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Smt.Roshni Minj vs State Of C.G. 22 Cra/184/2002 … on 29 June, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 174 of 2002

 Smt. Roshni Minj, W/o Laila Minj, aged about 20 years,
occupation house wife, R/o Sonumuda, Bajrangpara, Raigarh,
PS City Kotwali, Distt. Raigarh (CG)

—- Appellant

Versus

 State Of C.G. through S.O. City Kotwali, Raigarh (CG)

—- Respondent

CRA No. 184 of 2002

 Bhuvneshwar @ Ramesh Yadav, aged about 27 years, S/o
Bhutanand Yadav, Occupation agriculturist, R/o Village
Chhuripaheri, thana Paththalgaon, Distt. Raigarh (CG)

—- Appellant

Versus

 State Of C.G. through District Magistrate, Raigarh (CG)

—- Respondent

For Appellants : Shri Awadh Tripathi, Advocate.
For Respondent/State : Shri Ravindra Agrawal, G.A.

Hon’ble Shri Pritinker Diwaker, J

Judgment On Board

29/06/2018:

As these two appeals arise out of the common judgment of

conviction and order of sentence dated 8.2.2002 passed by the

Sessions Judge, Raigarh (CG) in S.T. No.56/2000 convicting the

accused/appellant Bhuvneshwar under Section 376 of IPC and

sentencing him to undergo RI for 5 years and to pay a fine of Rs.500/-
with default stipulation, and accused/appellant Smt. Roshni Minj under

Section 366 of IPC and sentencing her to undergo RI for 3 years and

fine of Rs.200/- with default stipulation, they are being disposed of by

this common judgment.

02. As per prosecution case, on 17.8.1999, the prosecutrix (PW-6)

was taken by accused No.1 Smt. Roshni Minj to the house of accused

No.3 Yugadesh @ Sachidanand. At about 12 in the midnight she was

subjected to forcible sexual intercourse by accused No.3. Next day she

was taken to the house of accused No.2 Bhuvneshwar @ Ramesh

Yadav where he also subjected her to forcible sexual intercourse thrice

in the night. It is further said that accused No.1 Roshni Minj and the

prosecutrix stayed in the house of accused No.2 Bhuvneshwar and on

21.8.1999 the prosecutrix was taken to the house of mother of accused

No.1 at Bandarchua. Thereafter, accused No.1 and the prosecutrix

returned to Raigarh. On 23.8.1999 FIR (Ex.P/7) was lodged by the

prosecutrix narrating the entire incident and making allegation of rape

against accused Nos. 2 3 and allegation of her abduction by accused

No.1 for compelling her to have illicit intercourse with accused Nos. 2

3. Based on this FIR, offence under Sections 363, 366, 376, 34 of IPC

was registered against all the three accused persons. The prosecutrix

was medically examined on 24.8.1999 vide Ex.P/2 by PW-2 Dr. S.

Ekka who did not notice any external or internal injury on the person of

the prosecutrix, her hymen was old torn, two fingers easily inserted into

her vagina, and she prepared two vaginal slides. According to her, no

definite opinion could be given regarding rape and for ascertaining the

age of the prosecutrix, she referred her to radiologist. However, as per

FSL report vide Ex.P/16, no spermatozoa was found in the vaginal
slides or clothes of the prosecutrix or underwear of accused No.2

Bhuvneshwar @ Ramesh Yadav. As per X-ray report of the prosecutrix

vide Ex.P/9, she was found aged in between 16 ½ and 18 years with a

margin of error of three years on either side. Accused No.2

Bhuvneshwar was also medically examined vide Ex.P/11 by PW-11 Dr.

RK Agrawal who found him capable of performing sexual intercourse.

While framing charge, the trial Judge framed charges against accused

No.1 Roshni Minj under Sections 363, 366 372 of IPC whereas

accused No.2 Bhuvneshwar was charged under Section 376(1) and

accused No.3 Yugadesh under Sections 376(2)(f) and 506 Part-II of

IPC.

Accused No.1 Roshni Minj and accused No.2 Bhuvneshwar @

Ramesh Yadav were tried together, however, trial of accused No.3

Yugadesh was conducted separately as he was absconding.

03. So as to hold the accused/appellants guilty, the prosecution

examined 14 witnesses in all. Statements of the accused/appellants

were also recorded under Section 313 of Cr.P.C. in which they denied

the circumstances appearing against them in the prosecution case,

pleaded innocence and false implication. In defence, they examined

two witnesses.

04. The trial Court after hearing counsel for the respective parties

and considering the material available on record, by the impugned

judgment convicted and sentenced the accused/appellants as

mentioned in para-1 of this judgment.

After trial of absconding accused No.3 Yugadesh @

Sachidanand being conducted separately, he stood convicted and
sentenced under Sections 376(1) and 506 Part-II of IPC vide judgment

dated 27.1.2004. Appeal preferred by him i.e. Cr.A.No.104/2004 was

dismissed as having become infructuous as he had already completed

the entire sentence.

05. Learned counsel for the appellants submits as under:

 in respect of accused No.1 Roshni Minj, it is submitted that the

prosecutrix was admittedly a major girl and therefore, the

question of her abduction does not arise and further, considering

the story put forth by the prosecutrix, which is per se improbable,

her conviction under Section 366 is not at all tenable in the eye

of law.

 as regards accused No.2 Bhuvneshwar, it has been argued that

a very improbable story has been put forth by the appellant, her

version is also not supported the medical evidence and further

considering her conduct, it appears that either a false report has

been made against this appellant for some ulterior motive or the

act allegedly committed was consensual one.

06. On the other hand, supporting the impugned judgment it has been

argued by the State counsel that conviction of the appellants is strictly

in accordance with law and there is no illegality or infirmity in the

judgment impugned warranting interference by this Court.

07. Heard counsel for the respective parties and perused the material

on record.

08. PW-6 prosecutrix has stated that she knew accused No.1 Smt.

Roshni Minj and accused No.2 Bhuvneshwar. On 17.8.1999 she

accompanied accused No.1 who took her to a small house and left her
there all alone saying that she would return soon. While she was

coming out of the house, watchman came there, pushed her inside the

house and detained her in the house for the whole night and also

committed rape with her on the threat of life. On the next day, accused

No.1 came there and asked her to flee from there. Thereafter, accused

No.1 took her to Paththalgaon in a jeep where she was kept in a house

and there she was subjected to forcible sexual intercourse by accused

No.2 Bhuvneshwar. In the next morning, accused No.1 returned and

took her to the house of her (A-1’s) mother and kept her there for two

days. Thereafter, she (prosecutrix) returned to her house and narrated

the entire incident to her mother and other family members. She was

medically examined and her undergarments were seized. She states

that accused No.1 used to visit her house frequently and take her

along with her with the permission of her mother and on the date of

incident also she (A-1) had taken her with the permission of her

mother. She states that as she was threatened by accused No.1, she

did not disclose the incident to anyone. While she was being taken in a

bus, number of passengers were there but she did not disclose to them

about the incident and even in the house of accused No.1 she did not

disclose about the incident to mother of accused No.1. She states that

for the first time she is seeing accused No.2 Bhuvneshwar in the court.

She further states that her clothes were torn by accused No.2, he

threw her on the floor and then committed rape upon her repeatedly for

four times in the night. She admits that while she was going to the

place where she was subjected to rape, on both sides of the road

shops were there and likewise, number of persons were residing near

the room where she was kept. She further states that on account of
she being thrown on the floor she suffered injury on her back and this

fact was disclosed by her to the treating doctor. According to her, while

the accused No.2 was subjecting her to rape, she pushed him, pulled

his hair and also scratched him with her nails on his cheek.

09. PW-2 Dr. S. Ekka medically examined the prosecutrix on

24.8.1999 vide Ex.P/2. However, she did not notice any external or

internal injury on the person of the prosecutrix, her hymen was old torn,

two fingers easily inserted into her vagina and that she prepared two

vaginal slides. According to her, no definite opinion could be given

regarding rape and for ascertaining the age of the prosecutrix, she

referred her to radiologist. However, as per FSL report vide Ex.P/16, no

spermatozoa was found in the vaginal slides or clothes of the

prosecutrix or underwear of accused No.2 Bhuvneshwar @ Ramesh

Yadav. PW-9 Dr. MD Joshi did x-ray examination of the prosecutrix and

as per X-ray report vide Ex.P/9, she was found aged in between 16 ½

and 18 years with a margin of error of three years on either side. PW-

11 Dr. RK Agrawal medically examined accused No.2 Bhuvneshwar

vide Ex.P/11 and found him capable of performing sexual intercourse.

10. PW-3 Heeralal, Village Kotwar, is a formal witness. PW-4

Santosh, PW-7 Jamal Sai and PW-8 Jeeturam have Kumar turned

hostile. PW-5 Yadiyus Kujur, father of the prosecutrix, states that his

wife informed him on 17.8.1999 that accused No.1 had taken the

prosecutrix along with her. He lodged missing report, which was not

recorded by the police. PW-12 Shamshuddin Khan, PW-13 Dilip

Kumar assisted in the investigation and PW-14 Prakash Soni is the

investigating officer.

11. DW-1 Chamar Sai and DW-2 Rajesh Kumar Yadav have not

stated anything specific in favour of the appellants.

12. Close scrutiny of the evidence makes it clear and according to

the prosecutrix on 17.8.1999 she was taken by accused No.1 Smt.

Roshni Minj to the house of accused No.3 Yugadesh @ Sachidanand

and having left her there she went away saying that she would come

back soon and in the midnight she was raped by accused No.3. She

further alleges that next day she was taken to the house of accused

No.2 Bhuvneshwar @ Ramesh Yadav by accused No.1 where accused

No.2 also subjected her to forcible sexual intercourse 3-4 times in the

night. However, considering the case diary statement of the

prosecutrix, the FIR lodged by her as well as her Court statement

together, it appears that she is not consistent while deposing in the

Court and making allegations against the accused/appellants. She

admits that while she was being taken from one place to other by

accused No.1, she came across number of people, however, she did

not disclose about the incident to anyone, nor did she offer any protest

or raise hue and cry. Though she states that she did not do so because

of being threatened by accused No.1, however, the same does not

inspire confidence and appears to be a bit improbable because

nowhere it has been stated by her that accused No.1 was having any

weapon to threaten her or accompanied by other accused persons

preventing her from raising hue and cry. Rather, in the given facts and

circumstances of the case, the prosecutrix had ample opportunities to

escape from the clutches of accused No.1 or seek help from the

people she was coming across while moving from one place to

another. Furthermore, in the Court she has stated that for the first time
she is seeing accused No.2 Bhunvneshwar @ Ramesh Yadav in the

Court, however, she has lodged a named report against this appellant

also. This apart, according to the prosecutrix, accused No.2 threw her

on the floor and then committed rape upon her repeatedly for four

times in the night and on account of she being thrown on the floor she

suffered injury on her back and this fact was disclosed by her to the

treating doctor. She further states that while accused No.2 was

subjecting her to rape, she pushed him, pulled his hair and also

scratched him with her nails on his cheek. However, medical evidence

negates the version of the prosecutrix as PW-2 Dr. S. Ekka who

medically examined the prosecutrix on 24.8.1999 vide Ex.P/2 did not

notice any external or internal injury on the person of the prosecutrix,

her hymen was old torn, two fingers easily inserted into her vagina.

Further, in the vaginal slides prepared by the doctor, clothes of the

prosecutrix as well as underwear of accused No.2 Bhuvneshwar @

Ramesh Yadav, no spermatozoa was found as per FSL report Ex.P/16.

PW-11 Dr. RK Agrawal who medically examined accused No.2

Bhuvneshwar vide Ex.P/11 also did not notice any injury on his person.

Thus, considering the overall evidence of the prosecutrix and her

conduct during the alleged offence and subsequent thereto, she does

not appear to be a trustworthy witness and as such, her evidence does

not inspire confidence of the Court and rather it appears to be a case

of false implication of the appellants or if any such act was committed,

it was consensual one.

13. So far as offence under Section 366 of IPC is concerned, the

evidence on record goes to show that the prosecutrix was a major girl
on the date of incident. PW-9 Dr. MD Joshi did x-ray examination of the

prosecutrix vide Ex.P/9 and found her aged in between 16 ½ and 18

years with a margin of error of three years on either side. Even

otherwise, the prosecutrix in the Court has stated in cross-examination

that accused No.1 used to visit her house frequently and take her

along with her with the permission of her mother and on the date of

incident also she (A-1) had taken her with the permission of her

mother. In these circumstances, it cannot be said that accused No.1

had abducted the prosecutrix for compelling her to have illicit

intercourse with the other accused persons and as observed above, if

any such act was committed, the possibility of the prosecutrix being a

consenting party to such act cannot be ruled out.

14. On the basis of aforesaid discussions, this Court is of the

considered view that the prosecution has not been able to prove guilt

of the appellants beyond all reasonable doubt based on the evidence

adduced by it and as such, they deserve to be acquitted of the charges

leveled against them by giving them benefit of doubt.

15. In the result, the appeals are allowed. The impugned judgment

8.2.2002 is hereby set aside, acquitting the appellants of the charges

leveled against them. The record shows that the appellants are on bail,

therefore, their bail bonds stand discharged and they need not

surrender.

Sd/

(Pritinker Diwaker)

Judge

Khan

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