{"id":259017,"date":"2010-02-16T00:00:00","date_gmt":"2010-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/2-krishan-vs-state-of-m-p-on-16-february-2010"},"modified":"2015-08-08T15:16:52","modified_gmt":"2015-08-08T09:46:52","slug":"2-krishan-vs-state-of-m-p-on-16-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/2-krishan-vs-state-of-m-p-on-16-february-2010","title":{"rendered":"2 Krishan vs State Of M P on 16 February, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Chattisgarh High Court<\/div>\n<div class=\"doc_title\">2 Krishan vs State Of M P on 16 February, 2010<\/div>\n<pre id=\"pre_1\">       \n\n  \n\n  \n\n \n \n      HIGH COURT OF CHATTISGARH AT BILASPUR         \n\n     Criminal Appeal 889 of 1992 AND  Criminal Appeal 646 of 1993\n\n                1 Raju\n\n                 2 Krishan\n                      ...Petitioners\n\n                        Versus\n\n                         State of M P\n                            ...Respondents\n\n!               Shri Abhay Tiwari,Shri Sandip shrivastava\n\n^              Shri  Pankaj Shrivastava\n\n\n CORAM:               Honable Justice  Mr Pritinker Diwaker\n\n Dated:        16\/02\/2010\n\n:JUDGEMENT    \n<\/pre>\n<p id=\"p_1\">  CRIMINAL APPEALS UNDER SECTION 374 OF THE CODE OF<br \/>\n                 CRIMINAL PROCEDURE <\/p>\n<p>     Since both the aforementioned appeals arise out<br \/>\nof  the  judgment  dated 26.8.1992,  passed  by  the<br \/>\nAdditional Sessions Judge, Raipur in Sessions  Trial<br \/>\nNo. 384\/1989 convicting the accused\/appellants under<br \/>\n<a href=\"\/doc\/1279834\/\" id=\"a_1\">Section  376<\/a>\/<a href=\"\/doc\/37788\/\" id=\"a_1\">34<\/a> IPC and sentencing each of  them  to<br \/>\nundergo rigorous imprisonment for seven years,  they<br \/>\nare disposed of by this common judgment.\n<\/p>\n<p id=\"p_1\">2.    Case of the prosecution, in narrow compass, is<br \/>\nthat  on 18.6.1991 FIR (Ex. P-9) was lodged  by  the<br \/>\nprosecutrix  (PW-4) alleging that  on  that  day  at<br \/>\nabout  8.30 p.m. she had gone to answer the call  of<br \/>\nnature  along  with her niece Laxmi Bai  (PW-7)  and<br \/>\nwhile returning home when she had reached near Amrit<br \/>\nTalkies,   three  persons  including   the   present<br \/>\nappellants  met her, accused Munna Sahu caught  hold<br \/>\nof her, gagged her mouth, all of them dragged her to<br \/>\na  newly constructed house and after throwing her on<br \/>\nthe    floor    and    removing    her    underwear,<br \/>\naccused\/appellant Raju committed sexual  intercourse<br \/>\nwith  her.  Thereafter, accused  Munna  and  Krishan<br \/>\nKumar also did the same with her. It is alleged that<br \/>\nthereafter  she ran away to her house  and  informed<br \/>\nthe  incident to her mother and father and then  she<br \/>\nwent to the police station along with them where the<br \/>\nreport was lodged. After investigation, challan  was<br \/>\nfiled  against  all the three accused persons  under<br \/>\n<a href=\"\/doc\/1279834\/\" id=\"a_2\">Section 376<\/a>\/<a href=\"\/doc\/37788\/\" id=\"a_3\">34<\/a> IPC.\n<\/p>\n<p id=\"p_2\">3.    In  support  of its case the  prosecution  has<br \/>\nexamined   12   witnesses.   Statements    of    the<br \/>\naccused\/appellants were also recorded under  <a href=\"\/doc\/767287\/\" id=\"a_4\">Section<br \/>\n313<\/a>  of the Code of Criminal Procedure in which they<br \/>\nhave  denied the allegations made against  them  and<br \/>\npleaded their innocence and false implication in the<br \/>\ncase.  Three witnesses namely Rameshwar Prasad Verma<br \/>\n(DW-1)  Krishna Kumar alias Phugga (DW-2) and Hetram<br \/>\n(DW-3)  were also examined by the defence in support<br \/>\nof its case.\n<\/p>\n<p id=\"p_3\">4.    After hearing the parties the Court below  has<br \/>\nconvicted the accused\/appellants for the offence  as<br \/>\nmentioned above.\n<\/p>\n<p id=\"p_4\">5.    Heard counsel for the parties and perused  the<br \/>\nmaterial  available on record including the judgment<br \/>\nunder challenge.\n<\/p>\n<p id=\"p_5\">6.    Counsel for the accused\/appellants submit that<br \/>\nthe  appellants have been falsely implicated in  the<br \/>\ncase on account of a dispute between brother of  the<br \/>\nprosecutrix namely Punit Ram (PW-5) and the  persons<br \/>\nof  the locality. They submit that incidentally  the<br \/>\naccused  persons  were the head of  the  colony  and<br \/>\nlooking to the criminal background of the brother of<br \/>\nthe  prosecutrix,  her entire family  was  asked  to<br \/>\nleave  the colony. They submit that the story  given<br \/>\nby the prosecutrix being quite unnatural and full of<br \/>\ncontradictions  and  omissions is  not  trustworthy.<br \/>\nThey  submit  that  as per the  FIR  lodged  by  the<br \/>\nprosecutrix, after the commission of offence she ran<br \/>\naway  to her house and informed the incident to  her<br \/>\nparents  whereas  in  her court  statement  she  has<br \/>\nstated that after commission of the offence she went<br \/>\nto  her  house  and  informed the  incident  to  her<br \/>\nbrother  Punit Ram (PW-5). They further submit  that<br \/>\nin   paragraph  9  of  her  cross  examination   the<br \/>\nprosecutrix  has admitted that when she reached  her<br \/>\nhouse,  her mother and father were sleeping and  her<br \/>\nbrother  Punit Ram (PW-5) was taking  his  meals  to<br \/>\nwhom  she narrated the incident and then the  report<br \/>\nwas  lodged by her. They submit that this  statement<br \/>\nof the prosecutrix has been totally negatived by the<br \/>\nbrother  of the prosecutrix namely Punit Ram  (PW-5)<br \/>\nand Dan Kunwar &#8211; the mother of the prosecutrix. They<br \/>\nsubmit  that as per the statement of the prosecutrix<br \/>\nshe  was  subjected  to rape by  the  three  accused<br \/>\npersons  for  about  two  hours  in  which  she  had<br \/>\nsustained  injuries on various  parts  of  her  body<br \/>\nwhereas  the medical evidence does not support  this<br \/>\nversion of the prosecutrix.  Even the doctor who had<br \/>\nexamined  the prosecutrix has not been  examined  by<br \/>\nthe  prosecution. Counsel for the appellants further<br \/>\nsubmit  that  the prosecutrix is said to  have  been<br \/>\nsubjected  to  rape by the accused persons  for  two<br \/>\nhours  whereas  her  mother Dan  Kunwar  (PW-6)  has<br \/>\nstated  that the prosecutrix had gone to answer  the<br \/>\ncall  of  nature  but  had  come  back  within  five<br \/>\nminutes. Counsel for the appellants submit that  the<br \/>\nincident  is  said to have taken  place  in  a  busy<br \/>\nlocality where number of persons used to reside  and<br \/>\neven  the talkies is situated there but despite that<br \/>\nthe  prosecutrix  had not made any  effort  to  save<br \/>\nherself  from  the clutches of the accused  persons.<br \/>\nAttention  of  this  Court has  been  drawn  to  the<br \/>\nstatement  of the prosecutrix where she  has  stated<br \/>\nthat  she  did not make any attempt to save  herself<br \/>\nfrom  the  clutches  of  the accused  persons.  They<br \/>\nsubmit that even the FSL report is not on record and<br \/>\nthe   Investigating  Officer  has  also   not   been<br \/>\nexamined.   They  submit  that  according   to   the<br \/>\nstatement of the prosecutrix she was not willing  to<br \/>\nlodge  the FIR but the same has been lodged  as  her<br \/>\nbrother Punit Ram (PW-5) was interested in the same.\n<\/p>\n<p id=\"p_6\">7.     On   the   other   hand   counsel   for   the<br \/>\nrespondent\/State supports the judgment impugned  and<br \/>\nsubmits  that minor contradictions and omissions  in<br \/>\nthe statement of the prosecutrix have to be ignored.<br \/>\nHe  submits  that  there was  no  occasion  for  the<br \/>\nprosecutrix to falsely implicate the accused persons<br \/>\nputting  at  peril her own future. He  submits  that<br \/>\nthough  the  doctor who had medically  examined  the<br \/>\nprosecutrix   has   not   been   examined   by   the<br \/>\nprosecution; medical report of the prosecutrix is on<br \/>\nrecord  which  very  much  confirms  that  she   was<br \/>\nsubjected  to rape. According to him the doctor  has<br \/>\ncategorically  stated in her report  that  signs  of<br \/>\nrecent  intercourse were very much there. He submits<br \/>\nthat  police  constable Jethu Ram Verma  (PW-3)  who<br \/>\ntook  the  prosecutrix for medical  examination  has<br \/>\nstated  that  after her examination the  report  was<br \/>\nsubmitted  by the doctor. He also submits that  even<br \/>\nif  the Investigating Officer has not been examined,<br \/>\nit  will not make any difference in the case of  the<br \/>\nprosecution.   He  submits  that  Police   constable<br \/>\nTikamlal Soni (PW-9) has stated in his evidence that<br \/>\nupon  receiving the instructions from  his  superior<br \/>\nofficers he took all the accused persons for medical<br \/>\nexamination  to  D.K.  Hospital  and  obtained   the<br \/>\nreports  Ex. P-10 to Ex. P-12. He submits  that  the<br \/>\ndefence  of the accused persons that family  members<br \/>\nof the prosecutrix were asked to leave the colony is<br \/>\ntotally  unacceptable because had it been the  case,<br \/>\nother persons would have also been implicated in the<br \/>\ncase  and  not  the  three  accused  persons  alone.<br \/>\nAccording to him even the President of the  locality<br \/>\nwho  should  have  been the first  opponent  of  the<br \/>\nfamily of the prosecutrix has not been implicated in<br \/>\nthe case.\n<\/p>\n<p id=\"p_7\">8.    To  arrive  at  any  conclusion  in  the  case<br \/>\nrecapitulation of the evidence on record appears  to<br \/>\nbe  necessary. Prosecutrix (PW-4) has stated in  her<br \/>\nevidence that on the date of incident when she along<br \/>\nwith  her  niece  was going to answer  the  call  of<br \/>\nnature  near Amrit Talkies, three persons  including<br \/>\nthe  present appellants came from behind  and  after<br \/>\npressing  her  mouth  took her  to  a  nearby  newly<br \/>\nconstructed  house,  got her petticoat  removed  and<br \/>\ncommitted rape on her turn by turn.  Thereafter, she<br \/>\nwent  to her house and narrated the incident to  her<br \/>\nbrother  namely Punitram as at that time her  mother<br \/>\nand  father  were sleeping. She has  stated  in  her<br \/>\nevidence    that    she    was    raped    by    the<br \/>\naccused\/appellants continuously for two hours and as<br \/>\nshe  had  got tired, she stayed there for  one  more<br \/>\nhour.  Immediately after making this statement,  she<br \/>\nhas  made  an entirely different statement that  she<br \/>\nhad  left for the house just after the incident  and<br \/>\nhad  reached there in 10-15 minutes. In the FIR also<br \/>\nthis  witness has stated that after the offence  was<br \/>\nover,  she had rushed to the house at once.  In  the<br \/>\nFIR she has stated that the incident had taken place<br \/>\nwhile she was returning after answering the call  of<br \/>\nnature whereas according to her Court statement  the<br \/>\nincident  had  taken place while she  was  going  to<br \/>\nanswer the call of nature Near Amrit talkies. Though<br \/>\nin  the  FIR  this  witness has not stated  anything<br \/>\nabout  the  injuries sustained by her, in her  Court<br \/>\nstatement  she  has  descriptively  stated  that  on<br \/>\naccount  of her being thrown on the ground  she  has<br \/>\nsustained bleeding abrasion on her waist,  hips  and<br \/>\nlegs.  The  prosecution has not examined the  doctor<br \/>\nwho had medically examined the prosecutrix so as  to<br \/>\nprove the offence of rape on her. According to  this<br \/>\nwitness,  while  being  subjected  to  rape  by  the<br \/>\naccused persons, she did not do anything to them nor<br \/>\ndid  she  resist to their act by biting  or  hitting<br \/>\nwith  legs. In the FIR this witness has stated  that<br \/>\nafter reaching home she narrated the incident to her<br \/>\nparents  whereas  in  the Court  statement  she  has<br \/>\nstated  that  as  at  that time  her  parents&#8217;  were<br \/>\nsleeping,  she  had disclosed the  incident  to  her<br \/>\nbrother   Punitram.  From  the  statement   of   the<br \/>\nprosecutrix it is also clear that she had lodged the<br \/>\nFIR  at the instance of her brother Punit Ram as  he<br \/>\nwas  harassed by the accused persons and had he  not<br \/>\nasked  her  to lodge the report she would  not  have<br \/>\nlodged it.\n<\/p>\n<p id=\"p_8\">9.    As  per the statement of the prosecutrix  when<br \/>\nshe  returned to her house she narrated  the  entire<br \/>\nincident  to her brother Punit Ram who at that  time<br \/>\nwas  taking  food  whereas as per the  statement  of<br \/>\nPunit  Ram  (Ex. PW-5) when at about 8 p.m.  he  was<br \/>\ngoing   towards  the  Amrit  Talkies,  he  met   the<br \/>\nprosecutrix  in  a  nearby newly  constructed  house<br \/>\nwhere  she informed him about the rape committed  on<br \/>\nher  by  the  three accused persons.  In  his  cross<br \/>\nexamination this witness has stated that he met  his<br \/>\nsister  near the house where the incident had  taken<br \/>\nplace  and  near the said house 30-35  other  houses<br \/>\nwere  also situated. He has further stated  that  at<br \/>\nthe  time of incident the film was going on  in  the<br \/>\nAmrit  talkies  and number of persons  were  present<br \/>\nthere.  He  has  stated that 3-4 persons  were  seen<br \/>\nwalking on the road and the children of the locality<br \/>\nwere  also  playing there. He has  stated  that  the<br \/>\nmatter  was  taken to Mohalla Sudhar Samiti  but  no<br \/>\nsolution could be found. He has further stated  that<br \/>\ninitially  he  thought that all the accused  persons<br \/>\ncould  be  saved  through  Panchayat  but  later  he<br \/>\ndropped this idea. According to this witness he  had<br \/>\nnot  given  anything in writing regarding compromise<br \/>\nof the matter to the people of the locality but they<br \/>\nhad  obtained  his signature. From the  evidence  of<br \/>\nthis  witness  it is clear that there  are  material<br \/>\ncontradictions  and  omissions  in   his   statement<br \/>\nparticularly in paragraphs 10 and 11 thereof. Mother<br \/>\nof  the  prosecutrix  namely  Dankunwar  (PW-6)  has<br \/>\nstated  in her evidence that on the date of incident<br \/>\nthe  prosecutrix  had gone to  answer  the  call  of<br \/>\nnature  and after returning there from she  informed<br \/>\nher  of  being  subjected to  rape  by  the  accused<br \/>\npersons. She has further stated that the prosecutrix<br \/>\nhad returned after answering the call of nature just<br \/>\nafter five minutes. She has stated that when her son<br \/>\nPunit Ram woke her up, accused Krishna and Raju were<br \/>\npresent in her house but accused Munna was not there<br \/>\nand  he  had  fled away. According to this  witness,<br \/>\nPunit  Ram  (PW-5)  asked her to go  to  the  police<br \/>\nstation  to lodge the report on which she  expressed<br \/>\nher inability in doing so as she was tired. However,<br \/>\nsubsequently she went to the police station to lodge<br \/>\nthe  report.  She  has stated  that  had  Punit  Ram<br \/>\nrefused to lodge the report, she would not have done<br \/>\nso.\n<\/p>\n<p id=\"p_9\">10.   Thus  on the basis of the discussion as  above<br \/>\nentire  statement  made  by  the  prosecutrix,   her<br \/>\nbrother Punit Ram (PW-5) and mother Dan Kunwar  (PW-\n<\/p>\n<p id=\"p_10\">6)   appears  to  be  full  of  contradictions   and<br \/>\nomissions.   Moreover,  the  prosecution   has   not<br \/>\nbothered  to  examine the doctor who  had  medically<br \/>\nexamined  the prosecutrix so as to elicit  something<br \/>\nin  support of its case. The most important thing in<br \/>\nthis  case  is that the prosecutrix had  lodged  the<br \/>\nreport  at the instance of her brother Punitram  due<br \/>\nto  some  grudge between him and the accused persons<br \/>\nand  thus  the  same can not be made the  basis  for<br \/>\nconviction  in this case. Mother of the  prosecutrix<br \/>\nnamely  Dan Kunwar (PW-6) has also stated  that  had<br \/>\nPunit  Ram  (PW-5) refused to lodge the report,  she<br \/>\nwould  not have done so. This apart, the prosecutrix<br \/>\nhas  not firmly stuck to her statement made  at  one<br \/>\nplace and kept on changing her version according  to<br \/>\nher   own   sweet-will.  All  these  contradictions,<br \/>\nomissions  and inconsistencies in the statements  of<br \/>\nthe  aforesaid witnesses must give full  entitlement<br \/>\nof  benefit  of  doubt to the accused  persons.  The<br \/>\nCourt below seems to be at fault in appreciating the<br \/>\nevidence while passing the judgment impugned  which,<br \/>\naccording to the opinion of this Court, is liable to<br \/>\nbe set aside.\n<\/p>\n<p id=\"p_11\">11.    In  the  result,  the  appeals  are  allowed.<br \/>\nImpugned  judgment  dated 26.8.1992  is  hereby  set<br \/>\naside.  The accused\/appellants are acquitted of  the<br \/>\ncharges  levelled  against him. The  appellants  are<br \/>\nreported  to  be  on bail. Their  bail  bonds  stand<br \/>\ndischarged.\n<\/p>\n<p id=\"p_12\">                                             Judge<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Chattisgarh High Court 2 Krishan vs State Of M P on 16 February, 2010 HIGH COURT OF CHATTISGARH AT BILASPUR Criminal Appeal 889 of 1992 AND Criminal Appeal 646 of 1993 1 Raju 2 Krishan &#8230;Petitioners Versus State of M P &#8230;Respondents ! Shri Abhay Tiwari,Shri Sandip shrivastava ^ Shri Pankaj Shrivastava CORAM: Honable Justice [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-259017","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>2 Krishan vs State Of M P on 16 February, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/2-krishan-vs-state-of-m-p-on-16-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"2 Krishan vs State Of M P on 16 February, 2010 - Free Judgements of Supreme Court &amp; 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