Sushil Goswami vs State of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal, under Section 374(2) of CrPC, has been preferred by the two appellants herein questioning the legality, validity and correctness of the judgment of conviction and order of sentence dated 21.12.2015 passed by Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Jashpur in Special Case No.29/2014, by which both the appellants have been convicted and sentenced in the following manner:-

Conviction

Sentence

U/s 376D/34 of IPC

R.I.   for   20   years   and   fine   of Rs.10,000/-          in          default whereof,  additional  R.I.  for  10 months.

U/s 506(II)/34 of IPC.

R.I   for   3   years   and   fine   of Rs.3000/-   in   default   whereof, additional R.I. for 3 months.

U/s 327/34 of IPC

R.I.   for   5   years   and   fine   of Rs.5000/-   in   default   whereof, additional R.I. for 5 months.

All sentences have been directed to run concurrently.

It would be relevant at this juncture to mention here that apart from the aforesaid offences, the two appellants herein were previously also charged with the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'Atrocities Act'). However, the said offence under the Atrocities Act was not found proved by the trial Court and, accordingly, the trial Court by the impugned judgment acquitted both the appellants from the said offence.

Case of the prosecution, in nutshell, is that on 7.3.2014 at about 7:00 p.m. in the evening at Village Bataikela under Police Station Kansabel, District Jashpur, the two appellants herein, in furtherance of their common intention, committed gang rape with prosecutrix (PW-4), threatened her to death and also voluntarily caused hurt to her; thereby committed the aforesaid offences.

Further case of the prosecution is that on 7.3.2014 at about 7:00 p.m., prosecutrix (PW-4) was standing at bus-stand Bagicha waiting for some means of transport to reach her home, as the bus which used go via her village Kalia had already departed. At that time, the two appellants herein came there and offered to leave her at village Kalia on their motorcycle and, acceding to their offer, she boarded on their motorcycle. However, instead of going towards her village Kalia, the appellants moved their motorcycle towards Kansabel road and thereafter they took her to the forest at Bataikela where they committed sexual intercourse with her. Subsequently, they took her to a dhaba (food stall) at Kansabel to have dinner and from where she somehow managed to get rid of their custody and reached to the shop of Amit Parik (PW-5) to whom she narrated about the incident that had happened with her and thereafter reported the matter to police, pursuant to which FIR (Exhibit P-13) was registered against the two appellants herein for the said offences. She was medically examined by Exhibit P-1 in which two abrasions were found on her body – one on her neck and another one on just above her left eyebrow. Both the appellants were also medically examined vide Exhibits P-5 & P-6 and Exhibits P-7 & P-8 respectively. Though certain articles were seized and sent for chemical examination to the FSL, but no FSL report has been brought on record. Statements of the witnesses including the prosecutrix were recorded under Section 161 of CrPC. Thereafter, the appellants were arrested.

After completion of investigation, the appellants were charge-sheeted for the offences punishable under Sections 376D, 506(II), 376/34 of IPC and Section 3(2)(v) of the Atrocities Act and the matter was put to trial before the Court of Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Jashpur, in which the appellants abjured their guilt, pleaded innocence and claimed to be tried.

During the course of trial, in order to bring home the offence, prosecution has examined as many as 10 witnesses and exhibited 34 documents. However, in defence, neither any witness has been examined nor any document has been exhibited. Statements of the appellants were recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication.

After conclusion of the trial, the trial Court, by the impugned judgment dated 21.12.2015, on appreciation of oral and documentary evidence available on record, while acquitting the two appellants herein for the offence punishable under Section 3(2)(v) of the Atrocities Act, convicted them for the offences punishable under Sections 376D, 506(II), 376/34 of IPC and sentenced them as mentioned in para-1 of this judgement. Feeling aggrieved and dissatisfied by the said judgment of conviction and order of sentence, the present appeal has been preferred jointly by the two appellants herein.

Mr. V.A. Goverdhan, learned counsel appearing for the appellants, would submit that the two appellants herein have been falsely implicated as there is no evidence except for the statement of prosecutrix (PW-4) which also cannot be said to be reliable and trustworthy in absence of any corroborative piece of evidence either oral/documentary or medical, in light of the decision of the Supreme Court rendered in the matter  of  Dola  alias  Dolagobinda  Pradhan  and Anr. v. State of Odisha AIR 2018 SC 4020. As such, prosecution has failed to bring home the said offences beyond reasonable doubt and therefore appeal deserves to be allowed by acquitting the two appellants herein on the basis of benefit of doubt.

On the other hand, Mr. Afroz Khan, learned Panel Lawyer, would submit that prosecution has been able to bring home the offences beyond reasonable doubt and therefore the two appellants herein are not entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be dismissed.

We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

Admittedly, the case of prosecution is based on sole testimony of prosecutrix (PW-4) who was a major girl, aged about 20 years, on the date of incident. She was medically examined vide Exhibit P-1 by Dr. Rosa Toppo (PW-1) who found two abrasions on her body –one on the left side of her neck and the another one on just above her left eyebrow, except for that there were no injuries found on the person of prosecutrix (PW-4). Though it is said that vide Exhibit P-34, slides and other seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur on 29.5.2014, but for the reasons best known to prosecution, no FSL report has been brought on record.

The conviction of the two appellants herein is solely on the basis of testimony of prosecutrix (PW-4). The Supreme Court in the matter of Dola (supra) has held that if the version of prosecutrix is found to be credible and consistent, the same would form the basis of conviction and corroboration is not sine qua non for conviction in a rape case and observed in para-5 as under:-

“5. It is well settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in Court that she was raped, it is not the proper judicial approach to disbelieve her outright.”

Now, the question is, as to whether the evidence of prosecutrix (PW-4), who was major on the date of incident, is reliable and trustworthy which the trial Court has found proved and on that basis proceeded to convict the two appellants herein for the offence of gang rape.

Prosecutrix (PW-4) has clearly stated before the Court that on the date of incident, she was standing at Bagicha bus-stand waiting for bus to go to her village Kalia, as the regular bus for village Kalia had already departed. All of a sudden, the two appellants herein came there on a motorcycle and enquired from her as to why she is standing there and she then told them the reason. Thereafter, the appellants asked her to go along with them on their motorcycle and they will drop her to village Kalia, to which she agreed and boarded on their motorcycle sitting in between the two appellants. Appellant No.1 - Sushil Gowami was driving the motorcycle and prosecutrix was sitting in the middle before appellant No.2 - Rajesh Goswami. However, instead of taking the prosecutrix to her village Kalia, the appellants took her towards Kansabel road and thereafter they took her to the forest of Bataikela where the two appellants herein are said to have committed sexual intercourse with the prosecutrix one by one. Subsequently, they reached at a dhaba in Kansabel, owned by Amit Khosla (PW-9), and as soon as the appellants entered in the dhaba for having their dinner, the prosecutrix taking the advantage of the situation is said to have succeeded to escape from the clutches of the appellants and reached to a nearby shop owned by Amit Parik (PW-5) to whom she narrated about the incident that had happened with her and he took her to Kansabel where she lodged the report at police station vide Exhibit P-13. Thereafter, the wheels of investigation started running which has been accepted by the trial Court.

The said statement of prosecutrix (PW-4) has been seriously questioned on behalf of the appellants stating that her version is not at all reliable and trustworthy and the same cannot be relied upon to base conviction.

First of all, the two appellants herein are said to have taken the prosecutrix (PW-4) from bus-stand Bagicha at 7:00 p.m. in the evening in the month of March i.e., on 7.3.2014 to be precise. In para-6 of her statement, prosecutrix (PW-4) has clearly stated that she did not know appellant No.1 - Sushil Goswami prior to the date of incident. Furthermore, on an offer being made to her by the appellants to drop her at village Kalia on their motorcycle, she willingly accepted their offer and sat on their motorcycle in between the two unknown persons i.e., the appellants herein. Moreover, when the appellants were riding their motorcycle towards Kansabel road which does not go towards village Kalia, at that time the prosecutrix did not make any hue and cry or raised an alarm inviting the attention of people in the surrounding area.

In addition, it is the case of prosecution that the prosecutrix, after she ran away from the said dhaba, had reached to the shop of one Bittu i.e. Amit Parik (PW-5) and had narrated him about the incident that had happened with her and the said witness (PW-5) had accompanied her to police station where she lodged the report. However, the said witness Amit Parik (PW-5) has simply stated that one girl had come to his shop at about 9-9:30 p.m. in the night and asked him to hide her and, in between, one policeman came to his shop for purchasing mouth freshener and to whom he told about the prosecutrix and then the said policeman took her to police station. He has further stated that the girl has not informed him anything about the incident that had happened with her. Further, in para-7, he has admitted the fact that the girl has clearly stated to him that she was a resident of village Kalia and she was not getting the bus to go to her village and she had asked him for help and she was frightened as she was not getting the means of transport to reach her home. As such, from the statement of Amit Parik (PW-5), it is clear that he has not supported the case of prosecution at all and even he has refuted to prove Seizure Memos (Exhibits P-18, P-19, P-20 & P-15), on account of which has been declared hostile and permitted to ask suggestive questions from him.

Apart from that, Amit Khosla, the owner of the dhaba where the two appellants herein are said to have taken their dinner, has been examined as PW-9. He has refuted the fact that any such victim had come to his hotel. He has also refused to prove Seizure Memos (Exhibits P-16, P-18, P-19 & P-20). Therefore, he has also been declared hostile and permitted to ask suggestive questions from him and all the leading questions have been denied by him.

As such, the shopkeeper Amit Parik (PW-5) to whom shop the prosecutrix is said to have reached and narrated him about the incident that had occurred with her and who is said to have accompanied her to police station to lodge the report as well as the dhaba owner Amit Khosla (PW-9) in whose hotel the two appellants herein are said to have taken their dinner and from where the prosecutrix is said to have succeeded to run away, both the said witnesses (PW-5 & PW-9) have not at all supported the case of prosecution and have turned hostile. Similarly, except for the two abrasions found on the neck and eyebrow of prosecutrix vide medical report (Exhibit P-1), no other medical evidence is available on record to connect the two appellants herein with the aforesaid offences in question.

Thus, we are of the considered opinion that though on the sole testimony of prosecutrix (PW-4), conviction can be based for the offence punishable under Section 376D of IPC and no corroboration is required as held by their Lordships of the Supreme Court in the matter of Dola (supra), but, in the case at hand, the two appellants herein are said to have taken the prosecutrix at 7:00 p.m. in the evening from the bus-stand Bagicha and when they were taking her to a different road which does not go to her village and when she came to know that she was not being taken to her village, she did not make any hue and cry or raised an alarm to seek help of the people in that area. Furthermore, the shopkeeper Amit Parik (PW-5), who is said to have extended help to the prosecutrix, has also not supported the case of prosecution and has turned hostile. Likewise, Amit Khosla (PW-9) in whose dhaba the two appellants herein are said to have taken their dinner leaving the prosecutrix unattended, has also not supported the case of prosecution and has turned hostile and the prosecution story appears to be improbable and unnatural as well.

In view of the discussion of evidence made herein above and in absence of medical evidence, it would be unsafe to maintain the conviction of the two appellants herein on the basis of sole testimony of prosecutrix (PW-4) which is not reliable. We are therefore unable to uphold the conviction of the two appellants herein for the offences punishable under Sections 376D, 506(II), 327/34 of IPC, holding them to be entitled for acquittal from the said offences on the basis of benefit of doubt.

Accordingly, the impugned judgment dated 21.12.2015, convicting the two appellants herein for the offences punishable under Sections 376D, 506(II), 327/34 of IPC, is hereby set-aside/quashed and they are acquitted from the said offences. Both the appellants are stated to be in jail since 8.3.2014. They be released from jail forthwith, if not required in any other offence.

Consequently, this criminal appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellants are presently lodged and suffering jail sentence, forthwith for necessary information and action, if any.