Allowed

S. Babu @ Thomas v. State of Chhattisgarh

Chhattisgarh HC2 Sept 2024CRA/1803/2018

Case brief

AI extract

What is this about?

In clubbed criminal appeals against convictions for gang rape, POCSO violations, and kidnapping, the High Court acquitted all appellants. Finding the victim's testimony unreliable due to contradictions, lack of alibi, and insufficient forensic corroboration for most accused, the court set aside convictions though affirmed the trial court's factual finding on the victim's age.

What did the court decide?

Impugned judgments of conviction and sentence set aside; All appellants acquitted; Accused motorists released on bail bonds.

S. Babu @ Thomas Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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Digitally signed by GOPAL SINGH Date: 2024.09.03 18:43:46 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No.1670 of 2018

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Judgment Reserved on 23.8.2024 Judgment Delivered on 03.9.2024

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Manoj Kumar, son of Komal, aged about 28 years, resident of Shakti Nagar, Chaprasi Quarter, District Durg, Chhattisgarh

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---- Appellant

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versus

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State of Chhattisgarh through Station House Officer, Police Station Bhilai Nagar, District Durg, Chhattisgarh

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--- Respondent

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Criminal Appeal No.1686 of 2018

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Gyaniram Sulakhe, son of Rameshwar, aged about 22 years, resident of Gaindi Dabri, District Durg, Chhattisgarh

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Sona @ Vinod Kumar, son of Dayaram Bhuneshwar, aged about 21 years, resident of Green Chowk, District Durg, Chhattisgarh

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Mukesh Yadav, son of Santosh Yadav, aged about 19 years, resident of Green Chowk, District Durg, Chhattisgarh

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Yogesh Tiwari @ Chotu, son of Bharat Tiwari, aged about 23 years, resident of Green Chowk, District Durg, Chhattisgarh

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---- Appellants

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versus

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State of Chhattisgarh through Station House Officer, Police

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Station Bhilai Nagar, District Durg, Chhattisgarh

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--- Respondent

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Criminal Appeal No.1717 of 2018

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Krishna Nagvanshi @ Kanha, son of Raju Nagvanshi, aged about 19 years, resident of Green Chowk, Durg, District Durg, Chhattisgarh

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---- Appellant

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versus

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State of Chhattisgarh through the Station House Officer, Police Station Bhilai Nagar, District Durg, Chhattisgarh

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--- Respondent

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Criminal Appeal No.1776 of 2018

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Sonu Sulakhe, son of Lalji Sulakhe, aged about 22 years, resident of Gendi Dabri, District Durg, Chhattisgarh

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Monu @ Surendra Sulakhe, son of Lalji Sulakhe, aged about 19 years, resident of Green Chowk, District Durg, Chhattisgarh

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---- Appellants

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versus

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State of Chhattisgarh through Station House Officer, Police Station Bhilai Nagar, District Durg, Chhattisgarh

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--- Respondent

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Criminal Appeal No.1783 of 2018

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Duryodhan Nagre @ Monu, son of Dinesh Nagre, aged about 22 years, resident of Shankar Nagar, District Durg, Chhattisgarh

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---- Appellant

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versus

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State of Chhattisgarh through District Magistrate, Durg, Chhattisgarh

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--- Respondent

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Criminal Appeal No.1803 of 2018

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S. Babu @ Thomas, son of S. Anand Rao, aged about 28 years, resident of Sector 6, Street 55, Near Hat, Bhilai, District Durg, Chhattisgarh

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---- Appellant

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versus

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State of Chhattisgarh through Police Station Bhilai Nagar, District Durg, Chhattisgarh

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--- Respondent

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-------------------------------------- For Appellant in Cr.A.	------ :	--------------------------------------------------- Shri Sudhanshu Kumar Singh,
No.1686/2018		Advocate on behalf of Shri B.P. Singh, Advocate
For Appellants in Cr.A.	:	Shri Tarun Dansena, Advocate
No.1670/2018 and Cr.A. No.1717/2018
For Appellant in Cr.A. No.1776/2018	:	Shri Sushil Dubey, Advocate
For Appellant in Cr.A. No.1783/2018	:	Shri Maneesh Sharma, Advocate
For Appellant in Cr.A. No.1803/2018	:	Shri Deepak Jain, Advocate
For State/Respondent in all the appeals	:	Shri Arvind Dubey, Government Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal

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CAV Judgment

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Sanjay Kumar Jaiswal, J.

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1. Since all the appeals arise out of a common judgment, they have been clubbed together and heard together and are decided together by this common judgment.

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2. Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 the Appellants herein have preferred the instant criminal appeals calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 11.10.2018 passed by the Additional Sessions Judge (FTC), Durg (Chhattisgarh) in Special Criminal Case No.3 of 2015 by which all the Appellants have been convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and in alternative they have been convicted under Section 376D of the Indian Penal Code. They have also been convicted under Section 342 read with Section 34 of the Indian Penal Code. For their above conviction, they have been sentenced as under:

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Sent	ence
Under Section 376D of the	Life imprisonment till
Indian Penal Code	natural death and fine of
(In view of Section 42 of the Protection of Children from Sexual Offences Act, 2012, the Appellants have been	Rs.500 each in default of payment thereof additional rigorous imprisonment for 6 months
sentenced for the offence
under Section 376D of the
Indian Penal Code being it a crime greater in degree)
Under Section 342 read	Rigorous imprisonment for

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with Section 34	of the	6 months and fine of
Indian Penal Code		Rs.100 each in default of payment thereof additional imprisonment for 1 month

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Appellants S. Babu alias Thomas, Sonu Sulakhe, Duryodhan Nagre alias Monu, Gyaniram Sulakhe and Krishna Nagvanshi alias Kanha have also been convicted for the offences under Section 363 read with Section 34 of the Indian Penal Code and Section 366 read with Section 34 of the Indian Penal Code and sentenced as under:

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	Sent	ence
Under Section 363	read	Rigorous imprisonment for
with Section 34 of	the	4 years and fine of Rs.500
Indian Penal Code		each in default of payment thereof additional imprisonment for 6 months
Under Section 366	read	Rigorous imprisonment for
with Section 34 of	the	5 years and fine of Rs.500
Indian Penal Code		each in default of payment thereof additional imprisonment for 6 months

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Jail sentences are directed to run concurrently.

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3. Case of the prosecution, in brief, is that on 27.10.2014 at about 6:30 p.m. Complainant Shashikala Sahni found her daughter (victim) aged about 14 years missing and, therefore, she lodged a missing report of the victim in Police Station Bhilai Nagar. Crime No.502/2014 was registered. On 29.10.2014 at about 6:30 a.m., Appellant Krishna telephonically informed the Complainant that the victim was sitting near Rajendra Park, Durg. The Complainant went to Durg and brought the victim home and thereafter she produced her in Police Station Bhilai Nagar on the same day at 6:30 p.m. Panchnama of Recovery of the victim (Ex.P15) was prepared by police and her statement under Section 161 of the Code of Criminal Procedure was recorded.

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4. During investigation, it was found that first Appellant S. Babu alias Thomas took the victim on his motorcycle from the front of her house. By alluring her, he took her to a dilapidated building in Sector 7 and committed forcible sexual intercourse with her there. Thereafter, he took her to Rajendra Park, Durg. At that time, his friends Krishna, Monu, Sonu, Gyani came there. From there, other accused persons wandered the victim here and there in a swift car of Appellant Duryodhan and thereafter took her to a deserted place. After sometime, they bought beer and all the accused persons consumed beer in

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the car and they also made the victim consume beer. They wandered her here and there till late night. At about 12 O’clock in the night, they took her to someone’s house near Green Chowk. After sometime, the accused persons committed gang rape with her one by one in a room of the said house. Thereafter, Appellant Yogesh also committed rape with her. The accused persons confined her in the said room for the whole night.

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5. On 28.10.2014, Appellants Sonu and Duryodhan wandered her here and there in the aforesaid car and thereafter took her to a vacant room of an Atal Awas and locked her inside. Thereafter, accused persons Sona alias Vinod, Mukesh, Prem, Krishna, Sonu, Gyaniram, Manoj, Raja alias Milind, S. Babu alias Thomas, Yogesh Tiwari and Monu alias Surendra continuously confined her and committed gang rape with her one by one on 27.10.2014 and 28.10.2014. They also threatened her of life on making any report. On the aforesaid report of the Complainant, Crime No.502/2014 was registered by Police Station Bhilai Nagar.

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6. Investigating Officer Inspector Rajesh Kumar Sahu obtained consent of the victim and her mother Shashikala Sahni vide Ex.P16 and P25 for medical examination of private part of the victim. Permission (Ex.P24) was obtained from the Sub-

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Divisional Magistrate, Bhilai for examination of private part of the victim. Blue underwear of the victim worn by her at the fateful time was seized from her vide Ex.P17. Vide Ex.P2 her said underwear was sent for examination seeking a query report. Dr. Babita Saxena examined the victim and her underwear and submitted her reports (Ex.P1 and P2). Thereafter, said underwear of the victim was sent for chemical examination. After medical examination of the victim, her vaginal slides were prepared and sealed. Said sealed slides were seized vide Ex.P32.

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7. The underwears worn by the accused persons at the fateful time were seized from them. The accused persons were sent to Government Hospital Supela, District Durg for medical examination. The seized underwears of the accused persons were also sent for examination. Spot maps of the places of occurrence were prepared.

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8. Dakhil Kharij Register of the school of the victim was seized from the school principal Rekha Sharma vide Ex.P35. The accused persons were arrested. The seized articles were sent to Forensic Science Laboratory (FSL) for examination. In the FSL Report (Ex.P71 and P72), human sperms were found on the underwear of the victim, her vaginal slide, underwear of accused Mukesh Yadav, underwear of accused Krishna,

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underwear of accused Sonu Sulakhe, underwear of accused Gyaniram Sulakhe, underwears of juvenile persons Prem Thakur and Raja Borker. Statements of witnesses were recorded. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges.

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9. To rope in the accused persons, the prosecution examined as many as 13 witnesses and exhibited 75 documents. In examination under Section 313 of the Code of Criminal Procedure, the accused persons pleaded false implication. They examined Suresh Gelani as DW1 in their defence. On completion of the trial, the Trial Court convicted and sentenced the Appellants as mentioned in second paragraph of this judgment. Hence, the instant appeals.

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10. Shri Tarun Dansena, Learned Counsel appearing for Appellant Manoj Kumar in Criminal Appeal No.1670 of 2018 would submit that in Para-18 of victim’s statement, she has clearly stated that Appellant Manoj Kumar did not commit any criminal act of rape with her and he was not involved in the offence in question. There is no forensic evidence against Appellant Manoj Kumar. Though the name of Appellant Manoj Kumar has been stated by the victim in her statement recorded under Section 161 of CrPC, the same is not a substantive piece of evidence in light of Section 3 of the Indian Evidence Act, 1872.

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11. Shri Sudhanshu Kumar Singh, Learned Counsel appearing on behalf of Shri B.P. Singh, Advocate for Appellants Gyaniram Sulakhe, Sona @ Vinod Kumar and Mukesh Yadav in Criminal Appeal No.1686 of 2018 would submit that on the basis of clear admission of the victim (PW3) in Para-103 to 105 of her statement before the Court, wherein she has clearly stated that Appellants Gyaniram Sulakhe, Sona @ Vinod Kumar and Mukesh Yadav have not committed any criminal act/sexual intercourse with her, they are liable to be acquitted of the charges. Though forensic evidence is found positive against Appellant Gyaniram Sulakhe, the same cannot be made sole basis to record his conviction that too in light of above clear admission made by the victim (PW3).

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12. Shri Sudhanshu Kumar Singh, Learned Counsel appearing on behalf of Shri B.P. Singh, Advocate for Appellant Yogesh Tiwari in Criminal Appeal No.1686 of 2018 would submit that the victim (PW3) in her statement has clearly stated that while recording her statement under Section 161 of CrPC she did not implicate Appellant Yogesh Tiwari as an accused. It is also submitted that Appellant Yogesh Tiwari has also not been identified, as no Test Identification Parade (TIP) was conducted. As such, it is not clear whether Appellant Yogesh Tiwari has committed the offence in question and same is

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doubtful. Therefore, he be acquitted on the basis of benefit of doubt.

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13. Shri Tarun Dansena, Learned Counsel appearing for Appellant Krishna Nagvanshi @ Kanha in Criminal Appeal No.1717 of 2018 would submit that though in Para-04 of the statement, the victim has implicated Appellant Krishna Nagvanshi, in Para-85 of her statement she has submitted that Appellant Krishna Nagvanshi has not committed any offence with her. There is no forensic evidence available on record against Appellant Krishna Nagvanshi and, as such, he is liable to be acquitted.

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14. Shri Sushil Dubey, Learned Counsel appearing for Appellants Sonu Sulakhe and Monu @ Surendra Sulakhe in Criminal Appeal No.1776 of 2018 would submit that the victim (PW3) in Para-101 of her statement has clearly stated that Appellants Sonu Sulakhe and Monu @ Surendra Sulakhe did not make any sexual relationship with her and, further, on being asked by the Court also, she clearly refuted/denied the factum of Appellants Sonu Sulakhe and Monu @ Surendra Sulakhe committing sexual intercourse with her and further stated that she did not identify Appellants Sonu Sulakhe and Monu @ Surendra Sulakhe and only at the instance of the police, she implicated the names of Appellants Sonu Sulakhe and Monu

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@ Surendra Sulakhe in the instant crime. Whereas though the forensic evidence (FSL report) is found positive against Appellant Sonu Sulakhe, same pales into insignificance in light of above-stated admission of the victim (PW3). It is also submitted that both Appellants Sonu Sulakhe and Monu @ Surendra Sulakhe are already on bail. Therefore, they are liable to be acquitted.

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15. Shri Maneesh Sharma, Learned Counsel appearing for Appellant Duryodhan Nagre @ Monu in Criminal Appeal No.1783 of 2018 would submit that the victim (PW3) has neither named Appellant Duryodhan Nagre @ Monu in her statements recorded under Section 161 of CrPC nor under Section 164 of CrPC. Only, for the first time, during her examination-in-chief of her statement recorded before the Court, she named Appellant Duryodhan Nagre @ Monu, however, in Para-91 of her cross-examination, she deviated from her said stand and clearly admitted that the Appellant Duryodhan Nagre @ Monu has not committed any criminal act with her and he is not involved in the commission of offence and that she has only implicated the name of Appellant Duryodhan Nagre @ Monu at the instance of the police. Learned counsel would further submit that nothing incriminating has been seized from the possession of

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Appellant Duryodhan Nagre @ Monu and even the medical evidence and forensic evidence is also found negative against him. As such, he is entitled to acquittal.

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16. Shri Deepak Jain, Learned Counsel appearing for Appellant S. Babu @ Thomas in Criminal Appeal No.1803 of 2018 would submit that though the victim (PW3) has stated that Appellant S. Babu @ Thomas had committed sexual intercourse with her, her conduct as reflected in Para-09 to 14 of her statement is clearly objectionable for the reason that she did not make any alarm (hue and cry) and remained present at the place of incident for two days. As such, the victim (PW3) is not a reliable witness and her testimony cannot be relied upon to convict Appellant S. Babu @ Thomas. Learned Counsel would further submit that the FSL report is found negative against Appellant S. Babu @ Thomas. Hence, he is liable to be acquitted of the said charge on the basis of benefit of doubt.

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17. Per contra, Shri Arvind Dubey, Learned Government Advocate appearing for the State/Respondent in all the appeals would submit that the prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. He would further submit that in view of the statement of the victim (PW3), wherein she has clearly narrated the incident and implicated the Appellants herein to

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be the author of the crime in question, coupled with other evidence available on record, the Trial Court has rightly convicted the Appellants for the offences mentioned hereinabove and, therefore, all the present appeals are liable to be dismissed.

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18. We have heard the rival contentions put-forth on behalf of the parties and perused the entire material available with utmost circumspection.

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19. The first question for consideration before us is as to age of the victim (PW3) on the date of the alleged incident.

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20. As regards the date of birth of the victim, the Trial Court has found it to be 26.9.2000 based on the dakhil kharij register (Ex.P73C) relating to admission of the victim in 1^st standard in school and medical document relating to her birth in Chandulal Chandrakar Hospital. The defence has not been able to rebut the documentary evidence led by the prosecution with regard to date of birth of the victim. Thus, the Trial Court has rightly found that the age of the victim on the date of incident, i.e., 27.10.2014 was 14 years and 1 month. This finding is a pure finding of fact based on the evidence available on record and the finding is neither perverse nor contrary to the record. Even otherwise, this finding has not been seriously disputed by

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Learned Counsel for the Appellants. In view of the above, we hereby affirm the finding.

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21. The next question for consideration is whether the Appellants committed the offences as alleged against them?

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22. Conviction of the Appellants is mainly based on the statement of the victim (PW3) only. She has stated commission of rape with her by 10-11 persons within 2 days. She has stated that she loved Appellant Krishna Nagvanshi. On 29.10.2014 Krishna Nagvanshi had telephonically informed her about his coming to pick up her, but, later, he informed that he is sending his friend/Appellant S. Babu alias Thomas and she may come with him. She went along with S. Babu alias Thomas on a motorcycle. He took her to a room in Sector 7 and there he committed forcible sexual intercourse with her and thereafter he left her at Rajendra Park, Durg. There, Appellants Duryodhan, Monu, Yogesh and Gyani came in a car and told her that Appellant Krishna was calling her. They took her in the car to a deserted place and they consumed liquor there and they also made her consume liquor. Thereafter, they took her to an Atal Awas in Sikolabhatha and there they committed forcible sexual intercourse with her one by one. There they confined her for the whole night. Thereafter, Appellant Yogesh took her to Mukesh and Raja

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near Bus Stand Green Chowk and left her there. Mukesh and Raja took her on a motorcycle to Village Dhamdha, Anda. They took her to a deserted farm and consumed liquor there and they also made her consume liquor. There Mukesh and Raja committed forcible sexual intercourse with her.

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23. In the evening, Gyani, Duryodhan and Manoj came in a car and forcefully made her sit in the car and they wandered her here and there in the car and thereafter they stopped the car in a deserted place and committed forcible sexual intercourse with her. Thereafter, they took her in the car to the house of their friend at Durg. There, Krishna Nagvanshi, Monu, Sonu and Raja committed forcible sexual intercourse with her. Other 6-7 persons also came there and committed forcible sexual intercourse with her. Thereafter, all the persons left from there. She stayed in that house for the whole night. The owner of that house alone had stayed in that house. Next morning at about 6-7 O’clock, Krishna and one other accused whose name she could not recollect took her on a scooty to Rajendra Park and left there. Krishna telephonically informed her mother that she was standing out of Rajendra Park and she may be taken home. Krishna threatened her of danger on disclosing the incident to anyone. Her mother came to Rajendra Park. Having seen her, Krishna and other accused

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persons left from there. Thereafter, her mother took her to police station. On a report, police took action. As such, more than 10 persons committed forcible sexual intercourse with the victim (PW3) for 2 days 2 nights.

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Medical Examination Report (Ex.P1) of the Victim :

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24. The victim was medically examined on 30.10.2014 and report thereof is Ex.P1 in which examining doctor, namely, Dr. Babita Saxena (PW1) found no injury mark on any part of the body of the victim or in her private parts. Her hymen was old torn. No pain or bleeding was found in the vagina of the victim during examination. The doctor (PW1) reported that no definite opinion could be given regarding recent rape with the victim as she was habitual to sexual intercourse.

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25. Now, it has to be seen whether the statement of the victim (PW3) is reliable and beyond doubt.

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26. In Dola v. State of Odisha, (2018) 18 SCC 695, the Hon’ble Supreme Court has held as under:

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“(i) the Trial Court as well as the High Court had convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor’s

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evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court had brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court had proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it was not possible for this Court to agree with the concurrent conclusions reached by the courts below.”

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27. In Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC

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130 , in respect of the offence of gang rape under Section 376(2)(g) IPC, it has been held as under:

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“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences.”

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28. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , it has

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been held as under:

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“If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her

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statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

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29. Similarly, in Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92 , the Hon’ble Supreme Court has held as under:

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“It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix.”

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30. Similarly, in Ramdas v. State of Maharashtra, (2007) 2 SCC

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170 , it has been held as under:

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“Conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity.”

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31. In light of principle of law laid down by their Lordships of the

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Supreme Court, we will examine the case of each of the Appellants separately one by one.

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Appellant Manoj Kumar (Cr.A.No.1670 of 2018) :

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32. As regards Appellant Manoj Kumar, according to the FSL Report (Ex.P72), no stains of semen or human sperm was found in the underwear (Article N) of Appellant Manoj Kumar. In her deposition, at paragraph 80, the victim (PW3) has admitted that Appellant Manoj did not commit any incident with her nor was he involved in the incident anywhere. From the evidence on record, we find that involvement of Appellant Manoj Kumar in the offence in question is not proved and as such he deserves acquittal.

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Appellant Gyaniram Sulakhe (Cr.A.No.1686 of 2018) :

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33. As regards Appellant Gyaniram Sulakhe, the victim (PW3), in her cross-examination, at paragraphs 103, 104 and 105, has admitted that accused Gyani did not commit any incident with her. He did not make any physical relation with her. He did not do any criminal act with her. He did not commit rape with her. He did not make her sit in any car or on any motorcycle nor did he take her anywhere. In answer to the question put to her by the Court, she has stated that accused Gyani did not

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commit any wrong act with her nor did he take her anywhere in any car or motorcycle nor did he commit rape with her. From the evidence on record, we find that involvement of Appellant Gyaniram Sulakhe in the offence in question is not proved and, therefore, he deserves acquittal.

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Appellant Sona @ Vinod Kumar (Cr.A.No.1686 of 2018) :

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34. In her cross-examination at paragraphs 103, 104 and 105, the victim (PW3) has admitted that accused Sona did not commit any incident with her. She has further admitted that accused Sona did not make any physical relation with her. She has further admitted that accused Sona did not do any criminal act with her. Sona did not commit rape with her. She has also admitted that Sona did not take her anywhere in any car or on any motorcycle. From the evidence on record, we find that involvement of Appellant Sona alias Vinod Kumar in the offence in question is not proved and, therefore, he deserves acquittal.

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Appellant Mukesh Yadav (Cr.A.No.1686 of 2018) :

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35. In her cross-examination at paragraphs 103, 104 and 105, the victim (PW3) has admitted that accused Mukesh did not commit any incident with her. She has further admitted that

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accused Mukesh did not make any physical relation with her. She has further admitted that accused Mukesh did not do any criminal act with her. Mukesh did not commit rape with her. She has also admitted that Mukesh did not take her anywhere in any car or on any motorcycle. From the evidence on record, we find that involvement of Appellant Mukesh Yadav in the offence in question is not proved and, therefore, he deserves acquittal.

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Appellant Sonu Sulakhe (Cr.A.No.1776 of 2018) :

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36. In her cross-examination at paragraphs 100, 101 and 102, the victim (PW3) has admitted that she did not tell the name of Appellant Sonu Sulakhe in her statement under Section 164 Cr.P.C. because she could not see him. She has admitted that Sonu Sulakhe did not make any physical relation with her. She has also admitted that Sonu Sulakhe did not take her anywhere in any car or on any motorcycle. From the evidence on record, we find that involvement of Appellant Sonu Sulakhe in the offence in question is not proved and, therefore, he deserves acquittal.

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Appellant Monu @ Surendra Sulakhe (Cr.A.No.1776 of 2018) :

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37. In her cross-examination at paragraphs 100, 101 and 102, the victim (PW3) has admitted that she did not tell the name of Appellant Monu Sulakhe in her statement under Section 164 Cr.P.C. because she could not see him. She has admitted that Monu Sulakhe did not make any physical relation with her. She has also admitted that Monu Sulakhe did not take her anywhere in any car or on any motorcycle. From the evidence on record, we find that involvement of Appellant Monu alias Surendra Sulakhe in the offence in question is not proved and, therefore, he deserves acquittal.

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Appellant Duryodhan Nagre @ Monu (Cr.A.No.1783 of 2018) :

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38. The victim (PW3), in her cross-examination, at paragraphs 82 and 83, has admitted that Duryodhan was not involved in the incident and, therefore, at the time of making statement under Section 161 Cr.P.C. she had not told name of Duryodhan to police. She has further admitted that in her statement under Section 164 Cr.P.C. she had not stated commission of rape by accused Duryodhan. In her further cross-examination, at paragraphs 91, 92 and 93, she has admitted that Duryodhan did not commit any criminal act with her. He did not make any physical relation with her. He was not involved in the incident.

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She has further stated that she was unable to state how Duryodhan was made an accused. She has admitted that she had not told name of Duryodhan to anyone. She has also admitted that earlier in her examination-in-chief she had stated that Duryodhan had committed rape with her, but, that was stated by her on being tutored by police. She has further admitted that Duryodhan did not take her anywhere in any car or on any motorcycle. From the evidence on record, we find that involvement of Appellant Duryodhan Nagre @ Monu in the offence in question is not proved and, therefore, he deserves acquittal.

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Appellant Yogesh Tiwari @ Chotu (Cr.A.No.1686 of 2018) :

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39. According to FSL Report (Ex.P72), semen or human sperm was not found in the seized underwear of Appellant Yogesh Tiwari. As regards his identity itself, statement of the victim (PW3) is contradictory and doubtful. In her Court statement, she identified Appellant Yogesh as Appellant Mukesh. According to her statement, Appellant Yogesh had committed forcible sexual intercourse with her in Atal Awas, Sikolabhatha and he had taken her on his motorcycle to Bus Stand, situated near Green Chowk and left there. Even thereafter, she had not clearly identified Appellant Yogesh. Her statement regarding

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Appellant Yogesh is doubtful and indecisive. In her crossexamination, she herself has stated that in the Court during her examination-in-chief on 8.2.2016 she came to know for the first time that Appellant Yogesh was Mukesh. Rather, she knew him with the name of Chhotu. In her statement recorded by police, she herself has stated that she came to know from the newspaper that name of Chhotu was Yogesh. When did she read this in newspaper is not clear in her statement. But, her statement (Ex.D1), which was recorded by police on the date of report itself, i.e., on 29.10.2014, contain the name Chhotu alias Yogesh. Whereas, in the Court, she identified Yogesh as Mukesh. She has also admitted that police had first recorded her statement and later she read in the newspaper. She has also admitted that at the time of recording her statement (Ex.D1) by police, she had not told name of Yogesh alias Chhotu. She has further stated that police had caught the Appellants and then they had told their names. In her examination at paragraph 21, she has admitted that police had not conducted any test identification parade of the Appellants. There is also a contradiction in her police statement (Ex.D1) that only Appellant Yogesh had left her at the bus stand or other Appellants had also accompanied Yogesh. There are serious contradictions in the police and Court statements of the victim regarding place, time etc. As regards identify of

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Appellant Yogesh itself, there is serious contradiction in her statements. In the circumstance, statement of the victim against Appellant Yogesh cannot be considered to be reliable and beyond doubt. Hence, Appellant Yogesh Tiwari is entitled to acquittal.

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Appellant S. Babu @ Thomas (Cr.A.No.1803 of 2018) :

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40. According to FSL Report (Ex.P72), no semen or human sperm was found in the seized underwear of Appellant S. Babu alias Thomas. According to the statement of the victim (PW3), Appellant Krishna had sent Appellant S. Babu alias Thomas for taking her from her house. Appellant S. Babu, after committing forcible sexual intercourse with her in a room situated at Sector 7, had taken her to Rajendra Park Chowk, Durg on a motorcycle and left there. In this regard, in her cross-examination, she has admitted that before the incident, she did not know Appellant S. Babu nor had she met or talked with him. She has also admitted that 3-4 minutes had spent for breaking the lock of the house of Sector 7 where Appellant S. Babu had committed sexual intercourse with her, but, no neighbour had come there. She had not made efforts to come out of the clutches of Appellant S. Babu and run away from there while his breaking the lock of the said house. In that

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house, they had stayed for 2-3 hours. Thereafter, without locking the said house, she had comfortably come along with Appellant S. Babu to Rajendra Park on a motorcycle. There was a signal on the Rajendra Park Chowk where vehicles stopped and traffic police remained present there. But, she did not try to shout and tell about the incident to anyone present there nor did she try to jump down from the motorcycle and run away. Her police statement (Ex.D1) does not contain that Appellant Krishna had sent Appellant S. Babu for taking her from her house. Rather, contrary to her Court statement, her police statement (Ex.D1) contain that when she was standing in front of her house at about 6:30 p.m. Appellant S. Babu with whom she was already acquainted came to her and expressed that he loved her and told her that they will go to Dongargarh Temple and perform their marriage there. She believed Appellant S. Babu and went away along with him on his motorcycle. As such, there are serious contradictions in her statements. She has stated involvement of more than 10 persons in the incident. But, in her cross-examination, she has not remained firm. In the circumstance, her statement is not found to be reliable. There are serious allegations in the instant case, but, her statement is not reliable. A benefit of doubt goes to Appellant S. Babu alias Thomas. He deserves acquittal.

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Appellant Krishna Nagvanshi @ Kanha (Cr.A.No.1717 of 2018) :

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41. Krishna Nagvanshi alias Kanha is the accused/Appellant with whom the victim (PW3), as stated by her, was in love. According to the statement of the victim, Appellant Krishna committed sexual intercourse with her in a house situated at Durg. According to her Court statement, next morning, Appellant Krishna himself took her to Rajendra Park and telephonically called her mother and on reaching her mother there he left the victim there and went away. The statement of the victim does not appear to be natural and reliable that one of the accused persons, who, along with other co-accused persons had committed sexual intercourse with the victim for 2 days, will inform her mother about her presence at a place, call her there and hand over her to her mother there. According to the FSL Report (Ex.P72), semen and human sperm were found in the underwear of Appellant Krishna, but, the semen and human sperm found in the vaginal slide of the victim were of Appellant Krishna himself, no examination report/documentary evidence in this regard is available on record. From the Court statement of the victim, it is clear that Appellant Krishna had not gone to her house to take her. There is a contradiction in the statements of the victim made

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before police (Ex.D1) and the Court regarding whom she loved. In her Court statement, she has stated that she loved Appellant Krishna. Contrary to this, her police statement (Ex.D1) contain that Appellant S. Babu alias Thomas loved her and wanted to perform marriage with her in Dongargarh Temple and he took her away from her house on his motorcycle in the fateful evening. Serious contradictions are found in the police statement and Court statement of the victim. She has also not remained firm during her crossexamination. In the circumstances, her statement cannot be considered to be reliable and beyond doubt. Thus, Appellant Krishna Nagvanshi alias Kanha also deserves acquittal.

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42. Consequently, all the criminal appeals are allowed . The impugned judgment of conviction and sentence is set aside. All the Appellants are acquitted by giving benefit of doubt.

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43. Appellants Yogesh Tiwari @ Chotu, S. Babu @ Thomas and Krishna Nagvanshi @ Kanha are reported to be in jail. They be set at liberty forthwith, if not required in any other case. They shall execute bail bonds and two sureties each in the like amount to the satisfaction of the Trial Court concerned as required by Section 437A of the Code of Criminal Procedure.

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44. Appellants Manoj Kumar, Gyaniram Sulakhe, Sona @ Vinod Kumar, Mukesh Yadav, Sonu Sulakhe, Monu @ Surendra Sulakhe and Duryodhan Nagre @ Monu are reported to be on bail. Their bail bonds shall continue for a further period of 6 months under Section 437A of the Code of Criminal Procedure. Thereafter, the said bonds shall stand discharged.

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45. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court concerned and to the Superintendent of Jail where Appellants Yogesh Tiwari @ Chotu, S. Babu @ Thomas and Krishna Nagvanshi @ Kanha are lodged and suffering jail sentence, for information and necessary action, if any.

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Sd/Sd/( Sanjay K. Agrawal ) ( Sanjay Kumar Jaiswal ) Judge Judge

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Gopal

S. Babu @ Thomas v. State of Chhattisgarh

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S. Babu @ Thomas v. State of Chhattisgarh

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