Goutam Bhaduri, J.
1. Both these appeals are being heard and decided together as the accused/appellant is one and the alleged date of incident is 11/02/2016, wherein the rape was committed with two prosecutrix, for which simultaneous trial was conducted by the Additional Sessions Judge (FTC), Durg.
2. CRA No. 53 of 2021 arises out of judgment dated 24/11/2020 passed in Sessions Trial No. 119/2016 by the First Additional Sessions Judge, FTC, Durg, C.G. and CRA No. 77 of 2021 arises out of judgment dated 24/11/2020 passed in Sessions Trial No. 118/2016 by the same Sessions Judge. In both the trial, the evidence was recorded in continuity and eventually in both the cases the appellant was separately convicted for offence under Section 376 (2) of the Indian Penal Code and sentenced him to undergo RI for life (till the natural death) and to pay a fine of Rs. 1,000/-in each case, in default of payment of fine to further undergo RI for two months. Being aggrieved by both the judgments, the appellant has preferred these two appeals.
3. Brief facts of this case are that two reports bearing Cr. No. 50/2016 & 49/2016) were lodged on 12/02/2016 (Ex. P/1) that the prosecutrix were suffering with certain ailments and the appellant who was stated to be a Baiga came to the house and offered treatment to respite from the ailment. Pursuant thereto both the prosecutrix, who are cousin sisters, were sent along with the appellant for exorcism (jhaad-phoonk). Having repose confidence upon the appellant, both the girls were sent along with the appellant at about 7.30 PM and accused took them to a field near a cremation ground and offered them rice mixed with certain things. Thereafter, both the girls lost their consciousness and it was stated that while they were in semiconscious state, taking advantage of such situation, the appellant committed rape on them. The victims out of fear did not object to such act. The appellant further told the prosecutrix not to disclose these facts to any of the family members, however, after the prosecutrix came back to their house, they disclosed about the incident to their Mama (maternal uncle). Thereafter, two separate reports were lodged.
4. After the report, the investigation was carried out; statements were recorded; both the prosecutrix were subjected to medical test; and after recording of the statement, the charge-sheet was filed under Section 376 of IPC.
5. During the course of trial, the appellant abjured his guilt and claimed to be tried.
6. In order to substantiate the allegations, the prosecution examined as many as twelve witnesses in both the cases and Court, thereafter, convicted the appellant as aforesaid. Hence this appeal.
7. Shri Rajeev Kumar Dubey and Shri Nilkanth Malviya, learned counsel appearing on behalf of the appellant would submit that the appellant has been falsely implicated, which would be evident from the statements of prosecutrix and would submit that the prosecutrix were immediately subjected to medical test and such medical test do not support commission of rape. It is stated that the respective FSL reports of the prosecutrix also do not support the commission of rape.
8. Shri Dubey, learned counsel, would further submit that the statement of the prosecutrix would show that there are major contradiction in the statements of both prosecutrix, which would lead to draw the inference of false implication. He would further submit that only on the basis of presumption, the appellant was prosecuted and since there is a serious inconsistency in the statements, the appellant is liable to be acquitted in view of the law laid down by the Supreme Court in the case of Santosh Prasad @ Santosh Kumar Vs. The State of Bihar {Criminal Appeal No. 264 of 2020 arising out of SLP (Criminal) No. 3780/2018, decided on 14th February, 2020}.
9. Per contra, learned State counsel would submit that the statement of the prosecutrix remain unrebutted with regard to commission of rape. He would further submit that the simultaneous statement of the prosecutrix, who were examined in this case, would show that there has been corroboration of commission of offence by the appellant on both the prosecutrix and the prosecutrix remained consistent in their respective statements. Therefore, there was no reason to disbelieve the statement and the order of the Court below is well merited which do not call for any interference.
10. We have heard learned counsel for the parties at length and perused record.
11. The date of incident in both the cases is on 11/02/2016 at about 7.30 PM. The FIR was lodged on 12/02/2016 at about 12.35 am i.e. after few hours of the incident. There is no dispute of the fact that both the prosecutrix were major, which is also evident from the school certificates wherein date of birth of prosecutrix in CRA No. 53/2021 is 16/03/1997 vide Ex. P/8 and date of birth of prosecutrix in CRA No. 77/2021 is 15/03/1997 vide Article 'A'. The question, therefore, looms large as to whether the statement made by both the prosecutrix has proved the guilt or not
12. In order to explore the fact, we went through the statement of the prosecutrix (D) (PW-1) in CRA No. 53 of 2021, wherein she states that on the date of incident in order to perform certain exorcism to come out of the ailment, she along with her cousin sister went with the appellant. Thereafter, they were taken to the field, wherein both the prosecutrix were made to lie down on the field and subsequently were offered the rice and certain mixture and Bandan (vermilion). Subsequently, they became unconscious and the appellant committed rape on them. In the cross-examination she admits that except two sisters, no family members went along with them and earlier also they had went along with the appellant. She further states that after consuming the rice and vermilion, they started feeling intoxicated and lost their conscious. She further states that both the prosecutrix consumed the rice. She further states that during such intoxication, in intoxicated state where they were taken, she do not remember. She further admits that thereafter what the appellant has done with them, she do not remember. She further states that after coming back family members had not enquired anything from them.
13. The other prosecutrix (S), who was examined as PW-2 in CRA No. 53 of 2021, accompanied the prosecutrix (D), stated that after consuming the rice and vermilion they fell asleep. She further states in the cross-examination that she cannot say that whether her clothes were taken out or not. She also states that she was little bit conscious to understand to affirm commission of rape. In a suggestion given, she states that after they came back, the 'doubt' was made by her mother and presumed that both of them were subjected to rape and for doubt a conversation took place in the house and their father and mother went to the neighbour to consult. Thereafter, report of rape was made. She states that she has experienced the rape to have been committed on her.
14. The map of the spot, which is marked as Ex. P-4 in CRA No. 53 of 2021 and Ex. P-9 in CRA No. 77 of 2021, would show that the place of incident was 75 feet from the road and after road certain houses also exist. Sevak Ram (PW-4) in CRA No. 53 of 2021, who is the father of the prosecutrix (D), has not supported the case of the prosecution.
15. In respect to the prosecutrix (S) she was examined as PW-1 in CRA No. 77/2021 (S.T. No. 118/2016). She stated that after consuming the rice and vermilion they became unconscious and thereafter rape was committed on her and thereafter, with the other prosecutrix (D). The prosecutrix (S) was declared hostile wherein she admitted that while the prosecutrix was subjected to sexual intercourse, she asked as to why the accused is doing such act, the appellant answered that in order to cure the ailment that was required. The statement of the prosecutrix (S) (PW-1), who was major, therefore, would show that the allegations of forceful rape was made but she was conscious to have verbal conversation and was aware of sexual intercourse. Report of the incident was made immediately on 12/02/2016 after few hours.
16. The statement of Dr. (Smt. ) Mamta Gendre (PW-11), who examined the prosecutrix (D) in CRA No. 53/2021 would show that on 12th February, 2016 at about 1 pm, the prosecutrix (D) was examined. The slides were prepared and the same were sent for FSL. She gave her report vide Ex. P/10 and according to her positive opinion for commission of rape was not affirmed and the report further would show that no injury was found on the body of the prosecutrix or over the private parts to infer no forceful sexual intercourse.
17. Likewise the statement of Dr. Alpana Agrawal (PW-10), who examined prosecutrix (S) in CRA No. 77/2021, found the scratches over the vagina and after examining she found that no positive opinion can be given about the forceful sexual intercourse. The report was given vide Ex. P/18 and only few abrasions were found over the body. The report would show that she was examined on 12/02/2016 at 1.00 PM. The medical reports of both the prosecutrix, therefore, do not corroborate the fact of forceful sexual intercourse. The vaginal slides which were prepared of both the victims were sent for FSL. The FSL report of both the prosecutrix which was slide A-1 for prosecutrix (D) and slide 'A' for prosecutrix (S), no sperm was found on such vaginal slides.
18. According to the prosecution, the incident happened on 11/02/2016 after 7.30 PM and both the prosecutrix were examined immediately on the next date on 12/02/2016 and initially from the MLC no forceful rape was found, which was further corroborated by FSL and no spermatozoa was found on vaginal slides. This raises a doubt about happening of the incident. Therefore, we were required to bring the lens back to the statement of the prosecutrix in the backdrop of the said negative facts. On careful examination it would show the inconsistency in the statement of one of the victim (S), who was examined as PW-2 in S.T. No. 119/2016 and was examined as prosecutrix in the other Sessions Trial. She had stated that it was because of the doubt which was raised after the girls returned to their home at the behest of the mother that something wrong has happened consultations were made. The statement would show when such doubt aggravated reports were made. The statement of the prosecutrix (D) & (S) would show that at one part they stated that after they were intoxicated, they could not know what happened but at the same time the incident of rape was reported. Despite the fact that both the prosecutrix were examined by doctor, neither the forceful rape was corroborated by doctor nor by FSL report, which was prepared simultaneously.
19. Under the facts, the reliance placed by the learned counsel for the appellant would squarely apply to the facts of this case to draw the inference that the manner in which the alleged incident had taken place, the statement of both the prosecutrix (S) & (D) creates doubt. In the facts of this case, solitary version of the prosecutrix (S) & (D) cannot be believed to be the gospel truth. Therefore, we are of the view that the conviction and the sentence imposed on the appellant in both the cases cannot be allowed to sustain and consequently benefit of doubt should lean in favour of the accused/appellant.
20. Accordingly, conviction and sentence imposed upon the appellant under Section 376 (2) (V) of the Indian Penal Code are hereby set aside and he is acquitted of the said charge in both the cases. The appellant is in jail. He be released forthwith if not required in any other case, on his furnishing a personal bond for a sum of Rs. 25,000/-with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed.
21. Accordingly, both the appeal stand allowed.
