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Sahabuddin And Anr vs The State Of Madhya Pradesh 29 … on 13 February, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.2890 of 1999

Judgment Reserved on : 5.12.2017

Judgment Delivered on : 13.2.2018

1. Shahabuddin alias Sahab, S/o Shamshuddin (Musalman), aged about
22 years, R/o Shriram Market, Contractor Colony, Thana Supela,
Bhilai
2. Vikram Singh, S/o Narbada Singh Gond, aged about 23 years, R/o
Contractor Colony, Near Bajrang Mandir, Thana Supela, District Durg

—- Appellants
versus

The State of M.P. (now Chhattisgarh)
— Respondent
——————————————————————————————————
For Appellants : Shri Rakesh Jain, Advocate
For Respondent/State : Ms. Smita Ghai, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 11.10.1999

passed in Sessions Trial No.310 of 1998 by the 5 th Additional

Sessions Judge, Durg convicting and sentencing each of the

Appellants as under:

Conviction Sentence
Under Section 376 of the Rigorous Imprisonment for 10 years
Indian Penal Code and fine of Rs.1,000/- with default
stipulation
Under Section 450 of the Rigorous Imprisonment for 3 years
Indian Penal Code and fine of Rs.1,000/- with default
stipulation

2. Facts, in brief, are that on 26.7.1998 at about 7:15 p.m., the
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prosecutrix (PW1), a married lady, aged about 20 years, lodged

First Information Report (Ex.P1) in Police Station Supela, District

Durg alleging that on the same day, i.e., 26.7.1998 at about 5 p.m.,

she was alone at her home. The Appellants came there, asked

about her husband and when she told them that her husband was

not at home, they asked her for water. She entered inside her

home and behind her the Appellants also entered the house.

Thereafter, Appellant Shahabuddin showed her a knife and

threatened her that on her being shouting he will kill her and

thereafter he forcibly committed sexual intercourse with her.

Thereafter, Appellant Vikram Singh also forcibly committed sexual

intercourse with her. After the incident, the Appellants began to

come out of her house. She, shouting, chased them till the shop of

Natthu, where she told about the incident to Raju, Natthu,

Nandkumar. They chased the Appellants. Thereafter, when her

husband returned home, she told him about the incident. The

police registered the FIR (Ex.P1) and sent the prosecutrix for

medical examination. She was medically examined by Dr. (Smt.)

Padmini Singh (PW8). Her report is Ex.P9A in which she found

that there was no internal or external injury on the body of the

prosecutrix, she was habitual to sexual intercourse and there was

no sign of recent intercourse with her. She also found that the

prosecutrix was carrying a pregnancy of about 34 months. On

completion of the investigation, a charge-sheet was filed against

the Appellants for offence punishable under Sections 450, 506B,

376(2)(g) of the Indian Penal Code. Charges were framed against

them under Sections 450 and 376 of the Indian Penal Code.

3. To rope in the Appellants, the prosecution examined as many as 8
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witnesses. Statements of the Appellants/accused were also

recorded under Section 313 Cr.P.C. in which they denied the

circumstances appearing against them, pleaded innocence and

false implication. No witness has been examined in their defence.

4. After Trial, the Trial Court convicted and sentenced the Appellants

as mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel for the Appellants argued that the statement of

the prosecutrix (PW1) is not reliable. There are material

contradictions and omissions in her statements. As per her Court

statement, she did not know the name of the Appellants prior to the

incident and their names were disclosed to her by some other

persons. But, in the FIR (Ex.P1) and her case diary statement

(Ex.D1), she has named the Appellants. It was further argued that

since she did not know the Appellants prior to the incident,

therefore, test identification parade was required, but no test

identification parade was conducted in this case. It was further

argued that as per the Court statement, the prosecutrix sustained

injuries, but in her medical examination, no injury was found on her

body. Thus, the statement of the prosecutrix is not reliable and the

case of the prosecution against the Appellants is not proved

beyond doubt.

6. On the contrary, Learned Counsel appearing for the State

supported the impugned judgment.

7. I have heard Learned Counsel appearing for the parties and

perused the material available on record minutely.
4

8. The prosecutrix (PW1) has stated before the Court that at about

5:00 p.m,, she was alone at her house, the Appellants came there

and asked her for drinking water. She went inside her house to

fetch water, the Appellants also entered her house behind her,

threatened her of life and committed forcible sexual intercourse

with her one by one. At the time of incident, Appellant

Shahabuddin showed her a knife and on being shouted he

threatened her of life. She has further stated that when the

Appellants came out of her house, she, shouting, chased them till

the shop of Natthu and there she told about the incident to Raju

and Natthu. They chased the Appellants and she returned home.

She has further stated that she sent a boy and called back her

husband. Thereafter, she lodged the FIR (Ex.P1). In her cross-

examination, she has stated that before the incident, she did not

know any of the Appellants. She has further stated that she saw

first time the Appellants on the date of incident itself. In paragraph

6 of her cross-examination, she has stated that she did not know

the Appellants prior to the incident and she came to know about

their names through other people. In paragraph 14 of her cross-

examination, she has further stated that the boys, who had chased

the Appellants had told her about the names of the Appellants and

according to the names of the Appellants told by them, she had

mentioned the names of the Appellants in the FIR. She has further

stated that at the time of incident, she had suffered injury on the

neck because a knife was put on her neck. The Appellants had

caused her to fall down on the earth and they had committed

sexual intercourse with her after forcibly causing her to fall down

on the earth.

5

9. Dr. (Smt.) Padmini Singh (PW8) medically examined the

prosecutrix on 27.7.1998. Her report is Ex.P9A in which she found

that there was no internal or external injury on the body of the

prosecutrix, she was habitual to sexual intercourse and there was

no sign of recent intercourse with her. She also found that the

prosecutrix was carrying a pregnancy of about 34 months.

Patwari Satya Narayan Kaushik (PW2) is the witness who

prepared spot-map (Ex.P2).

10. Patiram (PW3), husband of the prosecutrix has stated that on

26.7.1998, one boy Satish came to him and informed that

Shahabuddin and Vikram had raped her wife. He returned home

where the prosecutrix told him that the Appellants, showing her a

knife, committed rape with her inside the house. This witness has

also admitted that her wife did not know the names of the

Appellants. He has further stated that boy Satish had told the

names of the Appellants, but Satish has not been examined by the

prosecution.

11. Rajendra (PW4), who is the witness of seizure of petticoat of the

prosecutrix made vide Ex.P4, slide Ex.P5, clothes of the Appellants

(Ex.P6 and P7), has stated that on 26.7.1998, when he reached

Natthu Kirana Store, he found there a crowed. He came to know

that the Appellants had committed rape with the prosecutrix. He

has further stated that the Appellants were caught by the people

there, but this fact is not mentioned in his case diary statement

(Ex.D3).

12. Raju Singh (PW5) has stated that at about 5:00 p.m., he reached

Natthu Kirana Store. At that time, the prosecutrix, weeping, was
6

telling Natthu that the Appellants had committed rape with her. He

has further stated that he had seen the Appellants running away.

13. Assistant Sub-Inspector R.M. Yadav (PW6) is the Investigating

Officer. He has supported the case of the prosecution

14. Sub-Inspector L.B. Singh (PW7) is the witness who registered the

FIR (Ex.P1). Dr. I.K. Wadhwani (PW8) examined the Appellants.

His reports are Ex.P12A and P11A in which he found the

Appellants capable of performing sexual intercourse.

15. On a minute examination of the evidence on record, it is clear that

the prosecutrix had not seen the Appellants nor did she know their

names prior to the incident. As per her Court statement, she had

come to know about the names of the Appellants from the nearby

people of the neighbourhood. But, this fact is not mentioned in her

FIR (Ex.P1) or in her case diary statement (Ex.D1). She did not

know the names of the Appellants nor did she identify them prior to

the date of incident, therefore, it was essential for the prosecution

to conduct a test identification parade of the Appellants, but in this

case there is nothing on record about conducting of any test

identification parade of the Appellants. As per statement of the

prosecutrix, she had sustained injury on her neck and at the time of

incident she was caused to fall down on the floor and thereafter

raped by the Appellants, but as per the medical examination report,

no injury was found on her neck or back. The prosecutrix has not

stated that from whom she came to know the names of the

Appellants. As per the statement of her husband Patiram (PW3),

when Satish came to him at that time Satish told him the names of

the Appellants. But, Satish has not been examined by the
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prosecution. As per the statement of Patiram (PW3) and Rajendra

(PW4), local residents had caught the Appellants. But, this fact is

not mentioned in their case diary statements (Ex.D2 and D3).

Thus, it is clear that they have exaggerated their statements in the

Court. Though Raju (PW5) has stated that when he reached

Natthu Kirana Store, he saw that the prosecutrix, weeping, was

telling about the incident to Natthu and he had also seen the

Appellants running away from there. But, Natthu has also not been

examined by the prosecution. The evidence adduced by the

prosecution only reveals that some witnesses had seen the

Appellants running away. Except this, there is nothing on record to

connect the Appellants with the crime in question. From the

evidence adduced by the prosecution, the offence alleged against

the Appellants is not proved beyond reasonable doubt. The

Appellants are, therefore, entitled to get benefit of doubt.

16. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellants are acquitted

of the charges framed against them.

17. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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