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Ganesh Rawat vs State Of Chhattisgarh 57 … on 25 June, 2019

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 20-6-2019
Pronounced on 25-6-2019
CRA No. 226 of 2003
Ganesh Rawat, aged about 23 years, S/o Mohan Lal Rawat, R/o Village
Kolpadar, Police Station Tumgaon, District Mahasamund (CG)
—- Appellant
Versus
State of Chhattisgarh, Through Station Officer, Police Station
Tumgaon, District Mahasamund (CG)
—- Respondent

For appellant : Ms. Shipra Biswas, Adv.
For State : Mr. Vinod Tekam, Panel Lawyer.

Hon’ble Shri Sharad Kumar Gupta, J
C.A.V. JUDGMENT

1. Challenge in this appeal is levied to the judgment of conviction
and order of sentence dated 31-1-2003 passed by the Special Judge,
Raipur constituted under Scheduled Castes and SectionScheduled Tribes
(Prevention of Atrocities) Act 1989 (hereafter called as ‘SC ST Act’), in
Special Sessions No. 176/2001 whereby and whereunder he has
convicted and sentenced the appellant as under :-

Conviction u/S. Sentence RI. Fine In default of
payment of fine
342, IPC 1 Year – –
323, IPC 1 Year – –
376 (1), IPC 7 Years Rs. 1000/- 2 months RI
3 (1)(xii) of SC 1 Year Rs.500/- 1 month RI
ST Act

All the jail sentences have been directed to run concurrently.

2. In brief, the prosecution story is that prosecutrix was about 18
years old at the time of alleged incident. She was resident of village
Kolpaddar. She was member of Scheduled Tribe. Appellant is neither
member of Scheduled Caste nor Scheduled Tribe. On 19/09/2001 at
about 12.30 p.m. she was going towards the house of her maternal
uncle Munna. In front of house of appellant he took her in his house
after pressing her mouth. He gagged handkerchief in her mouth. He
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roped her hands. He beat her by leg, hands and fists. He committed
forcible sexual intercourse with her. At about 4.00 p.m. he removed
rope from her hands. She went in her house and narrated the incident
to her family members. On very day she went to outpost Patewa at
about 21.30 hours and intimated about incident. An FIR was registered
there in zero number. Thereafter numbered FIR was registered in
Police Station, Tumgaon. After completion of the investigation, a charge
sheet was filed against him for the offences punishable under Sections
323, Section342, Section376, Section506 of the Indian Penal Code (in brevity ‘SectionIPC’) and under
Section 3(1) (xii) of SC ST Act. The trial Court framed the charges
against him under Sections 341, Section342, Section323 of the IPC and Section 3(1)

(xii), 3(2)(v) of SC ST Act. He abjured the charges and faced the trial.
To bring home the charges against him, the prosecution examined 8
witnesses. He examined 2 witnesses in his defence. After conclusion of
trial, the trial Court convicted and sentenced him as mentioned above.
However, trial Court acquitted him from the charges punishable under
Section 341 of IPC and 3(2)(v) of SC ST Act.

3. Being aggrieved by the aforesaid judgment of conviction and
order of sentences, the appellant has preferred this criminal appeal.

4. Counsel for the appellant submits that the appellant has been
falsely implicated. No offence has been committed by him with the
prosecutrix. Trial Court has not properly appreciated the evidence
available on record in proper perspective. She was the consenting
party. Therefore, the impugned judgment of conviction and order of
sentences may be set aside and he may be acquitted of the aforesaid
charges.

5. On the other hand, the Panel Lawyer appearing for the State
supported the impugned judgment and submitted that the trial Court
has rightly convicted and sentenced the appellant. Hence the appeal
may be dismissed.

6. As per the alleged MLC report Ex. P- 8, P.W. 7 Dr. R.K. Pardal
had examined appellant and found that no external injury was present
on his body. He was able to perform sexual intercourse.

7. There is no such evidence on record on strength of which it can
be said that Ex. P-8 is not believable. Thus, this Court believes on Ex.
P-8.

8. As per the alleged MLC report Ex.P- 22, P.W. 8 Dr. Alka Pardal
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had examined prosecutrix and found following injuries on her body :-

(i) swelling and contusion over lower lip,

(ii) one round burn mark over right cheek,

(iii) one round burn mark over left cheek,

(iv) one contusion over right thigh.

9. P.W. 8 opined that physical and sexual assault were taken place
with prosecutrix.

10. There is no such evidence on record on strength of which it can
be said that Ex. P- 22 is not believable. Thus, this Court believes on
Ex. P-22.

11. PW-1 prosecutrix says in para No. 2 3 of her statement given
on oath that, she was going to the house of her maternal uncle. In front
of the house of appellant he pressed her mouth and took in his house,
he roped her hands, committed forcible sexual intercourse with her,
beat her by leg and fists. Thereafter he removed rope from her hands.

12. PW-2 Ku. Falita Bai, who is the sister of prosecutrix in relation
says in para No. 2, 3 4 of her statement given on oath that
prosecutrix had told her that she was going to the house of her
maternal uncle, on the way appellant pressed her mouth and took her in
his house and beat her. She had seen injury on her lip and burn mark
over her cheek. Her maternal aunt PW-3 Smt. Gajabai had told her that
prosecutrix had told that appellant had committed wrong act with
prosecutrix.

13. PW-3 Smt. Gajabai, who is the maternal aunt of the prosecutrix
says in para No. 2 of her statement given on oath that she had seen an
injury on her lip, she had told him that she was going to the house of
her maternal uncle, on the way appellant took her in his house, roped
her hands and committed forcible sexual intercourse with her.

14. D.W.-1 Gayaram says in para No. 1 of his statement given on
oath that prosecutrix had jumped into a well. She had told that as
marriage is not being performed with appellant, thus she jumped in a
well. There was love affair between her and appellant.

15. D.W.-2 Nain Singh says in para No. 1 of his statement given on
oath that he had seen that appellant and prosecutrix were present
under a vehicle.

16. Hon’ble Supreme Court in the matter of Munna -v- Sate of M.P.

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[(2014) 10 SCC 254 ] observed in para 11 as under :-

“11. Thus, while absence of injuries or absence of raising alarm
or delay in FIR may not by itself be enough to disbelieve the
version of prosecutrix in view of the statutory presumption under
Section 114-A of the Evidence Act but if such statement has
inherent infirmities, creating doubt about its veracity, the same
may not be acted upon. We are conscious of the sensitivity with
which heinous offence under Section 376 IPC has to be treated
but in the present case the circumstances taken as a whole
create doubt about the correctness of the prosecution version.
We are, thus, of the opinion that a case is made out for giving
benefit of doubt to the accused.”

17. Hon’ble Supreme Court in the matter of Radhu Vs. State of M.P.
[(2007)12, SCC 57], laid down following judicial precedent :-

“A finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix and her testimony
should not be rejected on the basis of minor discrepencies and
contradictions. Absence of injuries on the private parts of the
victim will not by itself falsified the case of rape, nor can be
construed as evidence of consent nor the opinion of a doctor that
there was no evidence of any sexual intercourse or
rape,sufficient to disbelieve the victim. However courts should , at
the same time, bear in mind that false charges of rape are not
uncommon, and there are some rare instances where a parent
has persuaded a gullible or obedient daughter to make a false
charge of a rape either to take revenge or extort money or to get
rid of financial liability. Whether there was rape or not would
depend ultimately on the facts and circumstances of each case.”

18. Hon’ble Supreme Court in the matter of Raju and others -v-
State of MP [(2009) 3 SCC(Cri) 751)], held that testimony of the
prosecutrix is believable on a par with that of an injured witness,
her testimony cannot always be presumed to be gospel truth.
Possibility of exaggeration or embellishment or false implication
where several persons are accused cannot be ruled out.
Possibility of immoral past of prosecutrix based on evidence can be
considered.

19. In the matter of Mohd. Ali -v- State of UP [2015 (7) SCC 272],
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Hon’ble Supreme Court observed in para 30 as under :-

“30. True it is, the grammar of law permits that the testimony of a
prosecutrix can be accepted without any corroboration without
material particulars, for she has to be placed on a higher pedestal
than an injured witness, but, a pregnant one, when a court, on
studied scrutiny of the evidence finds it difficult to accept the
version of the prosecutrix, because it is not unreproachable, there
is requirement for search of such direct or circumstantial
evidence which would lend assurance to her testimony.”

20. If no injury was found on body of appellant, it doesn’t mean that
prosecutrix was allegedly “consenting party”.

21. In the matter of State of HP -v- Shree Kant Shekari [2004 (8)
SCC 153], the Hon’ble Supreme Court has dealt with the false
implication, the relevant portion of para 22 reads as under :-

“22. …………………. In any event no girl of a tender age and her
parents would like to jeopardise her entire future by falsely
implicating a person alleging forcible sexual intercourse”

22. There is no such evidence on record on strength of which it can
be said that P.W.1 prosecutrix, P.W.2 Ku. Falita Bai, P.W. 3 Smt.
Gajabai had given aforesaid statements only because allegedly there
was quarrel occurred between maternal uncles of prosecutrix namely
Jagdish, Bahur Singh and appellant on account of entering cattle in
barn, knowingly that appellant had not committed any offence.
Moreover, in the case in hand, the prosecutrix was a tender aged girl.
Looking to the facts and circumstances of the case, there is no
possibility that prosecutrix and her mother would stake the future of the
prosecutrix to falsely implicate the appellant. Thus, looking to the these
facts and judicial precedent laid down in Shree Kant Shekari (supra),
this Court finds that there is no possibility of false implication of the
appellant in the case in hand.

23. In the case in hand alleged FIR Ex. P-1 has been lodged
promptly. In Ex. P-1 it has been mentioned that appellant had pressed
the mouth of the prosecutrix and took her in his house, beat her, roped
her hands, committed forcible sexual intercourse with her, at about 4 –
5 p.m. he had removed roped from her hands.

24. Looking to the above mentioned facts and circumstances, this Court
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finds that Ex. P-1 is normal, natural and simple and is not concocted,
not fabricated to falsely implicate the appellant.

24. No such omissions and contradictions have been dealt during the
cross examination of P.W.1 prosecutrix, P.W. 2 Ku. Falita Bai, P.W.3
Smt. Gajabai, which may adversely affect the aforesaid testimony of
aforesaid witnesses.

25. There is no such evidence on record on strength of which it can
be said that P.W. 2 Ku. Falita Bai, P.W.3 Smt. Gajabai had given
aforesaid statements because they were interested with prosecutrix
family for such reasons.

27. There is no such evidence on record on the strength of which it
can be said that aforesaid statements of P.W.1 prosecutrix, P.W.2 Ku.
Falita Bai, P.W. 3 Smt. Gajabai are not simple, not natural, not normal.

28. Looking to the above mentioned facts and circumstances of the
case, this Court finds that from the aforesaid statements of D.W.1
Gayaram, D.W.2 Nainsingh, statement made in para No. 7 by P.W. 3
Smt. Gajabai that, this is true that one day the mother and father of
appellant had come in her house and told that prosecutrix used to come
and go in their house, thus they be married her, from the photos Ex.
D.1, D-2 and D-3, it cannot be said that prosecutrix was allegedly
‘consenting party’.

29. This has been earlier decided that prosecutrix was not a free
consenting party. After the appreciation of the evidence discussed
herebefore, this Court believes on aforesaid statements of P.W.1
prosecutrix, P.W.2 Ku. Falita Bai para No. 1 of P.W. 3 Smt. Gajabai.

31. On the basis of aforesaid judicial precedents laid down by
Hon’ble Supreme Court in the matters of Munna (supra), Radhu
(supra), Raju and others (supra) and Mohd. Ali (supra), this Court
finds that this Court can act upon aforesaid sole testimony of P.W.1
Prosecutrix.

32. In the case in hand, the aforesaid statement of prosecutrix gets
corroboration from the aforesaid statements of P.W.2 Ku. Falita Bai,
para No. 2 of P.W. 3 Smt. Gajabai, Ex. P-1, Ex. P-8, Ex. P-22.

33. Trial Court had acquitted appellant from the charge punishable
under Section 3(2)(v) of SC ST Act on the ground that appellant had not
committed rape with prosecutrix only on the ground that she was
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member of Scheduled Tribe. Thus he cannot be convicted for the
offence punishable under Section 3(1)(xii) of SC ST Act.

34. After the appreciation of the evidence discussed herebefore this
Court finds that prosecution has succeeded to prove beyond
reasonable doubt the offences punishable under Section 342, Section323, Section376
(1) of the SectionIPC but failed to prove beyond reasonable doubt the offence
punishable under Section 3 (1)(xii) of SC ST Act. Thus, this Court
affirms the judgment of conviction as it relates with the offences
punishable under Section 342, Section323, Section376(1) of IPC passed by the trial
Court.

35. As regards sentences awarded to the appellant for offences
punishable under Sections 342, Section323, Section376(1) of the IPC, considering the
facts and circumstances of the case, they appear to be just and proper,
and do not call for any interference. Hence, this Court also affirms the
sentences regarding Sections 342, Section323, Section376(1) of the IPC.

36. The conviction and sentence of the appellant for Section 3(1)(xii)
of SC ST Act are hereby set-aside. The fine amount if deposited by the
appellant under this Section, be refunded to him after the expiration of
prescribed period for further legal remedy available to him.

37. The appeal is partly allowed.

38. The appellant is reported to be on bail. His bail and bonds are
canceled. He is directed to surrender immediately before the trial Court
for undergoing the remaining part of sentences, if any. The trial Court is
also directed to take the appellant in custody immediately for
undergoing the remaining part of sentences, if any.

Sd/-

(Sharad Kumar Gupta)
Judge

Kamde/pathak

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