HIGH COURT OF CHHATTISGARH AT BILASPUR v \ (Criminal Appeal under Section 374 of Criminai Procedure Code, 1973) DB: Hon’ble Shri Justice T.P. Sharma and Hon’ble Shri Justice N. K. Agarwai, JJ Present : Smt. Indira Tripathi, Advocate for appellant in Cr. A. No. 276/2000. Shri Yogeshwar Sharma, Advocate for appellant in Cr. A.' No. 12/05. Shri DK Gwalre, Govt. Advocate for the State. ORAL JUDGMENT (Passed on 09.03.201 1) Per T.P. Sharma, J. 1. Since Criminal Appeal Nos.276/2000 and 12/2005 are arising out of the same judgment of conviction and order of sentence dated 12.01.2000 passed by the 15‘ Additional Sessions Judge, Raigarh in Sessions'Trial No.72/99, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction & order of Q sentence dated 12.01 .2000 passed by the 15‘ Additional Sessions Judge, Raigarh, in Sessions Trial No. 72/99, whereby & whereunder learned Additional Sessions Judge, after holding the appellants guilty for l, commission of offence under Section 376(2) (g) of the lndian Penal ~ Criminal Appeal No. 276 of 2000 APPELLANT Shyamu S/o Jagni Ram aged about 18 (mJmn . yearsr‘resident of Kasaiya, Gharghoda, District Raigarh (CG). Versus RESPONDENT The State of MP, through District Magistrate, Raigarh (MP). AND Criminal Appeal No. 12 of 2005 t APPELLANT Saynath Say S/o Kunwar Say, aged (In Jaii) about 48 years, R/o Gharghoda, a *3 District— Raigarh (MP) Now CG Versus RESPONDENT“. State of Chhattisgarh, through : DM, r“ Raigarh, District Raigarh (CG) { 2 Code, sentenced appellant Saynath Say (Cr.A.No.12/O5) to undergo imprisonment for Iife and pay fine of Rs.5,000/-, in default additional RI for 2 1/2 years, and further _.\.sentenced the appellant Shyamu (Cr.A.No.276/2000) to undergo imprisonment for 1O years. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. As per case of the prosecution, on the fateful day of 14.12.1998, between 9 p.m. and 10 p.m. while prosecutrix Hiramati (PW-14) was going to Nawapara i.e. ward of Gharghora and passing in front of the house of appellant Saynath Say — the then Naib Tehsildar, she was £ cailed by co-accused appeliant Shyamu in the house of appellant Saynath Say, Shyamu pushed the prosecutrix inside the house of appellant Saynath Say, thereafter, Shyamu went for purchasing liquor. The prosecutrix entered inside the house of appellant Saynath Say who ts forcefully gagged‘ClOth inside her mouth, thereafter Saynath forcefully removed her clothes from her body and forcefully committed sexual intercourse with her. One another person was present in the house who also committed rape upon the prosecutrix:..\Somehow the prosecutrix succeeded in rescuing herself from the house of Saynath Say, she was naked. She went to the house of Bulloo (PW-9) and demanded Sari from his wife Ratia (PW-10) and after wearing the Sari she went to the police station for lodging FIR but FIR was not lodged on the same day, thereafter she went to her house. Second day again she went to the ‘=police station and lodged FIR at about 2:15 p.m. She was sent for medical examination vide Ex.P-11-A and was examined by Dr. J. Ekka (PW-13) vide Ex.P/12. The doctor gave report after preparing two slides ' of posterior proximal part of Vagina of the prosecutrix and sealed them for chemical examination and recorded the proceedings vide Ex.P/13 which were handed over to Cgnstable Kartik Ram. No definite opinion relating to commission of sexuaLintercourse has been given by the doctor. Sariwhich was given to the prosecutrix by Ratia Bai (PW—10) was seized from the prosecutrix vide Ex.P/4. One undergarment (Janghia) was also seized vide Ex.P/5. Sealed slides were seized from Constable vide Ex.P/6. House of appellant Saynath Say was searched vide Ex. P/3 but no relevant article was found. Saynath Say was sent for medical examination vide Ex.P/10-A, he was examined by Dr. S.N. vs Kesari (PW—12) vide Ex. P/10 who found him capable to commit sexual intercoyrse. Spot map was prepared vide Ex.P/19 by the investigating officer. Patwari‘also prepared spot map vide Ex.P/1. parade relating to one another person, who was also present in the house of appellant Saynath Say at the time of offence, was conducted vide Ex.P/9 but the prosecutrix could not identify any person. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). Sealed articles were sent for chemical examination vide Ex.P/20. Presence of human sperm was confirmed on Sari seized from the prosecutrix and on slides of posterior proximal part of Vagina taken from the prosecutrix vide EXP/22. After completion of investigation. charge sheet was tiled before the Court of Judicial Magistrate First Class, Gharghora, who committed the case to the Court of Sessions Judge, Raigarh, from where the 15‘ Additional ,Sessions Judge, Raigarh, received the case on transfer for trial. . ln order to prove the guilt of the appellants/accused, the prosecution has examined as many as 15 witnesses. Statements of the accused/ appellants were also recorded under Section 313 of the Code in which Identification . \ 4 they denied the circumstances appearing against them, pleaded innocence and false impiication. 8. Defence has examined five witnesses and appellant Saynath Say has also examined himself under Section 315 of Code as defence witness by which the accused have denied commission of rape. Appellant Saynath Say has taken defence that on the date of incident he was present in the rest house of Sitapur and on 15.12.1998 he came to' his residence. . After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as in l u f the aforesaid manner. 10.We have heard Smt. Indira Tripathi, counsel for the appellant in Criminal £ Appeal No.276/2000, Shri Yogeshwar Sharma, counsel for appellant in Criminal Appeal No.12/05 and Shri DK Gwalre, Govt. Advocate for the State/respondent, perused the judgment impugned as also record of the Court below. 11.Shri Yogeshwar Sharma, learned counsel appearing for appellant Saynath Say in Cr.A.No.12/05, vehemently argued that although the police station is situate at Gharghora, but the prosecutrix has not lodged FIR just after the alleged incident. At the time of her evidence in the court appellant was not present before the court and in absence of identification, conviction of the appellant for commission of forceful sexual intercourse is not sustainable under the law. Learned counsel l . further argued that prior to the date of incident accused Saynath Say left Gharghora for Ambikapur, Bilaspur & Sitapur, only on 15.12.1998 at 6:30 he reached to his house situate at Gharghora. Learned counsel also argued that evidence of the prosecutrix alone is not sufficient for drawing inference. that the appellant is the person who committed rape with prosecutrix. Learned counsel placed reliance in matter of Radhu v. @ 5 ‘ State of Madhya Pradesh1 in which the Supreme CouIT has held that conviction can be based on the uncorroborated evidence of the prosecutrix and her testimony silouid not be rejected on the basis of minor discrepancies and contradictions. 12.Smt. Indira Tripathi, iearned counsel for appellant Shyamu in Cr.A. No.276/2000, vehemently argued that as per initial case of prosecution, appellant Shyamu on the instruction of Saynath ‘Say, calied the prosecutrix in the house of Saynath Say, thereafter Saynath Say sent Shyamu for purchasing liquor and in the meanwhile Saynath Say and ’ one other person committed rape on the prosecutrix, Shyamu was not .43 IF" " w - present at the time of commission of rape, therefore, he is not liable for x - commission of offence under Section 376 (2) (g) of the IPC. Learned 'counsel further submits that evidence relating to commission of rape by appellant Shyamu does not inspire confidence and it is not trustworthy: Learned counselplaced reliance in the matter of Bal Kishan v. State of Himachal Pradeshz in which the Supreme Court has held that accused cannot be convicted on the basis of similar name or on the basis of other similarity, the prosecution is required to‘prove the fact that accused was present on the spot of occurrence. Learned counsel further placed ‘ reliance upon judgment dated 08.02.2011 passed by a Coordinate Bench of this Court in Cr.A.No.305/2006 (Durga Lodhi v. State of Chhattisgarh) in which this court has acquitted the accused by giving benent of doubt on the basis of weak evidence. il" 13.0n the other hand, learned State counsel opposed the appeals and_ ‘l argued that the prosecution has proved its case beyond all reasonable , doubts and the present appellants were the persons who have ,l committed rape on the prosecutrix. " J; 1 l 2007 STPL (LE) 38958 sc ‘ 22008(16)scc11 ;mar g 9 6 14.As per evidence of the prosecutrix (PW—14) while going to Nawapara i.e. ward of Gharghora and passing Vin front of the house of appellant Saynath Say, she was called by co;accused appellant Shyamu, Saynath I Say has taken her inside ‘his house and gagged cioth in her mouth, thereafter, he seht (co-accused Shyamu for purchasing Iiquor. Meanwhile, appellant Saynath Say forcefully removed her clothes from her body and forcefully committed sexual intercourse with her. Some‘ how the prosecutrix succeeded in getting herself released from the l, house of Saynath Say. She went to house of Bulloo (PW—9) without 3g” I Q i‘ wearing clothes-and demanded Sari from his wife Ratia (PW-10) and « after wearing the Sari she went to the police station for lodging FIR but the police authorities present at the police station neither lodged FIR nor helped the prosecutrix. Second day she lodged FIR at about 2:15 p.m. ‘g She was examined by the doctor but as the prosecutrix was married 3‘ woman, no positive sign of commission of rape/sexual intercourse was found, though the“? doctor found human sperm on the Sari of the prosecutrix and injury on her vaginal part. 15.Above evidence is sufficient for drawing inference that appellant Saynath Say is the person who committed rape on th‘eprosecutrix and appellant Shyamu is therperson who called the prosecutrix inside the house of \ Saynath Say. Fl: 16.As per evidence of the prosecutrbt, appellant Shyamu has also ‘1 committed rape with her. She also deposed that three persons were present in the house out of which one was not identified and two are the “present accused. There was no other witness to corroborate the , evidence of the prosecutrix but her subsequent conduct relevant in terms ofSectionr 8.ofthe lndian Evidence Act that she rushed to the house of i Bulloo (PW-9) & Ratia (PW-10), at that time she was shouting and was ‘ i 7 naked, has been substantiauy corroborated by evidence of Bhimbahadur (PW—s), Bunoo (PW-9) & Ratia (PW-10). 17. In the present case, appellant SaynatrrSay has taken specific defence of alibi. As per evidence of Manaram (DW—2), on 11.12.1998, he along with appeilant Saynath Say left Gharghora for Sitapur and stayed in the house of parents of appellant Saynath Say and on second day they went to Ambikapur, again they left Ambikapur for Biiaspur, but he (this witness) along with driver went to his village Kusmi where wife of appellant Saynath Say was residing, @ey stayed there at night, and on ' 14.12.1998 the appellant came from Bilaspur to Ambikapur, they also reachgd Bilaspur and went to Sitapur. As per evidence of GaUtam Pradhan (DW-5),“ the appellant has given one application (Ex.D/2) for reservation of room in the rest house situate at Sitapur on 1212.1 998. 18.By examining himself as defence witness, appellant Saynath Say has categorically deposed that after taking permission from his superior officer he left Gharghora on 11.12.1998 for village Kusmi Teh. Sitapur where he stayed and'on second day i.e. on 12.12.1998 at about 3 p.m. he left for Ambikapur along with his driver Rakesh Chouhan and Kotwar. Rakesh Chouhan went to village Kusmi ‘where Saynath Say’s wife is residing, but appellant Saynath stayed at Ambikapur. On 13.12.1998, he left for Bilaspur and returned from Bilaspur on 14.12.1998 for Ambikapur after attending some ofiicial work where his driver and Manaram were present. They proceeded for Sitapur by jeep and reached Sitapur at 9 p.m. He stayed in Sitapur rest house on the basis of reservation ‘ application Ex.D/2 and on 14.12.1998 at 4 a.m. he left Sitapur for Gharghora and reached Gharghora at 6:30 a.m. He has also filed a copy of reservation register Ex. D/3 which reveals that appellant Saynath reached rest house of Sitapur on 14.12.1998 at 9 pm. and left the rest *«f {3 8 house on 15.12.1998 at 4 a.m. The above statement would reveal that he left Sitapur on 15.12.1998 at 4 a.m. and not on 14.12.1998. 19.As per statement of defence witness/accused Saynath say, he went to village Kusmi i.e. his parental village situate at Sitapur Tehsil on 11.12.1998. As per evidence of Manaram (DW-2), he accompanied the present appellant and stayed there, which reveals that parents of the appellant were residing at Sitapur or nearby Sitapur, then why the 2 accused did not stay at his parental house. As per his evidence, he was required to attend office situate at Bilaspur, he was posted at Gharghora, a t‘ after attending office situate at Bilaspur, he was required to go Gharghoga, but instead of returning to his headquarter Gharghora, he has chosen to go Gharghora via Ambikapur—Sitapur, and while he was returning to Gharghora via Ambikapur-Sitapur, instead of staying a‘t his ' own house he again chosen to stay at the rest house of Sitapur. 20.Gautam Pradhan (DW-5) has proved Ex.D/2 i.e. application for _ i‘ reservation of rest house which as per his evidence he has handed over the same to incharge of the rest house. This shows that appellant Saynath Say stayed at rest house instead of staying at his own house, which makes his entire defence suspicious and shows that in order to l save himself from any administrative and criminal action he has succeeded in procuring such document in evidence. Therefore, ”3 evidence of aforesaid witnesses is of no help to appellant Saynath Say. i ‘ 21.ln the present case, the prosecution has examined the prosecutrix (PW- 14) who has specifically deposed in her evidence that on the fateful day I while she was going to the house of her niece at about 8 p.m. she was called by appellant Shyamu in the house of Saynath Say, when she , ‘ ’ reached inside the house of Saynath Say, he sent Shyamu to purchase r i ‘ y liquor and bolted the door from inside and thereafter he committed rape 9 on her forcefully. Some how she succeeded to release herself from the house of Saynath Say. She was naked. She went to house of Bulloo (PW-9) and demanded Sari from his wife Ratia (PW-10) and after l wearing the Sari she went to Police Station for lodging FIR. She was sent for medical examination vide Ex.P—1 1—A. Shewas examined by Dr. J. Ekka (PW—13) vide Ex.P/12 who gave report after preparing slides of posterior proximal part of Vagina and sealed them for chemical examination and recorded the p‘roceedings vide Ex. P/13 which was handed over to Constable Kartik Ram. «r. f 22.Bhimbahadur (P-W—8), Bulloo (PW.9) and Ratia Bai (PW-10) are hostile witnesses. Bhimlgahadur (PW-8) has admitted that at about 11 p.m. he saw a naked woman running towards the chowk and shouting for help. Bulloo (PW-9) and Ratia Bai (PW.10) have deposed in their evidence that they provided cloth to the prosecutrix and thereafter the prosecutrix went from their house. ln their cross examination, these witnesses have deposed that the prosecutrix is fond of liquor and on that day also she was in drunken stage and was unable to talk, walk and stand properly, but she rushed to the house of Bulloo (PW—9) and she was shouting. 23.The prosecutrix was examined by Dr J. Ekka (PW-13) vide Ex. P/12 who gave report after preparing slides of posterior proximal part of Vagina and sealed them for chemical examination and recorded the proceedings l vide Ex.P/13 which was handed over to Constable Kartik Ram. This witness has also deposed that there was some injury on vaginal part of the prosecutrix. 24.As per paras 2 & 13 of the evidence of the prosecutrix (PW-14), the Sari which was given to the prosecutrix by Ratia Bai (PW-10) was seized by ‘ i a the police. Presence of human sperm was found on the sari and slides 7 W77 , ,7 ,, ,7? ‘p which prove that sexual intercourse has been committed on the prosecutrix (PW-14). 25.Defence has cross examined the~prosecutrix (PW-14) in detaii and in paras 1, 4 & 12 of her evidence, she has specincaliy admitted that she knows appellant Shyamu but she never heard the name of Saynath Say, Tehsildar previously, but she knows that S‘aynath Say was Tehsildar and he has committed rape on her. She has also admitted that she used to_.,_ drink liquor. ln para 12, she has deposed that one Dholu was also present with the appellant Saynath Say in his house but, name of Dholu s f does not nnd place in the FIR. 26. Defence has examined Constable T. Toppo (DW—3) who was on duty on 14.12.1998 at about 9-12 p.m. at Police Station Gharghora. Defence has also examined Lambrish (DW-1) who has deposed that ,on the request of the prosecutrix he accompanied her to the police station for lodging FIR where she was not in position to stand properly due to consumption of liquor and, therefore, the police officer has not recorded FIR. The prosecutrix herself has deposed in para 10 of her evidence that on second day she lodged FIR. She went to the police station. along with Lambrish (DW—1 ). 27.As per evidence of Lambrish (DW-1), he along with the prosecutrix went to the police station between 12 noon and 1 p.m. but the police has not recorded FIR. The factum of accompanying the prosecutrix by this witness finds support from the evidence of the prosecutrix, not from the 1 evidence of this witness, however, the factum of not lodging FIR by the police is patently falsein the light of the evidence and in the light of > l EXP/5. Evidence of this witness shows that the police officer posted at Police Station‘Gharghora recorded FIR against Saynath Say who was in dominating position. Evidence of the prosecutrix (PW-14) would reveal 10 Hgl" / (g 11 that she has been subjected to sexual intercourse by appellant Saynath Say in the house of Saynath Say. 28.ln this case, the prosecutrix (PW-14) has no doubt exaggerated her statement in the court, she asserted that accused Shyamu has also committed sexual intercourse with her which is not there in the FIR, but it does not make the whole statement of the prosecutrix untrustworthy. Bhimbahadur (PW-8) has deposed that he had seen the prosecutrix running, she was naked and shouting for help. This statement of Bhimbahadur (PW-8) is further corroborated by evidence of Builoo (PW- ; 9) and his wife Ratia Bai (PW—10). FSL report EXP/22 is sufncient for drawing‘ inference that the prosecutrix has been subjected to sexual i intercourse. 29.As regards the rape committed by Shyamu i.e. co-accused, the prosecutrix (PW-14) has'deposed in paras 2 & 12 of her evidence that Saynath Say sent‘Shyamu for purchasing liquor and in the meanwhile i.e. before returning back of accused Shyamu, appellant Saynath Say and one another person who has not been identified by her, committed rape on her. Evidence relating to commission of rape by Shyamu does not find support from the FIR lodged by the proSecutrix. The prosecutrix is required to prove the fact that co-accused had prior meeting of-their minds and have common intention for commission of such offence. 30.The FIR would reveal that after calling the prosecutrix to the house of 5 i Saynath Say, Shyamu went to purchase liquor. This shows disassociation of Shyamu with appellant Saynath Say or that Shyamu i a had no common intention for commission of such rape. In absence of such evidence, conviction of appellant Shyamu under Section 376 (2) (g) ' of IPC is not sustainable n the law. i 12 31. Evidence adduced on behalf of thelprosecution relating to commission of rape by appellant Saynath Say is sufficient for drawing inference that i appellant Saynath Say is the person who committed rape with the prosecutrix and while arriving at finding that appeliant Saynath Say has committed rape with the prosecutrix, the trial Court has not committed any illegality in passing such conviction order. 32.As per evidence of the prosecutrix, appellant Saynath Say has committed rape with her. As per FIR, one another person who was present: in the house of Saynath Say also committed rape with her, though he could‘not be identified. In these circumstances, conviction of Saynath‘Say is squarely covered within the ambit of offence punishable under Section 376 (2) (g) of the IPC. 33.As regards sentence imposed upon appellant Saynath Say, considering the dominant position of the appellant, the trial Court has sentenced him to undergo imprisonment for life and pay fine of Rs.5,000/-, in default additional RI for 2 1/2 years. Considering the period of detention, age of appellant Saynath Say at the time of commission of offence, sentence imposed upon him requires reconsiderationi 34.Consequently, Cr.A.No.276/2000 med on behalf‘of appellant Shyamu is , Qa 13 Vfine to further undergo RI for 6 months. He was in custody from 17.12.1998 to 01.07.1999 during trial and at the time of judgment Le. 12.01.2000 he was abscohding. Again he was taken into custody from 19.02.2002 and he is in Custody till the date. He is entitled for setoff for L \X' N.K. Agarwai R Sd/- Judge x P. Sharma Ii