APPELLAN-T& Tln~JaIlT ^yy^ ^••y^ ^o^ ^y / ^" / '^' -A/>y RESPONDENT IN THE HIGIi COURT OF CHHATTISGARrI AT BILAS.PUR Cnminal Apg^al^No^ H^^2£-2252:* i^Hh.arm Sai son of Ilyas Kinz^ aged about 19 years, 2«Mam Sal son of Bhauka Ram Tirkey age<l about 21 yearSo j Both are In occupation of cultivatlo:|, -n^ and residents of Hardijhirlya^ Et) Banshipur, P<»S»-Sitapur, 'Dlstta ^| Surguja (C*G.). h ,M V ER SU S. ^ s The State of Chhattisgarh . : Through s P»S»-B- Bitapur, DisttoSurguja ^ (C.G,5. APP_2AL_UNDER S.ECTION 374 (2) OF THE CODE OP C&IMINAL PRpCJSDURE, ,1973 : ^, ^^ r^ ^ HISH COURT OF CHHAS^ISeAR ^T BIUISPUR Cr. Aooeol No. 1115/2001 Dharm Sai and another Vs. The State Chhattisgarh Post for Judgment: ^ .04.2006 Sd/- Dilip Raosaheb Deshmukh Judge ^'' < <- HI6H COURT OF CHHATTIS6ARH AT BILASPUR Cr. AoDeal No 1115/2001 Single Bench: Hon'ble Shri Dt'lip Raosaheb Deshmukh, J. Dharm Sai ond another Versus The Start-e of Chhottisgorh Shri Ashok Kumar Shukla, Counsel for the appellcnts. Shri Arun Sao, Government Advocate for the State. JUbGMENT (Delivered on this S^day of April 2006) This appeal is directed against the^ judgment dated 19.10.2001 delivered by Shri T.R.Burman, 1st Additional Sess'wns Judge, Ambikapur, Dist. Surguja m Sessions Case No.189/2001 whereby the appellants were convicted for offence under Seetion 376 (2) (9) of I.P.C. and were sentenced to undergo rigorous jmprisonment for 10 years and a fine of Rs.1000/- and in defaujt to undergo R.I. for 6 months each. 2, Briefly stated the prosecution story js that on 16.5.2000 ot about 10.00 P.AA. the prosecutrix, aged about 17 years, was returning from village Aara to her home in Hardijhiria. She was accompanied by Manju and Lalsai. On way near ffinamoda^e appellants starl-ed teasin9 her. The appellant-Dharam Sai pulled the hand of the prosecutrix. When AAanju ond Lalsai intervened they were threatened by the appeilants. Both Manju and Lalsai went away. The appellants dragged the prosecutrJx to a nearby fiejd situated at a distance of about 50 meters. Oharam Sai 1 ^ -^ felled the prosecutrix on the ground ond after undressing mounted on the prosecutrix ond committed rape on her white the appellont Alamsai stood nearby. When Alamsai WOES about to commit rape on the prosscutrix she said that she wois feeling thirsty, ond therefore, she should first be given some water. Both the appellonts took the prosecutrix to the house of Simon Uraon sltuated at a distonce of one and half kilometers from the place of occurrence. The prosecutrix entered the house of Simon Uraon and did not come out. The appellcmts entered the house of Simon Uraon and attempted to drag the prosecutrix out. However, Simon Uraon and his wife Bodidevi prevented the appellants from doing so. Thereafter, the dppellants went away. The prosecutrix remained in the house of Simon Uraon. At 3.00 AX. her father Rijhanraim P.W.l white returning from villc^e Acira saw the prosecutnx in the house of Simon Uraon. The prosecutrix did not narrate the incident to Rijhanram or to hsr mother on returning home. On the next' date when Manju informed Rijhoynrow about the incident, he asked the prosecutrix whereupon she narrated the incident toRijhanram ond mother Gulabari P.W.2. 3. F.L^. wos lodged on the next- date i.e. 17.5.2000 at 6.00 P.AA. in Police Station Sitapur by the prosecutrix. She was sent for medicat examination Dr. Pratibha Jain P.W.4 who exoimined the prosecutrix did not find any mor^. of violence on her body. No internal injury wos found. There wos on old voginal t©ir present. There wos no tenderness in the private parts. Vaginal stides were prepored ond honded over to the Police. The Police also seized the petticoat of the prosecutrix on 18.5.2000. On -^r- ~y\. being sent for medical exomination, the F.S.L. vide report- Ex.P.14 did not find any semen or human spermatozoa on the vaginal slides ond the petticoat of the prosecutrix. The appetlonts were examined by Dr. K.K.Dutta P.W.5 who found them capable of performsng sexual intercourse. After completion of investigation, the appellants were prosecuted for offence under Section 376 (2) (g). 4. The appeljonts abjured the guitt, pjeaded false implication ond (ed no evidence in defence. The prosecution excunined os mouny os 7 witnesses. Relying upon the evidence led by the prosecution, the trial Courl- convicted cind sentenced the appetloints ois aforesaid in paragraph 1. 5. Learned Counsel for the appellants hos read the testimony of the prosecutrix in exfensoond argued that it fails to inspire confidence ond is not worl-h placing credence. It was atso contended that neither the medical evidence of Dr. Pratibha Jdn P.W.4 nor the report- of F.S.L Ex. P.14 supporl-ed the prosecution story. It was atso cirgued that the prosecutrix had specificalty testified the date of occurrence to be 15.5.2000 oind the date of lodging the report- to be 17.5.2000 in paragraph 11 of her testimony wherecis the F.I.R. Ex.P.l showed that the incident wos reported to have occurred on 16.5.2000. It was also contended that the prosecutrix had admitted in poragraph 15 of her testlmony to hdve sworn ar\ affidavit at the instonce of her father RijhcmrGim vide Ex.b.3 which cleorly showed that the appeltonts did not commit ony rape on the prosecutrix. On these grounds, the learned counsel for the appellants prayed that conviction of the appeltants under Section 376(2)(g) of the I.P.C. y^ ond the sentence awor'ded thereunder deserve to be set oiside. On the other hand, Shri Arun Sao, ^o\^rnment Advocate orgued in support of the impugned judgment. 6. Having heord the rival contentions, I hwe perused the record of Sessions Case No.189/2001. As held in Bharwada BhoQfnbhai Hiriibhai v. State of Sujrat AIR 1983 SC 753 by the Apex Court, it is we<l settted that a conviction for on offence of rape can be bosed on the so(e testimony of the prosecutrix provided her testimony inspires confidence cind is worth credence ond the "probabijities-factor" does not render it unworthy of credence. As a generat rule, there is no reoson to insist on corroboration, except from the medical evidence, where, having regard to the circumstoinces of the cose, medical evidence coin be expected to be forthcoming. Testing the testimony of the prosecutrix on the above touchstone, I find for the reaisons mentioned below that the prosecutrix is a wholly unretiable witness ond no credence can be pjaced on her testimony. 7. The prosecutrix in paragraph 3 of the testimony stated that on being dsked by Alcimsai, the appellont bharam Sai had committed rape on her. She hos furt-her stated that thereafter on her pretext of feeling thirsty she was taken by the appedants to the house of Simon Uraon where the appellont Ajamsai also entered the house ond wos forcibly pulling her but Smt. Bodidevi, wife of Simon Uraon, came to her rescue whereupon the appellonts went away. She hos dso mentioned in pcragraph 1 that white returning from village Aara from a rharriage ceremony, she wos accomponied by Manju aind Atamsai who had WiSi^W^ii^ |ij|l||^j|j|tj|®|g||jj|ggj^S|^g^jgg|g^KI|g|jgg|||^|| y^ objected when the appelldnts starl-ed teasing her. She further stated that on being threatened by the appellants, AAounju dnd Lalsai went away. However, contradicting the version of the prosecutrix Rijhdnrdm has stated in pcrograph 1 that the prosecutrix had told him that the apj^Jlont-Alamsai had outroged her modesty. While being osked os to whether the appettont-bharom Sai had outroiged the modesty of the prosecutrix, this witness clearty stated that this fact could be narrated only by the prosecutrix. Inother words, Rijhonram, father of the prosecutrix hos nowhere stdted that the prosecutrix had told him that Dharam Sai committed rape on her. 8. (^ilabdri P.W.2 hcis also stated in paragraph 4 that the prosecutrix did not inform onyt-hing to her about the incident. Even she has stated that Atoimsd had committed WBura Kaam1' on the prosecutrix due to previous onimosity. Thus, both Rijhonram P.W.l aind Gulaboiri P.W.2 ha\fe not deposed that the prosecutrix had informed them about cmy rape committed by Dhcircim Sai on her. 9. It is pert'inent to note that in the F.I.R. the prosecutrix had narrated that on the date of occurrence while returning with her father from the house of Simon Uraon she did not inform about the incident either to Rijhannam or to Guldbari dnd it wois only when Monju who was accompanying her while returning from Saaraat, come to her house in the morning and narrated the incident to her pcrents, that she informed her parents. AAanju ond Lalsai were cited as witnesses by the prosecution but were not exomined without there being cmy explonation. Similorty, Smt. Bodidevi oind Simon Uraon were atso cited ots witnesses but were not exoimined by the prosecution without <assigning ony r^ason therefore. An adverse inference needs to be drawn against the prosecution for non-examination of Manju, Latsai, Simon Uraon and Smt. Bodidevi who were material and independent witnesses who would have thrown tight upon the incident that took place on 16.5.2000. 10. The prosecutrix hos stated in (xiragraph 8 that the appellants had dra9ged her towards the bushes. The spot map prepored by Sub-Inspector M.K.Singh P.W.7 vide Ex.P.8 cleairty shows that the prosecutrix wos dragged for a distance of 50 meters from the road before committing rape on her. If the version of the prosecutrix is to be believed, then some ext'ernal injuries on her person were expected to be found. However, the testimony of Dr. Pratibha Jain P.W.4 does not corroborate the testimony of the prosecutrix since she did not find ony mark of violence on her body. She found that the prosecutrix had an old vaginal teor, was used to sexual intercourse and no tenderness wcis found dn her private ports. The absence of ceny semen or humon spermatozoa on the vaginat slides of the prosecutrix, as per report of F.S.L. Ex P.14, also renders the testimony of the prosecutrix unwort'hy of credit. 11. The prosecutrix has in paragraph 15 of her testimony admitted that at the instance of her father she had sworn affidavit vide Ex.D.3 which bears her signature. Ex.0.3 clecrly shows a positive dssertion by the pro^cutrix that the appellant Dharom Sai did not commit ouny rape on her and wos not even present at the ptace of occurrence and only Alcunsai who had si5tffi??^^J|Sljp^^iI1^^^i'|^^^^|^^^^|^!^| -^r- •^ \ simply tecised her had run awoy upon intervention by Moinju cind Latsai. The admission of swecring such an affidavit by the prosecutrix ctearly renders her testimony unworl-hy of any credit. l2» The prosecutrix hos in paragraph 16 admitted that her father dnd Alomsai had a previous acnimosity. There was tension prevailing between the two foroilies. Rijhonram P.W.l hais also stated in poiragraph 2 that there was Or\ o\d ortimosity with Alamsai. Oulabari P.W.2 hos also corroborated the above fact. It, therefore, eonnot be ruled out thot a fdse report wcis jodged by the prosecutrix against the appetlants. 13. It (s pertinent to note that the prosecutrix had, at several ploces in her testimony, made a positive assertion that the incident had occurred on 15 ?Aay 2000 and that she had informed her father for the first time after two days i e. on 17 of AAay 2000 and a report wos lodged thereocfter. This wholly contradicts the F.I.R. dated 17.5.2000 which shows the date of occurrence os 16.5.2(X)0. The prosecution hos thus fdled to establish that rape wois committed on the prosecutnx on 15.5.2000 by the appetlant-Dharam Sai. 14. Having thus considered the evidence led by the prosecution in its entirety, it emerges thot the testimony of the prosecutrix is whotly unreliabte cind not wort'h plctcing ony relioince. Due to non-examination of moterial ond independent witnesses ^Aonju, Lalsai, Simon Uraon ond Bodidevi, adverse inference is drawn against the prosecution for suppressing the genesis of the cose. Medicat evidence oind the report- of the F.S.L. also did not corroborate the testimony of the prosecutrix in ony manner. The affidavit Ex.0.3 sworn by the prosecutrix clearly renders her testimony unreliable. The previous dnimosity of appetlount-Lalsai with the father of the prosecutrix is also borne out from the evidence led by the prosecution. It a(so emerges that the prosecutrix had lodged the report two days after the oceurrence which renders the dori-e of incident mentioned in the F.I.R. ExP.l doubtfut. The testimony of the prosecutrix is not corrobonited in any memner by her father Rijhanram who did not state that she had told him about any rape committed upon her by Dharam Sai. The cissert-ion made by the prosecutrix in the F.I.R. about not informing her parents after the occurrence and the non-examination of AAdnju ound Lalsai »n the above context renders the prosecution story extremely doubtful. It counnot be ruled out that the appellonts have been falsely implicated for the offenee punishable under 5ection376(2) (9)LP.C. 15. In the result the dppeal is allowed. Conviction of the appellonts under Section 376 (2) (g) I.P.C. and the sentence awarded thereunder ore set aside. The appellants cye acquitted of the charge under Section 376 (2)(g) I.P.C. The appellcmt- Dliorcim Sai shall be set at liberty fort-hwith, if not required in ony other cGise. Bail bonds of-the Alounsai stand coincelled. Fine, if paid, shall be refunded to the appellcints. Sd/- Dilip Raosaheb Deshmukh Judge 31wc