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Shutul And Anr vs The State Of M.P. 3 Wps/5588/2018 V … on 29 August, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 2545 of 1999

Order reserved on :29.06.2018

Order passed on : 29.08.2018

1. Shutul, S/o. Jewala Bargah, Aged about 25 years,

2. Ludgu @ Rajkumar, S/o. Samaru Bargah, Aged about 21
years,

Both labourer and residents of Village Dhorpur, Police Station
Dhorpur, District Sarguja (M.P.) (now C.G.)

—- Appellants

Versus

State of M.P. Through Police Station Dhorpur, District Sarguja
(M.P.) now Chhattisgarh —–Respondent

——————————————————————————————

For Appellants : Mr. Aditya Chopra, Advocate with
Mr. D.N. Prajapati, Advocate
For Respondent : Mr. Adhiraj Surana, Dy. Govt.Advocate

——————————————————————————————

Hon’ble Smt. Justice Vimla Singh Kapoor

C.A.V. Judgment

1. Challenge in this appeal is to the judgment of conviction and

order of sentence dated 31.08.1999 passed by the Second

Additional Session Judge, Ambikapur Sarguja (C.G.) in Sessions

Trail No. 296 of 1998, whereby learned Second Additional

Sessions Judge convicted the appellants for the offence

punishable under Sections 376 (2) (g) and 341 of the Indian
2

Penal Code and sentenced them to undergo rigorous

imprisonment for 10 years, fine of Rs. 200/- in default of

payment of fine further undergo RI for 1 year and Simple

Imprisonment for 1 month.

2. Case of the prosecution, in brief, is that the on 15.09.1998 the

prosecutrix (PW-1) lodged a report in Police Station Dhaurpur

mentioning therein that on 10.09.1998. She was returning from

her brother’s house at Dhaurpur to Jatasemar, at about 12.00

noon, when she reached near Tilbadva hill, then the

accused/appellants came there behind her and caught hold her

hands, dragged her and pushed aside on the ground. Thereafter,

the appellants committed forcible sexual intercourse with her

one by one. On account of gange rape she become unconscious.

The appellants leaving her on the spot and fled from there. After

long time, when she became conscious she reached her village

Jatasemar and informed about the incident to her husband,

monther-in-law and her mother. After recording of FIR (Ex.P-1),

the prosecutrix (PW-1) was examined by Dr. Shipra Shrivastava

(PW-11). She gave her report (Ex.P9). The accused/Appellants

was also examined.

3. After completion of the investigation, charge-sheet was filed

before the trial Court wherein the trial Court framed charges as

mentioned above to which the appellants did not plead guilty.

The trial Court conducted the trial and after completion of

evidence of the prosecution side, statement of the appellants
3

under Section 313 of the Cr.P.C. were recorded and after

completion of trial, the trial Judge considering the material

available on record by the impugned judgement convicted and

sentenced the appellants as mentioned above.

4. To hold the appellants guilty, the prosecution examined the

prosecutrix (PW-1), Ramsundar (PW-2) father of the prosecutrix,

Mangri Bai (PW-3) grand mother of the prosecutrix, Sangani Bai

(PW-4) mother-in-law of the prosecutrix, Sanmet Bai (PW-5)

mother of the prosecutrix, Vijay (PW-6) is the seizure witness,

Jhagruram (PW-7) is the hearsay witness, Dr. K.P. Vishwakarma

(PW-8), Arvind Singh (PW-9) patwari, Constable Ramsundar Ram

(PW-10), Dr. Shipra Shrivastava (PW-11) and Sub Inspector P. S.

Mahlane (PW-12) who has examined the prosecutrix. The

appellants did not examine any witnesses in their support.

5. Mr. Aditya Chopra, learned counsel for the appellants has argued

that the trial Court has not properly appreciated the evidence

available on record. The independent witnesses have not

supported the case of the prosecution. The statements of the

witnesses recorded before the Court below are of the interested

witnesses. She further argued that the FIR had been lodged

belatedly by the prosecutrix and the medical evidence also does

not support the case of the prosecution. The conduct of the

prosecutrix (PW-1) discloses that she was a consenting party.

Therefore, it is not safe to rely upon the sole testimony of the

prosecutrix (PW-1) for convicting the appellant. Hence, she
4

prayed that the appellant be acquitted of the charge framed

against him.

6. On the other hand, Shri Adhiraj Surana Dy. Govt. Advocate

appearing for the State/ respondent supporting the impugned

judgment has submitted that the conviction and sentence

awarded by the learned Additional Sessions Judge does not call

for any interference by this Court.

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

perused the material available on record including the

impugned judgment.

8. Prosecutrix (PW-1) is the sole witness in this case. The

touchstone for recording a conviction in a rape case is that the

testimony of the prosecutrix must be reliable and inspires

confidence and should be worthy of credit. It should not render

it unworthy of credence. Prosecutrix (PW-1) stated that she

has informed the incident to her mother-in-law (PW-4) Sangni

Bai and grand mother (PW-3) Mangri Bai but they have not

supported the case of the prosecution.

9. Prosecutrix (PW-1) deposed in her deposition that she has

received injuries in her body. Dr. Shipra Shrivastava (PW-11)

who has examined the prosecutrix (PW-1) deposed that she

has not found any internal or external injury in the body of the

prosecutrix (PW-1). The doctor has further clarified in her cross-

examination that the prosecutrix (PW-1) was habitual to sexual
5

intercourse. Thus, the medical evidence has not supported the

case of the prosecution. The prosecution could not file any FSL

report in this regard. This witness has also not supported the

case of the prosecution.

10. The Investigating Officer Sub Inspector P. S. Mahlane (PW-12) has

admitted this fact that the prosecutrix (PW-1) has stated about

the injuries sustained by her. He further stated that no injuries

were found at the time of loading of the FIR.

11. The prosecutrix (PW-1) stated in paras 3 and 7 of her deposition

that there was some anemically relationship between her

parents and the appellants’ family on some old land dispute.

That the incident had happened on 10.09.1998 at about 12.00

noon and the FIR was lodged on 15.09.1998. No reasonable

explanation has been given by the prosecutrix (PW-1) for delay in

lodging the FIR. She has stated that she was sick and because of

pain she could not lodge the FIR in time. When the

prosecutrix(PW-1) could cover a distance of 12 KM from the place

of incident to her home without taking any assistance of anyone,

there is no reason as to why she did not go to Police Station to

lodge the FIR which is at a distance of 15 KM from her village.

12. After minute and careful examination of the evidence of the

prosecutrix (PW-1), Ramsundar (PW-2), Sangani Bai (PW-4) it

reveals that the prosecutrix (PW-1) was a consenting party to the

commission of sexual intercourse with her. Therefore, the
6

conviction of the appellants cannot be based on the evidence of

the prosecutrix (PW-1).

13. On the basis of the aforesaid discussion, I am of the considered

view that the learned trial Court has committed an error in

convicting the appellants for the offence punishable under

Sections 376 (2) (g) and 341 of the IPC. Hence, the impugned

judgment of conviction and sentence is not sustainable.

14. In the result, the appeal is allowed. The impugned judgment

convicting and sentencing the appellants for the offence under

section 376 (2) (g) and 341 of the IPC is set aside. The appellants

are acquitted of the charge framed against them.

15. It is reported that the appellants are on bail. Their bail bonds are

not discharged at this stage and the same shall remain operative

for a further period of six months from today in terms of Section

437-A of the Cr.P.C.

Sd/-

(Vimla Singh Kapoor)
JUDGE

Santosh

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