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2011 DIGILAW 219 (CHH)

SANTOSH MARAR v. STATE OF C. G.

2011-07-06

PRITINKER DIWAKER

body2011
JUDGMENT 1. Since the aforementioned three appeals arise out of the same judgment and order dated 31.10.2007 passed by Additional Sessions Judge Janjgir Champa, in Sessions Trial No. 133/2007 convicting the accused/appellants under Section 376 (2) (g) IPC and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous impri.50nment for six months, they are disposed of by this common judgment. 2. Case of the prosecution in brief is that on 16.2.2007 a written report (Ex. P-1) was lodged by the prosecutrix aged about 16 years at the relevant time and studying in class VIII, to the effect that on 15.2.2007 at about 8 p.m. she along with her sister - Santoshi (PW-2) was returning home after attending Ramaya:1 and as soon as she reached near the house of one Ghanram Marar, accused/appellants KushwaMarar, Santram Marar, Santosh Marar and Tarun Chandra came there, gagged her mouth, caught hold of her sister - Santoshi (PW-2) who somehow managed to get rid of them and rushed to her house. They, thereafter, lifted her away to a nearby pond, threw her down, on alarm being raised by her, they inserted a piece of cloth in her mouth and committed forcible sexual intercourse with her one after another. After commission of the crime, accused/appellants Santram Marar, Santosh Marar and Tarun Chandra left the spot but accused Kushwa had again committed rape on her and then he too ran away. It is alleged that after the incident while the prosecutrix was getting back, on the way her brother - Mukaddar (PW-4) met her whom she narrated the entire incident and then after reaching home it was disclosed to her grand mother namely Rukmani Bai (PW -13) and uncle Kartik Ram (PW3). Subsequently, the incident was informed to the Sarpanch of the village followed by written report (Ex. P-I) being made to the police on the next day based on which FIR (Ex. P-2) came to be registered against the accused/ appellants Kushwa Marar, Santram Marar, Santosh Marar and Tarun Chandra for the offence under Section 376 (2) (g) IPC. Subsequently, the incident was informed to the Sarpanch of the village followed by written report (Ex. P-I) being made to the police on the next day based on which FIR (Ex. P-2) came to be registered against the accused/ appellants Kushwa Marar, Santram Marar, Santosh Marar and Tarun Chandra for the offence under Section 376 (2) (g) IPC. After completion of investigation, charge sheet was filed by the police on 3.5.2007 against accused/appellants Kushwa Marar, Santram Marar, Santosh Marar, Tarun Chandra and Santosh Kumar S/o Kanshi Ram for the offences under sections 376 (2) (g), 363, 366 and 354 IPC. 3. In order to establish the guilt of the accused/appellants the prosecution has examined as many as 20 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants as mentioned in paragraph No.1 of this judgment. 5. Heard counsel for the parties and perused the material available on record including the judgment under challenge. 6. Counsel for the accused/appellants submits that so far as accused/ appellant Santosh Kumar S/o Kanshi Ram (Cr.A. No. 268/2008) is concerned, his name does not find place either in the written report (Ex. P-1), FIR (Ex. P-2) or in the statement recorded u/s 161 of the Code of Criminal Procedure but the same has been added about a month after the incident that to< with the allegation of holding the sister of the prosecutrix namely Santoshi (PW2). She submits that even the investigating officer namely S.P. Khakha (PW17) has admitted this fact. She thus submits that accused/appellant Santosh Kumar S/o Kanshi Ram has been roped in a false case that too after about a month of incident and therefore, he deserves to be acquitted. As regards other accused/appellants, counsel for the appellants submits that though the prosecutrix was subjected to rape by four persons and that twice by accused Kushwa, no injury was found on her private part which casts doubt on the entire prosecution case. As regards other accused/appellants, counsel for the appellants submits that though the prosecutrix was subjected to rape by four persons and that twice by accused Kushwa, no injury was found on her private part which casts doubt on the entire prosecution case. In furtherance of argument, counsel for the appellants submits that it is next to impossible that no injuries are found on the person of a young girl even after her virginity being robbed of that too by four persons. Additionally, she submits that FSL report has also not been obtained by the prosecution and in these circumstances, the appellants are entitled for acquittal. In support of her arguments, counsel for the appellants relied on the judgment of the Supreme Court in the matter of Lalliram and another Vs. State of Madhya Pradesh]. 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that there is no evidence to show false implication of the accused/appellants by the prosecutrix. According to him, the matter was reported to the police in quite promptitude as the incident had taken place on 15.2.2007 at about 8 p.m. whereas the written report (Ex. P-1) was lodged on 16.2.2007. He submits that the appellants would not derive any benefit from the judgment of the Supreme Court cited above by the counsel for the appellants as the facts of that case and the present one are entirely different. He submits that in the incident the prosecutrix did suffer injuries on both her knees which she has clearly deposed while giving evidence in the Court. Thus according to the State counsel the judgment impugned convicting and sentencing the accused/appellants as shown above is just and proper and no interference with the same is called for. 8. Prosecutrix (PW -1) has stated in her evidence that on the date of incident when she along with her sister Santoshi (PW-2) was returning after attending Ramayan and as soon as she reached near the house of Ghanram, all the accused/appellants came there, accused Santram gagged her mouth and rest four lifted her away to the nearby pond. According to this witness, accused/ appellant Santosh Kahra had held her sister Santoshi who somehow by biting his hand, managed to wriggle out of his clutches. According to this witness, accused/ appellant Santosh Kahra had held her sister Santoshi who somehow by biting his hand, managed to wriggle out of his clutches. This witness goes on to state' that rest of the four accused/appellants threw her under a tree, inserted a piece of cloth in her mouth, made her stand up, removed her paijama and underwear and then first of all accused Kushwa committed forcible sexual intercourse with her, then accused Santram, then accused Santosh Marar, then accused Santos Kahra and then by accused Tarun. According to this witness, accused Kushwa had subjected her to rape twice. After commission of the crime, according to her, all the accused/appellants disappeared from the scene. According to her, after the incident while she was getting back, on the way her brother -Mukaddar (PW-4) met her whom she narrated the entire incident and then after reaching home it was disclosed to her grand mother namely Rukmani Bai (PW-13) and uncle Km1ik Ram (PW-3). Subsequently, the incident was informed to the Sarpanch of the village followed by written report (Ex. P-1) being made to the police on the next day based on which FIR (Ex. P-2) came to be registered. In cross examination, she has categorically denied that the house of Ghanram is situated in a densely populated area and clarified that only 4-5 houses .are there. She has stated that though due to the Ramayan function number of persons used to pass-by, yet all of a sudden accused Kushwa came from behind, gagged her mouth due to which she could raise her voice only once. According to her, at the time of incident, nobody had passed thereby. She has however denied that due to darkness she could not recognise the person who had gagged her mouth. She has stated that on account of being thrown on the field, she had sustained injuries on both knees and right elbow. In paragraph 7 of her deposition, she has clarified that none of the accused/appellants had fully inserted their private part in to that of her in spite of their best effort to do so. She has stated that as at the time of incident, the accused/appellants were holding her both hands, she could not nail-scratch them. According to her, while raping her, accused/appellants had kissed her cheek and pressed her breasts. She has stated that as at the time of incident, the accused/appellants were holding her both hands, she could not nail-scratch them. According to her, while raping her, accused/appellants had kissed her cheek and pressed her breasts. In paragraph 8 of her evidence, she has stated that while being subjected to rape, she had sustained injuries on her body and though it was not disclosed by her at the time of lodging the report, it was definitely disclosed to the doctor who had medically examined her. Ku. Santoshi Marar (PW-2) - the sister of the prosecutrix has supported the case of the prosecution stating that on the date of incident she along with the prosecutrix was returning after attending Ramayan and when she reached near the house of Ghanram, accused/appellants reached there, accused Santosh s/o Kashiram caught hold of her hand but by biting his finger she somehow managed to come out of his clutches and after reaching her house narrated the incident to Kartik Ram, Laxman, Bodhram and Mukaddar. Kartik Ram (PW3) has stated in his evidence that on the fateful day, the prosecutrix and her sister Santoshi had gone to attend the Ramayan going on in the village. After returning home, Santoshi (PW-2) told him that the accused/appellant Santosh Kahra had caught hold of her but somehow she could manage to set herself free by biting his finger. According to him, Santoshi had also told her that rest of the accused/appellants had lifted the prosecutrix away. Thereafter, he along with his father namely Laxman, one Bodhram and Mukaddar went in search of the prosecutrix but she was not found by them and ultimately Mukaddar (PW-4) brought her home where she disclosed the entire incident to him and other family members. Mukaddar (PW-4) - the brother of the prosecutrix supporting the case of the prosecution has stated that when he went in search of his sister (the prosecutrix), she met him on the way, started weeping and narrated the incident to him. Bodhram (PW-5) - the uncle of the prosecutrix has made almost similar statement as that of Kartik Ram (PW-3) and Mukaddar (PW-4). Bodhram (PW-5) - the uncle of the prosecutrix has made almost similar statement as that of Kartik Ram (PW-3) and Mukaddar (PW-4). Setram Deharia (PW-6) - the Sarpanch of the village has stated that on the date of incident at about 10 p.m. Kartik Ram had come to him and informed that the prosecutrix was subjected to rape by the accused/appellants who in turn told him to accompany him to the police station for lodging the report on the next morning as it was already late night. Dr. K.L. Uraop (PW7) is the witness who had medically examined the accused/appellants and given his report Ex. P-12, Ex. P-14, Ex. P-16 and Ex. P-18 has stated that they were capable of performing sexual intercourse. Dr. Shashi Prabha Banjare (PW8) is the witness who had medically examined the prosecutrix and given her report Ex. P-20 stating that at the relevant time she was aged about 12 years, her breasts were not fully developed, abrasions were there on both of her knees and her hymen was old torn. According to this witness, as the hymen of the prosecutrix was old torn, she might be habitual to sexual intercourse. She has further stated that if the prosecutrix was subjected to sexual intercourse by five persons turn by turn, the injuries on her private part must have been there and in such a case her hymen would have been damaged. Shatrughan Lal (PW9) -the village Kotwar is the witness to seizure of articles made under Ex.P23 to Ex. P-26 and arrest memo Ex. P-29 to P32 who has not supported the case of the prosecution and has been declared hostile. Vyas Narayan Dubey (PW -10) is the witness who had taken the prosecutrix for medical examination. Shatrughan Lal Khunte (PW -11) -the witness to seizure of certain articles made under Ex. P-34, Ex. P-35, Ex. P-25, Ex. P-26 and Ex. P-29 has not supported the case of the prosecution and has been declared hostile. Laxman Patel (PW12) - the grandfather of the prosecutrix has stated in his evidence that Santoshi (PW-2) had informed him about the incident and then on search being made she was found by her brother Mukaddar (PW-4). Rukmani Bai (PW-13) - the grandmother of the prosecutrix has also supported the case of the prosecution. Dr. Laxman Patel (PW12) - the grandfather of the prosecutrix has stated in his evidence that Santoshi (PW-2) had informed him about the incident and then on search being made she was found by her brother Mukaddar (PW-4). Rukmani Bai (PW-13) - the grandmother of the prosecutrix has also supported the case of the prosecution. Dr. George M. Khakha (PW-14) who had done ossification test of the prosecutrix and given his report Ex. P-35 has stated that at the relevant time she might be aged about 15-17 years. Pyarelal (PW -15) and Ram Charan Maina (PW16) are the witnesses who had assisted in the investigation. S.P. Khakha (PW17) is the investigating officer who has supported the case of the prosecution. This witness in paragraph 13 of his deposition has admitted that in written report Ex. P-1 and the FIR Ex. P-2 there is no mention of accused/appellant Santosh Kahra therefore, he was not arrested. He has further clarified that even while recording the statement of the prosecutrix by the police she has not made any allegation against him. Komal Singh (PW -18) and Kanahiya Lal Patel (PW19) are the witness who assisted in the investigation. Shankar Sharma (PW20) is the Sub Inspector who had done part of the investigation. 9. Minute examination of the evidence of the witnesses particularly that of the prosecutrix goes to show that on the date of incident i.e. 15.2.2007 she was subjected to rape by accused/appellants Kushwa, Santram, Santosh Marar and Tarun Chandra. This Court does not find force in the arguments advanced by the counsel for the appellants that as the prosecutrix had not suffered any injury on her private part in spite of being raped by four persons, accused/ appellants are entitled for acquittal for the reason that in rape cases presence of injury is not sine qua non and thereby the judgment of the Supreme Court relied upon by the counsel for the appellants is of no help to the accused/ appellants as the facts in that case and the present one are altogether different. In the present case the prosecutrix has categorically stated that while being subjected to rape, she did suffer injuries on both her knees which has been duly supported by the doctor who had medically examined her and given report Ex. P-20. In the present case the prosecutrix has categorically stated that while being subjected to rape, she did suffer injuries on both her knees which has been duly supported by the doctor who had medically examined her and given report Ex. P-20. The prosecutrix has further deposed 'that all the accused/appellants made an effort to insert their organ into her private part but none of them could succeed in full penetration and on this count also the possibility-of her not sustaining injury in her private part cannot be ruled out. It has also come in the evidence of the prosecutrix that while she was being subjected to rape, her hands and legs were held by the accused/appellants waiting for their turn and this also may be the reason for the prosecutrix not suffering any injury on her private part. 10. Thus the statement of the prosecutrix that she was subjected to rape by the accused/appellants Kushwa, Santram, Santosh Marar and Tarun Chandra, appears to be quite trustworthy and thereby sufficient for convicting them u/s 376 (2) (g) IPC. 11. As regards accused/appellant Santosh Kumar son of Kanshi Ram (Cr.A. No. 268/2008), from the facts and circumstances of the case it is clear that his name does not find place either in the written report (Ex. P-1), FIR (Ex. P-2) or even statement of the prosecutrix recorded under Section 161 of the Code of Criminal Procedure. Even the investigating officer has categorically admitted that when the written report was lodged and statement u/s 161 Cr.P.C. was recorded, the name of this accused did not figure therein. Thus in these circumstances, this appellant is entitled to get benefit of doubt. 12. In the result, the Criminal appeals 1118/2007 and 745/2010 are devoid of any substance and accordingly they are liable to be dismissed and they are dismissed as such. However, Cr. A. No. 268/2008 is hereby allowed. Impug'1ed judgment pertaining to appellant Santosh Kumar son of Kanshi Ram Kahra is hereby set aside. He is acquitted of the charge levelled against him. He is reported to be on bail. His bail bonds stand discharged. Appeal Partly Allowed.