^"'l l^ lfil':l I IN >4 ^ p* f-* !^?> c^C» IP ^ ^J^ ^ ^•'s ^fo -*@ •^ •' •• &^ ??s ^^1 i ^6 rrp ^ ^ @> ^i e» N f8 ^ ^ ^ «^yr ©^^ p«^ ^: v •^^9. jS^ • ^s o ». " '• •<^ 1 <^ R Ite; -^ -SE oo' ^8 T ^ "s^ HI6H COURT OF CHHATTISeARH AT Singte Bench ; Hon'ble Mr. Justice Pntinker Diwaker Crimmai No.478 ©f2001 APPELL^NT (Ln Ja'ii) RESPON&ENT Astu son of Pandru Bhatra Versys State of Chhattisgorh APPELLANT CEn Jail) Crimi'nsl No. 589 of 2001 Ume.sh son of Sudhu Bhatra Versus RESPONDENT State of Chhattisgorh ^ Shri R.N. Jha, counsel for the appeiJGrst. Shrl PankaJ Shrivastava, Pane! Lawyer for the State. CRIMINAL APP'EAt UNDER S£CTION374 (2) OF THE OF (22.04.2010) Since the aforementioned two appeds arise out of the same judgment dated 18.5.2001 passed by Specid Judge, Schedujed Cdste and Scheduled Tribes (Preventjon- of Atrocities) Act,.jGgdG!pur in Sessions Triaj No. 503/2000, they are disposed of by this common judgment. 2. AppeiJQnt Astu and Umesh have bee'n convicted for the offence punishable under Section 376 (2)(g) cf the IPC and hove been sentenced to undsrgo rsgorou.s JmprJsonment for 10 years, ond to pCEy fine of Rs.SQOO/-, in default of payment ofi- fine to further undergo rigorous imprlsonment for two yeors. % ^- 3. Brief facts of the case are that on 5.10.2000 at about 6.50 pm F.I.R. (Ex.P-1) was iodged by the prosecutrix (PW-1), aged about 18 years alieging in it that she is resident of Kumhail ond works 'm the agricuitural fleid with her mother. She has ajieged thot on 2.10.2000 o.t about 12.30 m the nlght when she dong wlth her friends namely FuSobai, AnitQ, Sukri/ Teejo Bai, Rameshwari <& Malti wos returning from Chapka Ashram after watching th®Chhattisgcrhi dcnce, ohead of them other villagers of the villcge namely Ramesh, Dc.!u COTd Lachhman were golng. She has aijeged thct near Xosa Csntre of viliage Chapka, about 7-8 boys come ther®and ofter showing knife to Ramesh and Dalu, have asked them to jeave the girls. She has stQted that on account of fecr, Ramesh and Dolu had left the piace and out of 7-8 boys, two of them caught hold of her ond then they committed forcible sexuo! intercourse. Sh® has stated that on account of fear, she could not ralse her voice ond her friends nameiy Fulobo.l, Anlto, Sukri, Teelo Bo.l, Rameshwon & Malti were aiso taken by other boys and a!l these girls were ojso subjected to forcible sexual intercourse by other persons. Sh.e has further alleged that when she returned to her home, Ramesh, Daiu and Lachhmo-n have informed her that Jogj, ^anesh ond Lachhu and 4-5 other persons of vlilage Chapko. were the persons, who had shown knife to them and jt must be thejr friends who have committed rape on her. Further case of th.e prosecution is that Ramesh (PW-2) to whom the knife was shown by some of the persons and who had left the place, straight away went ond contacted some of the boys of ene Pr'otectjon Soclety o.nd he co.me back to the spot with those persons and also wlth certain po!ice officiaSs, the accused/appejlant Asthu was caught raid handed ^ and when he was arrssted, he was naked. On 7.10.2000 in presence of two ponchas nameiy Samunder Ram and Tuicram, vide Ex.P-14 it Is alleged thot the prosecutrix is al!eged to have identified the accused persons and bassd on that, the investigation was done and the accused/appeliants haye been prosecuted for th©offence punishabie under Section 376 (2)(g) of the IPC. 4. So as to hold to accused/Qppellants guiSty, prosecution has examined as many os 8 witnesses in support of its case. Statements of the accused persons were a!so recorded under Section 313 of the Code of Criminal Procedure in which they denied the chcrges ieveiied agdnst them and pleaded their innocence and false impiication in the case. 5. Counse! for the appellants submits that present is 0 case where the accused/appellants and the other accused persons were enjoylng 9roup sex but It appeo.rs thoit for some reason or the other, report has been iodged. He submlts that there is two day-s' delay in iodging th@ FIR and the some has not been expiained properjy by the prosecution. He further submits th.at identification of the accused persons Is not in accordo-nce with law, as th©same has been conducted by the police and has got no value. He further submits that statement of the prosecutrix is totaliy unrelicxble because she is very inconsistent In the court. He dso submits that as p@r the statement of Ramesh (PW-2)- one of the eye witness, three persons have raped the prosecutrlx whereas as per the prosecutrix, she was raped by two accused per-sons. Medica! report of th©prosecutrix does not support the prosecutlon case and as per Ex.P-2 (medical report-), rio Injur^/ whatsoever ':y~'"^y ^j .....a;-^v Ys:. ^2sr^; was found 'either on the exterrsd or internal part of the prosecutnx. 6. On the other hand, counsel for the Stats supports the impugned Judgment cnd submlt-s that the impugned Judgment is in accordonce wlth So.w and m'nor contradictlons and omissions in the statements of the prosecutrix have to be ignQped because she is a rustic vlllGger. H@ further submits that as per the statement of the Dr.'(Smt.) A. Kachh (PW-6), when the private port of the prosecutrix was touchsd by the doctor -she was complaining pciin (md the said part was bleedjng. 7. I. have'heard counsel for the parties and perused the materia! avdlable on record. 8. Prosecutrlx (PW-1) has stated th.at on the date. of incident she had gone aiong with her friends namely Fulobai, Anita, Sukri, Teeio Bai, Rameshwari d Mojtl to watch foik doLnce and when o.t about 12 in the night she was returning, on the way, she met Kesa <& Peelu and thsy have asked her to remove her ciothes. She has further stated that she knows the accused/cppeiiants snd it is they who have raped her. She has stated that accused/appellants haye com?B.itted forclble ssxuai intercourse with her and they .have shown the knjfe. to Ramesh and Dalu, QS a resuit of which both of them hav®fled away from th.e sport to ca!l the police. She has further stated that her other friends were QJSQ subjected to rape by other persons. In cross-examination, she has stated that on account of fear, she cou!d not iodge th©prompt report. She has dso stated that the piace where the incident had occurred was dark cnd she has sustalned injury on her back. In cross- '4f"^i^ k3^ ^^^'^ >^3J!-^' examination she has also stated that report was lodged, as the Sarpanch of the vHlo.ge hod inslsted for the -some by soying that if th©report would not be !odge.d, yiilo.ge wouid be defamed. She has categor'ically stated that if the Sarpanch of the viiiage would not be insisted, she would not have. !od9©the report-. In pcragrGph 8 of her cross-exGmination, prosecutrix has stated that she knew the persons who had committed rape on her and then she has stated thot for th©flrst time she has seen the present accused/appeliants in th.e courS-. From the statement of the prosecutrix, it is apparent that she ls not consistent in m'aking her statement. Her statement mak@s it clear tho.t she was not j'nterested to iodge the report and the report wo.s iodged on the insistence of the Sarponch of the viiiag®. 9. Ramesh (PW-2), who wo.s accompanying the prosecutrix at the tirn® of commi.ssion of offence, though has been declored hostiie but has stated that accused persons have threatened hjin by showjng knife and h®ran away from the spot, however, he could hear the cries of the prosecutrlx who was caSSing hlm. H®ho-s -stated that prosecutrix was raped by three persons, one person hod 9agaed hs.r mount,th©other on© caugh.t ho!d of her hond and leg and the third person was committing the act of rape. In the cross-examinatlon, h©has stated that when he agc.in came bdck to the spot along with police officids, appellant Astu wos caught hold rdd handedly ond at that time, he was naked. He has stated that by the time other girls have also reached there and aSI of them hGve informed that they were subjected to rape. Kumai"? Ma!ti (PW-3) who WQS in the compony of the prosecutrix hos not support'ed the prosecution case ond has been deciared hostiie. 10. Dr. (Smt.) A. Kachha (PW-6) who had examined the prosecutrix and had given her report Ex. P-2 has stated that she has found no injury whatsoever on the external or internai part of the prosecutrix. However, when she touched her private part,she was compioining pain and some biood was o.iso come from the same. She has stated that no definlte opinion can be given about the sexua! intercourse but the same might have taken piace. Dr. K.S. Paikera (PW-7) who hod examined the accused/appeliants and hots s+ated that they were capabie of performing sexuai intercourse. 11. From the minute scrutiny of the statement of the witnesses it appears thot on 2.10.2000 the incident might have token place but it connot be soid th.at prosecutrix was subjected to forcib!® sexua! intercourse by the Gccused/appeilants. Prosecutrix (PW-1) is not conslstent and mckes dlfferent verslons in the court. In foct the entire statement of the prosecutrix does not inspire fui! confldence of this Court. Further the so cdled Te.st Identificatlon Parade (Ex.P-14) has not been conducted in accordcuice with law as the so.me h.as been done by the poiice wherein It has been stated that prosecutrix hss identified the accused persons. The said identificatlon got no vdue in the ey©of !ow. Two days' deiay in lodging the FIR has not been exp!ained properiy by the prosecution. 12. Consequentiy, the appeate are allowed. Impugned Judgment dated 18.5.2001 is hereby set aside. Appelionts are acquitted of the charges ieve!!ed Ggainst them. They are reported to be on bai!. Boil bonds furnished by them stond dischorged. Sd/- Pritinker Diwaker Judge