^Kar^ •^.'. •^^•^^/•-^ •^ './.. ^o <>>' ,..-•—^"r- ^ °"-:"^ ,IN THI3 HIGH 0®UR1?©PMABI^A ,£%.ASESH AT MBAl^GR Oriml^al Agfeal N^. 4^ @f 1^94' ./ ii^^MaM^. 1 ^- •paklu ^l£2v.l5awa-^y ^geS 1 '8 y.ears/ Aeau^-ed .:- - • - . . .. ..-: '"~~y ...••- ' : • . (IH Jall) ^& .^^^....- ^^,..^^^- >^*^ A.A^c<^ :3^^ . ^f; K e^M^> Dheemar;' ... 2»-Kfella^^^ ter.m^ •.8ge6 1-§ years, " y . / aea @f -<}.^Terdha{'i Yer^a;' ^ ,: , " / 3.. Sur.j^^alJ;2s..K..©raatigLgwat, aged If years, ^@n fif R^^a- H^wati . . . . • "- ... • 4» B^iraia all^^ K©i&$ ^ge^ Ig.yearB^ , ..• s^. tf MaM^Iu? "/ .:"" •• ; \ ' . . All 're.sideBt;^ ©f'vlllage"..Par^afia. lell, T.3»H0Ji»,Dtstrlet S8.Tpufr-,M,i'.. ' •• versus ' .'- ^^.^ ' !.'; ..- ".•. v-<s.S-M^BSi£&£! Ik®.3^^t e ®f^»£•y' ^ .5R€MB?AL,A£PSM,TNEEB_3BG2I©I,574. (2) .@' ,THS, 0©B]3_©?•GSlMlNAL"Pa@GS2mS. 1 .97 973 1^'; HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 43 of 1994 APPELLANTS RESPONDENT VERSUS Paklu @ Pawan and others State of Madhya Pradesh Shri Ravi Bhagat Counsel forthe appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (17.06.2010) This appeal is directed against the judgment and order dated 08.01.1994 passed by Additional Sessions Judge, Raipur in Sessions Trial No. 244 of 1 993 convicting the accused/appellants for the offences punishable under Sections 376 (2)(g) and 341 IPC and sentencing each of them to undergo rigorous imprisonment for Seven years and one month on each count, respectively; 2. Case of the prosecution in brief is that on 25.03.1993 FIR Ex. P-3 was lodged by the prosecutrix (PW-1) aged about 15 years alleging in it that on 24.3.1993 at about 7 p.m. when she was returning to her house after purchasing incense sticks, she was caught hold of by the accused/appellants near the brook, her mouth was gagged and she was forcibly taken to a nearby place where all the accused persons committed rape on her one by one. 3. So as to hold the-accused persons guilty, prosecution has examined 13 witnesses in support of its case. Statements of the accused persons were also recorded under section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After heSring the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. /'^•^ I/ I,, i •%^,...- .•/ - ^- 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. ^ 6. Counsel for the accused/appellants submits that present is a case of false implication where the accused/appellants have been implicated on account of village politics. He further submits that the medical report of the prosecutrix does notsupport the prosecution case and that there is no evidence on record that the prosecutrix was minor at the time of incident. Most importantly in paragraph 10 of her cross-examination the prosecutrix has categorically stated that she had disclosed to the police as was told to her by the members of the Panchayat and her father. 7. On the other hand counsel for the respondenVState supports the impugned judgment and submits that the manner in which a minor girl has been raped by four accused persons speaks about the seriousness of the case and under such circumstances such heinous act cannot be pardoned by this Court. 8. The prosecutrix in her Court statement has stated that on the date of incident when after purchasing incense sticks she was returning to her house she was caught hold of by the appellant Khilawan and then all the accused persons also held her, gagged her mouth and threw her on the field. First of all, she was subjected to rape by Paklu and then by Konda, Ranjit, Khilawan and Kolhati one by one. According to her, when she was trying to get rid of the accused/appellants, her nose-pin was lost and the bangles were also broken. In cross-examination the prosecutrix has further stated that when shewas caught hold of by the accused/appellants it was absolute dark and as she was in complete shock she became unconscious. She further states thatwhen she was lying in unconscious condition she had heard the voice of Punu Ram (PW-3) and Khuma (PW- 7). According to her, she informed these two witnesses that after she was picked up by 3-4 persons she became unconscious. She had also informed them that as there was absolute dark she could not identify those persons who had picked her up. She has further stated that she had informed the members of the Panchayat that when she was picked up by the accused persons, it was complete dark and therefore she could not -•^^•y^.^ r^r;' *. ^} \^'w^./' identify them and on which they had asked her to report the matter by naming the accused/appellants. In Paragraph-10 of her cross-examination the prosecutrix has very categorically stated that the members of the Panchayat had told her that as all the accused persons are of different caste, she should disclose their name. She has further stated that her father had also instructed her to lodge the FIR as was instructed by the Panchayat. Dr. (Smt.) Divya Kudesia (PW-5) who had medically examined the prosecutrix has stated in her evidence that she had not noticed any internal or external injury on the body of the prosecutrix and as she was habitual to sexual intercourse no opinion regarding rape on her could be given. 9. Having thus made a careful scrutiny of the factual aspect of the case coupled with the evidence of the witnesses, version of the prosecutrix does not appear to be worthy of credence and benefit of doubt has to go in favour of the accused/appellants. The story put forth by the prosecutrix that she was subjected to forcible sex by four persons but no injury on her person was present appears to be highly un-natural to be acted upon for sustaining the conviction of the accused/appeltants. In the absence of any pin-pointed evidence against the accused/appellants, this Court feels it difficult to endorse the view taken by the Court below convicting and sentencing the accused/appellants as particularized above. 10. In view of above, appeal is allowed. Judgment under challenge in this appeat isset aside. Accused/appellants are acquitted of the charge levelled. against them. They are reportedly on bail. Bail bonds executed by them stand discharged. | Sd/- Pritinker Diwaker 1 Judge 5^