HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 889 of 1992 AND Criminal Appeal 646 of 1993
1 Raju
2 Krishan
...Petitioners
Versus
State of M P
...Respondents
! Shri Abhay Tiwari,Shri Sandip shrivastava
^ Shri Pankaj Shrivastava
CORAM: Honable Justice Mr Pritinker Diwaker
Dated: 16/02/2010
:JUDGEMENT
CRIMINAL APPEALS UNDER SECTION 374 OF THE CODE OF
CRIMINAL PROCEDURE
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 lodged by the
prosecutrix (PW-4) alleging that on that day at
about 8.30 p.m. she had gone to answer the call 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 constructed house and after throwing her on
the floor and 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 investigation, 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 the colony and
looking to the criminal background of the brother of
the prosecutrix, her entire family was asked to
leave the colony. They submit that the story given
by the prosecutrix 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 Ram (PW-5). They further submit that
in paragraph 9 of her cross 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 subjected to rape by the three accused
persons for about two hours in 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 of nature 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 of persons used to reside and
even the 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 but the same has been lodged as her
brother Punit Ram (PW-5) was interested in the same.
7. On the other hand counsel for the
respondent/State supports the judgment impugned and
submits that minor contradictions and omissions in
the statement of the 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
though the doctor who had medically examined the
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
evidence 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 including
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 on her turn by turn. Thereafter, she
went to her house and narrated the incident to her
brother namely Punitram as at that time her mother
and father were sleeping. 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 witness has stated that after 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 returning 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 their act 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 persons were present
there. He has stated that 3-4 persons were seen
walking on the road and the children of the locality
were also playing there. He has stated that the
matter was 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
conviction in this case. Mother of the prosecutrix
namely 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 prosecutrix
has not firmly stuck to her statement made at one
place 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 below 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.
Judge