Ramavtar And ANR. v. State Of Chhattisgarh

-1NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL NO. 112 OF 2001

1. Ram Avatar, aged about 25 years, S/o Lakhan Lal Nayak

2. Har Prasad, aged about 23 years, S/o Suna Ram, Caste- Binjhwar Both are resident of Village Budbud, Police Station- Pali, District Korba (C.G.) ... Appellants

Versus

• The State of Chhattisgarh, through the District Magistrate, Korba, District Korba (C.G.) ... Respondent For Appellants :

Mr. S.P. Sahu, Advocate.

For Respondent-State :

Mr. S.R.J. Jaiswal, Panel Lawyer.

Hon'ble Shri Justice P. Sam Koshy Judgment on Board 03/11/2016 1.

The present appeal has been preferred by the Appellants assailing the judgment dated 20.12.2000 passed by the Special Judge (Atrocities), Bilaspur in Special Criminal Case No. 58 of 2000, whereby the Appellants have been convicted and sentenced to undergo R.I. for 4 years with fine of Rs.500/- under Section 450 of IPC, R.I. for 10 years with fine of Rs.500/- under Section 376(2)(g) of IPC and R.I. for 3 years with fine of Rs.500/- under Section 506(B) of IPC. In default of payment of fine amount, they were further required to undergo additional R.I. for two months. 2.

Case of the prosecution in brief is that the prosecutrix lodged an FIR (Exhibit D-2) on 31.7.2000 before Police Station Pali, District Korba, which was registered as Crime No. 157 of 2000, for the offence punishable under Sections 376, 506, 34 of IPC and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Castes (Prevention of Atrocities) Act, 1989 against the accused persons i.e., the Appellants herein. It was alleged by the Prosecutrix before the police authorities that about 18 days earlier i.e., on

-214.7.2000 when she was all alone at her residence during night time the two Appellants entered into the house and ravished her in turns and thereafter they fled away from the scene. However, because of fear of her husband and also a fear of being chased away from the house, the Prosecutrix did not inform anybody in respect of the said act. She finally gathered strength and intimated the same to her husband and later on lodged a report on 31.7.2000 i.e., after 18 days from the alleged date of incident. Based upon the said report, the police conducted an investigation and the Appellants were arrested and in due course of time a charge-sheet was filed before the appropriate Court having jurisdiction and the matter was thereafter put to trial where the case was registered as Special Criminal Case No. 58 of 2000.

3.

During the course of evidence, the prosecution examined as many as 15 witnesses and in rebuttal the defence examined one witness as DW-1. Finally, the Court below taking into consideration and relying on the evidence of the Prosecutrix and other witnesses, vide impugned judgment dated 20.12.2000 found the Appellants to be guilty of having committed the offence under Section 450, 376(2)(g) and 506(B) of IPC and upon conviction sentenced them as mentioned in paragraph 1 of this judgment. It is this judgment which is under challenge in the instant appeal. 4.

Since in spite of repeated opportunities there was no representation on behalf of the Appellants, this Court had requested Shri S.P. Sahu, Advocate, who is in the panel of the High Court Legal Services Authority, to put the case on behalf of the Appellants and to assist the Court in the disposal of the appeal.

5.

Shri S.P. Sahu, learned Counsel appearing for the Appellants, assailing the impugned order took the Court through the evidence of the

-3prosecution witnesses particularly the statements of the Prosecutrix and her husband PW-7 Bisahudas and the statement of PW-5 Sahu Ram, brotherin-law (Devar) of the Prosecutrix. Referring to the evidence of the Prosecutrix, Shri Sahu submits that the impugned judgment suffers from first, delay in the lodging of the FIR and secondly there is no proper convincing explanation provided for the delay in the lodging of the FIR. He further submitted that from the evidence which has come on record it clearly reflects that there was a political rivalry between the husband of the Prosecutrix with that of the two Appellants herein as both of them had been supporting a different a candidate in the Panchayat Elections held in the month of January, 2000 particularly the election for the post of Sarpanch.

Shri Sahu also refers to the statement of DW-1 Janiram who has categorically stated that there was a political rivalry between the parties and after the election for the post of Sarpanch held in January, 2000, the husband of the Prosecutrix had threatened the Appellants of dire consequences. In addition, the Counsel for the Appellants also took the Court through the medical evidence which has come on record suggesting that the case of the Prosecutrix is not proved medically.

Thus, for the aforesaid reasons, Counsel for the Appellants stressed hard on the fact that the Appellants in the present appeal have been falsely implicated and that the reason for false implication is the political rivalry between the husband of the Prosecutrix with that of the Appellants herein, and thus prayed that the prosecution has not been able to prove its case beyond reasonable doubt. According to the Appellants, the chain of circumstances which has been taken into consideration by the Court below while convicting the Appellants is not strong enough so as to believe whatever the Prosecutrix has stated is without doubt at all and therefore the Appellants are liable to be acquitted by setting aside the impugned judgment of conviction.

-46.

Shri S.R.J. Jaiswal, Counsel for the State, opposing the appeal submitted that it is a case where the prosecution has in fact proved its case beyond reasonable doubt by leading the evidence of as many as 15 witnesses before the Court below particularly the family members of the Prosecutrix as also the neighbours of the Prosecutrix all of whom have supported the case and the case thus has been established. Further, the State Counsel so far as the reply to the contention of political rivalry submits that the election in the region for the post of Sarpanch was held in the month of January, 2000 whereas the date of incident in the instant case is almost after 7 months and therefore by efflux of time the effect of that political rivalry would not had been in existence so as to falsely implicate the Appellants in the instant case.

He further referred to the statement of the Prosecutrix and submitted that in the course of the cross-examination also no such suggestive question has been put so as to substantiate the defence taken by the accused persons. The State Counsel also submits that the Court below has also relied upon the report received from the Forensic Science Laboratory which has found to be positive on the examination of the underwear worn by the two Appellants and also the underwear worn by the Prosecutrix on the date of incident.

In addition, he also referred to the statement of PW-3, Kanchan Bai, who has also explained in respect of the fact of the Prosecutrix immediately after the incident looked depressed which would further give an inference of the Prosecutrix undergoing much stress and trauma during the period immediately after the incident till it was lodged before the police authorities, and thus for all the aforesaid reasons prayed for the rejection of the appeal.

7.

Having considered the rival contentions put forth by the Counsel appearing on either side, it would be relevant at this juncture to refer to the statements made by the prosecution witnesses. The prime witness so as to

-5prove the case particularly for an offence under Section 376 of IPC would be the Prosecutrix herself. While perusing the statement of the Prosecutrix (PW-8) what comes out is that the FIR in the instant case was lodged for the first time on 31.7.2000 and in the FIR no fixed date of the incident has been reflected and so far as the date of incident is concerned the Prosecutrix has only stated that the incident has occurred about 18 days earlier. Another aspect which is to be borne in mind is that in the FIR she has stated that after the accused persons having committed the offence had fled from the scene she started abusing the accused persons and was crying loudly when her brother-in-law (Devar) had reached home but she did not inform him about the incident.

The brother-in-law also did not find anything wrong in the house nor did he find the Prosecutrix in a disturbed condition and everything appeared to be normal. Further, from the perusal of the deposition made by the Prosecutrix before the Court when compared to the statement that she had made in the FIR there are quite a few contradictions, omissions and also improvements in her version. In the FIR, she says that when her brother-in-law came she quietly went to sleep and in the Court statement she stated that when her brother-in-law came he saw her crying and therefore he asked her the reason for her crying. This is a material contradiction.

Likewise, in the FIR she says that for quite some time she did not had courage to speak anybody in the family about the incident, in the Court statement she has stated that immediately after a day she had confided her husband. Yet, the FIR was lodged after about 8-10 days, which again gives rise to an element of doubt. 8.

Another reason for doubting the story of the prosecution is the version of the Prosecutrix who in her cross-examination admits that there are around 100-150 houses surrounding her house. She also admitted the fact that the bedroom where she was sleeping was facing the road. Under

-6the said circumstances even if she would have raised an small alarm she could have easily gathered a large number of people at her residence to avoid the attack of the appellants-accused if any. Another factor which is hard to believe is the statement of the Prosecutrix that when the appellantsaccused were committing the crime she raised her voice to know as to who they were and they immediately lit a torch on their face to disclose their identity. This aspect for the purpose of identifying the accused persons is hard to accept for the reason that no accused person while committing the crime or before committing the crime would lit a torch on his face to disclose his identity to the victim.

9.

Another aspect which cannot be brushed aside is the fact that in the same year in January, 2000 just few months back the election to the post of Sarpanch was conducted. The husband of the Prosecutrix, PW-7 Bisahudas was supporting a candidate namely Santram whereas both the Appellants were supporting the another candidate namely Amritlal in the election of Sarpanch and the husband of the Prosecutrix and the present Appellants were canvassing for the two rival candidates is established from the statement of PW-7 Bisahudas as also from the statement of the defence witness, DW-1 Janiram. Yet another factor which creates a doubt in the mind of the Court is the fact that admittedly as per the version of the Prosecutrix and the prosecution witnesses, the FIR was lodged after more than 18 days.

The exact date of occurrence is not known to anybody yet the Prosecutrix states of having kept the clothes that she was wearing on the fateful night to be produced to the police authorities for the purpose of establishing the guilt against the Appellants. This fact is again something which is beyond comprehension and which does not usually occur in houses in a rural background.

-7residence she had disclosed about the incident, yet there is another 16 days gap in the lodging of the FIR the explanation of which is neither plausible nor satisfactory. PW-3, mother-in-law of the Prosecutrix, in her statement has stated that at her residence there are a large number of people residing. Still the Prosecutrix does not confide to any of the family members neither has her husband when he came to know about the incident confided to other family members which again is in itself an unnatural circumstances.

10.

In the event of there being so much of contradictions and omissions in the statement of the Prosecutrix and also there being so much of element of doubts created in the mind of the Court, the benefit of such doubts must go in favour of the accused persons. From the over all conduct of the Prosecutrix and her family members and the evidences which have come on record it appears that the Appellants have been falsely implicated so as to take revenge of the election that was held in January, 2000 where the Appellants had not supported the candidate to whom the husband of the Prosecutrix was supporting or at least such a possibility cannot be ruled out as there are chances of the present Appellants to be falsely implicated. 11.

The Jharkhand High Court in the case of Chinta Sinku v. State of Jharkhand, decided on 7.11.2007 in Criminal (Jail) Appeal No. 1515 of 2003, in some what similar background of the case under Section 376 of IPC held as under :

"7.

...The explanation for the delay does not appear to be convincing and satisfactory. The delay in lodging the F.I.R. and the conduct of the prosecutrix herself creates a reasonable doubt regarding the veracity of the statements. The benefit of doubt should certainly go to the appellant.

8.

The learned trial court appears to have been carried away by the statement of the prosecutrix, on the presumption that a lady is not expected to make false allegations of sexual assault against any person risking her own prestige, inviting social stigma. The trial court has apparently ignored the fact that the testimony of the prosecutrix does not have the intrinsic

-8quality of inspiring confidence for placing exclusive and implicit reliance. The finding of the guilt against the appellant is apparently not based on appreciation of the evidences in proper perspective.

9.

For the reasons discussed above, I find merit in this appeal. Accordingly, this appeal is allowed. The judgment of conviction and sentence for the offence under Section 376 of the Indian Penal Code is hereby set aside and the appellant is acquitted from the charge in respect of the said offence." 12.

Recently, the Supreme Court also in the matter of Md. Ali @ Guddu v. State of U.P., decided on 10.3.2015 in Criminal Appeal No. 2238 of 2010, dealing with the issue of delay in the lodging of the FIR by a rape victim in paragraph 21 held as follows :

"21.

Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. The delay in FIR, the nonexamination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.

True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial judge has erroneously convicted the accused-appellants for the alleged offences." 13.

The Supreme Court again in the case of Rajesh Patel v. State of Jharkhand, 2013 (3) SCC 791, in paragraph 23 held as under : "23.

The trial court as well as the High Court should have appreciated the evidence on record with regard to delay and not giving proper explanation regarding delay of 11 days in filing FIR by the prosecutrix and non-examination of the complainant witnesses viz. the doctor and the IO which has not only caused prejudice to the case of the appellant but also the

-9case of prosecution has created reasonable doubt in the mind of this Court. Therefore, the benefit of doubt must ensure to the appellant. As we have stated above, the testimony of the prosecutrix is most unnatural and improbable to believe and therefore it does not inspire confidence for acceptance of the same for sustaining the conviction and sentence." 14.

For the foregoing reasons, this Court is of the opinion that for the circumstances and the doubts that have been created as narrated in the preceding paragraphs, the prosecution has not been able to prove its case beyond all reasonable doubts which is required for conviction of the Appellants for the offence. Even the slightest doubt if created in the mind of the Court, the benefit of which should be given to the accused persons and thus for the series of doubts which have been crept in the mind of the Court in the circumstances in the preceding paragraphs, the Appellants are entitled for the benefit of doubt.

15.

Accordingly, the judgment of conviction and sentence passed against the Appellants does not sustain and deserves to be and is accordingly set aside. The Appellants are acquitted of the charges they were found to be guilty. The Appellants are on bail, therefore their bail-bonds shall remain in operation for a period of six months from today in view of provisions contained in Section 437-A of CrPC.

16.

Appeal allowed.

Sd/- (P. Sam Koshy) /sharad/ Judge