Chandra Kumar Chanuram and Others vs State of Chhattisgarh

Dilip Raosaheb Deshmukh, J.—This judgment shall govern Cr.A. No. 389/2004 (appellant Chandra Kumar), Cr.A. No. 388/2004 (appellant Arvind Shukla), Cr.A. No. 393/20Q4 (appellant Rajendra Namdeo) and Cr.A. No. 396/2004 (appellant Hiraram Sanwra @ Chhotu).

By judgment dated 12.04.2004 in Sessions Trial No. 347/2001 the above mentioned appellants have been convicted u/s 376 (2) (g) of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and a fine 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 Sections 450, 363 and 506B read with Section 34 of the I.P.C.

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.W.4 at her narration and lodged at Police Station, Ambikapur.

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 2 cm. lateral to medial border - red in colour - duration within 24 hours.

ii. Another small superficial abrasion just below the right elbow 1/2 cm x1/2 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 1 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.

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.

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. Sharma 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, 506B read with Section 34 and Section 376(2)(g) of the I.P.C.

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, 506B 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 paragraphs 8 and 9, the learned 2nd Additional Sessions Judge observed as under:

8& bl U;k;ky; us vkjksihx.k ds fuosnu ij vkjksihx.k us vf/koDrkvks vkSj ''kklu ds ,-th-ih- dh mifLFkfr esa fnukad 2&11&02 dks ?kVukLFky dk ekSdk fujh{k.k fd;k FkkA ftl dejs ess ?kVuk dh jkr izkfFkZ;k lks;h Fkh] ml dejs dk U;k;ky; }kjk Lor% voyksdu fd;k x;k Fkk A izkFkhZ ftl dejs esa lks;h Fkh og iVko okyk dejk Fkk A mlds �ij [kijk dh Nkuh Fkh vkSj ml dejs esa [kijs dks gVkdj fdlh dks ?kqlus dh laHkkouk ugh Fkh A izkFkhZ �v-lk- 1� mldh ekrk �v-lk- 3� rFkk mlds firk �v-lk- 2� ds lk{; dk lEiw.kZ voyksdu ls ;g fu"d"kZ fudyrk gS fd dksbZ vkjksih jkr dks izkFkhZ;k ds ?kj esa ?kqldj izkFkhZ;ka dk vigj.k fd;k Fkk] ;g ckr izekf.kr ugh gqbZ gSA

9& �ij crk;s x;s dkj.kks ls EkS bl fu"d"kZ ij igqapk gaw fd ?kVuk dh jkr dksbZ Hkh vkjksih izkFkhZ;k ds ?kj esa ?kqldj mlds lkFk cykRdkj djus ds fy, x`g vfrokj fd;k Fkk vFkok mldk O;igj.k fd;k Fkk] ;g ckr izekf.kr ugh gqbZ gS] vr% vkjksihx.k dks /kkjk 450@34 Hkk-n-fo- ds vijk/k ls nks"keqDr fd;k tkrk gSA

In paragraph 10, at the end the learned 2nd Additional Sessions Judge observed as under:

10& bu lHkh rF;ks ij fopkj djus ds ckn eS ;g ikrk gwa fd izkFkhZ;k ?kVuk ds le; 18 o"kZ ls vf/kd mez dh Fkh] izkFkhZ;ka ds ekrk firk is fy[ks gS A Ldwy esa izkFkhZ;ka dh tUefrfFk lgh fy[kkbZ x;h gksxh A vkjksihx.k ds fo:) /kkjk 363@34 Hkk-n-fo- dk vijk/k izekf.kr ugh gksrk gS D;ksfd og ?kVuk ds le; 18 lky ls vf/kd dh Fkh A vr% vjksihx.k dks /kkjk 363@34 Hkk-n-fo- ds vijk/k ls nks"keqDr fd;k tkrk gSA

In paragraph 40, the learned 2nd Additional Sessions Judge observed as under:

40& vkoj.k iz''u dzekad & 4 ij fu"d"kZ ds vk/kkj % izkFkhZ �v-lk- 1� ds lk{; dk ckjhdh ls voyksdu fd;k tkos rks cykRdkj ds le; mls tku ls ekjus dh /kedh nsdj mls Mjk;k x;k Fkk] bl laca/k esa dksbZ rF; mlds lk{; esa ugh vk;k gS A nwljh ?kVuk ds le; izkFkhZ;ka dk gkFk rksM+us dh /kedh nsus dk RkF; vk;k gS] fdarq izFkhZ;k ds nLr[kr okyk mDr i= vfHk;kstu us is''k ugh fd;k gS A lkFk gh vkjksih ukenso us izkFkhZ;ka ds xys es xeNk cka/kdj mldks Qkalh yVdk;sxk vkSj mlds eka cki dks tsy Hkst nsxk ,slk rF; vk;k gS] fdarq mlh le; izkFkhZ;k ds ekrk&firk vk x;s Fks ftlls vkjksihx.k Hkkx x;s Fks A bu lc vk/kkj ij eS ikrk gwa fd izkFkhZ;k dks tku ls ekjus dh /kedh nsdj Mjk;k x;k Fkk ;g ckr izekf.kr ugh gqbZ gS] vr% vkjksihx.k dks ''kadk dk ykHk nsrs gq, /kkjk 506�ch� Hkk-n-fo- ds vijk/k ls nks"keqDr fd;k tkrk gSA

In paragraph 36, the learned 2nd Additional Sessions Judge observed as under:

---izkFkhZ;k Lor% izse es ikxy gksdj jkr dks vkjksih NksVw ds ikl pyh x;h Fkh vkSj rc mlds lkFk cykRdkj gqvk Fkk] vr% Lor% dh xyrh ds dkj.k og u rks ?kVuk ds le; fpYykbZ Fkh vkSj mldh eka vk;h rc Hkh jksbZ fpYykbZ ugh Fkh vkSj tks Lor% dh xyrh ds dkj.k izkFkhZ;k vkSj mlds ekrk&firk igyh ?kVuk dh fjiksZV ugh dj jgs Fks fdarq vkjksihx.k us nwljh ?kVuk dkfjr dj nh rc fjiksZV dh x;h Fkh] vr% mlds ''kjhj esa vkSj xqIrkax esa u pksV vkus vkSj ?kVuk ds le; u fpYykus ds vk/kkj ij izFkhZ;k ds lk{; ij vfo''okl djuk eS U;k;ksfpr ugh le>rk gwaA

In paragraph 37 the learned 2nd Additional Sessions Judge relied stronly 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.

---iz- ih- 27] 28] 29 ds nLrkostks ls Li"V gS fd izkFkhZ dh pM~~Mh vkSj xqIrkax ls cuk;s x;s LykbZM dks ,Q-,l-,y- lkxj Hkstk x;k Fkk vkSj jkT; U;k;kyf;d foKku iz;ksx''kkyk us iz- ih- 29 dh fjiksZV nsdj cryk;k gS fd izn''kZ&, vkSj ch&1 vkSj ch&2 esa oh;Z ds /kCcs vkSj ekuo ''kqdzk.kq ik;s x;s gSA vFkkZr~ izkFkhZ;k dh pMMh vkSj mlds xqIrkax ls cuk;s x;s LykbM es ekuo ''kqdzk.kq ik;s x;s Fks vkSj ?kVuk fnukad 30&8&01 ds jkr dh gS vkSj izkFkhZ;k dh MkWDVjh ijh{k.k pkj fnu ckn fnukad 3&9&01 dks fd;k x;k gS A bl izdkj izkFkhZ;k ds lkFk ?kVuk dh jkr laHkksx gqvk Fkk ;g izekf.kr gqvk gSA

In paragraph 37, the learned 2nd Additional Sessions Judge also observed as under:

---lkFk gh izkFkhZ nqcyh&iryh gksus ds dkj.k ''kk;n izseh NksVw ls Lor% feyus x;h Fkh] rc ?kVuk gqbZ Fkh] vr% izkFkhZ;k ?kVuk ds igys vkSj ?kVuk ds ckn fpYykbZ ugh Fkh lkFk gh izkFkhZ;k vkjksih NksVw ls izse djrh Fkh A dqvkjh yM+dh vius izse dks lekt ls vkSj ekrk&firk ls Nqik;s j[krh gS A ;fn og izseh ls laHkksx djkrh Hkh gS rks mldks Hkh og xqIr j[krh gS A ''kk;n og NksVw ls iwoZ esa Hkh ''kkjhfjd laca/k cukrh Fkh] fdUrq mlus ml rF; dks Nqik;s j[kus ds fy, Lor% dks iwoZ esa laHkksx u gksuk cryk fn;k] blfy, og laHkksx dh vknh gksuk ik;h x;h gS A blfy, gh pkjks vkjksih;ks }kjk laHkksx djus ds dkj.k pksVs ugh gS A blfy, Hkh vkjksihx.k dk mDr cpko fujFkZd gks tkrk gS

On the basis of the above findings, the learned 2nd Additional Sessions Judge while acquitting the appellants from the charge under Sections 450, 363, 506B read with Section 34 of the I.P.C. convicted all the appellants u/s 376(2)(g) of the I.P.C. and passed sentence as shown in paragraph 2 (supra).

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.

Shri G.D. Vaswani, learned Government Advocate argued generally in support of the impugned judgment and submitted that the prosecutrix P.W.I, 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.I 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 Nos. l 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.

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. oh 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 u/s 376 (2)(g) of the I.P.C.

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 as under:

48& ;g dguk lgh gS fd eS fjiksVZ fy[kkrs le; dsoy ,d vkneh dk uke cykRdkj djus okyks esa crk;k Fkk A ;g duk lgh gS fd tc eS fjiksZV fy[kkus xbZ Fkh rks ckdh rhu vkjksih MkaVs vkSj /kedk;s Fks] blfy, eS rhuks vkjksih;ks dk uke cykRdkj djus okyks es fy[kk nh Fkh fQj xokg dgrh gS eq>s lansg gqvk fd ckdh rhu vkjskih Hkh cykRdkj fd;s gksxs blfy, eSus mudk uke fy[kk nhA

In paragraph 52, the prosecutrix stated as under:

52& ;g dguk xyr gS fd eS tgka fjiksZV fy[kh xbZ Fkh ogka vkjksih NksVw dk uke ugh fy[kkbZ FkhA ;g dguk lgh gS fd eq> tc jkr dks esjs ?kj ls mBkdj ys tk;k x;k Fkk rc eq>s irk ugh pyk Fkk fd eq>s dkSu mBkdj ys x;k gS A ;g dguk lgh gS fd eq>s lqcg&lqcg gks''k vk;k FkkA ;g dguk xyr gS fd bl chp dkSu esjs ls D;k fd;k eS mudks ugh igpkurh A xokg Lor% dgrh gS fd eS vjksih NksVw dks igpkurh gwWa A tc eq>s mBkdj ys tk;k x;k rc eS csgks''k ugh Fkh esjs vka[k eas iV~Vh ca/kk Fkk tc dejs esa esjk vka[k [kksyk x;k rks ogka ij vkjksih NksVw dks ns[kh Fkh ogka ij vkSj dksbZ ugh Fkk ml dejs eas vkSj dksbZ ugh FkkA

In paragraph 58, the prosecutrix stated as under:

58& ---;fn iz-ih- 1 fjiksZV esa NksVw ds vykok fdlh vU; vkjksih dk uke fy[kk gS rks oks Hkwy ls fy[kk x;k gS A ;g dguk lgh gS fd iz-ih- 1 dh fjiksZV esa eSus esjs lkFk ckjh ckjh ls dqdeZ fd;k x;k eSus fy[kk;k gS A xokg Lor% dgrh gS fd esjs lkFk NksVw cykRdkj fd;k rks eS csgks''k gks xbZ ckn es dksbZ vkSj cykRdkj fd;k gksxk rks eS ugh tkurhA

In paragraph 70, the prosecutrix stated as under:

70& ---xokg Lor% dgrh gS fd EkS rhu vkjksih;ks dks ''kd ds vk/kkj ij fjiksZV dh ftl ij os yksx can gS ;g dguk lgh gS fd esjh fjiksZV ij U;k;ky; esa mifLFkr pkjks vkjksih ,d lky ls can gS bldh tkudkjh eq>s gS A fiNyh ckj tc eS xokgh nsus vk;h Fkh eq>s ;g ugh ekywe Fkk fd ''ks"k rhuks vkjksih ?kVuk esa ugh Fks A igyh xokgh nsus ds ckn esjh ekrk&firk ls ckr gqbZ rks mUgksus dgk fd ''kadk ds vk/kkj ij fdlh dks Qalkuk ugh pkfg, ftl ij ''kadk u gks mldks ugh Qalkuk pkfg, fQj eq>s irk pyk fd rhuks yksx funksZ"k gSA

In paragraph 72, the prosecutrix has made an attempt to implicate constable Tuleshwar and Jaipal also while deposing as under:

72& ---;g lgh gS fd eS fjiksVZ es ukenso dk uke ''kd ds vk/kkj ij fy[kkbZ gS D;ksfd og Fkkus essa eq>s MkVk Fkk rks eS le>h fd ogh jgk gskxk A Fkkus esa rqys''oj vkSj t;iky Hkh feys Fks os yksx Hkh iqfyl okys gS A ;g dguk lgh gS fd rqys''oj vkSj t;iky dk uke Hkh ''kd ds vk/kkj ij fy[kkbZ gwa A ;g dguk lgh gS fd eS cgqr ls iqfyl okyks dks tkurh gwWa D;ksfd eS Fkkuk ds cxy esa jgrh gwWaA

In paragraph 77, the prosecutrix stated as under:

77& eS iz-Mh- 1 ds iqfyl c;ku nsrs le; pkj yksx esjs lkFk ckjh ckjh ls cykRdkj fd;k gS fy[kkbZ gwW og ''kadk ds vk/kkj ij fy[kkbZ gwWa xyr gS esjs lkFk ,d vkjksih cykRdkj fd;k gS A esjs iqfyl c;ku es cykRdkj ds le; nks vkneh dejs esa Fks vkSj nks vkneh dejs ds ckgj Fks og ''kadk ds vk/kkj ij fy[kk;k x;k gSA

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:

93- eS iwoZ esa fyf[kr fjiksZV esa vkSj iqfyl c;ku esa rFkk U;k;ky; esa eq[; ijh{k.k nsrs le; pkjks vkjksih ckjh ckjh ls esjs lkFk cykRdkj fd;s rFkk ckn esa QksVks [khps vkfn crk;h gwaW vkSj vkt dsoy ,d vkjksih ds fo:) ckr crk jgh gwaW nksuks esa ls dkSu lh ckr lp gS iwNs tkus ij xokg crkrh gS fd vkt tks crk jgh gwwa ogh ckr lp gSA

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 presence 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.

In paragraph 45, the prosecutrix stated as under:

45& ---;g dguk lgh gS fd ?kVuk dh jkr esjs ?kj dkSu ?kqlk dSls mBkdj ys x;k eq>s irk ugh pyk A ;g dguk lgh gS fd jkr dks eq>s mBk dj ys x;k fdl LFkku ij cykRdkj fd;k x;k eq>s irk ugh pyk lqcg irk pyk A

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 u/s 376 (2)(g) of the I.P.C. cannot be ruled out.

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 paragraph 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.

As regards the F.I.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:

5& ---fQj ge yksx 3 thi esa xkao ds djhc ipkl yksx vafcdkiqj esa jktdqekj xqIrk ds ?kj tks dfN;k dk jgus okyk gS] tks pyxyh dk {ks=h; usrk gS A fQj mudks lkjh ?kVuk crk;s Fks A fQj oks ge yksxks dks ysdj ,l-ih- ds ;gka x;k] ,l-ih- ml le; lfdZV gkml esa Fkk] mldks ?kj ugh feyk Fkk A ,l- ih- dks jktdqekj us ?kVuk crkbZ Fkh D;ksfd yM+dh dk firk dqN crk;k Fkk mldh ifRu dqN crkrh Fkh vkSj mldh yM+dh dqN vkSj crkrh FkhA (underlined by me) fQj jktdqekj us dgk fd mu rhuks dh ckr ds vk/kkj ij rqe ,l- ih- dks ?kVuk crkvks fQj eS ,l-ih- dks iwjh ckr ?kVuk crk;k A

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:

38& ---jktdqekj us tSlk crk;k Fkk oSlk gh eSus iz-izh- 1 dh fjiksZV esa b ls b Hkkx esa fy[k fn;k Fkk A izFkhZ;k ml le; pqipki cSBh gqbZ Fkh A ;g dguk lgh gS fd iz- ih- ds fy[kus esa izkFkhZ;ka dh lgefr ugh Fkh A xokg Lor% crkrk gS fd mlds ekrk firk us tSlk crk;k Fkk oSlk gh fy[kk x;k FkkA

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:

9& ;g dguk lgh gS fd izkFkhZ;ka ds fy[ks x;s i= dks idj rFkk tkap ds }kjk eSus ;g ik;k fd izkfFkZ;k ghjk ls cgqr I;kj djrh Fkh vkSj fdlh Hkh lwjr es mlls ''kknh djuk pkgrh Fkh A ;g dguk xyr gS fd xkao ds yksx ghjk vkSj izkfFkZ;k ds izse ds ckjs esa tkurs Fks A ;g dguk lgh gS fd ?kVuk ds ckn lekpkj if=dk esa lR;dFkk vkfn esa ghjk vkSj izkFkhZ;k ds izse dgkuh cykRdkj esa cnyh ,slk Nik Fkk A ;g dguk lgh gS fd iz-Mh- 7 vkSj 8 dk lekpkj i= vkSj if=dk eas Nih cykRlax esa cnyk izse izlax dh ?kVuk vkjksih ghjk vkSj izkFkhZ;k ls gh lacaf/kr gS A

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.

I 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 Sections 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.

In paragraph 22 of his testimony, Anil Singh P.W.4 stated as under:

22& ---;g dguk lgh gS fd jktdqekj xqIrk ds dgus ls panzdqekj jktiwr dk uke fjiksZV esa tksM+k x;k gS A Lor% dgrk gS fd jktdqekj xqIrk us Li"V fd;k Fkk fd pwafd lHkh vkjksih vuqik dks mBkdj ys x;s Fks vkSj og vijk/k Hkh xaHkhj gS blfy, pUnzdqekj dk uke lHkh vkjksihx.k esa tksM+ nsA

In paragraph 26, this witness further stated as under:

26& iz-ih- 1 dh fjiksZV esa vuqik mldh ekrk] firk ;k jktdqekj es ls fdlds dgus ls fy[ks gks rks iwNs tkus ij xokg crkrk gS fd iz-ih- 1 fjiksZV esa jktdqekj xqIrk ds dgus ls fy[kk gwaW A jktdqekj dks ?kVuk dh tkudkjh izkFkhZ;k mldh ekrk ,oa firk ,oa xkao okyks ds crkus ls gqbZ Fkh] ?kVuk ds fnu jktdqekj xqIrk ?kVuk LFky pyxyh esa ugh Fks vfEcdkiqj esa FksA

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:

52& ;g dguk lgh gS fd caxkyh vkSj mldh nksuks iRuh yksxks dks vkijkf/kd ekeys Qalkrs jgrs gS vkSj ?kVuk ds iwoZ Hkh Qalk;s gS A ;g dguk lgh gS fd caxkyh Fkkuk esa fjiksZV fy[k nsrk gS vkSj iSlk ysdj ekeyk okil ysrk gS A xokg Lor% dgrk gS fd ,l-Mh-,e- lkgc ds lkFk mldk ,d ,slk ekeyk Fkk ckdh ds ckjs esa mls tkudkjh ugh gSA

53& ;g dguk lgh gS fd eSus xkao esa ;g lquk gwWa fd caxkyh vkfn us rFkk mlds okyks us igys tks fjiksZV vkSj xokgh nh Fkh mldks blh ekeys es ckn es os yksx cny fn;s gSA

54& dfN;k okyk jktdqekj izHkko''kkyh usrk gS A og QzkM O;fDr gS fd ugh eS ugh crk ldrk A ;g dguk lgh gS fd iwoZ es eS ;g crk;k gwWa fd yMdh ds cSBs jgrs gq, jktdqekj ds dgus ls fjiksZV fy[kkbZ x;h og lgh gS A eS iz-ih- 1 dh fjiksZV fy[kus ds igys dgk Fkk fd yMdh vkSj mlds ifjokj ds yksx is gS mUgh ls fjiksZV fy[kokvks A ;g dguk lgh gS fd jktdqekj ds izHkko ds dkj.k ,oa ncko ds dkj.k eS tks ckr ugh fy[kuk pkgrk Fkk og Hkh iz-ih- 1 esa fy[kkA

Anil Singh P.W.4, on being asked by the Court, stated in paragraphs 65 and 67 as under:

65& eS iz-ih- 1 dh fjiksZV fy[krs le; fjiksZV fy[kus ls euk fd;k Fkk fdUrq jktdqekj xqIrk ds dgus ls fjiksZV fy[kuk iM+kA

67& tc iz-ih- 1 dh fjiksZV fy[kdj okil vk;k rks xkao ds yksxks tks tkudkjh feyh mlds vk/kkj ij dgrk gwW vkjksihx.k funksZ"k gSA

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 supra. The incident had allegedly occurred on 30th August, 2001. Thereafter, the prosecutrix was examined on the 5th day 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.

Anil Singh P.W.4 has further stated in paragraph 3 as under:

3& eSus lkspk fd yM+dh dh xyrh ds dkj.k ''kk;n yM+dh dk firk mlds lkFk ekjihV dj jgk gksxk rc eS nkSMdj yM+dh ds ?kj x;k mldk ?kj esjs ?kj ds iM+ksl es gS nksusk ds ?kj es chp dh nwjh 20&25 ehVj gksxh A tc eS yM+dh ds ?kj x;k rks ns[kk fd yM+dh iyax ij lksbZ Fkh vkSj jks jgh FkhA

In paragraph 29, this witness further stated as under:

29& izkFkhZ;k ls ge yksx vyx ls iwNs Fks fd D;k ?kVuk ?kVh rc yM+dh ds firk us gekjs lkeus mldks /kedh nh Fkh fd lkyh rw lp lp cksyuk ugh rks rsjs dks dkV nwaxk A rc yM+dh us mlds lkFk pkj yksxks us cykRdkj fd;k Fkk crykbZ Fkh A

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:

---?kj igqapus ds ckn ifjokjtuks }kjk u dsoy mlds lkFk ekjh&ihV dh xbZ cfYd nksckjk ,slk djus dh fLFkfr esa mls [kM+h psrkouh nh x;h@yM+dh ds ''kjhj ij ij vkaf''kd rkSj ij mHkj vk;s pksVks ds fu''kkuas ns[kdj ?kjokyks dh izrkM+uk dk vankt lgtrk ds lkFk yxk;k tk ldrk gS A

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 Hiraram. It was also observed by the learned 2nd Additional Sessions Judge that the possibility that the prosecutrix had prior sexual relationship with Hiraram 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.

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 u/s 376(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 Hiraram 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 Hiraram with her consent can also not be ruled out. In this view of the matter, the prosecution has failed to bring home the guilt u/s 376(2)(g) of the I.P.C. against all the appellants beyond the shadow of reasonable doubt.

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 u/s 376(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 u/s 376 (2)(g) of the I.P.C. after giving them the benefit of doubt.

Omission of the name of the prosecutrix, her father and mother in the portions extracted from the evidence on record and also in the judgment is to hide their identity.

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.