-^^Ss^^'': .:; 'w ^al ::r CF00000608SS XN THI; S»3ttOOtHO' ,<iOF' JQBIGaSURE AT i3ABM<eiJa CE.A.N®. \i3 of t&97 ABfBiellantst :Aeeitseia;'.::.' (IB 3-aiX) .*-"' ^- A(S-- i— •—iltN««N(||^ ^^&.^M,^^..^ -t.'-K^sltat'R®*!!.:aged,'19: years,! soa o£Basmat Bam Bhobi. i cultivatar at»a resAi3ent: o£ ; vlllage Haldi, P.S.Sunderdehi, BASfeE.i.et Sarg.jM.JP. : • . , 2. Ki^el»EaJB»agea2@ years» ;</' ^:0<?: ^AWi ,ReaD@n®eS£'t::^"I*lae'..&fcaC^ »'"•• 'l;'. *.e S@B[i©£'.asaeE&Kuinlir» .:•••: E9stiaeQtE,,:o£•wlMag'e^Haa.ai;,: E^^(3aaa*r^eM,,.Bi^Ki;<att^a3t!(a;g»M.K -K.'ses^a ;::': \'^. 1;.:' 'af^ Mfadhya'Peaae^S. .-r :!i: •CKEMISia&;ABEEM<:'iIQ'«DEa:-'SE<S'FICMl;:3%4,: {,.it2: }' •OE.THB;?®0^^K5©RIMIN^e GBE®RB»l$|T3l; TV-A^ '• .i? A "•sQ^ ,l^v ^ w^ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. J 13/1997 APPELLANTS Kaushal Ram and another Versus RESPONDENT State of Madhya Pradesh Shri Ravi Bhagat counsel for the appellants. Shri Ashish Gupta PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (07.07.2011) This appeal is directed against the judgment and order dated 10.1.1997 passed by Additional Sessions Judge Durg, in Sessions Trial No. 103/1995 convicting the accused/appellants under Section 376 (2) (g) IPC and sentencing each ofthem to undergo rigorous imprisonment for ten years. 2. Facts of the case in brief are that on 1.7.1994 FIR (Ex. P-1) was lodged by the prosecutrix aged about 16 years at the relevant time alleging that on 30.6.1994 at about 7 P.M. while she was returning from the village pond after answering the call of nature, accused/appellants came to her, caught hold of her, dragged her to the nearby bushes, threatened her of life in caseshe raised alarm and after thrpwing her on the ground committed forcible sexual intercourse with her. It is atleged that first it was committed by accused/appQllant Kaushal and then by Rekhram and after their act was over, they ran away. It is the further case of the prosecution that after the accused/appellants left the spot, the prosecutn'x started crying on hearing which her father Setram, uncle Punitram, one Govind, Thagendra and Bheem uncle reached there whom she narrated the entire incident. After completion of investigation, charge sheet was filed by the police on 26.8.1994 for the offence under Section 376 (2) (g) IPC. <?d Wy-i ^\ 3. So as to hold the accused/appellants guilty, prosecution has examined 11 witnesses in support of its case. Statements of the accused /appellants were also recorded under Section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentionedabove in paragraph No.1 of this judgment. 5. Counsel for the accused/appellants submits that the finding of the Court below that on the date of incident the prosecutrix was below 18 years of age is erroneous for the reason that the age of the prosecutrix has not been proved by the prosecution by adducing any clinching evidence in this regard. Secondly he submits that there are variations in the FIR and the statement of the prosecutrix made before the Court and that being so the conviction of the accused/appellants cannot be based thereon. He further submits that though independent witnesses were also available to the prosecution, it did not bother to examine them and in these circumstances also the conviction of the appellants under section 376 (2) (g) IPC is not sustainable. 6. Onthe other hand counsel for the respondent/State supports the judgment impugned and submits that looking to the heinous act of the accused/appellants in raping a minor girl, the judgment impugned convicting them u/s 376 (2) (g) IPC is quite reasonable and justified warranting no interference in this appeal. 7. Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 7 p.m. she had gone to the village pond just adjacent to her house for answering the call of nature and after easing herself when she was tightening her underwear, accused/appellants came there, accused Rekhramtied her mouth with a piece of cloth, accused Kaushal caught hold of her hand and then she was subjected to rape first by accused/appellant Kaushal and then by Rekhram. According to her, after their act was over, the accused/appellants left the spot and then she went to her house weeping and narrated the incident to her f- 7 grandmother, one Inder, Punitram, Govind and Thagendra and thereafter she became unconscious and in the next morning she along with her uncle Punitram went to the police station and lodged the report and then she was sent to the hospital at Gunderdehi for medical examination where her x-ray was also taken and her cloths were seized. In paragraph 7 of her cross examination, this witness has stated that on the date of incident she was not aware of the names of the accused/appellants and she came to know about the same after being told by her uncle Punitram. She has further stated that it is her uncle who had asked her to lodge the report against these two persons. Further in paragraph No.9 of her deposition she has stated that during evening hours, number of persons used to go to the pond for answering the call of nature and taking bath but at the relevant time nobody was there and it was absolutely dark on account of which she was not in a position to identify anyone by face. According to her, accused/appellants came from behind, tied her mouth with a piece of cloth and threw her down. She stated that in fact her entire face includlng the eyes was covered by them and that she had become unconscious in the bund of the pond itself. She has further clarified that none of her family members had come to search her to the village pond. She has stated that usually she used to go for answering the call of nature along with her mother but on the date of incident she had gone all alone. According to her, as a result of incident she had sustained injuries on her elbow, palm, hip and ankle which led to bleeding also. She has stated that the first person committed rapewith her for half an hour and thenthe other accused also repeated the same act and that in spiteof cries being raised by her nobody had come to her rescue. She has further statedthat before the incident, she didnot have physical relations with anyone. According to her, at the relevant time she was aged about 16 years. There appear to becertain contradictions in paragraph 17 of her deposition if compared to the FIR and the case diai-y statement. According to her, it is her uncle who had disclosed the father's name of accused/appellants to her.Jn paragraph 22 of her deposition, this witness has stated that the 7 'd <-" ^-q- accused/appellants were caught and taken to the police station by her uncle. Thakendra (PW-2) - the uncle of the prosecutrix has stated that on the date of incident when at about 7 P.M. he returned home, mother of the prosecutrix informed him that prosecutrix was not at home and when a search was made, she was not found even near the village pond and then he got back home where after some time the prosecutrix came there weeping and informed that the accused/appellants had committed rape on her. There appear to be certain contradictions in paragraphs 4, 5 and 6 of the deposition of this witness. This witness has stated that the village pond is adjacent to his house but he did not hear the cries of the prosecutrix. According to him, he was at the pond for about 10 minutes but there also he did not hear her cries. Churaman Lal (PW-3) - the witness to the seizure of petticoat and blouse of the prosecutrix made under Ex. P-2 has not supported the case of the prosecution. Sonwati Sarthi (PW-4) - the Head Mistress of the school has stated in her evidence that in document Ex. P-3 date of birth of the prosecutrix is mentioned as 20.5.1978. In cross examination, this witness has stated that after passing the examination of class V, theprosecutrix had left the schooland that in the school register it is not mentioned that she had passed the said examination in the year 1990-91. She has stated that no document regarding the date of birth of the prosecutrix was submitted by her parents at the time of admission. Punitram (PW-5) - the uncle of the prosecutrix has stated in his evidence that on the date of incident at about 6 p.m. he met accused/appellant Kaushal and made an inquiry about the prosecutrix. After sometime, according to this witness, the prosecutrix came there weeping and told that both the accused/appellants had dragged her to the field and committed forcible sexual intercourse with her. According to him, the prosecutrix had informed him tHat while being taken by the accused/appellants she had raised her cries. On coming to know about the incident, he went in search of the accused persons and found accused Kaushal near a canal. In cross examination, this witness has however stated that after hearing the cries of the prosecutrix, her family 7 "d •^aafHS&Sc^v !,:&, % <y •^~- members had come to her and on seeing them the accused/appellants had fled away. Thereafter, he and one Atmaram took accused Kaushal to the potice station on motorcycle in the night where Station House Officer told him that the report would be registered next day and then on the next day at about 9 a.m. he, the prosecutrix and her father went to the police station and report was lodged. Chain Singh (PW-6) - the seizure witness of certain articles made under Ex. P-6 and P-7 has not supported the case of the prosecution and has been declared hostile. Santram Sahu (PW-7) - the father of the of the prosecutrix has stated that on the date of incident the prosecutrix was aged about 15 years and her date of birth is 15.9.1978. According to this witness, on the date of incident while he was sitting in his shop, his son came to h?m and informed that the prosecutrix was not at home and on search being made hesaw the prosecutrix coming from the village pond weeping and narrated the incident to him. He has stated that Punitram (PW-5) had brought the accused/appellant Kaushal bycatehing hold of him. This witness has however admitted that there is no documentary evidence with respect to the age of the prosecutrix and that at the time of admission he had orally informed her date of birth on the basis of memory. There appear to be certain contradictions in paragraphs 20 to 26 of the evidence of this witness. ASt - B.S. Sharma (PW-8) is the investigating officer who has supported the case of the prosecution. Dr. (Smt.) Rita Chaba (PW-9) is the witness who had medically examined the prosecutrix and given her report Ex. P-10-A and stated that she found one abrasion on her neck and she was complaining pain on breasts, her hymen was torn, two fingers easily entered her vagina, her breasts and pubic hair were developed and no internal injury was noticed by her. According to this witness, at the time of medicat examination, the prosecutrix was having her menstrual period, that she was habitual to sex and no sign of recent intercourse was noticed by her. Dr. C.B. Gupta (PW-10)is the witness who had medically ' examined the accused/appellants and given his report Ex. P-13-A and 14-A stating that they were capable of performing sexual intercourse. Rajesh Shrivastava (PW-11) is the witness who had assisted in investigation. '7 E' »d ^? ? s ^ _. 8. Minute examination of the evidence adduced by the prosecution makes it clear that a very inconsistent story has been put forth by the witnesses. As per the FIR, on hearing the cries of the prosecutrix, her family members reached there and saw the accused/appellants whereas as per the other witnesses after the prosecutrix went missing, during the search she was seen coming from the village pond. According to the prosecutrix, as at the time of incident it was dark, it was difficult for her to identify anyone by face as the appellants had come from behind, covered her entire face including the eyes and then after throwing her on the field committed rape on her. She has stated that she was not aware of the names of the accused/appellants and it was told to her by Punitram (PW-5) who had asked her to lodge the report in the name of these two persons. She has further stated that while being raped, she suffered injuries on various parts of her body whereas only one abrasion was found on her neck. She has further stated that blood was coming out from the injuries sustained by her whereas the doctor has not stated so. The doctor who has medically examined the prosecutrix has stated that she was having her period whereas nothing like this has been stated by the prosecutrix. Evidence also reflects that accused Kaushal was caught hold by the uncle of the prosecutrix who took him to the police station on motorcycle but there is no evidence on record to show that on what basis he was apprehended by him. More importantly, the prosecutrix herself has admitted that the village pond is adjacent to her house and though the cries were raised by her, nobody came to her rescue. This creates a doubt in the mind of this Court whether any hue and cry was raised by the prosecutrix at the time of incident. 9. In view of discussion made above and keeping in view the material contradictions and omissions in the evidence of the witnesses, this Court is ofthe considered opinion that the Court below has failed to appreciate the evidence of the witnesses in its proper perspective. This being the situation, the findings of the Court below recorded in the judgment impugned need interference in this appeal. Accordrngly, the appeal is allowed. Judgment impugned is hereby set aside. •', !ari-"——'^f^ "r; *+; '7- ^^:l8:ra:q;1ted.of.the rt-w '"•"-'»°•"•'"- As they are already on bail, their bail bonds stand d,scharge!d°"lot l"c' Sd/- . Pritinker Diwaker Judge