i^ilw!^^%iiilji^®i%ii^ ^ \.^-^ .. ^-^ y^c ^^•-^ (1 ^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH ATBiLAspuR _ SingleBench CRIMINAL APPEAL No.r3'x>S/2008 APPELLANTS (InJail) : 1. 2. ^ 1^'^rf ^&^ Ramniwas, S/o Shri Ramdas Chamar, aged about 30 years, Resident of Gautam nagar, Sector-11, Khurshipar, Near Pump hlouse, Zone-2, Bhilai, P.S. Chhawni, District-Durg (C.G.) Anil Kumar Sharma, S/o Ram Ashraya Sharma, aged about 24 years, Resident of Gautam Nagar, NearShiv Mandir, Camp No.-l, Khurshipar, P.S. Chhawni, DJstrict-Durg (C.G.) VERSUS RESPONDENT The State of Chhattjsgarh Through : Station House Officer, Police Station Chhawni, District- Durg (C.G.) ^--"" CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE P HIGH COURT OFCHHATTISGARHATBILASPUR (Hon. Mr. Justice Pritinker Diwaker) CriminalADDeal N6.385 of 2008 APPELLANTS RESPONDENT VERSUS Ramniwas and another State of Chhattisgarh i^ fcf Shri M.D. Dhote, counsel for the appellant No.1. Shri Pravin Dhurandhar counsel for appellant No,2 Shri Neeraj Mehta PL for Fespondent/State. : Criminal ADDeal No. 575 of 2008 APPELLANT RESPONDENT VERSUS Krishna Murari alias Bably alias Dabbu^ State of Chhattisgarh Shr? AryindUybey, cQunsel for the appellant. Shri Neeraj^lVlehta PLforrespondent/State. Criminal ADDeal No. 589 of 2008 APPELLANT RESPONDENT VERSUS Rajesh Singhalias Loha Singh State of Chhattisgarh Ms. Sharmila Singhai and Shri Sanjay Agrawal, counsel for the appellant. Shri Neeraj Mehta PLforrespondent/State. CRIMINAL APPEALS UNDERSECTION 374 (2)0F THECODE OF CRIMINAL PROCEDURE. JUDGMENT (05.03.2010) Since the aforementioned three appeals arise of the same judgment dated 14.2.2008 passed; by Additional Sessions Judge (FTC) Durg in Sessjons Trial No. 370/1999, theyaredisposedofby this common judgment: :^. The appellants have been convicted under Sections 376, 324/34 and 506-11 IPC and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs. 2000 u/s 376, to undergo rigorous imprisonment for twoyears and pay fine of Rs. 500 u/s 324/34 and to undergo rigorous imprisonment for three years and pay fine of Rs. 500 u/s 506-11 IPC. In addition to this, accused/appellant Rajesh Singh (in Crimjnal Appeal No. 589/2008) has been convicted under Section 25 (1-b) (B) of the Arms Act and sentenced to undergo rigorous imprisonment for two years and pay fine of Rs. 500, plus default stipulations. 2. Case of the prosecution in brief is that on 25.6.1999 at about 11.15 p.m. FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 24 years alleging that on 24.6.1999 at about 9.30 p.m. she was returning along with her husband on bicycle after taking treatment from witch doctor and when she reached near a brook in between Rajiv Nagar and Gautam Nagar, some boys who were standing there asked her husband to stop. It is alleged that when her husband stopped, she got down from the bicycle. Meanwhile, three- four boys came to them and started abusing and beating her husband. When she tried to cry, two boys gagged her mouth, took her to some distance and then both of them committed forcible sexual intercourse with her thrice. It is alleged that when those two boys were committing the offence, other 3-4 boys were beating her husband. It is alleged that when some persons of Gautam Nagar locality came there, all the boys fled away from the place of incident. It is alleged that as a result of beating, her husband had received injury on the left eye and the fingers of right hand. It is alleged that though she did not know the names of the boys, after seeing she would identify them. It is further alleged that as she was threatened by those boys, report could not be lodged by her on the same day but after being advised by the people of the vicinity the report was lodged on the next day i.e. on 25.6.1999. Case diary statement of the prosecutrix was recorded on 26.6.1999 whereas that of her husband Santosh was recorded on 25.6.1999 itself. After completion of investigation challan was filed before the competent Court. .-te.. ^; 3. In order to establish the guilt of the accused/appellants the prosecution has examined 14 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pteaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants for the offence as mentioned above. However, as remaining two accused persons namely Hasan Ali and Vijay were absconding, the judgment impugned would not be applicable to them. 5. Heard counsel for the parties and perused the material available on record including the judgment ynder challenge. 6. Counsel for the accused/appellants submitted that there is delay in lodging the FIR as the incident is said to have taken place on 24.6.1999 at 9.30 p.m. whereas the report was lodged on 25.6.1999 at about 11.15 p.m. i.e. more than 26 hours thereafter. They further submitted that in the FIR (Ex. P-1) names of the accused/appellants were not mentioned though they are named in the case diary statements of the prosecutrix (PW-1) and that of her husband namety Santosh (PW-2). According to the counsel for the appellants it is a matter of surprise that when no testidentification parade was conducted how the names of the accused/appellants have been mentioned in the case diary statements. It is argued that in the FIR it is alleged by the prosecutrix that she was subjected to rape by two unknown persons for three times whereas in the Court statement she improves her version and states that all the six persons had committed rape on her twice. It is argued that there are several inconsistencies in the statements of the prosecutrix (PW-1) and her husband Santosh (PW-2). According to the counsel for the appellants, statement of the prosecutrix is so ridiculous that it cannot be believed for the reason that though at the time when she was raped by six persons twice she was carrying five months pregnancy but her not receiving any internal or external injury creates a doubt on entire story put forth by her. In support of their submissions, reliance is placed on the following decisions of the Supreme Court: < '<L<- (i) (1977) 3 SCC 41 (Pratap Misra and others v. State of Orissa. (ii) (2008) 10 SCC 69 (Lalliram and another v. State of M.P.) (iii) AIR 2009 SC 858 (Rajoo and others v. State of M.P.) Relying on the aforesaid decisions counsel for the appellants submit that the version of the prosecutrix that she was subjected to forcible sexual intercourse by six persons twice that too on a rough surface but no injury on her body was found, makes the entire case of the prosecution untrustworthy and based on her evidence alone the accused/appellants deserve acquittal. They further submit that it cannot be lost sight of the fact that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. According to them, the accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that there is no inordinate delay in lodging the FIR and sufficient cause has beenshown for the delay if any, that on account of threat given by the accused persons, it could not be lodged on the same day. He submits that minor contradictions and omissions in the statement of the prosecutrix would not be of any help to the accused persons. He submits that as the prosecutrix was a married lady, absence of injury on her person would not give any benefit to the accused/appellants. According to the State counsel, reportof the chemical analyst confirming the presence of spermatozoa on the petticoat of the prosecutrix very much supports the case of the prosecution. He placed reliance on the decision of the Supreme Court in the matter of Dastaair Sab and another v. State of Karnataka reported in 2004 (3) MPLJ154 and submitted that injury to the prosecutrix is not a sine qua non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot be the sole criterion for | coming to a conclusion that no such offence had taken place. He | submits that admittedly at the time of incident the prosecutrix was carrying 4-5 months pregnancy and that she was raped for two and half hours by six persons twice which in itself is sufficient for i h—k^'- t ^' -s~- convicting the accused/appellants under Section 376 IPC and absence of injury on her person would not be fatal to the case of prosecution. 8. The prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 8.30 p.m. she was returning from temple along with her husband on bicycle and when they got down from the bicycle near a brook, they were surrounded by the accused/appellants and also subjected to beating. She has stated that the three accused persons continued to beat her husband whereas other three took her to some distance by dragging and committed forcible sexual intercourse with her one by one and thereafter remaining three accused persons also came there and committed forcible sexual intercourse with her one by one. She has also stated that the accused persons had also threatened her to kill if she disctosed the incident to anyone. This witness has stated that as at the time of incident she being totally perplexed could not tell clearly as to who were those three persons by whom she was first dragged away and subjected to sexual intercourse. She has however stated that all the accused persons had raped her twice. According to this witness she had raised cries but nobody came there. This witness has also stated that on account of beating by the accused persons, her husband had sustained injuries on various parts of his body. She has stated that the accused persons had assaulted her husband with sword and club. She has stated that as at the time of incident theaccused persons werecalling each other by name, she had heard the name of accused Rajesh. She has stated that on account of it being late night, the report could not be lodged on the same day. In cross examination this witness has stated that the incident had taken place while she was returning from the temple and not from the house of witch doctor as has been stated in the FIR. She has stated that at the time of incident she was carrying pregnancy offive months. She has also stated that near the place of incident there is an open ground where people go to ease themselves. She has stated that though she had not disclosed the incident to any person of the locality, they themselves had come to know about thesame and accompanied her to the police station [ hNNN^ T —^- also. According to this witness, shewas not aware as to when her statement was recorded by the police. Just thereafter she has stated that her statement was recorded by the police immediately. She has stated that even at the time of lodging of FIR she did not know the names of the accused persons and therefore she did not mention the same in it. However, in the statement recorded by the police she disclosed the names of the accused/appellants on being told by her husband. 9. Santosh (PW-2) - the husband of the prosecutrix has stated that on the date of incident he was returning from the temple on bicycle along with his wife and when they reached near a brook falling in between Gautam Nagar and Rajiv Nagar, one of the accused persons namely Rajesh, held his bicycle and started abusing and beating him. Thereafter, other accused persons also subjected him to beating. One ofthe accused persons assaulted him with dagger as a result of which his fingers were cut. He has stated that the accused persons took him to Gautam Nagar beating and then they again brought him back to the temple but at that time his wife was not there. Out of the total accused persons one used to be with him while the others used to commit sexual intercourse with his wife and in this way all of them committed sexual intercourse with her one by one. Thereafter, they brought his wife to him and after making him to sit in the temple again started beating him and took his wife to Rajiv Nagar and committed sexual intercourse with her one by one. He has stated that on account of fear the report could not be lodged on the same day and on the next day when people of the locality came to him and advised to lodge the report so that no such offence is repeated by the accused persons in future, the report was lodged. In the cross examination, this witness has first stated that he and his wife had gone to the temple but subsequently he said that they had gone to the witch doctor. He has further stated that prior to the date of incident the accused persons were not known to him. According to him, near the place of incident there was no light and that his wife was subjected to sexual intercourse by the accused persons for two and half hours. He has stated that near the place of incident house of one Ramji Sharma was situated and at the relevant time he was present in his house. 10. Ramji Sharma (PW-3) has stated in his evidence that on the date of incident he heard the noise emanating from some distance and when he saw some boys were standing outside and thereafter he came back and after closing the door fell asleep. This witness has however been declared hostile. Dr. P. Dani (PW-4) who had examined the prosecutrix has given her report Ex. P-5 and stated that at the time of examination prosecutrix was carrying 4-5 pregnancy. This witness has stated that the prosecutrix had not disclosed the incident of rape to her. According to this witness, if a lady carrying 4-5 months pregnancy is subjected to rape by 5-6 persons, possibility of injury in the uterus is there. No mark of dragging was noticed by this witness on the body of the prosecutrix. Raghunandan Das (PW-5) has not supported the case of the prosecution and therefore he has been declared hostile. Ganpat (PW-6) who is the witness of seizure of dagger from accused Rajesh has also not supported the case of prosecution and has been declared hostile. Dr. J.P. Meshram (PW-7) who had medically examined the husband of the prosecutrix namely Santosh has stated vide his report Ex. P-15 that five injuries were there on his body. Dr. Prabhat Pandey (PW-9) who had medically examined the accused persons has stated that they were capable of performing sexual intercourse. Balak Ram Thakur (PW-12) has also not supported the case of the prosecution and therefore has been declared hostile. Sub Inspector Bhavesh Sao (PW-13) who had registered the FIR and Investigating Officer P.C. Sonkar (PW-14) have fully supported the case of the prosecution. 11. Though in the report of the chemical analyst spermatozoa was found on the petticoat of the prosecutrix and undergarments of accused Anil, Vijay, Hasan and Murari alias Dabbu, it is mentioned in the same that sample collected by the prosecution was not sufficient for serum test. From the statement of the prosecutrix it is clear that there are material contradictions and omissions in the same. In the FIR it is alleged that when she along with her husband was returning after taking treatment from a witch doctor on bicycle, -% - they were stopped by the accused persons whereas in the Court statement she has stated that they were returning from a temple and when got down from the bicycle near a brook, accused persons came there. Secondly, in the FIR she states that she was subjected to rape by two accused persons turn by turn for three times whereas in the Court statement she states that she was raped by all the six accused persons twice. Thirdly, in the FIR she states that while being subjected to rape some persons came from Gautam Nagar and after seeing them, all the accused persons fled away whereas in the Court statement she does not say so. In the Court statement this witness has stated that all the accused persons had accompanied her and her husband up to some distance and then went away. Similar is the situation with the statement of the husband of the prosecutrix namely Santosh (PW-2) which is also full of material contradictions and omissions. Most importantly, in the FIR, the prosecutrix has not named any accused whereas in her statement recorded under Section 161 of the Code of Criminal Procedure two days thereafter, she has categorically stated that the accused persons who had stopped her and subjected to sexual intercourse were ofthe colony. In the Court statement the prosecutrix has stated that the accused persons were not known to her prior to the incident and their names have been disclosed to her by her husband Santosh and that is why at the time of recording of diary statement she had disclosed their names whereas husband of the prosecutrix Santosh has denied of ever disclosing the names of the accused persons to her. Husband of the prosecutrix has named the accused persons in his case diary statement whereas in the Court statement he has stated that he did not know the accused persons prior to the date of incident. As per the statements of the prosecutrix and her husband (PW-1 and PW-2 respectively) the prosecutrix who at the relevant time was carrying pregnancy of 4-5 months was subjected to rape by six persons one by one and that too on the floor, absence of any external or internal injury on her body, as opined by Dr. P. Dani (PW-4), renders the testimony of these witnesses to be totally unbelievable. Thus, in these circumstances, the conviction of the appellants under Section 376 IPC can not be maintained. Secondly, haNr' ^ -^- from the statement of the witnesses it is not clear as to which of the accused/appellants had caused which injury to the prosecutrix and her husband as according to the statement of Santosh (PW-2) darkness was prevailing at the relevant time, their conviction under Section 324 IPC is also not fit to be maintained. Thirdly, no specific role has been attributed againstany of the accused/appellants as they were not known to the prosecutrix or her husband; it is difficult to maintain their conviction under Section 506-11 IPC also. Fourthly, as the seizure witness has not supported the case of the prosecution, convjction of accused Rajesh under Section 25 of the Arms Act is also not made out. 12. In view of the aforesaid discussion, this Court is of the considered opinion that the judgment impugned convicting and sentencing the accused/appellants as mentioned above is not in accordance with the evidence available on record and therefore the same is liable to be set aside. Accordingly, the appeals are allowed. Judgment impugned dated 14.2.2008 is set aside. Accused/appellants are acquitted of all the charges levelled against them. They be set free forthwith if not required in any other case. 13. Appeal is thus allowed. Sd/- Pritinker Diwaker Judge q^