Ram Kumar @ Kumar And Ors vs State
2021 Latest Caselaw 2540 Chatt

                                          1

                                                                            NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR


                     Judgment reserved on : 24.08.2021
                     Judgment delivered on: 24.09.2021
                             CRA No. 1206 of 2000


         Rajendra Kumar S/o Bisoha Ram Sahu, aged about 38 years,
          Village Amapara, Balod Dist. Durg, M.P.
                                                                 ---- Appellant
                                       Versus
         State of M.P. through P.S. Balod, District Durg M.P.
                                                                ---- Respondent

And CRA No. 1643 of 2000

1. Ramkumar @ Kumar, S/o. Narayan, aged about 46 years.

2. Sevaram son of Bhanwar Singh, aged about 45 years. All residents of Amapara, Balod, P.S. Balod, District Durg, Chhattisgarh.

---- Appellants Versus  The State of Madhya Pradesh, Through Police Station Balod, District Durg (MP)

---- Respondent

For Appellants : Mr. Pragalbh Sharma & Ms. Indira Tipathi, Adv.

For State
[[
                              :        Mr. Sameer Sharma, Dy. G.A.

                     Hon'ble Smt. Justice Rajani Dubey
                                   CAV Order


     24/09/2021

1. These appeals arise out of the impugned judgment of conviction and order of sentence dated 19.04.2000 passed by Additional Sessions Judge, Balod, District Durg, M.P. (Now Chhattisgarh) in Sessions Trial No. 279/99, whereby and

whereunder, learned Additional Sessions Judge has convicted and sentenced the appellants as described below:-

           Conviction                            Sentence
U/s. 450 of the IPC                  R.I. for 10 years, each.
U/s. 376 (2)(g) of the IPC           R.I. for 10 years, each.

2. The prosecution case, as unfolded from the impugned

judgment and the records of the case is that, on 03.09.1998 a

report (Ex.P/2) was lodged by the prosecutrix (PW-2) alleging

therein that in the intervening night of 2-3.09.1998 at about 1.00

O'clock appellant Rajendra Kumar knocked the door of the

prosecutrix and asked for match box. When prosecutrix opened the

door, appellants Rajendra Kumar, Ramkumar and Sevaram entered

her house and started smoking. Thereafter, Ramkumar committed

rape on her and while he was committing the offence, appellants

Rajendra Kumar and Sevaram helped Ramkumar by standing

outside the door. Thereafter, FIR (Ex P-2) was registered under

Section 376 of IPC against the appellants. Prosecutrix gave her

consent vide Ex p/3 (Ex P/3) for medical examination, thereafter,

she was sent for medical examination to Government Hospital,

Balode, where Dr. P. Baghel (PW-3) examined the prosecutrix and

gave her report vide (Ex. P/6) and opined that sexual intercourse

committed one day before since time of examination. Organs were

well developed and no sign of struggle was found all over the body.

Cloths of the appellant Ramkumar was also seized vide (Ex P-9)

and same was sent for its examination to FSL, Raipur. According to

which, spermatozoa was found on the clothes (underwear) of the

appellant. After completion of investigation, charge-sheet has been

filed and charges were framed against the appellants under

Section 450 and 376(2)(g) of the IPC.

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

has examined as many as 6 witnesses. Statement of the

accused/appellants were also recorded under Section 313 of the

Cr.P.C. in which they denied the charges leveled against them and

pleaded innocence and false implication in the case.

4. After hearing the parties, vide impugned judgment of

conviction and order of sentence dated 19.04.2000, learned

Additional Sessions Judge has convicted the appellants under

Sections 450 & 376(2)(g) of the IPC and sentenced them as

mentioned above in para 1 of this order. Hence, the present appeal

filed by the appellants.

5. Assailing legality and validity of the impugned judgment of

conviction and order of sentence, Mr. Pragalbh Sharma, learned

counsel for the appellant in CRA No. 1206 would argue that the

conviction and sentence of the appellant is bad, illegal and

contrary to the law, facts and circumstance of the case. Learned

Court below did not appreciate the evidence of prosecutrix (PW-2)

who has falsely implicated the appellant in this concocted story. He

further submits that the medical report of the prosecutrix,

examined by Dr. P. Baghel (PW-3) does not support the prosecution

case. Furthermore, Kanhaiyalal (PW-4) has also not supported the

prosecution case. It is next argued that Investigating Officer (PW-6)

has categorically stated that when the prosecutrix had lodged the

report, she made no allegation of rape against appellant Rajendra

Kumar, therefore, looking to all the facts, the appellant is liable to

be discharged from all the charges levelled against him.

6. Ms. Indira Tripathi, learned counsel for the appellants in CRA

No. 1643/2020 submitted that the impugned judgment passed by

the learned trial Judge is illegal, erroneous and bad in law and is

liable to be set-aside. She further submits that there is fully

contradiction in the statement given by the prosecutrix in First

Information Report, in police statement and the statement given

before the Court. It is next submitted that learned trial Court failed

to see that prior to incident a quarrel was taken place between the

prosecutrix and one Janki Bai, 'bua' of the accused person, in which

the appellants have supported Janki Bai and only for this reason

the prosecutrix has falsely implicated the appellants, therefore, the

impugned judgment is liable to be set-aside. In support of her

argument, learned counsel for the appellant placed reliance on the

decision of Hon'ble Supreme Court in the matter of Dola Alias

Dolagobinda Pradhan & Another Vs. State of Odisha

reported in (2018) 18 SCC 695.

7. On the other hand, learned State counsel has supported the

impugned judgment of conviction and order of sentence of the

Court below convicting the appellants under Sections 450 & 376(2)

(g) of the IPC, being based on the material available on record, are

just and proper and do not call for any interference in these

appeals.

8. I have heard learned counsel for the parties and perused the

records including the impugned judgment.

9. The prosecutrix (PW-2) has deposed in her statement that in

the intervening night of incident, appellants knocked the door and

asked for match box. After smoking, all the appellants committed

rape on her and after an hour they went from there. In the FIR, she

stated that Ramkumar laid her on the ground and committed

forceful sexual intercourse on her while other two appellants

namely Rajendra Kumar and Sevaram were outside the house. In

para 17 of her cross-examination she stated that it has been

wrongly written in Ex D-1 that, Þeq>s tehu ij fyVkdjß . How it was

written she does not know. What she has told was that " eSus [kkV ij

laHkksx djuk fy[kk;k Fkk]"

10. On 03.09.1998, Dr. Smt. P. Baghel (PW-3) examined the

prosecutrix, gave her report vide (EX P-6) and opined that the

prosecutrix is habitual for sexual intercourse. In her cross-

examination, Dr. P. Baghel (PW-3) admitted that she was not found

any internal or external injury over the private part of the

prosecutrix. Assistant Sub-Inspector A.P. Upadhyay (PW-6) was

examined before the trial Court and in para 11 of his statement he

stated that the prosecutrix had not mentioned in the report that

appellants Rajendra and Sevakram has committed rape with her.

Again in para 12 he stated that:-

izkfFkZ;k us iz- Mh-&1 esa v ls v dk Hkkx Þeq>s tehu ij fyVkdjß c

ls c Hkkx esa Þjktsanz] lsokjke ckgj jgsß vkSj l ls l dk Hkkx Þtks

vkt lqcg eksgYys ds isfeuckbZ lkgw dks ?kVuk dk lkjk gky crkbZß

fy[kk;k FkkA

11. Hon'ble Supreme Court in the case of Dola (Supra) held in para

6 held, which reads thus:-

"It is well-settled law that if the version of the prosecutrix is

believed, basic truth in her evidence is ascertainable and if

it is found to be credible and consistent, the same would

form the basis of conviction. Corroboration is not a sine

qua non for a conviction in a rape case. The evidence of a

victim of sexual assault stands on a par with the evidence

of an injured witness and is entitled to great weight,

absence of corroboration notwithstanding. If the evidence

of the victim does not suffer from any basic infirmity and

the "probabilities factor" does not render it unworthy of

credence, as a general rule, there is no reason to insist on

corroboration, except from medical evidence, where,

having regard to the circumstances of the case, medical

evidence can be expected to be forthcoming. When a

grown up and married woman gives evidence on oath in

court that she was raped, it is not the proper judicial

approach to disbelieve her outright."

In the instant case, prosecutrix (PW-2) in her report stated against

only appellant Ramkumar that other two accused persons were

standing outside the house but in her Court statement she stated

that all the three accused persons have committed rape with her

and, in her cross-examination, she exaggerated her version. It is

clearly mentioned in the medical examination report (Ex-P/6) of the

prosecutrix that she is habitual for sexual intercourse and, in her

cross examination Dr. P. Baghel (PW-3) stated that she did not

notice any external or internal injury on her private part or other

part of the body.

12. The appellants examined 4 witnesses in their defence.

Sumitra Bai (DW-1) stated that prosecutrix came to her house and

demanded Rs. 200/- and also threatened her to lodge a report if

the money was not given to her. Leela Singh (DW-2) stated in her

examination that one Kanhaiyalal has informed her that

prosecutrix has beaten her mother Janki Bai thereafter, he went

with Anant Ram, Kanhaiya Lal, Rajendra kumar & Sevaram to the

house of prosecutrix and told her not to fight with her mother

again and then came back from there. On the very next day,

Rajendra and Sevaram were arrested. Anant Ram (DW-3) also

stated that he along with accused persons went to the house of

prosecutrix and asked the reason for quarrel. Janki Bai (DW-4)

stated in her deposition that prosecutrix quarreled and beaten her

and she (Janki Bai) had lodged a report against her. Prosecutrix

denied allegation of defence witnesses stating that Janki Bai had

lodged false report against her. Even Medical Officer and

Investigating Officer have not supported the prosecutrix' version.

13. After going through the entire material available on record, this

Court is of the clear opinion that the prosecutrix had a motive to

seek revenge against the appellants. The testimony of the victim is

in the peculiar facts and circumstances of this case, self

destructive and needs to be discarded. Her evidence is not free

from blemish. The evidence of prosecutrix is full of contradiction

and omissions which was not supported by Investigating Officer as

well as by Medical Report. The trial Court has convicted the

appellants without considering the aforementioned facts in its

proper perspective.

14. Having regard to the totality of the material on record, facts

and circumstance of the case, the finding of the trial court is not

sustainable. Accordingly, both the appeals are allowed. The

judgment of the trial Court is set aside. The appellants are

acquitted of the charges levelled against them. They are on bail.

Their bail bonds stand discharged.

Sd/-

(Rajani Dubey) JUDGE V/-