, , .+... ‘ r * ~ " ‘ 3 9 w w ' \ ‘ ~ S i ‘ n g l e B e n c h ( C ' r i m i r i ‘ a u I . N T H E H I G H c o u m » O F ‘ M A D H Y A P R A D E s a ; ' J A B A L p U R ' ' \ % ‘ c R I M I N A L , A P P E A L N 0 . X “ § / 9 2 m . 3 1 9 ' . " v \ m “ ; & w g A p p e l l é h ‘ t . u , : R a j u a l i a ' é / s u r e ‘ s h ' S a i ‘ ( a ; w ) . a g e d 2 2 y e a ‘ r s , ‘ s o n ‘ o f . S u n d ‘ e r L a ’ L S a h u I , c a r p e n t e r , r e s i d e n t . o f . B a j r a n g ‘ N § g a r , . R a i p u r ; ¥ P . s . . A a m y N a k a . i D i s t t . V 5 0 c a n s p o n d e n t S t a t e o f M . P . t h r o u g h ‘ R e u n i s t r i c t M a g i s t r a t e n a i b u h ‘ ‘ . c R m I N A L A P P E A L U / s : 3 ’ 7 4 O F T H E u R . P . u o n E ' ( r @ : ~ V I ill-' ^.^, 1^10 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) APPELLANT RESPQNDENT Criminal Appeal No. 889 of 1992. VERSUS Raju alias Suresh Sahu. State of M.P. APPELLANT RESPQNDENT Criminal Appeal No. 646 of 1993. VERSUS Krishan Kumar. State of M.P. Shri Abhay Tiwari and Shri Sandip Shrivastava counsel appellants. Shri Pankaj Shrivastava PL for the respondent/State. CRIMINAL APPEALS UNDER SECTION 374 OF THECODE OF CRIMINAL PROCEDURE. JUDGMENT (16.02.2010) Since both the aforementioned appeals arise out of the judgment dated 26.8.1992, passed by the Additional Sessions Judge, Raipur in Sessions Trial No. 384/1989 convicting the accused/appellants under Section 376/34 IPC and sentencing each of them to undergo rigorous imprisonment for seven years, they are disposed of by this common judgment. 2. Case 'of the prosecution, in narrow compass, is that on 18.6.1991 FIR (Ex. P-9) was*--k)dged by the prosecutrix (PW-4) alleging that on that dayat about 8.30 p.m. she had gone to answer the calt of nature along with her niece Laxmi Bai (PW-7) and while returning home when she had reached near Amrit Talkies, three persons including the present appellants met her, accused Munna Sahu caught hold of her, gagged her mouth, all of them dragged her to a newly constfucted house and after throwing her on the floor and —2— removing her underwear, accused/appellant Raju committed sexual intercourse with her. Thereafter, accused Munna and Krishan Kumar also did the same with her. It is alleged that thereafter she ran away to her house and informed the incident to her mother and father and then she went to the police station along with them where the report was lodged. After invesfigation, challan was filed against all the three accused persons under Section 376/34 IPC. 3. In support of its case the prosecution has examined 12 witnesses: Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they have denied the allegations made against them and pleaded their innocence and false implication in the case. Three witnesses namely Rameshwar Prasad Verma (DW-1) Krishna Kumar alias Phugga (DW-2) and Hetram (DW-3) were also examined by the defence in support of its case. 4. After hearing the parties the Court below has convicted the accused/appellants for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment under challenge. 6. Counsel for the accused/appellants submit that the appellants have been falsely implicated' in the case on account of a dispute between brother of the prosecutrix namely Punit Ram (PW-5) and the persons of the locality. They submit that incidentally the accused persons were the head of Vrue colony and looking to thecriminal J?ackground of the brother of the prosecutrix, her entire family was asked to leave^the colony. They submit that the story given by the prosecytrix being quite unnatural and full of contradictions and omissions is not trustworthy. They submit that as per the FIR lodged by the prosecutrix, after the commission of offence she ran away to her house and informed the incident to her parents whereas in her court statement she has stated that after commission of the offence she went to her house and informed the incident to her brother Punit Rarn. (PW-5). They further submit that in paragraph 9 of her cross ifc:. -3— examination the prosecutrix has admitted that when she reached her house, her mother and father were sleeping and her brother Punit Ram (PW-5) was taking his meals to whom she narrated the incident and then the report was lodged by her. They submit that this statement of the prosecutrix has been totally negatived by the brother of the prosecutrix namely Punit Ram (PW-5) and Dan Kunwar - the mother of the prosecutrix. They submit that as per the statement of the prosecutrix she was subjectod to rape by the three accused persons for about two hoursin which she had sustained injuries on various parts of her body whereas the medical evidence does not support this version of the prosecutrix. Even the doctor who had examined the prosecutrix has not been examined by the prosecution. Counsel for the appellants further submit that the prosecutrix is said to have been subjected to rape by the accused persons for two hours whereas her mother Dan Kunwar (PW-6) has stated that the prosecutrix had gone to answer the call ofnature but had come back within five minutes. Counsel for the appellants submit that the incident is said to have taken place in a busy locality where number pf persons used to reside and eventhe talkies is situated there but despite that the prosecutrix had not made any effort to save herself from the clutches of the accused persons. Attention of this Court has been drawn to the statement of the prosecutrix where she has stated that she did not make any attempt to save herself from the clutches of the accused persons. They submit that even the FSL report is not on record and the Investigating Officer has also not been examined. They submit that according to the statement .of the prosecutrix she was not willing to lodge the FIR b)Jt ttie same has been lodged as her brother Punit Ram (PW-5)"w^s interested in the same. ll 7. On the other hand coynsel for the respondent/State supports the judgment impugned and submits that minor contradictions and omissions in the statement ofthe prosecutrix have to be ignored. He submits that there was no occasion for the prosecutrix to falsely implicate'the accused persons putting at peril her own future. He submits that thougti the doctor who had medically examined the f!ii IL^.:l;aa II "^iSN 1 "->,..-*: i '^:a -c/— prosecutrix has not been examined by the prosecution; medical report of the prosecutrix is on record which very much confirms that she was subjected to rape. According to him the doctor has categorically stated in her report that signs of recent intercourse were very much there. He submits that police constable Jethu Ram Verma (PW-3) who took the prosecutrix for medical examination has stated that after her examination the report was submitted by the doctor. He also submits that even if the Investigating Officer has not been examined, it will not make any difference in the case of the prosecution. He submits that Police constable Tikamlal Soni (PW-9) has stated in his evidence that upon receiving the instructions from his superior officers he took all the accused persons for medical examination to D.K. Hospital and obtained the reports Ex. P-10 to Ex. P-12. He submits that the defence of the accused persons that family members of the prosecutrix were asked to leave the colony is totally unacceptable because had it been the case, other persons would have also been implicated in the case and not the three accused persons alone. According to him even the President of the locality who should have been the first opponent of the family of the prosecutrix has not been implicated in the case. 8. To arrive at any conclusion in the case recapitulation of the evidence on record appears to be necessary. Prosecutrix (PW-4) has stated in her evidenee that on the date of incident when she along with her niece was going to answer the call of nature near Amrit Talkies, three persons ipcluding the present appellants came from behind and after pressing.her mouth took her to a nearby newly constructed house, got her petticoat removed and committed rape oh her turn by tyrn, Thereafter, she went to her house and narrated the incidorit to her brother namely Punitram as at that time her mother and father were steeping. She has stated in her evidence that she was raped by the accused/appellants continuously for two hours and as she had got tired, she stayed there for one more hour. Immediately after making this statement, she has made an entirely different statement that she had left for the house just after the incident and had reached there in 10-15 minutes. In the FIR also this .^J ^^ssc'tSe: .^ —s~— witness has stated thatafter the offence was over, she had rushed to the house at once. In the FIR she has stated that the incident had taken place while she was retuming after answering the call of nature whereas according to her Court statement the incident had taken place while she was going to answer the call of nature Near Amrit talkies. Though in the FIR this witness has not stated anything about the injuries sustained by her, in her Court statement she has descriptively stated that on account of her being thrown on the ground she has sustained bleeding abrasion on her waist,hips and legs. The prosecution has not examined the doctor who had medically examined the prosecutrix so as to prove the offence of rape on her. According to this witness, while being subjected to rape by the accused persons, she did not do anything to them nor did she resist to theiract by biting or hitting with legs. In the FIR this witness has stated that after reaching home she narrated the incident to her parents whereas in the Court statement she has stated that as at that time her parents' were sleeping, she had disclosed the incident to her brother Punitram. From the statement of the prosecutrix it is also clear that she had lodged the FIR at the instance of her brother Punit Ram as he was harassed by the accused persons and had he not asked her to lodge the report she would not have lodged it. 9. . As per the statement of the prosecutrix when she returned to her house she narrated the entire incident to her brother Punit Ram who at that time was taking food whereas as per the statement of Punit Ram (Ex. PW-5) when at about 8 p.m. he was going towards the Amrit Talkies, he met the,' prosecutrix in a nearby newly constructed house where she informed him about the rape committed on her by the three accused persons. In his cross examination this witness has stated that he met his sister near the house where the incident had taken place and near the said house 30-35 other houses were also situated. He has further stated that at the time of incident the film was going on in the Amrit talkies and number of persbns were present there. He has stated fhat 3-4 persons were seen walking on the road and the children of the loeality were also playing there. He has stated that the matter was ^" ^ •'/ ~<o- taken to Mohalla Sudhar Samiti but no solution could be found. He has further stated that initially he thought that all the accused persons could be saved through Panchayat but later he dropped this idea. According to this witness he had not given anything in writing regarding compromise of the matter to the people of the locality but they had obtained his signature. From the evidence of this witness it is clear that there are material contradictions and omissions in his statement particularly in paragraphs 10 and 11 thereof. Mother of the prosecutrix namely Dankunwar (PW-6) has stated in her evidence that on the date of incident the prosecutrix had gone to answer the call of nature and after returning there from she informed her of being subjected to rape by the accused persons. She has further stated that the prosecutrix had returned after answering the call of nature just after five minutes. She has stated that when her son Punit Ram woke her up, accused Krishna and Raju were present in her house but accused Munna was not there and he had fled away. According to this witness, Punit Ram (PW-5) asked her to go to the police station to lodge the report on which she expressed her inability in doing so as she was tired. However, subsequently she went to the police station to lodge the report. She has stated that had Punit Ram refused to lodge the report, she would not have done so. 10. Thus on the basis of the discussion as above entire statement made by the prosecutrix, her brother Punit Ram (PW-5) and mother Dan Kunwar (PW-6) appears to be full of contradictions and omissions. Moreover, the prosecution has not bothered to examine the doctor who had medically examined the prosecutrix so as to elicit something in support of its case. The most important thing in this / case is that the prosecutrix had lodged the report at the instance of her brother Punitram due to some grudge between him and the accused persons and thus the same can not be made the basis for convietion in this case. Mother of the prosecutrix namety Dan Kunwar (PW-6) has also stated that had Punit Ram (PW-5) refused to lodge the report, she would not have done so. This apart, the pr-Qsecutrix has not firmly stuck to her statement made at one place L— ^ ^ ^ 1^' -7- and kept on changing her version according to her own sweet-will. All these contradictions, omissions and inconsistencies in the statements of the aforesaid witnesses must give full entitlement of benefit of doubt to the accused persons. The Court betow seems to be at fault in appreciating'the evidence while passing the judgment impugned which, according to the opinion of this Court, is liable to be set aside. 11. In the result, the appeals are allowed. Impugned judgment dated 26.8.1992 is hereby set aside. The accused/appellants are acquitted of the charges levelled against him. The appellants are reported to be on bail. Their bail bonds stand discharged^ Sft/ Pritinker Diwakcr Jadge -. /