NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 174 of 2002
Smt. Roshni Minj, W/o Laila Minj, aged about 20 years,
occupation house wife, R/o Sonumuda, Bajrangpara, Raigarh,
PS City Kotwali, Distt. Raigarh (CG)
—- Appellant
Versus
State Of C.G. through S.O. City Kotwali, Raigarh (CG)
—- Respondent
CRA No. 184 of 2002
Bhuvneshwar @ Ramesh Yadav, aged about 27 years, S/o
Bhutanand Yadav, Occupation agriculturist, R/o Village
Chhuripaheri, thana Paththalgaon, Distt. Raigarh (CG)
—- Appellant
Versus
State Of C.G. through District Magistrate, Raigarh (CG)
—- Respondent
For Appellants : Shri Awadh Tripathi, Advocate.
For Respondent/State : Shri Ravindra Agrawal, G.A.
Hon’ble Shri Pritinker Diwaker, J
Judgment On Board
29/06/2018:
As these two appeals arise out of the common judgment of
conviction and order of sentence dated 8.2.2002 passed by the
Sessions Judge, Raigarh (CG) in S.T. No.56/2000 convicting the
accused/appellant Bhuvneshwar under Section 376 of IPC and
sentencing him to undergo RI for 5 years and to pay a fine of Rs.500/-
with default stipulation, and accused/appellant Smt. Roshni Minj under
Section 366 of IPC and sentencing her to undergo RI for 3 years and
fine of Rs.200/- with default stipulation, they are being disposed of by
this common judgment.
02. As per prosecution case, on 17.8.1999, the prosecutrix (PW-6)
was taken by accused No.1 Smt. Roshni Minj to the house of accused
No.3 Yugadesh @ Sachidanand. At about 12 in the midnight she was
subjected to forcible sexual intercourse by accused No.3. Next day she
was taken to the house of accused No.2 Bhuvneshwar @ Ramesh
Yadav where he also subjected her to forcible sexual intercourse thrice
in the night. It is further said that accused No.1 Roshni Minj and the
prosecutrix stayed in the house of accused No.2 Bhuvneshwar and on
21.8.1999 the prosecutrix was taken to the house of mother of accused
No.1 at Bandarchua. Thereafter, accused No.1 and the prosecutrix
returned to Raigarh. On 23.8.1999 FIR (Ex.P/7) was lodged by the
prosecutrix narrating the entire incident and making allegation of rape
against accused Nos. 2 3 and allegation of her abduction by accused
No.1 for compelling her to have illicit intercourse with accused Nos. 2
3. Based on this FIR, offence under Sections 363, 366, 376, 34 of IPC
was registered against all the three accused persons. The prosecutrix
was medically examined on 24.8.1999 vide Ex.P/2 by PW-2 Dr. S.
Ekka who did not notice any external or internal injury on the person of
the prosecutrix, her hymen was old torn, two fingers easily inserted into
her vagina, and she prepared two vaginal slides. According to her, no
definite opinion could be given regarding rape and for ascertaining the
age of the prosecutrix, she referred her to radiologist. However, as per
FSL report vide Ex.P/16, no spermatozoa was found in the vaginal
slides or clothes of the prosecutrix or underwear of accused No.2
Bhuvneshwar @ Ramesh Yadav. As per X-ray report of the prosecutrix
vide Ex.P/9, she was found aged in between 16 ½ and 18 years with a
margin of error of three years on either side. Accused No.2
Bhuvneshwar was also medically examined vide Ex.P/11 by PW-11 Dr.
RK Agrawal who found him capable of performing sexual intercourse.
While framing charge, the trial Judge framed charges against accused
No.1 Roshni Minj under Sections 363, 366 372 of IPC whereas
accused No.2 Bhuvneshwar was charged under Section 376(1) and
accused No.3 Yugadesh under Sections 376(2)(f) and 506 Part-II of
IPC.
Accused No.1 Roshni Minj and accused No.2 Bhuvneshwar @
Ramesh Yadav were tried together, however, trial of accused No.3
Yugadesh was conducted separately as he was absconding.
03. So as to hold the accused/appellants guilty, the prosecution
examined 14 witnesses in all. Statements of the accused/appellants
were also recorded under Section 313 of Cr.P.C. in which they denied
the circumstances appearing against them in the prosecution case,
pleaded innocence and false implication. In defence, they examined
two witnesses.
04. The trial Court after hearing counsel for the respective parties
and considering the material available on record, by the impugned
judgment convicted and sentenced the accused/appellants as
mentioned in para-1 of this judgment.
After trial of absconding accused No.3 Yugadesh @
Sachidanand being conducted separately, he stood convicted and
sentenced under Sections 376(1) and 506 Part-II of IPC vide judgment
dated 27.1.2004. Appeal preferred by him i.e. Cr.A.No.104/2004 was
dismissed as having become infructuous as he had already completed
the entire sentence.
05. Learned counsel for the appellants submits as under:
in respect of accused No.1 Roshni Minj, it is submitted that the
prosecutrix was admittedly a major girl and therefore, the
question of her abduction does not arise and further, considering
the story put forth by the prosecutrix, which is per se improbable,
her conviction under Section 366 is not at all tenable in the eye
of law.
as regards accused No.2 Bhuvneshwar, it has been argued that
a very improbable story has been put forth by the appellant, her
version is also not supported the medical evidence and further
considering her conduct, it appears that either a false report has
been made against this appellant for some ulterior motive or the
act allegedly committed was consensual one.
06. On the other hand, supporting the impugned judgment it has been
argued by the State counsel that conviction of the appellants is strictly
in accordance with law and there is no illegality or infirmity in the
judgment impugned warranting interference by this Court.
07. Heard counsel for the respective parties and perused the material
on record.
08. PW-6 prosecutrix has stated that she knew accused No.1 Smt.
Roshni Minj and accused No.2 Bhuvneshwar. On 17.8.1999 she
accompanied accused No.1 who took her to a small house and left her
there all alone saying that she would return soon. While she was
coming out of the house, watchman came there, pushed her inside the
house and detained her in the house for the whole night and also
committed rape with her on the threat of life. On the next day, accused
No.1 came there and asked her to flee from there. Thereafter, accused
No.1 took her to Paththalgaon in a jeep where she was kept in a house
and there she was subjected to forcible sexual intercourse by accused
No.2 Bhuvneshwar. In the next morning, accused No.1 returned and
took her to the house of her (A-1’s) mother and kept her there for two
days. Thereafter, she (prosecutrix) returned to her house and narrated
the entire incident to her mother and other family members. She was
medically examined and her undergarments were seized. She states
that accused No.1 used to visit her house frequently and take her
along with her with the permission of her mother and on the date of
incident also she (A-1) had taken her with the permission of her
mother. She states that as she was threatened by accused No.1, she
did not disclose the incident to anyone. While she was being taken in a
bus, number of passengers were there but she did not disclose to them
about the incident and even in the house of accused No.1 she did not
disclose about the incident to mother of accused No.1. She states that
for the first time she is seeing accused No.2 Bhuvneshwar in the court.
She further states that her clothes were torn by accused No.2, he
threw her on the floor and then committed rape upon her repeatedly for
four times in the night. She admits that while she was going to the
place where she was subjected to rape, on both sides of the road
shops were there and likewise, number of persons were residing near
the room where she was kept. She further states that on account of
she being thrown on the floor she suffered injury on her back and this
fact was disclosed by her to the treating doctor. According to her, while
the accused No.2 was subjecting her to rape, she pushed him, pulled
his hair and also scratched him with her nails on his cheek.
09. PW-2 Dr. S. Ekka medically examined the prosecutrix on
24.8.1999 vide Ex.P/2. However, she did not notice any external or
internal injury on the person of the prosecutrix, her hymen was old torn,
two fingers easily inserted into her vagina and that she prepared two
vaginal slides. According to her, no definite opinion could be given
regarding rape and for ascertaining the age of the prosecutrix, she
referred her to radiologist. However, as per FSL report vide Ex.P/16, no
spermatozoa was found in the vaginal slides or clothes of the
prosecutrix or underwear of accused No.2 Bhuvneshwar @ Ramesh
Yadav. PW-9 Dr. MD Joshi did x-ray examination of the prosecutrix and
as per X-ray report vide Ex.P/9, she was found aged in between 16 ½
and 18 years with a margin of error of three years on either side. PW-
11 Dr. RK Agrawal medically examined accused No.2 Bhuvneshwar
vide Ex.P/11 and found him capable of performing sexual intercourse.
10. PW-3 Heeralal, Village Kotwar, is a formal witness. PW-4
Santosh, PW-7 Jamal Sai and PW-8 Jeeturam have Kumar turned
hostile. PW-5 Yadiyus Kujur, father of the prosecutrix, states that his
wife informed him on 17.8.1999 that accused No.1 had taken the
prosecutrix along with her. He lodged missing report, which was not
recorded by the police. PW-12 Shamshuddin Khan, PW-13 Dilip
Kumar assisted in the investigation and PW-14 Prakash Soni is the
investigating officer.
11. DW-1 Chamar Sai and DW-2 Rajesh Kumar Yadav have not
stated anything specific in favour of the appellants.
12. Close scrutiny of the evidence makes it clear and according to
the prosecutrix on 17.8.1999 she was taken by accused No.1 Smt.
Roshni Minj to the house of accused No.3 Yugadesh @ Sachidanand
and having left her there she went away saying that she would come
back soon and in the midnight she was raped by accused No.3. She
further alleges that next day she was taken to the house of accused
No.2 Bhuvneshwar @ Ramesh Yadav by accused No.1 where accused
No.2 also subjected her to forcible sexual intercourse 3-4 times in the
night. However, considering the case diary statement of the
prosecutrix, the FIR lodged by her as well as her Court statement
together, it appears that she is not consistent while deposing in the
Court and making allegations against the accused/appellants. She
admits that while she was being taken from one place to other by
accused No.1, she came across number of people, however, she did
not disclose about the incident to anyone, nor did she offer any protest
or raise hue and cry. Though she states that she did not do so because
of being threatened by accused No.1, however, the same does not
inspire confidence and appears to be a bit improbable because
nowhere it has been stated by her that accused No.1 was having any
weapon to threaten her or accompanied by other accused persons
preventing her from raising hue and cry. Rather, in the given facts and
circumstances of the case, the prosecutrix had ample opportunities to
escape from the clutches of accused No.1 or seek help from the
people she was coming across while moving from one place to
another. Furthermore, in the Court she has stated that for the first time
she is seeing accused No.2 Bhunvneshwar @ Ramesh Yadav in the
Court, however, she has lodged a named report against this appellant
also. This apart, according to the prosecutrix, accused No.2 threw her
on the floor and then committed rape upon her repeatedly for four
times in the night and on account of she being thrown on the floor she
suffered injury on her back and this fact was disclosed by her to the
treating doctor. She further states that while accused No.2 was
subjecting her to rape, she pushed him, pulled his hair and also
scratched him with her nails on his cheek. However, medical evidence
negates the version of the prosecutrix as PW-2 Dr. S. Ekka who
medically examined the prosecutrix on 24.8.1999 vide Ex.P/2 did not
notice any external or internal injury on the person of the prosecutrix,
her hymen was old torn, two fingers easily inserted into her vagina.
Further, in the vaginal slides prepared by the doctor, clothes of the
prosecutrix as well as underwear of accused No.2 Bhuvneshwar @
Ramesh Yadav, no spermatozoa was found as per FSL report Ex.P/16.
PW-11 Dr. RK Agrawal who medically examined accused No.2
Bhuvneshwar vide Ex.P/11 also did not notice any injury on his person.
Thus, considering the overall evidence of the prosecutrix and her
conduct during the alleged offence and subsequent thereto, she does
not appear to be a trustworthy witness and as such, her evidence does
not inspire confidence of the Court and rather it appears to be a case
of false implication of the appellants or if any such act was committed,
it was consensual one.
13. So far as offence under Section 366 of IPC is concerned, the
evidence on record goes to show that the prosecutrix was a major girl
on the date of incident. PW-9 Dr. MD Joshi did x-ray examination of the
prosecutrix vide Ex.P/9 and found her aged in between 16 ½ and 18
years with a margin of error of three years on either side. Even
otherwise, the prosecutrix in the Court has stated in cross-examination
that accused No.1 used to visit her house frequently and take her
along with her with the permission of her mother and on the date of
incident also she (A-1) had taken her with the permission of her
mother. In these circumstances, it cannot be said that accused No.1
had abducted the prosecutrix for compelling her to have illicit
intercourse with the other accused persons and as observed above, if
any such act was committed, the possibility of the prosecutrix being a
consenting party to such act cannot be ruled out.
14. On the basis of aforesaid discussions, this Court is of the
considered view that the prosecution has not been able to prove guilt
of the appellants beyond all reasonable doubt based on the evidence
adduced by it and as such, they deserve to be acquitted of the charges
leveled against them by giving them benefit of doubt.
15. In the result, the appeals are allowed. The impugned judgment
8.2.2002 is hereby set aside, acquitting the appellants of the charges
leveled against them. The record shows that the appellants are on bail,
therefore, their bail bonds stand discharged and they need not
surrender.
Sd/
(Pritinker Diwaker)
Judge
Khan