Allowed

Babu Lal and Another v. State

Chhattisgarh HC21 Jul 2022CRA/790/2001

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a rape case. Relying on the Supreme Court in Krishna Kumar Malik, the court held the prosecutrix's solitary testimony was unreliable due to glaring discrepancies and lack of corroboration. With no independent witnesses supporting the prosecution, the conviction was unsustainable.

What did the court decide?

Conviction and sentence passed by the Court below were set aside; appellants were acquitted of the charges.

Babu Lal and Another Vs State — Criminal Trial and Appeal | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 27/06/2022

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Order Delivered on 21/ 0 7 / 2022

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CRA No. 790 of 200 1

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Babulal S/o Banshilal aged about 29 years, R/o Mauharpara, Manendragarh, District – Koria, C.G.

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Gopichand S/o Govind, aged about 26 years, R/o Mauharpara, Manendragarh, District- Koria, C.G.

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---- Appellants

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Versus

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State of Chhattisgarh, Through : Police Station -Manendragarh, District – Koria, C.G.

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---- Respondent

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For Appellants : Mr. A.K. Prasad, Adv. For State/Respondent : Mr. N. Pradhan, P.L.

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Hon'ble Smt. Justice Rajani Dubey

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C A V Order

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Date : 21/ 07/2022

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The present appeal arises out of the impugned judgment of conviction and order of sentence dated 25.08.2001 passed by the learned Additional Sessions Judge, Manendragarh, District – Koria, C.G. in Sessions Trial No. 403/1999 whereby, the learned Sessions Judge has convicted and sentenced the appellants as under:-

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S.N.	Conviction	Sentence
1.	U/s 376(2)(g) of IPC.	Imprisonment for 10 years and fine of Rs. 1000/- each, in default of payment additional imprisonment for 6 months.
2.	U/s 342 of IPC.	Imprisonment for 1 year and fine of Rs. 500/- to appellant No. 2 only, in default of payment additional imprisonment for 3 months.

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Brief facts of the case are that on the date of the incident i.e. 28.07.1993, the complainant/prosecutrix came to the market of

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Manendragarh from village Kotmi, District - Bilaspur. After selling vegetables at 10.00 pm, the complainant was going to the house of her acquainted constable Mohamed Ali Ahmad where before his house, the house of the accused Gopichand was located, there accused Gopichand and Gudda met her. They caught her and took her to his house of Gopi. They had committed sexual intercourse with her, thereafter accused persons Babulal, Mannu and other co-accused persons took the prosecutrix to a house where the only wall of the house was constructed and there all accused persons committed rape with her and kept her there till 4 am. When the accused persons left her, she told the whole incident to Mohamed Ali and Rajmati. Thereafter she lodged a report at Police Station Manendragarh. Police seized her clothes, and broken bangles from the spot and the prosecutrix was sent for medical examination. After completion of the investigation, the charge sheet was filed and charges were framed under Sections 376(g), 342 and 323 r/w 34 against the accused persons.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 7 witnesses and 1 defence witness was also examined by the accused persons in their defence. Statement of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication in the case.

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Upon due consideration of oral and documentary evidence, the learned trial Court held in para 12 that the prosecution has failed to establish the guilt of the other 4 accused persons and acquitted them of the charges, and held that the prosecution has established the guilt of the accused Babulal and Gopichand under Section 376(2)(g) of IPC and accused Gopichand under Section 342 of IPC and sentenced them as mentioned above. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is contrary to law and facts available on record. He next submits that the learned trial court ought to have seen that there was hardly any reliable evidence on record to warrant the conviction of the appellants under the aforementioned Sections of IPC. He further submits that the prosecutrix (PW-6) is not a reliable witness as her statement suffers from main material

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discrepancies, it is also not considered that thee are various omissions in the statement of the prosecutrix as she gives an entirely different version in the Court than the version given in the FIR. He also submits that the learned trial Court has disbelieved the prosecutrix and has acquitted 4 of the accused persons and on the same set of evidence convicted the appellants which is not proper and justifiable. Thereafter, he submits that the version of the prosecutrix is unnatural as she states about the commission of rape by 9 persons but surprisingly, no external or internal injuries were found by the doctor therefore the learned trial Court ought to have drawn adverse inference against the prosecution when admittedly, the doctor concerned, who had clinically examined the prosecutrix has not been examined in this case. Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.

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On the other hand State counsel supporting the impugned judgment of conviction and order of sentence submitted that the trial Court has not committed any error of law. It is in strictly in accordance with law and no inference is called for.

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Heard counsel for both the parties and perused the material available on record including the impugned judgment.

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Before learned trial Court, Jafir Ahmed (PW-2), Naem (PW-3) and Rajmati (PW-7) have not supported the case of the prosecution, only the prosecutrix (PW-6) stated with regard to the said incident. In her examination-in-chief, she stated that nine persons has committed sexual intercourse with her. In her cross-examination she has admitted in paras 9, 10 and 13 as under:-

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;g ckr lgh gS fd ?kVuk ds igys ls fdlh vfHk;qDr dks ugha igpkurh Fkh vkSj u ns[kh FkhA

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tgka ij esjs lkFk cykRdkj gqvk ogka va/ksjk FkkA va/ksjk gksus ds dkj.k ftu yksxksa us esjs lkFk cykRdkj fd;k mu yksxksa dks ugha igpkurhA

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lcsjs 4 cts eq>s gks’k vk;k] ogka ls mB dj eSa eafnj ds ikl xbZ eSa fuoZL= Fkh] xksih us diM+s ykdj fn;kA ;s ckrsa eSa viuh fjiksVZ esa crk;h Fkh ugha fy[kh gS rks eSa dkj.k ugha crk ldrhA

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She also stated in para 14 as under:-

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?kVuk LFky ij fxV~Vh Fkk esjs ihB esa pksV vk;h Fkh] ihB esa [kjksap dh pksV vk;h Fkh] [kwu fjlk FkkA esjs cka;s gkFk esa] vkSj nkfgus iSj esa pksV vk;h FkhA ?kVuk ds le; eSa yky jax dh pwM+h iguh FkhA

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but prosecution has not examined the medical officer to this effect. 9. Learned trial Court also found in para 12 that after 7-8 years of incident prosecutrix identified the accused before trial Court this fact is not reliable or believable and acquitted the 6 accused persons. Learned trial Court has also not believed the version of FIR and acquitted the other co-accused persons to give them benefit of doubt and convicted the present appellants on this ground that prosecutrix has specifically stated against the Gopichand and Babulal.

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Hon’ble Apex Court in the case of Krishna Kumar Malik vs. State of Haryana , reported in (2011) 7 SCC 130 , has held in para 31 which reads as under:-

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“31. ….. to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality…..”

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In the present case, the prosecutrix has admitted that before the incident she neither knew any accused persons nor was acquainted with them. She has also admitted that at the time of the incident, she did not identify any accused persons due to darkness. The medical report of the prosecutrix shows no external or internal injuries on her body and the doctor gave her opinion that she was habitual of sexual intercourse. Even otherwise as per the prosecutrix 9 persons have committed sexual intercourse with her then some internal or external injuries must be seen on her body, but as per the report of doctor there are no internal or external injuries were found on her body. Learned trial Court, on the same set of evidence, acquitted 6 accused persons and convicted only the present appellants. It is a well-settled principle of criminal justice that the prosecution has to prove its case beyond reasonable doubt. But in this case, no independent witness has supported the case of the prosecution and only the prosecutrix has stated about the said incident and the statement of the prosecutrix is also not reliable. Therefore, the conviction of appellants is not sustainable.

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Looking to the above discussion, the findings of the learned trial Court are not based on proper appreciation of oral and documentary evidence. As a result, the appeal is allowed. The conviction and sentence passed by the Court below are set aside and the appellants are acquitted of the charges. The appellants are on bail. Their bail bonds shall stand discharged. The fine amount, if deposited, be refunded to the appellants forthwith.

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Sd/(Rajani Dubey) JUDGE

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H.L. Sahu

Babu Lal and Another v. State

Case brief

What is this about?

What did the court decide?

Babu Lal and Another v. State

Case brief

What is this about?

What did the court decide?

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