Balmiki Bhagat Vs State of Chhattisgarh

(Arising out of judgment dated 20.08.2019 passed in Special Criminal Case Under the POCSO Act Cases No.27/2018 by the Special Judge, Protection of Children from Sesxual Offences Act, 2012, Jashpur, Chhattisgarh. )

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Fakal Ram S/o Jethu Ram Korwa, aged about 22 years, R/o village of prosecutrix, Police Station Bagicha, District–Jashpur, Chhattisgarh.

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--- Appellant

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versus

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State of Chhattisgarh through–Station House Officer, Police of Police Station–Bagicha, District–Jashpur, Chhattisgarh.

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--- Respondent For Appellant :- Mr. Vivek Singhal, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For State-Respondent :- Mr. Arvind Dubey, Government Advocate

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CRA No. 1900 of 2019

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Dholi Ram S/o Ramsevak Ram, aged about 21 years, R/o Village Patrapara, Police Station–Bagicha, District–Jashpur, Chhattisgarh.

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--- Appellant

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2

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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versus

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State of Chhattisgarh through the Incharge Arakshi Kendra Chowki Kotba, Police Station–Bagicha, District–Jashpur, Chhattisgarh.

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--- Respondent

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For Appellant :- Mr. J.K. Saxena, Advocate. For State-Respondent :- Mr. Arvind Dubey, Government Advocate.

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CRA No. 1466 of 2019

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Balmiki Bhagat S/o Devkumar Bhagat, aged about 30 years, R/o Village–Patrapara, Police Station–Bagicha, District Jashpur, Chhattisgarh.

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Devanand Bhagat S/o Balmand Bhagat, aged about 45 years, R/o Village–Patrapara, Police Station–Bagicha, District Jashpur, Chhattisgarh.

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--- Appellants

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versus

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State of Chhattisgarh through the Incharge Arakshi Kendra Chowki Kotba, Police Station Bagicha, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh

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--- Respondent

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For Appellant No.1 :- Mr. J.K. Saxena, Advocate. For Appellant No.2 :- Mr. Shakti Raj Sinha, Advocate.

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For State-Respondent :- Mr. Arvind Dubey, Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board (27.02.2025)

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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Sanjay K. Agrawal, J

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Since these three criminal appeals have arisen out of the common impugned judgment dated 20.08.2019 passed by the Special Judge, Protection of Children from Sesxual Offences Act, 2012, Jashpur, Chhattisgarh in Special Criminal Case under the POCSO Act Cases No.27/2018, they have been clubbed together, heard together and are being decided by this common judgment.

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Assail in the present three criminal appeals filed under Section 374(2) of the CrPC preferred by the sole appellant Fakal Ram (A-1) in Criminal Appeal No.688 of 2020; the sole appellant Dholi Ram (A-2) in Criminal Appeal No.1466 of 2019 and the two appellants namely Balmiki Bhagat (A-3) and Devanand Bhagat (A-3), is to the legality, validity and correctness of the judgment dated 20.08.2019 passed by the Special Judge, Protection of Children from Sesxual Offences Act, 2012, Jashpur, Chhattisgarh, in Special Criminal Case under the POCSO Act Cases No.27/2018, by which the appellants herein have been convicted for offence under Section 376D of the IPC and sentenced thereunder to suffer rigorous imprisonment for 20 years with fine of ₹ 1,000/-

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4

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment for three months.

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Prosecution story:-

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On 03.06.2018, at about 7:30 pm at village–Patrapara, Police Station–Bagicha, District Jashpur, Chhattisgarh, all the four appellants in furtherance of their common intention committed gang rape with the victim (PW-1) and thereby committed the offence.

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It is further case of the prosecution that on 03.06.2018 in the village of the victim there was a marriage function in the house of Karmu in which she had gone to participate and when she went to answer the nature’s call than A-1 Fakal Ram and A-2 Dholi Ram came from her back and gagged her mouth with their hands and thereafter, A-3 Balmiki Bhagat and A-4 Devanand Bhagat came on the spot and took her towards mango tree and all the four appellants committed the sexual intercourse with the her against her wishes. After committing the said act A-3 & A-4 dropped her (victim) at her house. Family members of the victim took her to the hospital

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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and after getting treatment when she gained consciousness, she informed about the incident to her family members. Further, on 05.06.2018, she lodged the written complaint vide Ex.P/1 about the said incident and on that basis FIR was lodged vide Ex.P/2. Spot map was prepared vide Ex.P/17. Victim was medically examined by Dr. V. Bakhla (PW-5) and in her medical report (Ex.P/3) it has been opined by the Dr. V. Bakhla (PW-5) sexual intercourse has been committed with the victim forcefully as the vulva was found abraded and red, vicitim was also complaining pain while examination and vagina was also found abraded and red; hymen was also found ruptured. Slides were prepared and sent for chemical ananlysis. Though, as per radiologist report (Ex.P/6) the age of the victim was between 14 years to 15 years, but as per the finding recorded by the trial Court in paragraph No. 12 of its judgment the prosecution has failed to prove that the age of the victim was less than 18 years on the date and time of offence. Appellants were also medically examined by Dr. Jayant Ram Bhagat (PW-8) and as per doctor all were found capable in doing sexual intercourse. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as sper FSL report (Ex.P/37) on the underwear of the

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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victim (article A), vaginal slide (article B) & vaginal smear slide (article C) stains of semen and human sperm were found.

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After due investigation, appellants herein were chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 15 witnesses and exhibited 38 documents, whereas, defence, in support of its case, has not examined any witness, but exhibited 2 documents. The statement of the appellants / accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in

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7

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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the opening paragraph of the judgment, against which these appeals have been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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Submission of the Parties:-

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Mr. Vivek Singhal and Mr. J.K. Saxena, counsel for the appellants namely Fkal Ram (A-1) & Dholi Ram (A-2), would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. They would also submit that the date of incident was 03.06.2018 and the FIR was lodged on 05.06.2018, as such, there is a delay of two days, which creates doubt on the case of the prosecution as the delay has not been explained by the prosecution and, therefore, the prosecution case deserves to be dismissed on the ground of delay and more particularly, as per medical report of the victim (Ex.P/3) proved by Dr. V. Bakhla (PW-5), no external injuries were found over the body of the victim and also there is no forensic evidence has been brought on record by the prosecution with regard to matching of semens. As such, the two appellants (A-1 & A-2) are entitled for acquittal on the basis of benefit of doubt.

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8

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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Mr. J.K. Saxena and Mr. Shakti Raj Sinha, counsel for appellants namely Balmiki Bhagat (A-3) and Devanand Bhagat (A-4), would submit that there is a delay of two days in lodging the written complaint (Ex.P/1) as well as the FIR (Ex.P/2) which has not been explained by the prosecution. They would also submit that the victim (PW-1) has only lodged the written complaint (Ex.P/1) against the appellants namely Fakal Ram (A-1) and Dholi Ram (A-2) by stating that they have committed the sexual intercourse with her against her wishes and the present appellants were named only that they had escorted her (victim) from the house of Karmu to her house and even in the FIR (Ex.P/2), appellants namely Balmiki Bhagat (A-3) and Devanand Bhagat (A-4) have not been named. They would further submit that in the crossexamination at paragraph No.13 the victim has clealry admitted that in the written complaint (Ex.P/1) as well in the FIR (Ex.P/2) she has only stated that the appellants A-1 Fakal Ram and A-2 Dholi Ram had forecfully committed the sexual intercourse with her. As such, the appellants A-3 Balmiki Bhagat and A-4 Devanand Bhagat have been falsely implicated in the crime in question as they have not been named in the written complaint as well as in the FIR lodged

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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by the victim for committing the gang rape and, therefore, they are entitled for acquittal on the basis of benefit of doubt.

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Mr. Arvind Dubey, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that it is the case of gang rape and the victim has clealry supported the case of the prosecution. He would further submit that the medical evidence and forensic evidence have also supported the case of the prosecution and merely none mentioning names of appellants A-3 Balmiki Bhagat and A-4 Devanand Bhagat in the written complaint and FIR with regard to offence in question would not lead to their acquittal. Therefore, the conviction of the appellants is well merited and all the three criminal appeals deserve to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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:- Discussion & Analysis

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With regard to age of the victim the trial Court in its judgment at paragraph No.12 has recorded that on the date and time of offence the victim was not minor which has not been seriously questioned by the prosecution. Thereafter, the trial Court has proceeded to base the conviction of the appellants on the basis of statements of PW-1 victim and PW-5 Dr. V. Bakhla, supported by the medical evidence (Ex.P/3) proved by Dr. V. Bakhla (PW-5) and also supported by the forensic evidence (Ex.P/37) for offence under Section 376D of the IPC while acquitting them from offence under Section 6 of the POCSO Act as the prosecution has failed to establish that on the date and time of offence age of the victim was less than 18 years.

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Now, question for consideration would be whether the trial Court has rightly convicted the appellants for offence under Section 376D of the IPC?

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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Conviction of appellants namely A-3 Balmiki Bhagat and A-4

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:Devanand Bhagat

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Admittedly, the date of offece was 03.06.2018 at about 7:30 pm which was reported by the victim to the police on 05.06.2018 by making written complaint vide Ex.P/1 and immediately thereafter, on the basis of the said written complaint FIR (Ex.P/2) was registered on 05.06.2018 at about 6:30 pm. The victim has made the written report (Ex.P/1; duly typed) only against appellants A-1 Fakal Ram and A-2 Dholi Ram. In the said written comaplaint the victim has clearly stated that on the date and time of offence when she had gone to answer the nature’s call, the two appellants namely Fakal Ram (A-1) and Dholi Ram (A-2) came from her back and caught hold of her and also gagged her mouth and thereafter, took her to unknown place and committed sexual intercourse with her by which she became unconscious. After committing the said offence they dropped her at the house of Karmu and also poured liquor on her face. She has further stated that when she slightly gained consciousness then appellants namely Balmiki Bhagat (A-3) and Devanand Bhagat (A-4) brought her at her home and thereafter, she

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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made written complaint (Ex.P/1) to the police after getting completely well and on that basis FIR (Ex.P/2) was also registered in which she has stated that appellants A-3 Balmiki Bhagat and A-4 Devanand Bhagat were the persons who had taken her from the house of Karmu and dropped her at her home and at that time she was slightly gained consciousness. Victim (PW-1) in her statement before the Court in the examination-in-cheif though at paragraph No.1 she has stated that all the four appellants herein had committed the sexual intercourse with her, but in the cross-examination she has not named A-3 Balmiki Bhagat and A-4 Devanand Bhagat qua the commission of rape and only named appellants A-1 Fakal Ram and A-2 Dholi Ram. As such, the victim has not mentioned the name of A-3 Balmiki Bhagat and A-4 Devanand Bhagat in the written report (Ex.P/1) as well as in the FIR (Ex.P/2) qua the offence of rape which were lodged after two days of the incident.

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Their Lordships of the Supreme Court in the matter of Ram Kumar Pande v. The State of Madhya Pradesh1 has held that omissions of important facts in the FIR, affecting the

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1 AIR 1975 SCC 1026

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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probabilities of the case, are relevant under Section 11 of the Indian Evidence Act, 1872 (for short the “IEA”) in judging the veracity of the prosecution case and observed in paragraph No.9 as under:-

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“ 9 . No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 pm on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."

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Recently, in the matter of The State of Uttar Pradesh v. Raghuvir Singh2 the Supreme Court by relying upon the principles of law laid down in the matter of Ram Kumar Pande (supra) has held that the omission of the witness not to name the accused persons in FIR, is a relvant fact under Section 11 of the IEA and observed as under:-

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“ 29 . It is pertinent to note that according to the three eye-witnesses there were three accused. However, in the FIR only the name of the respondent-accused herein figures.

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2 2025 LiveLaw (SC) 158

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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The first informant claiming to be an eye-witness has not ex-plained why he omitted to name the other two co-accused in the FIR.

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31 . If he claims to be an eye-witness to the incident and is said to have witnessed three persons known to him assaulting his son i.e. the deceased then what was the good reason not to name the other two accused (juvenile Accused) in the FIR. This omission assumes significance and is a relevant fact under Section 11 of the Evidence Act.

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32 . In this regard, we may refer to a decision of this Court in the case of “ Ram Kumar Pandey (supra), wherein this Court observed in para 9 as under:-

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“ 9 . No doubt, an FIR is a previous statement which can strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on March 23, 1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.””

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In the intant case, following the principles of law laid down by their Lordships of the Supreme Court in the judgments of Ram Kumar Pande (supra) and Raghuvir Singh (supra), it is quite vivid that neither in the written report (Ex.P/1) nor in the FIR (Ex.P/2), A-3 Balmiki Bhagat and A-4 Devanand

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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Bhagat have been named that they had committed the sexual intercourse with the victim and she [victim (PW-1)] has admitted the said fact in her statement before the Court by stating that A-1 Fakal Ram and A-2 Dholi Ram are the persons who had committed the sexual intercourse with her against her wishes. Even otherwise, in the written report (Ex.P/1; duly typed), she (PW-1) has only named A-1 Fakal Ram and A-2 Dholi Ram that they had committed the sexual intercourse with her and A-3 Balmiki Bhagat and A-4 Devanand Bhagat had only escorted her from the house of Karmu to her house and the said fact as well written in the FIR (Ex.P/2). As such, the omission of fact of sexual intercourse committed by A-3 Balmiki Bhagat and A-4 Devanand Bhagat assumes significance and is a relevant fact under Section 11 of the IEA and there is no other evidence has been adduced by the prosecution against A-3 Balmiki Bhagat and A-4 Devanand Bhagat to base their convcition for offence under Section 376D of the IPC. Therefore, A-3 Balmiki Bhagat and A-4 Devanand Bhagat are entitled for acquittal on the basis of principles of benefit of doubt as the prosecution has failed to prove the offence against them.

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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Conviction of the appellants namely A-1 Fakal Ram and A-2

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Dholi Ram:-

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So far as the conviction of the appellants A-1 Fakal Ram and A-2 Dholi Ram is concerned, the victim has clealry implicated the appellants in crime in question while lodging the written complaint (Ex.P/1) as well in the FIR (Ex.P/2) and also in her statement before the Court. At this stage, the contention raised on behalf of the appellants that there was two days’ delay in lodging the written complaint and FIR which has not been explained by the proseuction, however, considering the statement of the victim (PW-1) in which she has clearly stated that as she was unconscious and unwell and admitted in the hospital, therefore, she could not made the complaint on the date of offence and after getting well, she reached to the police station and lodged the written complaint (Ex.P/1) against the appellants. As such, the delay has rightly been explained by the victim and however the delay of two days is insignificant and it could not made the case of the prosecution doubtful, therefore, the appellants cannot be acquitted on that ground alone. Even otherwise, the victim in her statement before the Court has clealry implicated the

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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appellants in crime in question by stating that when she had gone to answer the nature’s call all the four appellants herein (out of which two appellants have already been acquitted of the charges for offence under Section 376D of the IPC in the foregoing paragraphs) have caught hold of her and took her towards the mango tree and committed the sexual intercourse with her. Though in examination-in-chief she has implicated all the four appellants in crime in question, but in the crossexamination she has only implicated the two appellants namely A-1 Fakal Ram and A-2 Dholi Ram and stated that A-3 and A-4 escorted her to her house from the house of Karmu. However, in the cross-examination she has also stated that there was no light in the house of Karmu when she was goning to answer the nature’s call, but except that nothing has been extracted to hold that she has falsely implicated the appellants A-1 Fakal Ram and A-2 Dholi Ram and they have not committed the sexual intercourse with her.

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The aforesaid fact has been corroborated by the medical evidence (Ex.P/3) conducted by Dr. V. Bakhla (PW-5). Dr. V. Bakhla (PW-5) in her statement before the Court at paragraph No.4, has stated that in the internal examination she had

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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found abrasions and redness on the vulva; abrasions were also found on the private part of the victim; hymen were also found ruptured; abrasions and redness were also found on the lower side of labia majora and swelling was found on the perineum. Furthermore, in the forensic report (FSL; Ex.P/37) on the victim’s undergarments; vaginal slide and vaginal smear slide stains of semen and human sperm were found. As such, the trial Court has rightly convicted the appellants A-1 Fakal Ram and A-2 Dholi Ram for offence in question and we heerby affirm the said finding of fact based on evidence available on record and which is neither perverse nor contrary to the records.

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Conclusion:-

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In view of the aforesaid discussion and analysis, we are of the considered opinion that the prosecution has been able to bring home the offence against the appellants namely A-1 Fakal Ram and A-2 Dholi Ram beyond reasonable doubt and failed to bring home the offence againt the two appellants namely A-3 Balmiki Bhagat and A-4 Devanand Bhagat and, therefore, A-3 Balmiki Bhagat and A-4 Devanand Bhagat are entitled for acquittal on the basis of principles of benefit of

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CRA No. 688 of 2020; CRA No. 1900 of 2019 & CRA No. 1466 of 2019

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doubt. As a consequence, Criminal Appeal No.688/2020 filed by A-1 Fakal Ram & Criminal Appeal No.1900/2019 are dismissed and the Criminal Appeal No.1466/2019 filed by A- 3 Balmiki Bhagat and A-4 Devanand Bhagat is allowed. A-3 Balmiki Bhagat and A-4 Devanand Bhagat are reported to be in jail since 09.06.2018. Accordingly, the they be released from jail forthwith, if not required any other matter.

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21. Let a certified copy of this judgment along with the original

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record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where they are lodged and suffering jail sentence, informing A-1 Fakal Ram and A-2 Dholi Ram that they are at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee, forthwith for necessary action, if any.

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

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Ankit

Balmiki Bhagat v. State of Chhattisgarh

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Balmiki Bhagat v. State of Chhattisgarh

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