/^" ^^Q_S-^'S !flgift Bfiil THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.1 CRIMINAL APPEAL N0. 5>3^/2005. APPELLANT ACCUSED '([n.ilai^ ^:^:' £Sf.::^ O&^Jte.v ^-Jai-nu, S/o Crus Vashu Netam, i'ged about 25 yrs. R/o Village- Kalari Padar Mundaguda, Tah Umarkote, Disif-Navrangpur (Orissa.) VERSUS fc ESPONDENT State of Chhattisgarh, Through: Police Station Frezerpur, Distt. Bastar (C.G.) CRIMINAL APPEAL U/S 37€OF CODE OF CRIMINAL PROCEDURE. L&U1EL Sff^s^- .tf^. '<n HI6H COURT OF CHHATTISeARH AJ BILASPUR 5in9le Bench: Hon'ble Shri Ojllp Raosaheb Oeshmukh, J. Cr.Aopeal No.434/2005 Joyanu Versus 5'tate of Chhattisgarh ANb Cr. Appeal No.S39/2005 5ahdev Versus State of Chhattisgar+i Post for orders : 5f.03.2006 Sd/- Dilip Raosaheb Deshmukh Judge ' :.\ HI6H COURT OP CHHATTIS6ARH AT BILASPUR Cr. Appeal No.434/2005 Single Bench: Hon'bte Shri &ilip Raosaheb Deshmukh, J. rf* Cr.Appeal No.434/2005 Jayanu Versus State of Chhattisgarh AN& Cr. ADoeat No.539/2005 Sahdev Versus State of Chhattisgarh Shri Manoj Mishra, Counsel for the appellants. Shri U.K-S.Chandel, P.L. for the State. JUD6MENT (beliyered on 1CIHidoy of March 2006) Criminal Appeal No.434/2005 preferred by appellant Jayonu ond Criminal Appeat No.539/2005 preferred by 5ahdey are directed against the jud9ment dated 31.03.2005 delivered by Shri Yogesh Mathur, 3 Additional Sessions Judge, Bastar place: Jagdalpur in Sessions Case No.197/2004 whereby the appellantsabove named were convicted under Sections 376(2)(g) and 341 read with Section 34 I.P.C. and were sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.2,000/- omd in defoult to under90 additional rigorous imprisonment for six months each under Section 376(2)(9) I.P.C. and to undergo simple imprisonment for one month each under -^^- 5ection 341 read with Section 34 I.P.C. This judgment shall goyem both the aforesaid appeals. 2. Briefty stated the prosecution story is that on 3.5.2004 the prosecutrix, resident of village Clogam, Police Station Frazerpur, had started for village Parpa at about 3 'O' clock in the afternoon to her relative Smt. 5ardei P.W.2, the villa9e Kotwarin of Porpa. At about 5.00 P.M. in village Tuset the prosecutrix went to the house of co- accused Ratan since she knew him from before. On the next doy i.e. 4.5.2004 at about 3.00 P.M. she left for village Parpa. At that time, the oppeltant-Ratan forcibly took her to the house of appellant- Jayonu in Viliage Tusel. The appeltant-Sahadev was alreacty there. After locking the prosecutrix inside the house with the appelkints- Jayanu and Sahadev, co-accused Riatan ran away. Both the oppellants- Jayanu and Sahadev committ'ed rape on the prosecutrix one after the other inside the house. At about 6.30 P.M. on 4.5.2004 the prosecutrix, on the pretext of attending a catl of nature, went away and reached tiie house of Smt. Sardei P.W.2, the villa9e Kotwarin but did not narrate the incident to her on that day. On 5.5.2004 the prosecutrix informed the incident to Smt. Sardei P.W.2, Harischandra, Mahadey, Chumman and her mother Smt. Kamla Bai P.W.3 and lodged F.I.R. Ex.P.l atPolice Station Frozerpur. 3. On bein9 sent for medicol examination, br. Smt. Shantj Pouidey P.W.10 examined her but did not find dny evidence of viotenceon her person. She found an old voginal tear. buring examination, the prosecutrix did not complain of any kind of pain. It vws opined that she was habituated of sexual intercourse ond there was no evidence of forceful intercourse on her. br. Somesh Pandey P.W.9 examined the appellant-Sahadev on 20.06.2004 and Or. J.Supta P.W.7 examined the appeltant-Jayanu on 7.5.2004. Both appellants-Jflyanu ond Sahdev @- -^- were found copable of performing sexual intercourse. Ossification test was conducted on the prosecutrix for determination of her o.ge. &r. Qovmd Singh P.W.6 who conducted Radiolo9ical examination opined that the age of the prosecutrix was betvueen 14 to 17 years. After completion of investigation, the appellants were prosecuted under Section 376(2)^) and 342 I.P.C. 4. The appeltants abjured the guilt, pleaded innocence and ted no evidence in defence. The prosecution examined as many as 14 witnesses. The learned trial Judge relying upon the evidencs led by the prosecution convicted the appellants-Jayanu and Sohdev and sentenced -them as aforesaid in para 1 while acquitt'ing the appetlant- Ratcn. 5. Shri Manoj Mishra, teamed counsel for the oppeltonts has assaited the conviction of the oppelkmts on the ground that the evidence led by -Hie prosecution did not establish the guilt of the appellonts under Section 376(2)(g) and 3411.P.C. It was argued that the medical evidence did not support the testimony of the prosecutrix who was a wholly unreliable witness. On the other hand, Shri U.I(.S.Chflndel, leamed Panel Lawyer argued in support of the innpugned judgment. 6. Having heard the rival contentions, I have perused the record of Sessions Case No.197/2004. The testimony of the proseicutrix was recorded on 8.9.2004 i.e. a period of about 4 months after the occurrence. The trial Court assessed the age of the prosecutrix as 19 years. . In the F.I.R. Ex.P.l also the age of the prosecutrix was shown as 19 years. br. Sovind Singh P.W.6 has proved the ossification test report Ex.P.4 of the prosecutrix. In the ossification test the age of the prosecutrix was estimated to be between 14 to 17 years. ^ C-X. &*-%^L. -i<-<^ Considering the legally permissible margin of error^in theestimation -y, of age recorded under the ossification test, it connot be ruled out that the prosecutrix was aged about 19 yeors on the date of occurrence. 7. The prosecutrix stated that on the diite of occurrence while she was going to viltage Parpa, the appellants and the co-accused Raton took her to village Sargipal in a house and all of them committed rape on her one after the other. This is sharply contradicted by Ihe F.I.R. Ex.P.l in which she did not mention that she was taken to the village Sargipal by both the two appelkmts and co-accused Ratan, but she had stated that she went along with Ratan to his house in village Tusel at about 5.00 P.M. since appetlant-Ratan was known to her. In para-7 of her testimony, she has stuted that none of the appellants were known to her on the date of occurrence. She has also denied having stayed with the oppeltant-Ratan for the ni9ht while going to viltage Parpa. 8. In the F.I.R. Ex.P.1, the prosecutrix had stated that on the next date i.e. 4.5.2004 co-accused Ratan had forcibty taken her to village Tusel in the house of-the applicouit-Jayanu. 1-lowever, in her testimony, she did not depose any such thing. In the F.I.R. she hnd narrated that only the appellants-Jayanu and Sflrfidev had committed rape on her white appelkuit Ratan had after boltin9 the door from outside run away, In her testimony, the prosecutrix stated that both the oppellants and co-occused Ratan had committed mpe on her due to which she fell unconscious. In the FJ.R. "the prosecutrix had reported that on the same day at about 6.30 P.M. she went away on the pretext of attending a call of nature but in her testimony ^ie stated that the incident of rope is at ni'9ht and die regained consciousness on the testimony she falsely implicated co-accused Ratan for commifting rape on her. 9. The F.I.R. Ex.P.1 shows that Smt. Sardei P.W.2, the village Kotwarin >.;ts the relative of the prosecutrix but the prosecutrix did not inform her about the incident on reaching village Parpa. It was stated therein that on 5.4.2004 the prosecutrix had accompanied Smt. Sardei P.W.2 to the Police S'hrl-ion Frazerpur for iodyng the F.I.R. However, Smt. Sardei P.W.2 had stated that die has absolu-tely no knowledge about the occurrence since the prosecutrix who had visited her did not inform omything to her. 10. Another witness Smt. Kamla Bai P.W.3, who is the mother of the pr-osecutrix, has also stated that after attending the function at 5mt. Sardei's house, -ttie prosecutrix had gone to her house at Parpa but did not infor-m anything to her. Her testimony that appellants- Joyanu ond Sohdev and co-accused Ratan came to her house on the next date <md informed her that they had commitl'ed gcng rope on the prosecutrix is wholly unreliable. The prosecutrix has in paragraph 2 of her testimony clearly admitted that she did not inform about the incident of rape to any person in •the village. Although in the F.I.R. Ex.P.l the name of the appellants and co-accused Ratan were mentioned, the prosecutrix admitt-ed in poiragraph 8 that she did not know the appellants or co-accused by their names since she had h^ver seen them prior to the date of occurrence. Her testimony that both the appetlants and co-accused Raton forcibly gagged her mouth and took her to a distance of about two kilometers at o&out 3.00 P.M. in Sargipal is rendered wholly unreliable, since not corroborated by the F.I.R. ExJ'.l. 11. In paragroph 11 of her testimony rfie has stated that due to rape she had sustained injury on her chest aind on both cheeks due to ^fr- teeth bite ond also on her legs since rape was committ-ed upon her on the plain soil. She has also stated in paragmph 11 that due to rape there was vaginal bleeding. 1-towever, this part of the -testimony is also not corroborated by t>r. Smt. Shanti Pandey P.W.10 who did not find any mark of violence on the person of the prosecutrix and found that she wos habituated to sexual intercouRse. Although the prosecutrix has stated that she was pregnant on the date of occurrence and a miscarriaige had taken place 2-3 days after the occurrence, yet Dr. Smt. Shanti Pandey P.W.10 did not find that the prosecutrix was pregnant at the time of medical examination. 12. From 1+ie foregoing djscussion, it is absolutely clear that the prosecutrix is a wholly unreliabte witness. Her testimony is full of contradictions. It js not corroborated either by Smt. Sardei P.W.2 or her mother Smt. Kamla Bai P.W.3 and also by •the medical evidence of t)r. Smt. Shanti Pandey P.W.10. In tiie facts ond circumstances of the case, conviction of the appellants-Jaycnu and Sahdev on basis of such whotly unreliable testimony of the prosecutrix connot be sustained in the eye of law. 13. In the resutt Criminal Appeal No.434/2005 preferred by the appellant-Jayanu and Criminal Appeal No.539/2005 preferred by the appellomt-Sahdev are allowed. Conviction of the appellonts-Joyanu ond Sahdev under 5ection 376(2)(g) and 341 read with Section 34 I.P.C. and tiie sentence awarded •thereunder are set aside. The cppellouife are acquitted and shalt be set at liberty forthwith, if not required in any other case. Fine if paid shall be refunded to the appellants. Sd/- Dilip Raosaheb Deshmiikh Judge