HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No. 415 of 1993
Ganesh Singh Mandvi
...Petitioners
VERSUS
Shivratri Devi and others
...Respondents
! Shri Arun Kochar counsel for appellants
^ Shri Pravin Das Dy. GA for respondent
No.2/State
Since despite the notice issued to
respondent No.1 which returned un-served with
an endorsement that she had left village
Machatoli 8 years back, Shri Prateek Kumar
Sinha advocate who is in the panel of High
Court Legal Service Authority, is appointed as
counsel to appear and argue on her behalf.
Hon. Mr. Justice Pritinker Diwaker
Dated:15/02/2010
: Judgment
CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF
CRIMINAL PROCEDURE.
J U D G M E N T
(15.02.2010)
This appeal is directed against the judgment
dated 5.5.1993 passed by Additional Sessions Judge,
Bilaspur, in Sessions Trial No. 264/1988 convicting
the accused/appellants for the offences punishable
under Sections 376 (2) (g) and 342 IPC and
sentencing each of them to undergo rigorous
imprisonment for ten years u/s 376 (2) (g) and
rigorous imprisonment for six months u/s 342 IPC.
During the pendency of appeal accused/appellant No.2
(Angadsingh) has expired and therefore this appeal
relates to appellants Ganesh Singh Mandvi and R.L.
Sharma, only.
2. As per the case of the complainant/respondent
No.1 she had lodged a complaint on 13.1.1987 before
the Court of Judicial Magistrate First Class,
Katghora alleging that on 22.4.1986 she was forcibly
taken by the accused/appellant No.1 Ganesh Singh
Mandvi to his house on the pretext that her husband
was waiting for her. From there, she was taken to
the nearby forest where all the three accused
persons had ravished her. Accused/appellant No.1
Ganesh Singh Mandvi had also snatched her two year
child and threatened to kill him if she raised any
alarm. It is alleged that she was confined to the
house of accused/appellant No.1 Ganesh Singh Mandvi
for three days and was repeatedly subjected to
forcible sexual intercourse by all of them. On
10.6.1986 she sat on hunger strike in front of the
office of Superintending Engineer, Hasdeo Bango
Project and thereafter on 12.6.1986 Police of police
station Katghora registered the case against the
accused/appellants. However, final report was
submitted by the police as a result of which she was
left with no other option but to file the complaint
case against the accused/appellants.
3. So as to hold the accused/appellants guilty,
complainant has examined 05 witnesses in support of
her case. Statements of the accused/appellants were
also recorded under section 313 of the 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 for
the offences as mentioned above.
5. Heard counsel for the parties and perused the
material available on record including the judgment
impugned.
6. Counsel for the appellants submits that the
complaint has been filed with an inordinate delay.
He submits that as per version of the prosecutrix
herself she was subjected to forcible sexual
intercourse by the accused/appellants on 22.4.1986
whereas no prompt report of the same was lodged by
her and even the complaint case was filed on
13.1.1987. He submits that the prosecutrix has not
even been medically examined. According to him,
there was some civil dispute between
accused/appellant No.2 Angadsingh (since deceased)
and the father-in-law of the prosecutrix namely
Onkar Prasad (PW-5). He submits that statement of
the prosecutrix being full of contradictions and
omissions cannot be held to be trustworthy and
conviction based thereon would be illegal.
7. On the other hand counsel for the respondent
No.1 supports the impugned judgment and submits that
the same being strictly in accordance with the
evidence available on record is not prone to any
disturbance in appeal. He submits that present is a
case where a poor lady has been sexually exploited
by the three accused persons and despite her best
efforts, the police had refused to register and
investigate the matter compelling the prosecutrix to
file the complaint case against the
accused/appellants. He also submits that the defence
has not been able to bring forth any material to
show the false implication of the accused/appellants
in this case.
8. State counsel also rendered his valuable
assistance to this Court.
9. Prosecutrix (PW-1) has stated in her evidence
that on 22.4.1986 when she was returning from her
parents’ house along with her two year child in a
bus in which accused/appellant No.1
Ganesh Singh Mandvi who was working as Forest Guard
was also traveling. She has further stated that he
forced her to alight the bus, took her to his house
and confined her therein. According to her, accused
Ganesh Singh Mandvi called other two accused persons
namely Angadsingh (since deceased) and R.L. Sharma
and in the night all of them consumed liquor and
then after taking their meals, accused Angadsingh
(since deceased) and R.L. Sharma left the place.
Thereafter, accused Ganesh Singh Mandvi took her to
the forest depot where two other accused persons
namely Angadsingh (since deceased) and R.L. Sharma
were already present. All the three accused persons
threatened her to kill her child in case she raised
an alarm. Thereafter, accused Ganesh Singh Mandvi
tied her hands and eyes, gagged her mouth and then
first of all accused Angadsingh (since deceased)
committed sexual intercourse with her which was
followed by other two accused persons also.
According to her even thereafter she was subjected
to sexual intercourse by all the three accused
persons during her stay for three days. She has
further stated that on the fourth day she was asked
by accused Angadsingh (since deceased) to lodge a
report against her husband for demand of dowry and
on her refusal he himself prepared the report and
forcefully obtained her signature on that and
submitted the same in police station Machatoli. She
has stated that thereafter she went to her parents’
house and four days’ thereafter the minor child was
handed over to her by the accused/appellants and
then she narrated the entire incident to her father
who took her to the house of her husband where she
narrated the incident to him also and then both of
them went to police station Machatoli to lodge the
report but the Station House Officer refused to
register the same. According to her, after refusal
from the Station House Officer to register the FIR,
she went to the office of Collector, Bilaspur, along
with her husband where she was assured by the
Collector regarding an action to be taken on her
report. In her cross examination this witness has
admitted that though the place where the incident
had taken place is a densely populated locality but
she did not disclose the incident to anyone. She has
stated that when she was made to get down from the
bus by accused Ganesh Singh Mandvi, she had raised
an alarm but no one could hear her voice. Statement
of the prosecutrix prima facie appears to be un-
natural and fabricated one and thus not worthy of
credence.
10. Arun Kumar Trivedi (PW-2) who is the husband of
the prosecutrix has stated in his evidence that at
the relevant time he was working as timekeeper in
the irrigation department. According to him, his
father in law had brought the prosecutrix to his
house and only then he came to know about her having
been subjected to forcible sexual intercourse by all
the three accused persons. This witness has admitted
that he was informed by his wife that she had lodged
a report against him for demand of dowry. According
to him, even after an assurance from the Collector,
Bilaspur report was not registered against the
accused/appellants. He has stated that accused
Ganesh Singh Mandvi had asked him to part with Rs.
5000 to each of the accused persons for not making
the incident of rape on his wife public. However, on
being confronted with his previous statement
recorded under Section 200 of the Code of Criminal
Procedure, this witness has stated that he cannot
say as to how the said statement has been recorded.
It is relevant to note that in Ex. D-2 this witness
has stated that his wife had informed him that she
was taken by the accused persons but in the Court
statement he has stated that she was taken by
accused/appellant Ganesh Singh Mandvi only and was
subjected to rape. This witness has stated in his
cross examination that in his statement recorded
under Section 200 of the Code of Criminal Procedure
he had not made any statement regarding demand of
Rs. 5000 by each of the accused/appellants for not
making the matter public. According to this witness,
the prosecutrix was kept in the house of
accused/appellant Ganesh Ram Mandvi for 8 days and
was subjected to forcible sexual intercourse by all
the accused persons whereas the prosecutrix herself
has stated that she was kept in his house for three
days only.
11. Thus the evidence of the prosecution witnesses
particularly that of the prosecutrix (PW-1) and her
husband Arun Kumar Trivedi (PW-2) appear to be full
of contradictions and omissions and therefore does
not inspire confidence of this Court. Moreover,
there are various inconsistencies in their statement
recorded under Section 200 of the Code of Criminal
Procedure and that recorded before the Court. Not
only this, the prosecutrix herself has stated that
she was made to alight the bus by the
accused/appellant Ganesh Singh Mandvi near a barrier
and accompany him to his house but she did not offer
any resistance to his act and permitted all the
three accused persons to sexual intercourse for
three long days. Thus the entire story put forth by
the prosecutrix appears to be quite unnatural to
warrant conviction.
12. In view of the above factual background, this
Court is of the view that the Court below has erred
in appreciating the evidence available on record
while recording the findings convicting and
sentencing the accused/appellants for the offences
mentioned above. Accordingly, the appeal is allowed
and the impugned judgment dated 5.5.1993 being
contrary to the evidence available on record is set
aside. Appellants are acquitted of the charges
levelled against them. Appellants are reported to be
on bail. Their bail bonds stand discharged.
Judge