CRA-2757-2013 2759/2013

22-08-2017

Ms. Gayatri Ladhiya and Ms. Savita Choudhary, learned
counsel for the appellants.
Shri Arvind Singh, learned Government Advocate for the
respondent/State.

Heard on I.A. No. 5603/17 an application moved by
appellant Shankar Bediya in Cr. A. No. 2757/2013 and I. A.
No. 3237/2016 of appellant Barati @ Santosh Kol in Cr. A.
No. 2759/13. The appellants have been convicted for offences
U/s. 366 of the I.P.C. and sentenced to 5 years R.I. with fine of
Rs. 2000/-, U/s. 5 (I)/6 of POCSO Act with R.I. for 10 years and
fine of Rs. 5,000/- and U/s. 5 (g)/6 of the POCSO Act with R.I.
of 10 years and fine of Rs. 5000/-.

The appellants are in jail since 20/12/2012. These are the first
applications for suspension of sentence and grant of bail filed
on behalf of both the appellants. It was pertinent to mention
here that the appeals are jail appeals. The charge against the
appellants is that between 17/12/2012 from 5 P.M. onwards till
19/12/2012 till 4 P.M, the prosecutrix was held captive by the
appellants and continuously raped. They were tried by the
learned Court below and vide impugned order dated
3/10/2013, the appellants were convicted. As on date, the
appellants have already completed 4 years and 6 months in
jail.

Learned counsel for the appellants have addressed the Court
and have impressed upon the Court that the evidence brought
on record has, far from proving the case of the prosecution
beyond reasonable doubt, given rise to a suspicion relating to
the motive of the complainants. Learned counsel for the
appellants have referred to the statement of PW-2 Tassi Kol
who is the brother of the prosecutrix and has stated in
paragraph no. 4 that after the prosecutrix went missing on
17/12/2012, the family did not inform the police or the
panchayat or any other authority, infact, no information was

given to the authorities from 17th to 19th and that they are
stated to have made independent efforts to trace the
prosecutrix and the prosecutrix is stated to have come home
on her own on 19/12/2012. As per the Ld. Counsel for the
appellants, such conduct on the part of the family of the
prosecutrix goes against the very normal course of human
conduct. The prosecutrix in this case has been examined as
PW-4. Her apparent age has been shown as 11. She states in
her evidence before the Court that she was forcibly taken
away by both the appellants into the jungle where she was
raped continuously by two of them for three days and she was
even tied to a tree to prevent her escape.

The Doctor who conducted the MLC of the prosecutrix has
been examined as PW-19. She has stated that there were no
external injuries anywhere on the body of the prosecutrix. The
M.L.C of the prosecutrix is Exhibit P-7. The Doctor has
observed in the MLC that the hymen is torn, old and healed
and that two fingers can be easily inserted into the vagina.
The doctor has further opined that the prosecutrix age is 13
years and that she is habituated to sexual intercourse. No
bleeding per vagina has been observed and neither is there
any kind of injury on the private parts. As regards the time
period of lapsed after the rupture of the hymen, the Doctor
has stated in paragraph 4 that the hymen did not tear two or
three days prior to the examination of the prosecutrix but at
least one to two months before the examination of the
prosecutrix, which was on 20/12/2012. On the basis of the
this, the Ld. Counsel for the appellants have impressed upon
the Court that the allegation of rape levelled by the
prosecutrix on the appellants is false as her hymen rupture
was at least one to two months before the appellants are
alleged to have raped her. This according to learned counsels
assume great relevance as the period of offence during which
the prosecutrix was allegedly raped was between 17/12/2012
and 19/12/2012 and her M.L.C. was on 20/12/2012. If she was
indeed raped as stated by her, and that to repeatedly over
three days, then the M.L.C. would have reflected the same.
Per contra, learned counsel for the State has drawn the
attention of this Court to the F.S.L report which is Exhibit P-15
in which the F.S.L report has returned a positive result for
human sperm on Ex. A, B, C, D, E and F. Ex. A is the vaginal
slide taken from the prosecutrix. Ex. B is under-garments of
the prosecutrix and Ex. C is the semen slide taken from
appellant Barati and Ex. D is his under-garments of appellant
Barati. Ex. E is the semen slide taken from the accused
Shankar and Ex. F is his under-garments. On the basis of this,
learned counsel for the State has submitted that it was the
appellants themselves who have committed rape upon the
prosecutrix.

To this contention, learned counsel for the appellants have
submitted that the F.S.L. report only proves that a man had
sexual intercourse with the prosecutrix but who that man was,
could have been conclusively proved by a D.N.A test which is
not done in this case. As regards the age of the prosecutrix,
learned counsel for the appellants have drawn attention of
this Court to the statement of PW-3 who is mother of the
prosecutrix Smt. Kallu Bai and specifically to paragraph no. 5
in the cross-examination in which the witness has stated that
it is correct to suggest, that the prosecutrix could be aged
18-19 years also. The Ld. Counsel for the appellants have also
taken up the fact of false implication of the appellants herein
on account of previous enmity existing between the family of
the prosecutrix and the appellants herein. Once, again the
statement of PW-3, the mother of the prosecutrix has been
referred to by learned counsel for the appellants who have
drawn the attention of this Court to paragraph no. 6 of the
cross-examination of PW-3 in which she has stated that there
was previous enmity existing between the family of the
prosecutrix with the family of appellant Barati on account of a
girl related to appellant Barati having run away with a boy
from the family of the prosecutrix. This witness has also
admitted that appellant Shankar was close to the appellant
Barati and used to be always seen in the company of Barati
and also in the habit of speaking in favour of Barati. The
element of pre-existing enmity has also come in the
statement of brother of the prosecutrix who has also stated
likewise.

Looking at the facts and circumstances of the case and
primarily;

(a). That the appellants have already served jail term of four
years and six months.

(b). That, besides the statement of the prosecutrix, there is no
corroborative evidence to render the said statement trust-
worthy for the purpose of conviction.

(c). That, the M.L.C. of the prosecutrix and the statement of
the Doctor in the trial, in which it has come out that there are
no injuries anywhere on the body of the prosecutrix who was
allegedly raped for three consecutive days by the appellants
and was also tied to a tree to prevent her escape and that her
hymen was torn, old and healed and the opinion of the Doctor
that the prosecutrix was habituated to sexual intercourse and
her statement in the Court where the Doctor has stated that
the hymen tear had taken place one to two months before the
prosecutrix was examined by the Doctor which again goes to
put a doubt on the version given by the prosecutrix and

(d). The absence of the D.N.A. report which could have
conclusively proved or disproved the allegations of the
prosecutrix.

Thus, the I.A.s are allowed and it is directed that the
remaining part of jail sentence of appellants Shankar Bediya
and Barati @ Santosh Kol herein shall remain suspended
and it is directed that the appellants herein shall be released
on bail upon each of them furnishing a personal bond of Rs.
50,000/- (Rupees Fifty thousand only) with one solvent surety
each in the like amount to the satisfaction of the trial Court.
The appellants shall appear before the Registry of this Court
on 21.02.2018 and on such other dates as may be directed in
this behalf.

C.C. as per rules.

(ATUL SREEDHARAN)
JUDGE

vy