Mohammad Aslam and Others vs State of C.G.

R.N. Chandrakar, J.—The Appellants being aggrieved by the judgment dated 2-12-2003 passed in Sessions Trial No. 285 of 2003 by the learned Additional Sessions Judge, Baikunthpur, Distt. Koriya, convicting the Appellants for the offence punishable u/s 376(2)(g) of the IPC and sentencing them to undergo R.I. for ten years and to pay fine of Rs. 1000/- to each, in default of payment of fine, to undergo two months further R.I., have filed this appeal.

The case of the prosecution as unfurled before the trial Court, in brief, is that on 26-6-2003 the prosecutrix Gulabi Bai @ Madhu Gosain went to the shop of Pappu Tailor for stitching the blouse. At that time the accused persons, who were present in the shop, started teasing her on which she abused them. While she was going to the house of her friend, on the way, all the accused persons met her and dragged her towards the stream in the forest. Thereafter, all the accused persons committed forceful sexual intercourse with her. Accused Niyaz assaulted her with a stick as a result of which the prosecutrix sustained injury on her left thumb. Thereafter, the prosecutrix went to Police Station and lodged the report against the accused/Appellants, on the basis of which Pradyumn Tiwari (PW/13) Station House Officer registered the FIR (Ex/P/1) and the matter was investigated and he arrested the accused persons. The prosecutrix was sent to hospital for medical examination. The Police seized the petticoat and underwear of the prosecutrix and sent the same to FSL, Raipur, for chemical examination.

After completing the investigation, charge sheet was filed against the accused/Appellant in the competent court;, which in turn, committed the case to the Sessions Court. The Additional Sessions Judge framed the charge against the accused/Appellants u/s 376(2)(g) of the IPC. The accused/Appellants abjured the guilt. After due trial, the learned Additional Sessions Judge convicted and sentenced the accused/Appellants as mentioned in para 1 of the judgment.

After recording the evidence of witnesses, the statement of the accused/ Appellants were recorded u/s 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them and pleaded their innocence and false implication.

Learned Counsel appearing for the Appellants submit that the trial Court en-ed in convicting the Appellants. The trial Court has failed to consider the admission of the prosecutrix Gulabi Bai (PW/4) where she, in clear terms had admitted that the accused persons present in the court were not the real culprits. The learned trial Court has further erred in convicting the Appellants only on the basis of FIR though neither the FIR is a substantive piece of evidence nor the accused persons can be convicted on the facts mentioned therein in absence of other cogent evidence. The trial Court failed to consider that Gulabi Bai (PW/4) had mentioned in clear terms that she had not named the accused persons in FIR. Learned Counsel further submit that the trial Court failed to consider that even before the Court, the prosecutrix clearly stated that the accused persons present in the court had not committed rape on her. The trial Court should have seen and held that Gulabi Bai (PW/4) had admitted that the FIR was reduced in writing by the Station House Officer and the same was not read over to her.

It is further submitted that the trial Court should have seen and held Dr. Smt. Laxmi (PW/5) in her deposition had categorically stated that she had not found any signs of rape on the prosecutrix. It is also contended that the trial Court should have seen and held that the Station House Officer Pradumn Tiwari (PW/13) was having enmity with the Appellants as they were working in the newspapers and were responsible for some of the news clippings against him. The trial court should have seen that most of the prosecution witnesses had not supported the prosecution story. The trial court failed to consider that the prosecution has utterly failed to prove the guilt of the Appellants. The trial court has arrived to the conclusions on the basis of presumption and surmises. The trial court has completely ignored the provisions of Sections 59 & 60 of the Indian Evidence Act. Learned Counsel lastly submits that considering all the facts and circumstances of the case, the judgment of conviction and order of sentence passed by the trial Court be set aside and the accused/Appellant be acquitted of the charges.

Per contra, learned Counsel appearing for the Respondent/State argued the matter in support of the impugned judgment of the lower Court.

Having heard learned Counsel for the parties, I have perused the records of the trial Court and also the impugned judgment.

In order to prove the guilt against the accused/Appellants, the prosecution examined 14 witnesses.

PW/4 Gulabi Bai, the prosecutrix denied to identify the accused persons present before the court and deposed that though the rape was committed on her, but the accused persons were not amongst the persons who committed the offence with her. She further corroborated the whole story and admitted the FIR (Ex. P/8) but denied that the FIR was read over to her. She was declared hostile and put to the leading questions by the prosecution in which also she denied to mention the names of the accused/persons in the FIR. She categorically stated in para 4 that except the names of the accused/persons, all the facts mentioned in the FIR were written as were narrated by her. On pointing towards the accused persons before the court by the prosecution, she categorically stated that none of them was amongst the persons who committed rape on her. In her cross examination, she admitted that she had told the Police that she did not identify the accused persons. On this, the Station House Officer asking her to sit there went away and returned after an hour. Thereafter, the Station House Officer wrote the report and obtained her signatures on it. She clearly stated that the names of the persons written in the FIR were not read over to her. Thus, the statement of the prosecutrix is incredible being deviated from the soul of the FIR as she has clearly and categorically denied to mention the names of the accused persons in the FIR.

PW/1 Rajaram and PW/2 Santra Bai, parents of the prosecutrix also turned hostile and did not support the prosecution case. Both the witnesses stated that the incident was informed to them by the Police. In the leading questions put to them, they denied almost all the suggestions and admitted that the prosecutrix had not disclosed the names of the accused persons to them. They also denied to give any statement to the Police. Thus, their statements also loose the credibility.

PW/14 Shaukhi Giri stated in his deposition that he knew the prosecutrix Gulabi Bai as she was residing in his house. He also stated in para-3 that the father of the prosecutrix asked him to accompany to the Police Station, but it was not stated out to him that all the four accused persons committed rape on his daughter. He further stated that it is wrong to say that in Police Station, prosecutrix Gulabi Bai stated to him that accused persons Aslam, Harun Rasid, Niyaz Ahmad and Pappu had committed rape on her in forest. Thus, this witness has also not supported the prosecution story.

PW/3 Dr. Vinay Jaiswal stated in his deposition that he examined the accused Pappu @ Bhrigunath s/o. Rampyare and gave his report vide Ex. P/7 wherein he found that there was no sign of impotency of the accused and he was capable to perform sexual intercourse. He also stated that he has not found any injury on the body of the accused.

PW/5 Dr. Smt. Laxmi who examined the prosecutrix stated in her testimony that she gave her report Ex. P/8 & Ex. P/9 and opined that the prosecutrix was habitual to sexual intercourse and no definite opinion could be given regarding forceful sexual intercourse. Even she did not found any external or internal injury on the body of the prosecutrix. Thus, the medical evidence also does not support the prosecution case. The doctor prepared slides of the vaginal fluid of prosecutrix and advised for its chemical examination, but no report of FSL was produced in this case.

PW/6 is the Patwari who prepared the spot map Ex. P/10. PW/8 Rajendra Tiwari, PW/9 Heera Singh, PW/10 Deepak Kumar, PW/11 Tularam and PW/12 R.P. Kujur are the seizure witnesses who turned hostile. Their evidence are not material looking to the evidence of the prosecutrix and her parents.

PW/13 Pradyumn Tiwari, Station House Officer recorded the FIR and investigated the case. Though he supported the case of the prosecution, his evidence is also of no value in the light of the testimony of the prosecutrix who denied to name the accused persons in the FIR as also to identify them before the Court.

Hon''ble the Supreme Court in Viswanathan and Others Vs. State rep. by Inspector of Police, Tamil Nadu, , observed that the allegations made in the first information report are not evidence. In the absence of any test identification parade having been held or the accused persons having been identified in court, they cannot be convicted.

The case in hand also, the prosecutrix denied to identify the accused persons in court. So far as naming the accused persons in FIR is concerned, the prosecutrix, in her deposition categorically denied to mention their names in the FIR.

Hon''ble the Supreme Court in Radhu v. State of M.P. (2007) 12 SCC 5 observed that if the evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence, it requires to be corroborated by other witnesses.

In the instant case also there are gaps and several discrepancies in the evidence of the prosecutrix and her statement is not corroborated even by her parents. Apart from this, her evidence is not corroborated by the medical evidence also.

Considering all the facts and circumstances of the case and on perusal of the record, it is crystal clear that the prosecutrix and almost all the witnesses of the prosecution have turned hostile and have not supported the case of the prosecution. It appears that the learned trial Court convicted the accused/Appellants on presumption and relying upon the incredible evidence of the prosecutrix which is not corroborated either by her parents or by medical evidence. The trial Court failed to consider that the suspicion, though strong, cannot take place of proof. In the instant case, the prosecutrix herself denied to identify the accused persons in court as well as she also denied to disclose the names of the accused persons to the Police at the time of lodging the FIR and they cannot be convicted only on the basis of FIR which is not a substantive piece of evidence. Thus, the prosecution has utterly failed to establish the case against the accused/Appellants beyond all reasonable doubt as they were not identified by the prosecutrix and the statement of the prosecutrix does not inspire confidence being incredible.

In the light of settled principles of law laid down by Hon''ble the Supreme Court and for the foregoing premises, this appeal is allowed. The impugned judgment is set aside and the Appellants are acquitted of the charge u/s 376(2)(g) of the IPC. They shall be set at liberty forthwith, if not required in any other case. Their bail bonds shall stand discharged. The fine amount, if paid, be refunded to the Appellants forthwith.