Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 235 (CHH)

CHANDRA KUMAR v. STATE OF C. G.

2008-09-02

D.R.DESHMUKH

body2008
JUDGMENT 1. This judgment shall govern Cr.A.No.38912004 (appellant Chandra Kumar), Cr.A.No.388/2004 (appellant Arvind Shukla), Cr.A.No.393/2004 (appellant Rajendra Namdeo) and Cr.A.No.39612004 (appellant Hiraram Sanwra @Chhotu). 2. By judgment dated 12.04.2004 in Sessions Thai No.347/2001 the above mentioned appellants have been convicted under Section 376 (2) (g) of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and a tine of Rs.25,000/- each and in default to undergo rigorous imprisonment for one year each, for committing gang rape on the prosecutrix in the night of 30.08.2001. The learned 2nd Additional Sessions Judge, Surguja has acquitted all the appellants from the charge under Section 450, 363 and 506-B read with Section 34 of the I.P.C. 3. Briefly stated the prosecution case is that on 30.08.2001 at about 11.00 p.m. all the four appellants named above who were posted as Constables at Chalgali Police Station, committed house trespass with intent to kidnap the prosecutrix. aged about 20 years, for committing gang rape on her. After gagging her mouth and blindfolding her, the appellants took the prosecutrix to Constable Chandra Kumar's quarter situated in the police lines. In the quarter, upon removal of the cloth from her eyes and mouth, the prosecutrix identified the appellants and attempted to shout but the appellants threatened to kill her and quietened her. Appellants - Arvind Shukla and Chandra Kumar went outside the room. Appellants- Hiraram Sanwra@ Chhotu and Rajendra Namdeo committed rape on the prosecutrix one after another. Thereafter, both Arvind Shukla and Chandra Kumar came inside the room and committed rape on the prosecutrix. The prosecutrix narrated the incident to her mother P.W-3. Since P.W-2, father of the prosecutrix, was not at home, her mother P. W. 3 sent the prosecutrix to village Khobi to the house of one Ranjit Gupta where the prosecutrix stayed for two days. On the third day, her father P. W.2 brought her home. She narrated the incident to him. At about 7.30 p.m. the prosecutrix went to Police Station Chalgali with her father for lodging F.I.R. but her report was not written. Thereafter, on 3.8.2001 her father P. W.2 contacted one Raj Kumar, a local leader and influential person and went to Ambikapur with the prosecutrix and met the Superintendent of Police. Thereafter, a report EX.P.1 was written by Anil Singh P.W4 at her narration and lodged at Police Station Ambikapur. 4. The prosecutrix was medically examined by Dr. Thereafter, on 3.8.2001 her father P. W.2 contacted one Raj Kumar, a local leader and influential person and went to Ambikapur with the prosecutrix and met the Superintendent of Police. Thereafter, a report EX.P.1 was written by Anil Singh P.W4 at her narration and lodged at Police Station Ambikapur. 4. The prosecutrix was medically examined by Dr. Mrs. Sarita Singh P. W. 9 on 3.9.2001 who found the following injuries : i. One small superficial abrasion 1/2, mm on the center of the Dorsum of the left forearm about 2cm.lateral to medial border - red in colour - duration within 24 hours. ii Another small superficial abrasion just below the right elbow 1/2, cm x 1/4. cm - black in colour - duration more than 3 days. iii Slight redness of the skin present at Ventral aspect of the left forearm about 6 cm. above the wrist joint, length 2 x 1 cm. iv. Three abrasions on post medial aspect of the left leg 6 cm. x 1 mm 3 cm x 1mm. and 5 cm x mm. v. One abrasion 1 cm. x 1/2, cm on the medial mallelolus of the right foot - black in colour - duration 72 hours. vi. No internal or external injury was seen on her private parts. Pubic hairs were well developed, black in colour and not matted. The vagina admitted two fingers easily. vii. There was no pain or tenderness during examination of the private parts. No injury was seen. Hymen was oedematous ruptured. viii. No bleeding was seen from the external and internal genitalia. 5. On the basis of above findings, Dr. Sarita Sinha expressed inability to give any definite opinion about rape on the prosecutrix. However, in her opinion, possibility of sexual intercourse could not be ruled out as hymen was oedematous. 6. Dr. Sarita Singh P.W.9 prepared two vaginal slides and sealed them for chemical and microscopic examination along with underwear of the prosecutrix, which had been seized on 3.9.2001 vide Ex.P.5. All the appellants were arrested on 4.9.2001 and were sent for medical examination. Dr. B.R. Shanna P.W. 10 examined the appellants - Chandra Kumar and Rajendra Namdeo on 5.9.2001 and opined that there was no evidence to suggest that they were incapable of performing sexual intercourse. Dr, B.R. Ratre P. W.11 examined the appellants Hiraram Sanwra and Arvind Shukla on 5.9.2001 and gave similar opinion. Dr. B.R. Shanna P.W. 10 examined the appellants - Chandra Kumar and Rajendra Namdeo on 5.9.2001 and opined that there was no evidence to suggest that they were incapable of performing sexual intercourse. Dr, B.R. Ratre P. W.11 examined the appellants Hiraram Sanwra and Arvind Shukla on 5.9.2001 and gave similar opinion. On 5.9.2001, underwear worn by each appellant was seized vide Ex.P.19, Ex.P.20, EX.P.21 and EX.P.22. Presence of seminal stains, or human spermatozoa was not found by the F.S.L. on the underwears seized from the appellants. The vaginal slides and underwear of the prosecutrix were also sent for chemical and microscopic examination. Vide EX.P.29 seminal stains and human spermatozoa were found by F.S.L. on the vaginal slides and the underwear of the prosecutrix. After completion of investigation the appellants were prosecuted under Sections 450,363,506-B read with Section 34 and Section 376(2)(g) of the I.P.C. 7. The appellants abjured guilt and pleaded false implication. The prosecution examined as many as 14 witnesses. The appellants examined as many as 4 witnesses in defence. The learned Additional Sessions Judge disbelieved the evidence of the prosecutrix in relation to the alleged crime under Sections 450, 363,506-8 read with Section 34 of the I.P.C. It also made a spot inspection on 02.11.2002 and recorded a finding that the testimony of the prosecutrix that she was kidnapped by the appellants who after committing house-trespass, blindfolded and gagged her and had forcibly brought her to the quarter of Chandra Kumar was not reliable. In paragraph 8 and 9, the learned 2nd Additional Sessions Judge observed as under: In paragraph 10, at the end the learned 2nd Additional Sessions Judge observed as under: In paragraph 40, the learned 2nd Additional Sessions Judge observed as under: In paragraph 36, the learned 2nd Additional Sessions Judge observed as under: In paragraph 37 the learned 2nd Additional Sessions Judge relied strongly on the report of the F.S.L. EX.P.29 that sexual intercourse was committed with the prosecutrix in the night of 30.08.2001 . In paragraph 3 7, the learned 2nd Additional Sessions Judge also observed as under: On the basis of the above findings, the learned 2nd Additional Sessions Judge while acquitting the appellants from the charge under Sections 450, 363, 506-6 read with Section 34 of the I.P.C. convicted all the appellants under Section 376(2)(g) of the I.P.C. and passed sentence as shown in paragraph 2 (supra). 8. 8. Learned counsel for the appellants argued that paragraphs 58 and 70 of the testimony of the prosecutrix left no room for any doubt that the appellants Chandra Kumar, Arvind Shukla and Rajendra Namdeo had been falsely implicated. It was further argued that the testimony of Dr. Sarita Singh, P.W-9 did not corroborate the testimony of the prosecutrix regarding gang rape on her and the report of the F.S.L. EX.P.29 that no seminal stains or human spermatozoa were found on the underwears of the appellants was also suggestive of the innocence of the appellants. It was also argued that the F.I.R. EX.P.1 written by Anil Singh P. W.4 at the instance of one Raj Kumar, an influential local leader, was concocted. It was also contended that the testimony of Shri S.S. Paikra, P. W.14, the Investigating Officer did not overrule the possibility that the prosecutrix and appellant Hiraram were madly in love with each other and had sexual relationship. 9. Shri G.D. Vaswani, learned Government Advocate argued generally in support of the impugned judgment and submitted that the prosecutrix P.W.1, her father P. W.2, mother P. W.3 and Anil Singh P.W.4 were examined by the trial Court on 06.05.2002. P.W.1 to P.W.3 were cross-examined on the same day and Anil Singh P.W.4 was cross-examined on the next day only by the counsel for Chandra Kumar. Cross-examination of the prosecution witnesses No.1 to 4 by the counsel for the appellants Arvind Shukla. Rajendra Namdeo and Hiraram Sanwra was permitted by the High Court of Chhattisgarh in Criminal Revision No.395/2002 by order dated 27.11.2002. These prosecution witnesses Nos. 1 to 4 were cross-examined thereafter and had towed the line of defence, which was indicative of the fact that these witnesses had been won over by the appellants. 10. Having considered the rival submissions, I have perused the record. It is now well settled by a catena of decisions of the Supreme Court of India that conviction can be based on the sole testimony of the prosecutrix if the credibility of the prosecutrix has been tested and it does not suffer from any blemish or suspicion and impresses the Court as wholly truthful, natural and so convincing that the Court has no hesitation in recording conviction solely on the testimony of the prosecutrix. In the present case, the learned Additional Sessions Judge who had the opportunity to notice the demeanour of the witnesses acquitted all the appellants from the charges under Sections 450, 363 and 506-B read with Section 34 of the I.P.C. on the basis that the testimony of the prosecutrix could not be relied. This by itself creates a serious dent in the testimony of the prosecutrix, and therefore, a serious responsibility is cast on the Court to sift the evidence of the prosecutrix with great care and caution and to examine whether the evidence of the prosecutrix is worthy of credence and can form the basis of conviction for the grave offence under Section 376 (2)(g) of the I.P.C. 11. I shall now proceed to examine the testimony of the prosecutrix and other witnesses on the above touchstone. In paragraph 48 of the testimony, the prosecutrix stated asunder: In paragraph 52, the prosecutrix stated as under: In paragraph 58, the prosecutrix further stated as under: In paragraph 70, the prosecutrix also stated as under: In paragraph 72, the prosecutrix has made an attempt to implicate constable Tuleshwar and Jaipal also while deposing as under: In paragraph 77, the prosecutrix stated as under: The prosecutrix was confronted by the learned 2nd Additional Sessions Judge, with her earlier statement and with the statement given by her in cross-examination upon which she stated in paragraph 93 as under: In paragraph 35, the prosecutrix has admitted that the underwear worn by her on the date of occurrence was taken by her to Ambikapur. She further stated that during the gang rape she was completely naked and had, after washing the private parts worn the underwear. On the basis of this testimony, the preaence of seminal stains or human spermatozoa on the underwear of the prosecutrix in the report of the F.S.L. does not constitute a strong circumstance against the appellants, especially when no such stains or human spermatozoa was found on the underwear of the appellants. 13. In paragraph 45 the prosecutrix stated as under: 14. I am of the considered opinion that the above testimony of the prosecutrix renders her wholly unworthy of any credit and false implication of the appellants Rajendra Namdeo, Arvind Shukla and Chandra Kumar for the offence under Section 376 (2)(g) of the I.P.C. cannot be ruled out. 15. 13. In paragraph 45 the prosecutrix stated as under: 14. I am of the considered opinion that the above testimony of the prosecutrix renders her wholly unworthy of any credit and false implication of the appellants Rajendra Namdeo, Arvind Shukla and Chandra Kumar for the offence under Section 376 (2)(g) of the I.P.C. cannot be ruled out. 15. Father of the prosecutrix P. W.2 has stated in paragraph 45 of his testimony that on reaching Ambikapur he had first gone to the house of Raj Kumar who had rang up the Superintendent of Police. In paragraph 46, he stated that they had gone to Ambikapur Police Station where on the narration of the prosecutrix, the S.H.O. had written the report. No such report has been produced. Even mother of the Prosecutrix P.W.3 has stated in paragranh 46 that the F.I.R was lodged at the Police Station at the narration of the prosecutrix and she and her husband were present. Since no such report has been produced by the prosecution, an adverse inference can be drawn against the prosecution that had such report been produced. it would not have supported the prosecution story. 16. As regards the FJ.R. Ex.P.1 is concerned, one Raj Kumar Gupta, who was an influential local leader, had a prominent role to play. Anil Singh P. W.4, the scribe, who went with the parents of the prosecutrix and Raj Kumar to the Superintendent of Police, has stated in paragraph 5 of his testimony as under: This shows that divergent versions were narrated to the Superintendent of Police. In this manner, the evidence of Anil Singh P. W.4 does not rule out the possibility that the F.I.R. Ex.P. 1 did not narrate a true story about the incident and was blemished and concocted at the behest of Raj Kumar Gupta. This inference is strengthened by the following admission of Anil Singh in paragraph 38 as under: 17. The Investigating Officer Shri M.S. Paikra stated in paragraph 19 that investigation had revealed that the prosecutrix and the appellant Hiraram were in love. In paragraph 9 of his testimony. the Investigating Officer stated as under: 18. An offence of gang rape destroys the soul of the prosecutrix. It completely shatters her psyche. A young girl of 20 years having been gang raped by 4 persons would not appear in normal health or in a balanced state of mind. In paragraph 9 of his testimony. the Investigating Officer stated as under: 18. An offence of gang rape destroys the soul of the prosecutrix. It completely shatters her psyche. A young girl of 20 years having been gang raped by 4 persons would not appear in normal health or in a balanced state of mind. Anil Singh P. W.4 has stated that on reaching Raj Kumar's house, the prosecutrix was appearing mentally sound and in good health. Dr. Sarita Singh P. W. 9 has also stated in paragraph 15 that at the time of medical examination she found the prosecutrix in a completely normal condition. 19. 1 have perused the examination-in-chief of the mother of the prosecutrix P.W.3 with utmost circumspection. Learned 2nd Additional Sessions Judge has rightly disbelieved the testimony of the prosecutrix and her mother regarding the alleged offence under Section 450,363 and 506.B read with Section 34 of the I.P.C. According to mother of the prosecutrix, after the alleged incident of gang rape at about 11.00 p.m. on 30.08.2001, she heard the voice of her daughter from a room behind the Police Station. Although she has narrated that she saw two of the appellants standing at the door, she has not named those appellants, in the end of her statement in paragraph 3. In paragraph 21, she has admitted that before being sent to the house of Shambhu in village Khobi, her daughter did not narrate anything to her. The conduct of the mother of the prosecutrix P.W.3 after the alleged incident of rape is also unnatural. According to her, she did not look for any injuries on the private parts of the prosecutrix but sent the prosecutrix immediately to village Khobi to her uncle's place. 21. So far as the antecedents of the parents of the prosecutrix are concerned in the facts and circumstances mentioned above, the following admission of Anil Singh in paragraph 52 casts a serious doubt about the truthfulness of the F.I.R. : Anil Singh P. W.4. on being asked by the Court. stated in paragraphs 65 and 67 as under: 22. The report of medical examination of the prosecutrix by Dr. Mrs. Sarita Singh P. W.9 on 03.09.2001 shows different durations for the superficial abrasions found on her as mentioned in paragraph 4 supra. The incident had allegedly occurred on 30th August 2001. on being asked by the Court. stated in paragraphs 65 and 67 as under: 22. The report of medical examination of the prosecutrix by Dr. Mrs. Sarita Singh P. W.9 on 03.09.2001 shows different durations for the superficial abrasions found on her as mentioned in paragraph 4 supra. The incident had allegedly occurred on 30th August 2001. Thereafter the prosecutrix was examined on the 51hday i.e. 03.09.2001. In the opinion of Dr. Sarita Singh P.W.9, none of the superficial abrasions were caused beyond 72 hours duration. This would clearly show that these injuries were not sustained by the prosecutrix on the night of 30th August. 2001. 23. Anil Singh P. W4 has further stated in paragraph 3 as under: In paragraph 29. this witness further stated as under: 24. Examining the testimony of Dr. Sarita Singh P. W.9 in this backdrop the possibility that the superficial injuries sustained by the prosecutrix were as a result of the thrashing by the father cannot be ruled out since in Ex.D. 7, a newspaper report it has also been mentioned as under: 25. The learned 2nd Additional Sessions Judge, Ambikapur, recorded a clear finding that the prosecutrix was deeply in love with the appellant Hiraram and in this madness she had voluntarily gone to the house of Hirararn. It was also observed by the learned 2nd Additional Sessions Judge that the possibility that the prosecutrix had prior sexual relationship with Hirararn could not be ruled out. Bearing this possibility in mind, it appears highly improbable that the appellant Hiraram would permit the prosecutrix to be gang raped by three other appellants. Dr. Sarita Singh has clearly deposed that no internal or external injury was seen on the private parts of the prosecutrix. The finding that vagina was lax and admitted two fingers easily is suggestive of prior sexual intercourse as there was no pain or tenderness during examination of the private parts and no injury was seen. It has also been specifically stated by her that no bleeding was seen from the internal or external genitalia. This completely falsifies the testimony of the prosecutrix that she had bled from the private parts and rules out the possibility of a sexual intercourse with the prosecutrix without her consent. 26. It has also been specifically stated by her that no bleeding was seen from the internal or external genitalia. This completely falsifies the testimony of the prosecutrix that she had bled from the private parts and rules out the possibility of a sexual intercourse with the prosecutrix without her consent. 26. Having thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that false implication of the appellants Chandra Kumar, Arvind Shukla and Rajendra Namdeo for the offence under Section 316(2)(g) of the I.P.C. cannot be ruled out. In view of the fact that the prosecutrix was madly in love with appellant Hirararn and had willfully gone to meet him, the absence of any injury on her private parts the possibility that sexual intercourse if any, with the prosecutrix was committed by the appellant Hirararn with her consent can also not be ruled out. In this view of the matter. the prosecution has failed to bring home the guilt under Section 376(2)(g) of the I.P.C. against all the appellants beyond the shadow of reasonable doubt. 27. In the result, all appeals i.e. Cr.A.No.389/2004, Cr.A.No.388/2004 Cr.A.No.393/2004 and Cr.A.No.396/2004 are allowed. Conviction of the appellants under Section 3 76(2)(g) of the I.P.C. and the sentence awarded by the learned 2nd Additional Sessions Judge, Ambikapur are set aside. The appellants are acquitted of the charge under Section 376(2)(g) of the J.P.C. after giving them the benefit of doubt. 28. Omission of the name of the prosecutrix her father and mother in the I portions extracted from the evidence on record and also in the judgment is to hide their identity. 29. A copy of this judgment be placed in the record of Cr. Appeal No.388/ 2004, Cr. Appeal No. 393/2004 and Cr. Appeal No. 396/2004. Fine paid, if any by the appellants be refunded to them. Bail bonds and surety bonds stand cancelled forthwith. Appeals Allowed.