AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.2240 of 1998

Judgment Reserved on : 10.8.2018

Judgment Delivered on : 2.11.2018

1. Ramkrishna, S/o Baigaram, age 18 years, Occupation Agriculture,

2. Lalchand, S/o Jageshwarram, age 21 years, Occupation Agriculture,

Both residents of Village Kanthi, P.S. Darima, District Surguja, M.P.
(now Chhattisgarh)
—- Appellants
versus

The State of Madhya Pradesh (now Chhattisgarh) through Police
Station Darima, District Surguja

— Respondent

——————————————————————————————————
For Appellants : Smt. Savita Tiwari, Advocate
For Respondent/State : Shri Neeraj Kumar Sharma,
Deputy Government Advocate

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 18.9.1998

passed by the Sessions Judge, Surguja at Ambikapur in Sessions

Trial No.126 of 1998 convicting and sentencing each of the

Appellants as under:

Conviction Sentence

Under Section 376(2)(g) Rigorous Imprisonment for 10
of the Indian Penal Code years and fine of Rs.2,500/-

with default stipulation

2. Facts of the case, in brief, are that the prosecutrix (PW2) is a

married woman aged about 18 years and at the time of incident,
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she was residing at her maternal village. On 5.3.1998 at about

6:30 p.m., she had gone to a nearby field situated in some outer

area of the village. When she was returning from the field, both the

Appellants met her and stopped her. It is further alleged that the

Appellants pushed her away. She fell down. Appellant No.1,

Ramkrishna dragged her to a nearby field of wheat crop. Appellant

No.2, Lalchand also followed them and thereafter both the

Appellants committed forcible sexual intercourse with her one by

one. After hearing her noise, Ramu (PW3) and Siya (not

examined) reached there and both of them saw the Appellants

running away from the spot. She told about the incident to Ramu

and Siya. She also told them names of the Appellants. After her

return to home, she told the incident to her mother Bhagwatibai

(PW4). On the date of incident itself, i.e., 5.3.1998 at 11:30 p.m.,

she lodged First Information Report (Ex.P3). She was medically

examined by Dr. Smt. S.P. Jaiswal (PW1). Her report is Ex.P1 in

which she did not find any injury over any part of the body of the

prosecutrix. Two fingers were easily being inserted into the vagina

of the prosecutrix. She was found to be habitual to sexual

intercourse. No definite opinion could be given regarding recent

sexual intercourse with her. Blouse, saree and underwear of the

prosecutrix were seized vide seizure memo Ex.P4. Some broken

pieces of bangles of the prosecutrix, one locket and one chain

were seized from the place of occurrence vide Ex.P10. Both the

Appellants were medically examined by Dr. O.P. Shrivastava

(PW6). His reports are Ex.P8A and P9A in which he found the

Appellants to be capable of performing sexual intercourse.

Statements of witnesses were recorded under Section 161 of the

Code of Criminal Procedure. On completion of the investigation, a
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charge-sheet was filed against the Appellants for offence

punishable under Section 376(2)(g) of the Indian Penal Code.

Charge was framed against them under Section 376(2)(g) of the

Indian Penal Code.

3. To bring home the offence, the prosecution examined as many as

6 witnesses. Statements of the Appellants were also recorded

under Section 313 of the Code of Criminal Procedure in which they

denied the guilt, 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 appearing for the Appellants submitted that the

statement of the prosecutrix is not supported by the medical

evidence. As stated by the prosecutrix, the incident took place in a

field where mitti ke dhele (mud covers) were lying. In her Court

statement also, the prosecutrix has stated that her back had

peeled, but no injury was found over any part of her body in her

medical examination. It was further argued that as stated by the

prosecutrix, when the Appellants had caught her, she had shouted

loudly for saving her, but nobody had come there. But, Ramu

(PW3), who had first reached at the spot, has stated that he did not

reach the spot on having heard the shouts of the prosecutrix. It

was further argued that Ramu (PW3) has not supported the case

of the prosecution and he has been declared hostile. Another

witness Siya has not been examined by the prosecution.

Statement of the prosecutrix is not reliable. There are material
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contradictions and omissions in her statement. From the evidence,

it seems that she was a consenting party. Ramu (PW3) and Siya

had seen her in a compromising position with the Appellants and,

therefore, false report (Ex.P3) was later on lodged by her.

6. On the contrary, Learned Counsel appearing for the State opposed

the arguments advanced by Learned Counsel appearing for the

Appellants and supported the impugned judgment of conviction

and sentence.

7. I have heard Learned Counsel appearing for the parties and

perused the record minutely.

8. Dr. Smt. S.P. Jaiswal (PW1) has stated that she medically

examined the prosecutrix (PW2) on 6.3.1998 and gave her report

(Ex.P1) in which she did not find any injury over any part of the

body of the prosecutrix. Two fingers were easily being inserted into

the vagina of the prosecutrix. She was found to be habitual to

sexual intercourse. No definite opinion could be given regarding

recent sexual intercourse with her.

9. The prosecutrix (PW2) has stated that on the date of incident at

about 2:00 p.m., she had gone to her field. At about 5:00 p.m., she

was returning home. At that time, on the way, both the Appellants

met her. Appellant Ramkrishna asked her to listen him, but she did

not stop. Thereafter, Appellant Ramkrishna dragged her towards

the field of wheat crop and asked Appellant Lalchand to follow him.

After taking her in the field, Appellant Lalchand removed her

underwear and Appellant Ramkrishna gagged her mouth.

Thereafter, Appellant Lalchand committed forcible sexual
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intercourse with her and after him, Appellant Ramkrishna also

committed forcible sexual intercourse with her. She was weeping.

At that time, Ramu (PW3) and Siya (not examined) reached there.

When they asked her about who were those persons, the

Appellants ran away from there. She told them the names of the

Appellants. Thereafter, weeping, she returned her home and

stated her mother about the incident. Thereafter, she along with

her father and brother went to the police station and lodged the

First Information Report (Ex.P3). In her cross-examination, she

has stated that she was dragged, therefore, her back had peeled

and at the place of incident some mud covers were also lying

below her back. She has also stated that when Appellant

Ramkrishna caught her, she shouted loudly, but nobody reached

there. She has further stated that at the time of incident, her

bangles had broken, but no injury was suffered by her due to

breaking of the bangles. A suggestion was made to her that at the

time of Holi festival, the Appellants had made some mockery with

her husband and this had hurt her husband and, therefore, a false

report (Ex.P3) was lodged by her, but she has denied the

suggestion and has categorically stated that the Appellants had not

made any mockery and they had committed forcible sexual

intercourse with her.

10. Ramu (PW3) is the witness who first reached at the spot. He has

only stated that he reached at the spot on being called by the

prosecutrix. At that time, a potli (packet) of peas was kept in the

agricultural field to which he picked up and gave to the prosecutrix.

At that time, he had not seen any of the Appellants at the spot. This

witness has been declared hostile.

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11. Bhagwatibai (PW4) is mother of the prosecutrix. She has stated

that the prosecutrix returned home from the field weeping and told

her about the incident. In her cross-examination, she has also

stated that in the night itself, her son-in-law reached their house

and he went along with them to lodge the report.

12. Investigating Officer Assistant Sub-Inspector C.S. Sharma (PW5)

has stated that he investigated into the offence in question. He

recorded the FIR (Ex.P3). He seized underwear, blouse and saree

of the prosecutrix from her vide Ex.P4. He also seized one chain,

one locket and broken pieces of bangles from the spot vide

Ex.P10. He also recorded statements of witnesses under Section

161 of the Code of Criminal Procedure.

13. Dr. O.P. Shrivastava (PW6) is the witness who examined both the

Appellants on 8.3.1998. He has stated that his reports are Ex.P8A

and P9A in which he opined that the Appellants were capable to

perform sexual intercourse. He has also stated that 1 abrasion

was found on the left side of the cheek below the eye of Appellant

Lalchand and 4 abrasions were also found on his back. He has

admitted the fact that he had not mentioned in his report about the

period of abrasions of Appellant Lalchand, but in his Court

statement he has explained that those abrasions were 1-2 days

old.

14. A minute examination of the above evidence makes it clear that the

prosecutrix (PW2) has categorically stated that at the time of

incident when she was returning from the field, both the Appellants

stopped her and thereafter she was dragged to a field of wheat

crop and thereafter they committed forcible sexual intercourse with
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her one by one. The prosecutrix has remained firm during her

cross-examination. Though no injury was found on her back, she

has categorically stated that the blouse, saree and underwear,

which she had worn at the time of incident, were seized from her

vide Ex.P4. At the spot, mud covers were lying. Since she had

worn saree at the time of incident, if any injury was not suffered by

her on her back, it is natural. Bhagwatibai (PW4), mother of the

prosecutrix has stated that the prosecutrix had returned home

weeping and she had immediately told her about the incident.

Same day, in the late night, i.e., without delay, the FIR (Ex.P3) was

lodged by the prosecutrix. There is nothing on record to suggest

that there was any enmity between the prosecutrix and the

Appellants. From the statement of Dr. O.P. Shrivastava (PW6), it is

clear that at the time of examination, abrasions were found on the

cheek and back of Appellant Lalchand, which were suffered by him

1-2 days before the date of medical examination. The medical

examination of the Appellants was conducted on 8.3.1998 and the

incident had taken place on 5.3.1998. In his statement recorded

under Section 313 of the Code of Criminal Procedure, Appellant

Lalchand has not given any explanation about the abrasions

suffered by him. Thus, it is clear that he would have suffered those

abrasions at the time of incident. It was the argument of Learned

Counsel appearing for the Appellants that as stated by the

prosecutrix, first Appellant Lalchand and thereafter Appellant

Ramkrishna committed rape with her, but in the FIR, it is

mentioned that first Appellant Ramkrishna and thereafter Appellant

Lalchand committed rape with her. Therefore, the statement of the

prosecutrix is not reliable. But, I find no substance in this argument

because the prosecutrix has remained firm on the point that both
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the Appellants committed forcible sexual intercourse with her. In

these circumstances, even if the prosecutrix has stated incorrect

sequence of commission of rape with her by the Appellants, this

will not adversely affect the case of the prosecution. It was also

argued that the prosecutrix was a consenting party because Ramu

(PW3) and Siya had seen her in a compromising position and,

therefore, a false report was lodged by her. From the evidence, it

is clear that there is nothing on record to suggest that with any of

the Appellants, the prosecutrix had any previous affair. From the

statement of Ramu (PW3), it is also clear that he had not seen the

prosecutrix with the Appellants in compromising position and from

the statement of Bhagwatibai (PW4), who is mother of the

prosecutrix, it is also clear that the prosecutrix had returned home

weeping and she had told her about the incident immediately and

the report (Ex.P3) was lodged immediately in the night itself.

Therefore, the prosecutrix was a consenting party is not

established. Thus, the finding of conviction arrived at by the Trial

Court is in accordance with law. The sentence imposed upon the

Appellants is also just and proper and does not warrant any

interference.

15. Consequently, the appeal is dismissed. The judgment of conviction

and sentence under challenge is affirmed.

16. 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