AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1298 of 2000
Judgment Reserved on : 4.7.2018
Judgment Delivered on : 3.10.2018
1. Genwa Giri, S/o Bishun Giri, aged about 28 years, occupation
agriculture, R/o Village Jheradih, P.S. Batauli, District Surguja, M.P.
(now Chhattisgarh)
2. Tibhu Nath Giri, S/o Bishun Giri, aged about 21 years, occupation
agiruclture, R/o Village Jheradih, P.S. Batauli, District Surguja, M.P.
(now Chhattisgarh) —– His appeal has abated vide order dated
2.4.2018
—- Appellants
versus
The State of Madhya Pradesh (now Chhattisgarh), through Police
Station Batauli, District Surguja
— Respondent
——————————————————————————————————
For Appellants : Shri A.K. Prasad, Advocate
For Respondent/State : Shri Ramakant Pandey, Panel Lawyer
——————————————————————————————————
Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal is directed against the judgment dated 1.5.2000
passed by the 2nd Additional Sessions Judge, Ambikapur, Surguja
in Sessions Trial No.329 of 1998 convicting and sentencing each of
the Appellants as under:
Conviction Sentence
Under Section 363 of the Rigorous Imprisonment for 3
Indian Penal Code years
Under Section 366 of the Rigorous Imprisonment for 3
Indian Penal Code years
Under Section 376(2)(g) of Rigorous Imprisonment for 10
the Indian Penal Code years and fine of Rs.200/- with
default stipulation
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2. During pendency of the instant appeal, Appellant No.2, Tibhu Nath
Giri died and, therefore, as per order dated 2.4.2018, the appeal,
so far as it relates to him, has abated.
3. Prosecution case, in brief, is that on 6.9.1998, the prosecutrix
(PW7), a girl aged about 16 years, lodged First Information Report
(Ex.P8). In the FIR (Ex.P8), it is alleged that 7 months prior to
lodging of the FIR, when she was alone at her house at Village
Jheradih, both the Appellants came to the house. Appellant Tibhu
Nath Giri knocked the door of the house. She opened the door.
Both the Appellants lifted her up and after gagging her mouth took
her to Village Jivri. On being shouted, they gagged her mouth and
beat and threatened her of life. Thereafter, both of them committed
rape with her and thereafter Appellant Genwa Giri left her with
Appellant Tibhu Nath Giri. Appellant Tibhu Nath Giri kept her with
him and continued to commit rape with her. On being refused by
her, he threatened her of life. On getting opportunity, she came out
of his clutches and lodged the FIR (Ex.P8). She was medically
examined by Dr. Kshipra Shrivastava (PW9) on 8.9.1998. Her
report is Ex.P11 in which she did not find any injury on the body of
the prosecutrix nor on her private part. She reported that vagina of
the prosecutrix was easily admitting two fingers. She found the
prosecutrix to be habitual to sexual intercourse. She was unable to
give any definite opinion regarding recent sexual intercourse with
the prosecutrix. For determination of age of the prosecutrix, she
advised for radiological test. Radiological test of the prosecutrix
was done by Dr. M.K. Jain (PW8). His report is Ex.P9 in which he
opined that age of the prosecutrix was between 17 to 19 years.
Statements of witnesses were recorded under Section 161 of the
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Code of Criminal Procedure. On completion of the investigation, a
charge-sheet was filed against the Appellants for offence
punishable under Sections 363, 366 and 376(2)(g) of the Indian
Penal Code. Charges were framed against them under Sections
363, 366 and 376(2)(g) of the Indian Penal Code.
4. To rope in the Appellants, the prosecution examined as many as 11
witnesses. Statements of the Appellants/accused were also
recorded under Section 313 Cr.P.C. in which they denied the guilt
and pleaded innocence. No witness has been examined in their
defence.
5. After Trial, the Trial Court convicted and sentenced the Appellants
as mentioned in the first paragraph of this judgment. Hence, this
appeal.
6. Learned Counsel appearing for Appellant Genwa Giri argued that
the Appellant has been falsely implicated in the case. There is no
documentary evidence or any other evidence regarding age of the
prosecutrix to show that she was below 16 years of age on the
date of alleged incident. As per the ossification test report (Ex.P9),
she was between 17 to 19 years of age with variation of 2 years on
both sides. Thus, it is clear that on the date of incident, the
prosecutrix was above 16 years of age. It was further argued that
the statement of the prosecutrix is unnatural. She was having a
love relation with deceased Appellant Tibhu Nath Giri. She had
gone along with him at her own will. FIR was lodged after 7
months of the incident by the prosecutrix herself and that too under
pressure of her parents. There is no explanation for the delay
caused in lodging the FIR. The prosecutrix had gone out of her
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house at her own will, but no report of her missing/abduction was
made by her parents. It was further submitted that since the
prosecutrix had gone out of her house at her own will, she did not
tell about the incident to her parents nor did she tell to her brother.
Since she was a consenting party, her age was above 16 years
and she had left her house with deceased Appellant Tibhu Nath
Giri at her own will, no offence is made out against present
Appellant Genwa Giri.
7. On the contrary, Learned Counsel appearing for the State
supported the impugned judgment of conviction and sentence.
8. I have heard Learned Counsel appearing for the parties and
perused the record minutely.
9. The prosecutrix (PW7), in her Court statement, has not stated
anything about her date of birth. Even her parents or brother have
also not been examined before the Trial Court on this point. Kunti
(PW4), who is sister of the prosecutrix, has also not stated
anything regarding age of the prosecutrix. Anup Giri (PW5) is uncle
of the prosecutrix. He has also not stated anything in this regard.
As per the ossification test report (Ex.P9), on the date of incident,
age of the prosecutrix was between 17 to 19 years. 2 years’
variation in her age on both sides is admissible in law. Apart from
the radiological test report (Ex.P9), no oral or documentary
evidence is available on record with regard to her age. Thus, on
the date of incident, she was certainly above 18 years of age.
10. The prosecutrix (PW7), in her Court statement, has stated that at
the time of incident, she had gone to the house of her sister Kunti
(PW4) at Village Namnakala. In the night, between 3:00 a.m. and
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5:00 a.m., she was present at the house along with children only.
At that time, both the Appellants came to the house. Door of the
house was knocked. She opened the door. As soon as she
opened the door, the Appellants showed her a knife, gagged her
mouth and took her to Village Dorna. There, both the Appellants
committed rape with her. First, Appellant Tibhu Nath Giri
committed rape with her and thereafter Appellant Genwa Giri
committed the rape. They kept her at Village Dorna for 2 days.
Thereafter, they took her to Village Jivri where they kept her for
about 7 months. There also, they committed rape with her.
Thereafter, on the pretext of attending the call of nature, she ran
out from there and came to her uncle and told him and her sister
about the incident and thereafter she lodged the FIR (Ex.P8). In
her cross-examination, she has stated that she did not know any of
the Appellants from before the incident nor did she see them ever
from before. She has further stated that at Village Dorna, sister
and brother-in-law of Appellant Tibhu Nath Giri were residing and
she was kept there for about 2 days. She has further stated that
she was taken to Village Dorna on her legs. From Village Dorna to
Village Jivri, she was taken by Appellant Tibhu Nath Giri. At Village
Jivri, brother and sister-in-law of Appellant Tibhu Nath Giri were
residing. At their house, she was kept for about 7 months. She
has further stated that due to fear, she did not disclose about the
incident at Village Jivri. She has also admitted the fact that after
leaving home by her, her parents did not make any report of her
missing and when she returned home, even at that time, she did
not disclose about the incident to her parents or brother.
11. Kunti (PW4), sister of the prosecutrix, has only stated that the
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Appellants had taken the prosecutrix away with them. She has
further stated that she was not aware of the place where the
prosecutrix was taken. The prosecutrix had returned home after 7
months and she has also stated that after the return, the
prosecutrix had told her that her marriage was performed in a
Court.
12. Anup Giri (PW5), who is uncle of the prosecutrix, has deposed that
the prosecutrix, after her return, had told him that the Appellants
had abducted her and they had also committed rape with her.
13. The prosecutrix was medically examined by Dr. Kshipra
Shrivastava (PW9) on 8.9.1998. She has stated that her report is
Ex.P11 in which she did not find any injury on the body of the
prosecutrix nor on her private part. She reported that vagina of the
prosecutrix was easily admitting two fingers. She found the
prosecutrix to be habitual to sexual intercourse. She was unable to
give any definite opinion regarding recent sexual intercourse with
the prosecutrix. For determination of age of the prosecutrix, she
advised for radiological test. Radiological test of the prosecutrix
was done by Dr. M.K. Jain (PW8). His report is Ex.P9 in which he
opined that age of the prosecutrix was between 17 to 19 years.
14. Both the Appellants were medically examined by Dr. Roopsingh
Parihar (PW3). He has deposed that his reports are Ex.P4 and P5
in which he found that both the Appellants were capable to perform
sexual intercourse.
15. Assistant Sub-Inspector S.S. Patel (PW11) is the Investigating
Officer of the offence in question. He investigated into the offence.
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16. On minute examination of the above evidence, it is clear that on
the relevant date, the prosecutrix (PW7) was above 18 years of
age. As stated by her, she was abducted by the Appellants and
she was also gang raped by them for about 7 months. But, the
story put-forth by her, being highly improbable and untrustworthy,
does not inspire confidence of this Court. According to her, after
her abduction, both the Appellants took her from Village Jheradih to
Village Dorna on her legs. On the way, she did not raise any
alarm. At Village Dorna, she resided with sister and brother-in-law
of Appellant Tibhu Nath Giri for 2 days. But there also, she did not
disclose them anything about the incident or to any other villager.
Thereafter, she resided at Village Jivri with Appellant Tibhu Nath
Giri, his brother and the brother’s wife for about 7 months. There
also, she did not tell them anything about the incident nor did she
disclose the incident to any other villager. Had she been missing
or abducted, her parents or her sister Kunti (PW4) would have
lodged a report of her missing or abduction. But, no such report
was made for about 7 months. Even after her return to home, the
prosecutrix did not tell her sister Kunti (PW4) or her parents about
the incident. It is the deposition of Kunti (PW4), sister of the
prosecutrix that after the return, the prosecutrix had told her that
her marriage was performed in a Court. Thus, it seems that the
prosecutrix left home at her own will. There is nothing on record to
establish that the prosecutrix was abducted by the Appellants or
she was raped by them. The whole prosecution story appears to
be suspicious. Therefore, in my considered view, the offence
alleged against Appellant Genwa Giri under Sections 363, 366 and
376(2)(g) of the Indian Penal Code is not made out.
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17. Consequently, the appeal is allowed. The impugned judgment of
conviction and sentence is set aside. Appellant Genwa Giri is
acquitted of the charges framed under Sections 363, 366 and
376(2)(g) of the Indian Penal Code.
18. It is reported that the Appellant is on bail. His bail bonds shall
continue for a further period of six months from today in terms of
the provisions contained in Section 437A of the Code of Criminal
Procedure.
19. 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
