Sm Eamh IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR Cmmna1 Apnea] No é8 Cr / 2005 Qgdl In Custody} b LAKr;,Icq.u wow 3' S/o Shn Knparam Aged about 33’y6ars, / ‘ R/o Vxllage Jhar Umargaon P S Jagdalpur D1st Bastar (C G.) —§‘Res onden ‘M StatE of Chhattisgarh Through The District Magistrate Jagdalpur, Dist : Bastar—(C.G.) CRIMINAL APPEAL U/S 37 {2) OF THE CRIMINAL PROCEDURE CODE ( 9/} \ HIGH COURT OF CHHATTISGARH AT BILASPUR ‘Crn Aggeai No.684/2005 Single Bench: Hon'b!e Shri Dilip Raosaheb Deshmukh, J. Lakhmu Versus Smfe of Chha‘Hisgurh Shri PrafuN N. Bhamf, Counse! for me appeHant ’ Shri Arun Sao, Governmenf Advocate for 'rhe 5mm. MT (Delivered on fhis 14” day of June 2006) This appea! is direcfed againsf fhe judgmen'r 14.7.2005 dziivered by Shri Ravishunker Sai, 4*” Addifiond Sessions Judge (F.T.C.), Jngda!pur- in Sessions Case No. 492/2000 whereby fhe appellnnf was convicfed under Sedion 376(2)(g) I.P.C. and was sen-fenced To undergo rigorous imprisonmenf for 10 years and o fine of Rs.200/~ and in defaul'i of paymen'r of fine, fhe appeiianf was ordered To undergo addi+ionui rigorous imprisonmem for fhree mon'rhs. @xu/ \ 2. Briefly sfafed fhe focfuol mafrix is 'Hmf on 11.1.2000 Monmo'ri P.W.1, aged oboui’ 18 years, o married woman had gone fa foresf oiong wifh Chefi Boi P.W.2 and her daughi'er Meghwafi for coiiecfion of leaves. The oppeiianf'Lakhmu and one sonsingh arrived fhere and ‘ihrea'rened Chefi Boi and Meghwa'i'i af 'fhe show of Tangle whereupon: They lefi' for fhe viliage. The oppeiianf Lakhmu aW/i Sonsingh farcibly removed fhe gold and silver ornamenfs worn by Monma+i and thereaffer appellanf Lnkhmu and Sonsingh commi-Hed rape on The prosecu‘frix ane affer 'rhe ofher. ‘ Alfhough on being fhr-ea'rened Che‘ri Bai P.W.2, sis‘fer-in-iaw offhe prosecu'l'r'ix IefT The scene of occurrence, she saw 1'he occurrence from o disfance. FIR. was lodged by 1’he prosecufrix vide Ex.P.1 offer Three days on 14.1.2000 of Police S1afion Ko'l'wali, Bosfar simafed abou‘l' 12 kilometers away from fhe place of occurrence. I‘r was shied fhm‘ lhe delay had occasioned since There was no one To accompany her To The Police STaTion. On medical exominaTion, Dr. SmT. A. Chandra P.W.6 found superficial abrasions on The righT leg anTerior aspecT, righT knee and righT ankle joinT buT no mark of injury on privaTe parTs of The prosecuTrix was seen. No posiTive finding as To rape on The prosecuTrix could be given. The appellanT was alsomedically examined by Dr. Virendra Kumar Jha P.W.5. IT was found ThaT he was capable of performing sexual inTercourse. The ornamenTs alleged To have been removed from The person of The prosecuTrix were noT recovered during invesTigaTion. AfTer compleTion of invesfigaTion, The appellanT was prosecuTed under SecTion 392 & 376 (2) (g) of The I.P.C. Co- accused Sonsingh was declared To be absconding. 3. The appellanT abjured The guilT, pleaded innocence and false implicaTion and led no evidence inldefence. The prosecuTion examined as many as 8 wiTnesses. Relying upon The evidence led by The prosecuTion and finding The TesTimony of The prosecuTrix if TrusTworThy, The learned Trial Judge convicTed The appellanT under SecTion 376(2)(g) of The I.P.C‘ and awarded senTence as menTioned in paragraph 1. b> K 4. Shri Pmfull Bhamf, Ieamed counsel appearing for fhz appellant has arguzd 'Hmf fha evidence 1ed by The prosacufion does no? es'rablish “fha gum of fhe appeHan'r under Secfion 376 (Z) (g) I.P.C, beyond doubt If was confended Tha? 'i’he prosecu‘rr-ix was no? a Trusfworfhy wi'mess since delay in lodging fhe F.I.R. was no’f safisfacforily explained by. hen Ornamen'rs alleged +0 have been removed from her person were no? recovered during invesfiga'l'ion. Allhough Che'ri Bai P.W.2 had in crossexaminafion paragraph 5 stared ihai' fhe prosecu'rrix was ravished by fhe appellanf Lakl'imu and co- accused Sonsingh for one hour each, ye‘l medical evidence of Dr. Smt A. Chandra P.W.6 did no? corroborafe The above “reslimony since no injury on priva'l'e parfs was seen and definii’e opinion abou‘l’ commission of rape could nof be given If was also argued fhal Meghwm‘i, a ma'ieriai wi‘mess was given up by The pro%cui‘ion fhough presen'l in 'l’he Cour‘l wi‘l'hou'l’ any rhyme or reason on 30” April 2001 for which an adverse inference needs 'fo be drawn. If was also confended 'iha‘f The Testimony of Lachhni Bai P.W‘4, moTher of The \prosecuTrix ThaT bleeding had occurred from The ears and nose of The prosecuTrix afTer The occurrence was noT corroboraTed by medical evidence. Placing reliance on l/ima/ 5ures/1 Kamb/e V. Chd/uverapmake apa/ 5.P. and anaf/ier (2003) 3 Supreme CourT cases 175, iT was argued ThaT The convicTion of The appellanT could noT be susTained since The prosecuTrix was noT a TrusTworThy wiTness. Reliance was also placed on Sfare of Karnafaka 1/. Magi/la P.P.5aapi (2003) 8 Supreme CourT Cases 202. Referring To The TesTimony of The prosecuTrix in paragraph 6, iT was conTended ThaT The delay in lodging The FIR. renders The TesTimony of The prosecuTrix wholly unworThy of crediT. On The oTher hand, Shri Arun Sao, learned éovernmenT AdvocaTe f/e. ff argued in supporf of The impugned judgment g g :7 A ;“A 9/99 Jr- 5. Having heard 1112 rivui confen?ions, I have perused fhe record‘ The prosecufrix has deposed Thaf she had gone To ’rhe forest for col!ec+ion 0f leaves alang wi'fh her sisfer-in-law Che'l’i Bai P.W.2 and her daughfer Meghwavi. She smfed Tha'f the appellan'i' came fhere wh‘h co-accused Sonsingh and 'rhrea'rened Che‘fi Bai and Meghwa'l'i who fled away’ Thereaf‘rer, fhe appeHanf-Lakhmu commi'Hed rape on her, , foilowed by co—accused Sensing’h. If was also s1’a1'ed fha'f 'l'he go!d and silver ornamen‘rs worn by fhe prosecu'rrix in The ear, nose and neck were forcibly removed by The appellanl’ and Sonsingh. 6‘ If is selfled law fhal’ convicfion of an accused on 'l’he basis of The fesfimony of fhe prosecufrix alone is permissible, bu‘r fha'r is in a case where fhe evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The question which therefore requires consideration in this appeal is whether the testimony of the prosecutrix is worthy of credit and the reliance could be placed on it for convicting the appellant under Section 376 (2)(g). In paragraph 6 & 7 of her testimony, the prosecutrix stated that on returning home she did not narrate the incident to her husband. She also admitted in paragraph 7 that she did not narrate the incident of rape to her mother Lachhni Bai P‘W.4, but had only told her about the removal of her ornaments by two unknown persons since She did not know the i names of the appellant and Sonsingh. If this was true, a report would have been promptly lodged. Cheti Bai P.W.2 has stated that she had narrated the entire incident to Lachhni Bai P.W.4, the mother of the prosecutrix, immediately on returning home. If this was true, a prompt report would have been lodged. However, this is sharply contradicted by the prosecutrix since as per her version the incident of rape on her was not known to her mother or husband for three days after the occurrence. Lachhni Bai P.W.4 stated in cross-examination y g? 5 'Hm'r she had seen blond oozing from 1’he ear and nose of fhe prosecufrix on her ramming home. However, fhis is no'f cormbomfed by medical evidence. 7‘ So far as fhe fesfimony of Che*i Bai is concerned, she sfaied +0 have seen The occurrence from a disfance of 8 or 10 sieps. She fur‘i'her sfa‘i’ed 1ha'r The appellanT-Lakhmu had commii'ied rape on The prosecuTrix for abouT an hour foilowed by co-accused Sonsingh who aiso commiTTed The sexual acT for an hour. Medical evidence of Dr. SmT. A. Chandra does noT reveal ThaT There was any injury on The back of The prosecuTrix. IT appears highly unnaTural ThaT if The prosecuTrix was ravished for one hour each by The appellanT and co- accused , she would noT have susTained any injury on her back. 8. If The prosecuTrix did noT know The appellanT from before and also did noT know his name, iT is sTrange how a named FIR Ex.P.1 was lodged by The prosecuTrix, 3 days afTer The occurrence. Undue delay in lodging The F.I.R. wiThouT accepTable evidence of The prosecuTrix, conTrIbuTes To The doubT in The-prevenT-ienbcase as held in Stare af‘ Kamafaka V. Magi/la P.P.Soopi (2003) 8 Supreme CourT Cases 2G2. 9L The TesTimony of CheTi Bai P.W.2 ThaT she saw The occurrence ' from a very close range is also rendered unreliable, in view of The asserTion by The prosecuTrix in paragraph 5 ThaT afTer The occurrence she had meT CheTi Bai aT a disTance of abouT one kilomeTer from The place of occurrence. Thus, iT cannoT be believed ThaT CheTi Bai saw The occurrence. Had CheTi Bai seen The occurrence and if she and her daughTer had been ThreaTened by The appellanT To leave aT The poinT of a Tangia, before commiTTing rape on The prosecuTrix, They would have informed The husband of The prosecuTrix or aTleasT mewe/rszya Q@ immedia'rzly on reaching fhe village‘ So far as The non-examina‘fien of Meghwafi, daughfer of Chefi Bai is concerned, were is no safisfacwr'y explanm‘ion far nof examining *he wimessE Though she was presen‘r in #he Com“: on 30+h Apr-ii 2001 and an adverse inference is drawn againS'k +he prosecwiion on fhis caun‘r. 10. 1+ is aiso perfinenf fo'no're 'rha‘r in ‘I'he F.I.R., fhe reason for ’rhe delay in iodging The FIR. has been shown To be 1'he fad fha? fhere was no person f0 accampany fhe prosecufrix fa The Police Smfion‘ However, in her 1’esfimony in paragraph 8, fhe prosecufrix sfa‘red fhai since she did no? have enough money, she could no? go To lodge The repori' on fhe nexf clay. The Tesiimony of The prosecufrix in paragraph 6 and fhe iesfimony of Laehhni Bai P.W.4 in paragraph 3 clearly Show Thai “the husband o‘f fhe prosecu‘lrix was wi'l‘h her no? only on 'ihe nighi of fhe occurrence bu'l' also on ihe nex'i' da‘re. If is also per‘iineni' +0 no+e ihai’ ihe prosecufrix in paragraph 7 s'raied 'lhai she had “fold her moiher Lachhni Bai P.W. fha‘i The appellanTs removed her ornamenTs. If The facT of forcible removal of The ornamenTs of The prosecuTrix by The appellanT was known, a prompT reporT would have been lodged by The prosecuTrix or her husband. The prosecuTrix has caTegorically sTaTed ThaT she did noT narraTe The incidenT of rape even To her moTher. This conducT of The prosecuTrix is quiTe unnaTural and renders her TesTimony unworThy of crediT; 11. Dr. SmT. A. Chandra has, in her TesTimony, sTaTed ThaT she had prepared a vaginal slide of The prosecuTrix. In The FIR. Ex.P.1, The prosecuTrix had clearly menTioned ThaT seminal sTains were presenT on her peTTicoaT. ProsecuTion has proved The reporT of The F.5.L. Ex.P.16 Which shows ThaT no seminal sTains were seen eiTher on The peTTicoaTW / This also renders fhe 0f The prosecufrix or an her vagina! slide. fes'rimony of The prosecufrix doub'l'ful. 12. Having fhus censidered fhe evidence led by The prOSecuTion in iTs enTireTy, The following poinTs emerge: A) The TesTimony of The prosecuTrix does noT inspire confidence. B) No saTisfucTary explanaTion for The delay in lodging The F.I.R. is seen. C) The reporT of The F.5.L. does noT corrobomTe The TesTimony of The prosecuTrix. D) The TesTimony of Dr. SmT. A. Chandra P.W.6 does noT corroboraTe The TesTimony of The CheTi Bai P.W‘Z ThaT The prosecuTrix was ravished by The appellanT and co- accused for one hour each. E) The facT ThaT The ornamenTs alleged To have been removed from The person of The prosecuTrix could noT be recovered from The appellanTs during invesTigaTion also renders The prosecuTion sTory doub‘lful. F) The facT ThaT The prosecuTrix did noT inform Lachhni Bai P.W.4 abouT The commission of rape by The oppellanT and informed her only abouT The removal of ornamenTs from her person by The appellanTs also renders The TesTimony of The prosecuTrix doubTful and unworThy of crediT. 13. In view of The above, convicTion of The appellanT under SecTion 37’6(2)(g) I.P.C. and The senT’ence awarded ,Thereunder by The learned Trial Judge deserves To be seT aside. 14. In fhe resuH' 'fhe appeal is allowed’ Convicfion of The appallam under Secfion 376(Z)(g) I.P.C.'and fhe sentence awarded Thereunder by the learned frial Judge are se'f aside. The appellant is acqui'l'fed and shall be seT a1’ liberfy forthwifh, if no? required in any ofher case. Fine, if paid, shall be refunded. Sdl- l Dlllp Raosaheb Deshmukh ‘ l l Judge l ll ii ‘ l l 14.6.2006 " l