SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Genwa Giri And Anr vs The State Of Madhya Pradesh 7 … on 3 October, 2018

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
2

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
3

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
4

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
5

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
6

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.
7

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.
8

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

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh