Chattisgarh High Court
Babu Lal And Another vs State on 21 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 27/06/2022
Order Delivered on 21/07/2022
CRA No. 790 of 2001
1. Babulal S/o Banshilal aged about 29 years, R/o Mauharpara,
Manendragarh, District - Koria, C.G.
2. Gopichand S/o Govind, aged about 26 years, R/o Mauharpara,
Manendragarh, District- Koria, C.G.
---- Appellants
Versus
State of Chhattisgarh, Through : Police Station -Manendragarh,
District - Koria, C.G.
---- Respondent
For Appellants : Mr. A.K. Prasad, Adv.
For State/Respondent : Mr. N. Pradhan, P.L.
Hon'ble Smt. Justice Rajani Dubey
C A V Order
Date : 21/07/2022
1. The present appeal arises out of the impugned judgment of
conviction and order of sentence dated 25.08.2001 passed by the
learned Additional Sessions Judge, Manendragarh, District - Koria, C.G.
in Sessions Trial No. 403/1999 whereby, the learned Sessions Judge has
convicted and sentenced the appellants as under:-
S.N. Conviction Sentence
Imprisonment for 10 years and fine of Rs. 1000/-
U/s 376(2)(g)
1. each, in default of payment additional
of IPC.
imprisonment for 6 months.
Imprisonment for 1 year and fine of Rs. 500/- to
2. U/s 342 of IPC. appellant No. 2 only, in default of payment
additional imprisonment for 3 months.
2. Brief facts of the case are that on the date of the incident i.e.
28.07.1993, the complainant/prosecutrix came to the market of
Manendragarh from village Kotmi, District - Bilaspur. After selling
vegetables at 10.00 pm, the complainant was going to the house of her
acquainted constable Mohamed Ali Ahmad where before his house, the
house of the accused Gopichand was located, there accused Gopichand
and Gudda met her. They caught her and took her to his house of Gopi.
They had committed sexual intercourse with her, thereafter accused
persons Babulal, Mannu and other co-accused persons took the
prosecutrix to a house where the only wall of the house was
constructed and there all accused persons committed rape with her and
kept her there till 4 am. When the accused persons left her, she told the
whole incident to Mohamed Ali and Rajmati. Thereafter she lodged a
report at Police Station Manendragarh. Police seized her clothes, and
broken bangles from the spot and the prosecutrix was sent for medical
examination. After completion of the investigation, the charge sheet
was filed and charges were framed under Sections 376(g), 342 and 323
r/w 34 against the accused persons.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 7 witnesses and 1 defence witness was also
examined by the accused persons in their defence. Statement of the
accused/appellants were also recorded under Section 313 of the Cr.P.C.
in which they denied the circumstances appearing against them and
pleaded innocence and false implication in the case.
4. Upon due consideration of oral and documentary evidence, the
learned trial Court held in para 12 that the prosecution has failed to
establish the guilt of the other 4 accused persons and acquitted them of
the charges, and held that the prosecution has established the guilt of
the accused Babulal and Gopichand under Section 376(2)(g) of IPC and
accused Gopichand under Section 342 of IPC and sentenced them as
mentioned above. Hence, this appeal.
5. Learned counsel for the appellant submits that the impugned
judgment of conviction and sentence is contrary to law and facts
available on record. He next submits that the learned trial court ought
to have seen that there was hardly any reliable evidence on record to
warrant the conviction of the appellants under the aforementioned
Sections of IPC. He further submits that the prosecutrix (PW-6) is not a
reliable witness as her statement suffers from main material
discrepancies, it is also not considered that thee are various omissions
in the statement of the prosecutrix as she gives an entirely different
version in the Court than the version given in the FIR. He also submits
that the learned trial Court has disbelieved the prosecutrix and has
acquitted 4 of the accused persons and on the same set of evidence
convicted the appellants which is not proper and justifiable. Thereafter,
he submits that the version of the prosecutrix is unnatural as she states
about the commission of rape by 9 persons but surprisingly, no external
or internal injuries were found by the doctor therefore the learned trial
Court ought to have drawn adverse inference against the prosecution
when admittedly, the doctor concerned, who had clinically examined
the prosecutrix has not been examined in this case. Therefore, the
impugned judgment of conviction and order of sentence is liable to be
set aside.
6. On the other hand State counsel supporting the impugned
judgment of conviction and order of sentence submitted that the trial
Court has not committed any error of law. It is in strictly in accordance
with law and no inference is called for.
7. Heard counsel for both the parties and perused the material
available on record including the impugned judgment.
8. Before learned trial Court, Jafir Ahmed (PW-2), Naem (PW-3) and
Rajmati (PW-7) have not supported the case of the prosecution, only the
prosecutrix (PW-6) stated with regard to the said incident. In her
examination-in-chief, she stated that nine persons has committed
sexual intercourse with her. In her cross-examination she has admitted
in paras 9, 10 and 13 as under:-
9. ;g ckr lgh gS fd ?kVuk ds igys ls fdlh vfHk;qDr dks ugha igpkurh Fkh vkSj
u ns[kh FkhA
10. tgka ij esjs lkFk cykRdkj gqvk ogka va/ksjk FkkA va/ksjk gksus ds dkj.k ftu yksxksa
us esjs lkFk cykRdkj fd;k mu yksxksa dks ugha igpkurhA
13. lcsjs 4 cts eq>s gks'k vk;k] ogka ls mB dj eSa eafnj ds ikl xbZ eSa fuoZL= Fkh]
xksih us diM+s ykdj fn;kA ;s ckrsa eSa viuh fjiksVZ esa crk;h Fkh ugha fy[kh gS rks eSa dkj.k
ugha crk ldrhA
She also stated in para 14 as under:-
14. ?kVuk LFky ij fxV~Vh Fkk esjs ihB esa pksV vk;h Fkh] ihB esa [kjksap dh pksV
vk;h Fkh] [kwu fjlk FkkA esjs cka;s gkFk esa] vkSj nkfgus iSj esa pksV vk;h FkhA ?kVuk ds le;
eSa yky jax dh pwM+h iguh FkhA
but prosecution has not examined the medical officer to this effect.
9. Learned trial Court also found in para 12 that after 7-8 years
of incident prosecutrix identified the accused before trial Court this
fact is not reliable or believable and acquitted the 6 accused
persons. Learned trial Court has also not believed the version of FIR
and acquitted the other co-accused persons to give them benefit of
doubt and convicted the present appellants on this ground that
prosecutrix has specifically stated against the Gopichand and
Babulal.
10. Hon'ble Apex Court in the case of Krishna Kumar Malik vs.
State of Haryana, reported in (2011) 7 SCC 130, has held in
para 31 which reads as under:-
"31. ..... to hold an accused guilty for commission of an
offence of rape, the solitary evidence of the prosecutrix
is sufficient provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished and
should be of sterling quality....."
11. In the present case, the prosecutrix has admitted that before
the incident she neither knew any accused persons nor was
acquainted with them. She has also admitted that at the time of the
incident, she did not identify any accused persons due to darkness.
The medical report of the prosecutrix shows no external or internal
injuries on her body and the doctor gave her opinion that she was
habitual of sexual intercourse. Even otherwise as per the
prosecutrix 9 persons have committed sexual intercourse with her
then some internal or external injuries must be seen on her body,
but as per the report of doctor there are no internal or external
injuries were found on her body. Learned trial Court, on the same
set of evidence, acquitted 6 accused persons and convicted only
the present appellants. It is a well-settled principle of criminal
justice that the prosecution has to prove its case beyond
reasonable doubt. But in this case, no independent witness has
supported the case of the prosecution and only the prosecutrix has
stated about the said incident and the statement of the prosecutrix
is also not reliable. Therefore, the conviction of appellants is not
sustainable.
12. Looking to the above discussion, the findings of the learned trial
Court are not based on proper appreciation of oral and documentary
evidence. As a result, the appeal is allowed. The conviction and
sentence passed by the Court below are set aside and the appellants
are acquitted of the charges. The appellants are on bail. Their bail
bonds shall stand discharged. The fine amount, if deposited, be
refunded to the appellants forthwith.
Sd/-
(Rajani Dubey)
JUDGE
H.L. Sahu
