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
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For Appellants : Shri Rakesh Jain, Advocate
For Respondent/State : Ms. Smita Ghai, Panel Lawyer
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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.
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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.
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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
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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