i ‘ u. i l ccused persons ravished her confinuously and fherefore, lacerafions were developed and bleeding was fhere and even here were abrasions on The chesT of prosecuTrix. As such, The vidence of prosecuTrix sTands corroboraTed by The medical elvidence. Moreover, in The cross-examinaTion ofThe prosecuTrix n;oThing has come on record ThaT she or her family members have flalsely implicaTed The accused persons on accounT of any dlnimosiTy or aT The behesT of any oTher person in order wreck Tlhe vengeance. There was no reason before The prosecuTrik To i plicaTe The accused persons in a false case ThaT Too aT The sTake of her repuTaTion and repuTaTion of her family. Therefore, non—producfion of The landlady is noT faTal, as The offence sTands plroved by The evidence of prosecuTrix and medical evidence. As flpr as non-producTion of any neighbourer is concerned,in para-10 o'f cross-examinaTion, The prosecuTrix has caTegorically sTaTed TliaT her screams were noT heard by anyone, Therefore, There is l l l ® £no quesfion of/producfion of any neighbourer‘ Accordingly‘ we do §no+ find any subs+ance in The argumen‘f advanced by learned counsel for fhe accused/appeilanfs Tha‘r'no independenf wifness has been examined. v t « ‘ 13.;As fur as fhe “poinf argued by learned counsel for The accused/appellanfs The? 1-he prosecu+rix is fhe woman of easy vir'rue is concerned, in fhe fir5+ ins‘rance, in Para—14 of fhe cross examina‘iion, 1'he prosecu-i'rix herself has admiHed fha‘r she ié n01- in fhe habi‘i‘ of having physi‘gal relafions wi+h ofher- persons and bu‘r +here is nofhing on record which goes +0 show fha‘i she was a Judy of easy vir‘rue, even ofherwise o woman of easy vir'fue has ialso a righf fo pro-reef her‘ person and her evidence cannof be idisc‘arded and has +0 be cau'iiously appreciai‘ed. In The mat'i‘er of iS‘iafe of Maharash'l'ra and anofher Versus Madhukar Narayan §Mardikar repor+ed in (1991) 1 5upreme Cour? Cases 57, in Para—8 i The Hon'ble Apex CourT held ThaT: “.... Even o woman of easy virtue is enTiTIed Toprivacy and no one can invade her privacy as and when he likes. So also iT is noT open To any and every person To vioIaTe her person as and when he wishes. She is enTiTled To proTecT her person if There is an afTempf To violaTe i1- againsT her wish. She is equally enTiTled To proTecTion of law. Therefore, merely because she is a woman of easy virTue, her evidence cannoT be Thrown overboard AT The mosT The office called upon To evaluaTe her evidence would be required To admini‘sTer cauTion unTo himself before accepTing her evidence..." Therefore, There is no reason before us To disbelieve The evidence of The prosecuTrix\‘V'~ and also for The reason; as menTioned earlier, ThaT The defence has noT been able To eliciT in The cross examinaTion ThaT a false case has been foisTed upon The accused persons. a 14.Durin9 The argumenTs learned counsel for The accused/appellanTs Tried To impress upon The CourT ThaT There are cerTain lconTradicTions beTween The police sTaTemenT and in The courT‘ evidence .of prosecuTrix, we have also noTiced These conTradicTions, buT The same are insignific‘anT discrepancies, l - i x l i l which in norma! course occurs in fhe'na‘rur-al evidence. These Ediscrepancies are no+ of sucha na+ure, which creafes doub'i- inbou'f fhe happening of +he incidem‘ looking 1'0 fhe +o+ali+y of circumsfnnces and evidence available on record. 15 .iTherefone, i Vframb The evidence avaiiable on record i+ is es+ablished fhaf The occused/appellan'rs in order +0 commi'r rape on The prosecu'rrix ‘V' abduc'red her and 'rhereaf‘rer commi‘Hed gang rape on her, as such, ihey have been righ+ly convic‘i‘ed under Secfions 366 & 376 (2)(g) of fhe’IPC and 1'0 fhis exfen'i', we do nof find any' illegalify or infirmiiy in +he finding of The Trial gcoLirT. However, as far as The convicTion of accused/appeiianTs [under l SecTion 363 of IPC for kidnapping a minor girl from The u. i lc‘usTody of her parenTs is concerned, in This case The prosecuTion lhas noT examined The said minor girl ‘5' in order To prove The lcharge againsT accused/appellanT ThaT They kidnapped ‘5' and iT is lnoT The case ThaT she was noT available. Therefore, The convicTion of accused/appellanTs under SecTion 363 of IPC cannoT be susTained. l 16 l Learned counsel for The accused/appellanTs argued ThaT aT The l‘l’ime of commission of crime accused Anil Mishra was sTudenT and accused Vinay Singh was working as Driver, There is noThing on record To show ThaT They are habiTual in commiTTing such offence and They are in deTenTion since 18,8.1995, Thereby They are in deTenTion for more Thon- 11 years, as such They be released for The senTenoe already undergone and for ThaT purpose learned ‘counsel for The accused/appellanTs relied upon The decision of l Jharkhand High CourT reporTed in 2004 Cri. LJ. 3375 beTween i Songi Hambram and oThers Versus STaTe of Bihar (now Jharkhand), in which five accused persons commiTTed rape Twice iwhen i The prosecuTrix was sleeping in her house. Accused enTered and ravished The prosecuTrix in such a manner ThaT she was unable To wear her cloThes and walk. The CourT consideringThaT iThe accused persons are in age group of 22-29 years and There‘ was noThing on record To show ThaT They commiTTed similar Type ‘ 6% o‘f gang rape, +hey were le'r aff for The sen-fence already undergone abouf 11 years. Learned caunsel also relied upon The jpdgmen‘r of Hon‘bie Apex 'Courf in The md‘l'fer of Sfnfe of»C.G. V15, Lekhrnm reported in 2006 Cri.L.J. 2139 (Supreme Cour-1') in ughich rape was commi'r'red on +he mi‘nor girl and sen'rence was i Reduced +0 1% year's already undergone. I 17.I'n fhis case aiso of +he Time of commiesion of crime accused Anil Mishra was aged abou'i' 25 years and accused Vinay Singh was also ajged aboui' 25 years and +hene is noihing on record +0 show fhai *i‘ ey are in ’rhe habi+ of commi’rfing such fype of offence. They airk fn cus+ody for Iasi more “than 11 years, Therefore, we are of i fihe considered opinion fha‘i‘ fhe ends of jusfice would meef if i flhey£are released for The sen‘l'ence already undergone. l 18. iln The resulT‘, The appeals of accused/appellanTs m 4:» parTly slucceed, The c’onvic‘l‘ion di senTence imposed on Them .for l i clommission of offence under SecTion 363 of IPC are seT aside, ulhile mainTaining Their convicTion under SecTions 366 (ST 376 (?){g) of IPC. The senTence for life imprisonmenT imposed on The alccused/appellanTs under SecTion 376 (2)(g) is reduced To slenTence already undergone i.e. 11 years and 29 days. The senTence imposed on The accused/appellanTs in Sessions Trial l i l c.418/95, which has been reduced To already undergone senTence i.e. more Than 11 years in Criminal Appeal Nos.556/98& 818/98 are direcTed To run concurrenTly wiTh The senTence imposed in The Sessions Trial No.419/95, which has been reduced l ih These appeals. The accused/appellan‘l‘s be seT aT liberTy orThwiTh, if noT required in any oTher case, i. i L.c.BlHADoo s‘dl— ~ ‘ l l p l Jddge .y’K V ® _(:5&.9- 2006 R oshanl- l l l ‘ A l z l l.- l? l l l