..^v < HI6H COURT OF CHHATTES6ARH AT BILASPUR DIVISION BENCH Coram; Hon'bleMr.T.P.SHARMA <& Honble Mr. N.K. AGARWAL, JJ. APPELLANT RESPONDENT APPELLANT (In Jail) RESPONDENT CRIMINAL APPEAL No.623/Z003 Rajjak Khan S/o Dilawar Khan Musalman aged about 40 years resident of Shankerpur Road Station Para, Rajnandgaon, Chhattisgarh. VERSUS State of ChhattiS9arh Through : The Station House Officer, Police Thana Kotwali, Rajnandgaon, (C.6.). And CRIMINAL APPEAL N0.99/2010 Dhanuk 6ond S/o Hari Singh 6ond, Aged about 27 years, R/o Near Ulat, (5ali Shankerpur, Rajnandgaon (C.G.). VERSUS State of ChhattiS9arh Through : The Station House Officer, Police Thana Kotwali, Rajnandgaon, (C.£.). (CRIMINAL APPEALS UN&ER SECTTON 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present: Mr. Shashi Kumar Kushwaha, Advocate for the appellant (In Cr. A. No. 623/2003). Mr. S.C. Verma, Advocate for the appeltant (In Cr. A. No. 99/2010). Mr. Ravindra Agrauual, P.L, for the State/respondents. ^W^-" ^^•'"^OT^u^t.V -WUB»^11^^K;AIiB^aSlftl'yWRa>^t'.J\-"?H??-SIW^rff-;'lk=: A ORAL-JU&6MENT (Passed on 23/02/2010 ) The judgment of the Court was delivered by T.P.Sharma, J.;- 1. Criminal Appeal No.623/2003 filed by appellant- Rajjak Khan & Criminal Appeal No.99/2010 filed by appellant-Dhanuk (5ond arising out of the conviction and sentence dated 30/4/2003 passed by Additional Sessions Judge, Rajnandgaon in Sessions Trial N0. 21/03 are bein9 disposed of by this common judgment. Both the appellants'hav«r challenged the legality and propriety of the judgment of conviction and order of sentence dated 30/4/2003 passed by Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 21/03 whereby and wh6re under after holding the appellants guilty for the commission of attempt to commit the gang rape convicted under Sections 376 (2-(5) & 511 of the Indian Penal Code and sentenced half of the rigorous imprisonment for life and fine of Rs. 10.000/- in default of payment of fine amount additional rigorous imprisonment for lyear for both the appellants. 2. Conviction is impugned on the ground that without any iota of evidsnce against the appellants particularly against the appellant Rajjak Kh< court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. • 3. Case of the prosecution, in brief, is that on the fateful day of 26/12/02 at about 10 A.M. prosecutrix PW2 (named not mentioned) was studyin9-in the house of appellant Rajjak Khan along with his daughter co-appellant Dhanuk 6ond came to the house of Rajjak Khan and took the prosecutrix inside The room. Rajjak Khan told to appellant Dhanuk Gond that he will watch from out side appellant Dhanuk &ond committed intercourse with the prosecutrix aged about 8 years, She become unconsciousagain appellant Dhanuk 6ond committed intercourse with the prosecutrix. Prosecutrix came back to her house at e.venmg and narrated the incident to her mother. Her mother PW3 Shahnaz 0_-T- 4. 5. quarreled with the Dhanuk 6ond and finally she lodged the report vide Ex. P-1 on second day. Spot map was prepared vide Ex. P-2. Prosecutrix was examined by PW6 Dr. Madhuri Khute and found her age about 8 years. Abrasion over the labr'ia mujn & labria minera and redness was found over the vaginal artery vide Ex. P-4. Two slides were prepared and handed over to the constable which was seized vide Ex. P-3. Appellant Dhanuk 6ond was. examined by the doctor vide Ex. P-7 and found capable to commit intercourse. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (inshort 'Code'). After completion of investigation, charge sheet Was filed before the Chief Judicial Magistrate, Rajnandgaon who in turn committed the case to the Court of Sessions, Judge, Rajnandgaon from where the learned Additional Sessions Judge received the case on transfer for trial. In order to prove the guilt of the accused/appellants, the prosecution examined as many as 7 witnesses. Statements of the accused/appellants were recorded undar Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the accused/appellants as aforetnentioned. We have heard Mr. Shashi Kumar Kushwaha and Mr. S.C. Verma, counsels for the appellants and Mr. Ravindra Agrawal P.L. for the State/respondents and perused judgment impu9ned as also record of the trial Court. Learned counsel for the appellant Rajjak Khan submits that in the present case prosecution has not proved the role attributed to appellant Rajjak Khan in crime in question. According to evidence of PW3 Shahnaz, mother of the prosecutrix present appellant was working in the 10. 11. 12. front of her house in lane {lyali) and was not having any knowledge of commission of the offence set to have committed by the co- appellant therefore, only on the 9round that offence set to have committed in his house liability cannot be fastened upon the appellarit Rajjak Khan. Learned counsel for the oppellant bhanuk 6ond submits that prosecution has not proved its case beyond al] shadow of dpubts and' present appellant is in custody since 4/1/03 for more than 7 years, Learned counsel for the appellant further submits that even according to the case of the prosecution this is not a case of under Sections376i :/ (2-6) & 511 of the Indian Penal Code and may be the case of under Sections 376 & 511 of the Indian Penal Code in which appellant has served the sufficient sentence. On the other hand,learned counsel for the State/respondent opposed the appeals and submits that prosecution has proved the case against both the appellants beyond all shadow of doubts and appellants have committed the offence with the prosecutrix aged about 8 years. In order to appreciate the arguments advanced on behalf of ti parties, we have examined the evidence adduced on behalf of the prosecution. In the present case PW2 prosecutrix child witR,ess aged about 8 years has categorically deposed that while she was studying in the house of appellant Rajjak Khan, appellant Rajjak Khan was acconipanyin9 appellant Dhanuk <5ond. Appellant Dhanuk Sond took her inside the room of appellant Rajjak Khan and after removin9 his cloths, he inserted his pen.is in her vagina twicely. She has further deposed that she become unconscious and her mother came to the house of Rajjak Khan and took her to her house where she narrated the incident to her mother then her mother assaulted appellant Ohanuk Gond then appellant Rajjak Khan rescued appellant Dhanuk 6ond. She has also deposed that she was examined by doctor and her private part was injured. PW3 Shahnaz mother of the prosecutrix has corroborated the r 1. y- evidence of prosecutrix but has deposed that appellant Rajjak Khan was working in the lane (Sali} at that time appellant Dhanuk 6ond went inside the house of appellant Rajjak Khan on the pretext of drinking uuater and committed rape with the prosecutrix. PW1 Shaikh Latif father of the prosecutrix has also corroborated in brief The evidence of PW2 prosecutrix. PW6 Dr. Madhuri Khute who has examined the prosecutrix has deposed that she has examined the prosecutrix and has given report vide Ex. P-4. In her cross examination she haS deposed that redness was present upon the private part of the prosecutrix who may even be self inflected. Ex. P-4 her report reveal that abrasion over the labria mujn & labria minera and redness was found over the vaginal artery, which is suggestive of the fact that somebody has attempted to commit intercourse with her. At the time of examining the prosecutrix learned Additional Sessions Judge has taken proper care and after satisfying itself that prosecutrix understands the duty to speak truth and was able to answer the question. Prosecutrix has categorically deposed in her evidence and also in her cross examination that appellant Dhanuk l?ond was person who had commiTTed the offence with her. She has deposed in Para-7 of her evidence that appellant Rajjak Khan has notcommitted any offence with her. PW3 Shahnaz mother of the prosecutrix has specifically deposed that appellant Rajjak Khan was uuorking in the lane and the appellant Dhanuk Sond went inside the house of tbe Rajjak Khan to cjrink the water and committed aforesaid offence. The evidence of both the witnesses are sufficient for drawin9 an inference that appellant Dhanuk 6ond has attempted to commit rape with prosecutrix and also sufficient for grave suspicion that appellant Rajjak Khan was also involved in the offence but the grave suspicion about the commission of the offence is not sufficient for the conviction. Suspicion houvever grave cannot toke place of legal prove. fi3'fsSW^SVsffS^^,»jxasis^'^3ets'i^^^^aiufisseKwSi^~^r^:^SSS';,'s3 13. On close scrutiny of the evidence of the prosecution witnesses, we are of the consideredview that prosecution has succeeded in proving the case of attempt to commit rape committed by the appellant Dhanuk 6ond but has not succeeded in provin9 the case against the appellant Rajjak Khdn. 14. After appreciating the evidence available on record learned Additional Sessions Judge has convicted and sentenced both the appel'ants unde" Sections 376 (2-6) & 511 of the Indian Penal Code but has riST considered the quality of evidence adduced by the prosecution a9ainst the appellant Rajjak Khan thereby committed illegality. The evidenc?; adduced on behalf of the appellants is sufficient for drawing an inference fhat appellant bhanuk 6ond has committed the pffence of attempt to commit rape with the minor child which is punishable under Sections 376 (2-iS) & 511 of the Indian Penal Code 15. For the foregoing reasons, criminal appeal No. 623/03 filed by appellantRajjak Khan is allowed. He is acquitted of the charge of under Sections 376 (2-(5) A 511 of the Indian Penal Code and crjlninol. appealNO. 99/2010 filed by the appellant Dhanuk Gond is par allowed. His conviction under Sections 376 (2-£) & 511 of the Indian Penal Code is altered into under Sections 376 & 511 of the Indian Penal ^' Code and his sehtence for imprisonment of custodial period. Present . appellant t5hanuk(5ond is in custody since 4/1/03 till today for about more than 7 years. He be released if not required in any other case. Sd/- T.P.Sharma Judge Sd/- N.K. Agarwal Judge ^