•-i-^' tt9^L IN THB HI&H eeaa'E sssssau. msBa.s sssMsm anjXHtt w M®. 1» BamBsK RuaM«, sen of BaMdhuil. SwywranshS.f as»dr29 ye«u?8i> 2» jfenaibhaa^ soa ot Iiaiaiaalal> ·ged22yea.rs, - 3« Hlral.al, 8en~eflH.sbffltt,aged 1S years» ^« Sbrlraa, goa ef Biahal> aged 20:y»ars. " • ' : .. .: , $• Hnri.t2?«n, Boa ef Bhae'ia'fe, aged \ 20 y®ars«: ' • ' : ,,' ^ ; ' , 6» Snktaaadan» sett o^ Baanrta Sul'ya- taaateS., •i^ed.22;:'yea3na»'I^.J''.;,T.' All rBSld tB;of T'i.llage; Etaffliitf PStlce •-•:.;.'i.S.'^.^:^ ''"•' .' .'v StstloayMas'to^i, ^is'fcftefe Mlaspar* ee 1992 Stata of Madlijya Pradesli* wNSsvsssx'KBKMi^vsssa.WKxaa ee»'SF G^ISK®,iIROSTOBBB I'.ii ;:j! « lifl.it iigl; 'ia 7 HI5H COURT OF CHHATTtSSARH AT BILASB^R Single Bench : Honble Mr. Justice Pritinker E)iwaker Manmohan .and others. State of Madhya Pradesh Shri Arun Kochar, counsei fortheappeliants. Shri Neeraj Mehta Panel Lawyer for the State. CRIMINAL APPEAL UN&ERSECHON 374 (•2) OF THE CODE OF t. JUD6EMENT This appeal is directed c^ajnst the impugned judgmenf and orderdatec! 11.11.1992 passed by first Additiond Sessions Judge, Bilaspur in Sessions TrialNo. 13/1987 convictina the accused/appeilants for the offences punishable under.Sections^ 376 ouid 342 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for 10 years with firjej of Rs,2,000 u/S 376 IPC and rigorous imprisonment for one year with fine of Rs.500 u/S 342 IPC, plus defoult stipuiations.l 2. Brief faets of the case are that on 17.12.1986 at abouf am when prosecutrix (PW-5) - a msrried ladyaged abouti !5 years at the relevant time was on fhe wayto her house and as soon as she reached near the house of one Faguram appelicnts No. 1 and 2 herein namely RcuTsesh Kumar Gncl Manmohcm respectively were sitfing theFe. Accused/Gppellan^ No. t Ramesh:Kumar ccught |hold of.her and upon hearing ttie !ii cries rdsed by her occused/oppellant No. li nameiy 'RamesH Kumar, accused/appellanl" No.3 riamely Heeralal aisp reixh^ there dnd cdught held sf heri Thereafteri ^t^ •:——S6u.,.. -;sfA 1 '^^/ m ^^i-i: j;;B^[A^i.' accused/appellant No. 2 namety AAanmohan started shouting, on hearing which the other accused persons nomely Sukhncmdan, Shriram, Murit and Heeralal a|so came there and took her to the house of accused/appellant No. 1 Rame?h by lifting and after bolting the door from inside, tied her up with rope and committed rape on her orie by one. Thereafter, F.I.R. (Ex. P-4) was lodged by one Santora Bai (PW-6) on 17.12.1986 at about 10.30 a.m. alleging thot she had seen the accused/appellants takin9 the prosecutrix to the house of accused/appellant No. 1 Ramesh by liftfng. Based on this F.I.R., offences under Sections 341, 342 and 147 of the Indian Penal Code were registered against all the accused persons. Statement of the prosecutrix was recorded under Section 161 of the Code of Criminal Procedure on the same day i.e. 17.12.1986 in which she has categorically alleged that she was subjected to rape by alt the accused persons one by one. After investigation, cAo//3n was filed on 31.12.1986 by the police under Sections 376, 147, 341, 342, 323 and 366ofthelndiom Penal Code. On 24.2.1987 charges under Section 342 and 376 of Indian Penal Code were framedagainst all the accused persons. 3. .So ais to hold the accused/appellonts guilty, prosecution has examined as many as 16 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Grimina! Procedure in which they denied the charges leveied against them and pleaded their innocence and false implication in the case. Aparhfrom this, witnesses name|y| Dileep Kumar (DW-1), Ramman (DW-2), Banshilal (DW-3) and| ShivSingh (PW-4) have also been examined by the defence inj support' of its case. ,^!'^^ ^ '^ 4. After hearing the part'ies the trial Court has convicted and sentenced the accused/appellants for the offences as mentioned above. Hence this appeal. 5. During the pendency of the appeal, the accused/ appellants No. 1 and 4 namely Ramesh Kumar and Shrirdm respectively have expired and, therefore, present appeal is confined to accused/appellants nomely AA.anmohan, Hiralal, AAuritram and Sukhnandan only. 6. 1-feard counsel for the parties and perused the material availableon record including judgment impugned. 7. Counsel for the appeilants submits that a very unnaturat story has been cooked-up by the prosecutrix because it is literally impossible for a lady aged about 25 years being raped by as many as six persons without her wishes and if for the sake of argument her statement is taken to be correct, she was bound to suffer injury on her" pr-ivate part. While arguing his case he took this Court through the medical report of the prosecutrix according to which no injury whatsoever was present on her private port. He submits that present appears to be a case of fatse implica-t-ion as the husbond of the prosecutrix ncmely Amamath (PW-1) had kept -the wife of the accused Ramesh Kumar by marrying hep as per- the Choodi custom. He furt-her submits that Tamchand (PW-2), Makru (PW-3), Kholbahra (PW-8) and Mangalram (PW-13) - viitage Kotwar have notsupport'ed the prosecution case and they have been declared hostile. He has placed reliance on the judgments of the Supreme Court- in the matter of Lalliram and Ar\r. Vs. State of M.P. report-ed in 2008 (4) Crimes 99 fSQ. Shivaji ' Dadva Shankar Alhot Vs. The Stert-e of Maharashtrd w IIli! Ihil^ IMI liilli! II |3i:E niiffii reported in 2008 (4} Crimes 102 (SCi, Rajoo &, others Vs. State of M.P. reported in 2009(1) Crimes 123 (50 and State of Orissa Vs. Sikhar Jena and ors reported in2Q09 (1} Crimes 131 (SQ. 8. On the other hand supporting the impugned judgment counsel for the respondent/State submits that when the statement of the prosecutrix itsetf is seif eloquent, the absence of injury on her private part- will not in any manner adyerseiy affect the case of the prosecution particularly when t>r. (Ku.) S. Rao (PW-11) who examined the prosecutrix has found injuries on her body including breast. /^oreover Santar-a Bai (PW-6) - lodger of the F.I.R. has atso stated that she had seen the accused/appeltants dragging the prosecutrix to the house ofaccused/appellcmt No. 1 - Ramesh Kumar. 9. Prosecutrix (PW-5) has stated in her evidence that on the date of incident she had gone to the agricutture field where her husband was already there pjoughing the field and while returning therefrom, shemet one Santara Bai (PW-6) in her house falling on the way where both of them decided to carry stale food to the husband of the prosecutrix and one Vinod. W'hile she was going to her house to cotlect the food, dccused Ramesh and Manmohanwere atready present near the house of one Fagurom and as soon as she reached there, accused/appellant No. 1 Ramesh cau9ht hold of her hand but she pushed him away. Thereafter, on hearing the voice of accused Ramesh when she was to pick siipper to hit t-leeralal andRamesh, other accused persons came there and took her inside the house of Ramesh and though she was crying for help, nobody cdme to her rescue. She has furf'her stated that when. '^. ^l ni "sy 'l'^i^1^;! IIJI::ll II! i;g :.1;l JErl'i she was being taken inside the house of accused Ramesh by the other accused persons, some villa9ers namely Sukhsagar, Tarachand, Makru, Santara Bai, Fagu and Radhe had seen them. She has further stated that after tcrf<ing her inside the house of accused Ramesh, door was bolted from inside, Sukhnandan and Manmohanwere hoiding her whereas Mureet and Shriram tied her up with the rope. After throwing her on the floor, accused Sukhnandan made her naked and committed rape on her and while doing so he wois pressing her breast. She has furt'her stoted that thereafter, accused Ramesh; Manmohan, Shriram, Heeralal and AAureet have also committed rape on her one after another. She has furt-her stated that after commission of dffence, accused Sukhnandan and Shriram had even insert'ed their hands in her private part as a result of which she became unconscious. Therea.fter, accused/appeliants went out side the room ieaving her tied up with the rope. She has further stcEted that as a result of the incident of rape,she sustained injurieson her hands, eyes and on the toe of left leg. She has clarified that while committing the offence, accused/appellant had tied her up very ti9htly. According to her after sometime, the police came there along with Mangal omd Sarpanch Kholbahra and at that time accused Ramesh was also there. She has furtherstated that on the instructions of the police, accused Ramesh let her free and covered her body with her sari which she wore up later. According to her as she was not in a position to walk, she came out from the house with the help of Kotwar and Scirpanch and then her statement was recorded. Thereafter she was sent for medical examinatiori and her ciothes and other art'icles we.re. seized by the police. She has further stated that she left the village because the vsy' i'-l;i<-^:s;i«la "^ /. accused/appellants had threatened her as well as her husband saying that if they made any statement against them befor-e the police, they would be killed. She has furt-her stated that on the day when she received the notice fr-om the Court, the accused persons had called a Panchayat meeting and made the statement that the matter has been compromised. However, in the said meeting, she hos categorically denied the fcctumof being threotened by the accused/appel!ant No. 2 nctmely Moinmohan forcing her and her husband to ieave the village. She has furl'her stated that all the accused persons belong to her caste. In paragraph 19 of her cross-examination, prosecutrix has described the locality of Santara Bai, her house and the other adjacent houses. She has a|so given the distance of her house from the house of Santara Bai. She has furt-her stated that there was no dispute between her and the accused persons before the date of incident. According to this witness, wife of Ramesh (accused/appellant No. 1) namely Lolita Bai is presently residing with her becayse her husband has performed second marriage uvith the said Lalita Bai by observing the viilage custom. Prosecutrix was cross-examined at length by respective counsel for the accused persons but she stood firm and has furt'her clarified the entire incident as t6 in what manner she was subjected to gang rape by the accused persons. She has alsoclarified as to in what manner she sustained injuries on her breast and other parts of the body while being subjected to rape by them. She has categorically denied the fact that there was omy quarret between her and Lalita Bai after her husband married her as per the "choodi custom". Shehas furt-her denied the faetum of fatse implication of accused/appellant No. l Ramesh Kumdr .'.f'si.^ :'^'^ !• ll'lli ;] !'|! .1; )r •lj ^li:.'[il ;; iii 'i;^tl!;l }\K -i ISIIJ!! llillllli 1311BIII 1 II llllltlll lliiill "o-" ^ "A "LL'. ...-<1 ..^ii^" K ii,!;6 a' II! 1 igreiE simply becauss the wife of Ramesh namely Laiita is living with her husband. 10. Dr. (Ku.) S. Rao (PW-ll) who had medically exevnined the prosecutrix and given her report Ex. P-19A has found scrafch injuries on both the forearms, one bruise on the etbow of right hand, contusion on her both breast and various scrafch marks over the toe of her bofh legs. She however has noi- found any injury on her private part. Santara Bai (PW-6) the iodger of the F.I.R. (Ex.P-4) has stated in her evidence that on the date of incident she met the prosecutrix and while she was going to collect food for her husband, accused/'appellant No. 1 Ramesh who was atready standing near the houae of one Faguram caught hold of the prosecutrix and, thereafter accused also came there, Heeralal caught hold of her and after h&aring their shouts, other accused persons reached there, took the prosecutrix inside the house of Ramesh who was crying for help. She has further stated that she nar-rated the entire incident to her husband Amarnath and then immediately went to the policestation and inforrned the police about the incident. She has furi'her stated that upon receiving the information, the Station House Officer immediately came to her viliage csnd registered her report Fx.P-4. In cross- examination, this witness stood firm and has not statedl anything new. 11. Amarnath (PW-1) - husband of the prosecutrix has stated in his evidence that on the date of incident, he was in his fie!d and there he was informed by one Raiesh that the accused/appellants had dragged his wife and while rushing to spot, he met the dayghter of Santara Bai on the way who dlso, ^ M'I ";i!S ielli! II narrated the entire incident to him saying that accused persons had dragged the prosecutrix and if he w/anted to save his Me, he should run away. Thereafter, the report waslodged by Santara Bai oind the matter was enquired by the police. The police then brought his wife from the house of accused/appellant No. 1 Ramesh and was sent for medical examination. He has further stcri-ed in his evidence that his wife had narrated the entire incident to him including the manner in which she was ravished by the accused/appellants. He has further stated that he and his wife were threatened by the accused/appellants on account of which they had left the village ond started residing in a different village. He has furt'her stated that when he received the notice from the Court, he and his wife were again threatened by the accused persons. 12. Tarachond (PW-2) has stdted in his evidence that a|| the accused persons are his relative and he did not know anythina about the incident. However, crt' this stage this witness has turned hostile. Makru (PW-3) has also not support-ed the prosecution case and has been declared hostile. Manmohan Lal (PW-7) is a witness to seizure of underwear made under Ex.P-5 Khoibahra (PW-8) is a seizure witness of the articles vide Ex.P-6 and Ex.P-7 but he has not support-ed the prosecution case and has been declared hostile. Nand Xumar Somdariya (PW-9) who had medically examined the accused persons and given his report Exs. P-7, P-7A,P-8,'P-8A, P-9, P-9A, P-10, P- 10A. P-11, P-11A, P-12, P-12A, P-13, P-13A, P-15, P-15A, P-16 and P-16A has stated that allthe accused personswere capableof performing sexual intercourse. Dr. Hemant Dixit (PW-10) who >""'"y.'K ^s^ •l"'';faa iEiilA ig had medically examined the accused nameiy Sukhnandan and given his report Ex.P-17 hasstated that he was also capabie of performing sexual intercourse. G.L Shrivastava (PW-12), Assistant Sub Inspector has done the part of investigation. AAangal Ram (PW-13) the vitlage kotwar has not supported the. prosecution case and has been declared hostile. Rajaram Chaturvedi (PW-14) - Patwari has prepared the spot map Ex.P- 26. Nikhadtal Shorma (PW-15) is a witness to the seizure of articles made under Exs.P-21, P-22, P-23, P-24 and P-25. Subhash Singh (PW-16) the Investigating Officer has duly supported the prosecution case. He has stated that on 17.12.1986 F.I.R. (Ex.P-4) was lodged by Santara Bai and immediateiy gfter the incident when he went to the house of accused Ramesh where this witness has admitted the fact that the prosecutrix was in the house of a^cused Ramesh and when he went inside his house dong with viliage Kotwor and saw the prosecutrix in a naked condition being tied-up with the rope. 13. Minute examination of the evidence of the witnesses in particular that of the prosecutrix (PW-5), Santara Bai (PW-6) and Amarnath (PW-1) makes it clear that it is the appellants and the other accused persons who had ravished the proseeutnx one after oinother. Statement of the prosecutrix being absolutely consistent and duly cor'roborated by the Doctor who had conducted her medical examination inspires full confidence of this Court and nothing contrary has been brought forward by the defence impeiling this court to discard thesame. 14. Argument advanced by counsei for the appellcmts that on account of prosecutrix being subjected to gang rape she was bound to sustain injuries does not appear to be a wholesome :?? -.^\ """•};: •*"(:^?:;'' .. y 'SiE.ssa'l'""' 10 !B ;[!'i8! 1111 lliMi Kil l?ffi argument and the scme is accordingly struck down. The Supreme Court' in galaxy of decisions has expounded that the injury on the body of the victim is not a sine qua non for deciding the cases of like nature and the court should base its opinion on the facts and circumstances of each case. In the case of Laltiram and Anr. Vs. State of M..P. (supra) it has been held by the Supreme Court;- " 9. It is true that imury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factuai marrix of each case.As was observed by this Court in PrataD Misra and Ors. v. State of Qfissa reported in (1977 (3) SCC 41) where allegation is of rape by many persons and several times but no injury is noticed thut cert-ainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix'sVersion is not credible then there would be need for corroboration. (See Aman Kumar & Ors. v. State of Haryana, (2004 (4) SCC 379)." Further in the case of Utpai &as and another Vs. State of West Benaal reported in (2010) 6 SCC 493 it has been held by the Supreme Court : ">22.Thelearhed counsel for the appellants however, submitted that the medical examination report or the victim shows that no injuries were found on her pnvate pari-s or pn any part of her body. Vi/e are required to note that victim Sita Rani Jha is a marr-ied grown-up tady and blessed with two chiidren ond m such circumstances the absence of injuries on her pr'ivate parts is not of much significance. 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