Ganesh Singh Mandvi vs Shivratri Devi and Others

Pritinker Diwaker, J.—This appeal is directed against the judgment dated 5.5.1993 passed by Additional Sessions Judge, Bilaspur, in Sessions Trial No. 264/1988 convicting the accused/appellants for the offences punishable under Sections 376(2)(g) and 342 IPC and sentencing each of them to undergo rigorous imprisonment for ten years u/s 376(2)(g) and rigorous imprisonment for six months u/s 342 IPC. During the pendency of appeal accused/appellant No. 2 (Angadsingh) has expired and therefore this appeal relates to appellants Ganesh Singh Mandvi and R.L. Sharma, only.

As per the case of the complainant/respondent No. 1 she had lodged a complaint on 13.1.1987 before the Court of Judicial Magistrate First Class, Katghora alleging that on 22.4.1986 she was forcibly taken by the accused/appellant No. 1 Ganesh Singh Mandvi to his house on the pretext that her husband was waiting for her. From there, she was taken to the nearby forest where all the three accused persons had ravished her. Accused/appellant No. 1 Ganesh Singh Mandvi had also snatched her two year child and threatened to kill him if she raised any alarm. It is alleged that she was confined to the house of accused/appellant No. 1 Ganesh Singh Mandvi for three days and was repeatedly subjected to forcible sexual intercourse by all of them. On 10.6.1986 she sat on hunger strike in front of the office of Superintending Engineer, Hasdeo Bango Project and thereafter on 12.6.1986 Police of police station Katghora registered the case against the accused/appellants. However, final report was submitted by the police as a result of which she was left with no other option but to file the complaint case against the accused/appellants.

So as to hold the accused/appellants guilty, complainant has examined 05 witnesses in support of her case. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties the trial Court has convicted and sentenced the accused/appellants for the offences as mentioned above.

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

Counsel for the appellants submits that the complaint has been filed with an inordinate delay. He submits that as per version of the prosecutrix herself she was subjected to forcible sexual intercourse by the accused/appellants on 22.4.1986 whereas no prompt report of the same was lodged by her and even the complaint case was filed on 13.1.1987. He submits that the prosecutrix has not even been medically examined. According to him, there was some civil dispute between accused/appellant No. 2 Angadsingh (since deceased) and the father-in-law of the prosecutrix namely Onkar Prasad (PW-5). He submits that statement of the prosecutrix being full of contradictions and omissions cannot be held to be trustworthy and conviction based thereon would be illegal.

On the other hand counsel for the respondent No. 1 supports the impugned judgment and submits that the same being strictly in accordance with the evidence available on record is not prone to any disturbance in appeal. He submits that present is a case where a poor lady has been sexually exploited by the three accused persons and despite her best efforts, the police had refused to register and investigate the matter compelling the prosecutrix to file the complaint case against the accused/appellants. He also submits that the defence has not been able to bring forth any material to show the false implication of the accused/appellants in this case.

State counsel also rendered his valuable assistance to this Court.

Prosecutrix (PW-1) has stated in her evidence that on 22.4.1986 when she was returning from her parents'' house along with her two year child in a bus in which accused/appellant No. 1 Ganesh Singh Mandvi who was working as Forest Guard was also traveling. She has further stated that he forced her to alight the bus, took her to his house and confined her therein. According to her, accused Ganesh Singh Mandvi called other two accused persons namely Angadsingh (since deceased) and R.L. Sharma and in the night all of them consumed liquor and then after taking their meals, accused Angadsingh (since deceased) and R.L. Sharma left the place. Thereafter, accused Ganesh Singh Mandvi took her to the forest depot where two other accused persons namely Angadsingh (since deceased) and R.L. Sharma were already present. All the three accused persons threatened her to kill her child in case she raised an alarm. Thereafter, accused Ganesh Singh Mandvi tied her hands and eyes, gagged her mouth and then first of all accused Angadsingh (since deceased) committed sexual intercourse with her which was followed by other two accused persons also. According to her even thereafter she was subjected to sexual intercourse by all the three accused persons during her stay for three days. She has further stated that on the fourth day she was asked by accused Angadsingh (since deceased) to lodge a report against her husband for demand of dowry and on her refusal he himself prepared the report and forcefully obtained her signature on that and submitted the same in police station Machatoli. She has stated that thereafter she went to her parents'' house and four days'' thereafter the minor child was handed over to her by the accused/appellants and then she narrated the entire incident to her father who took her to the house of her husband where she narrated the incident to him also and then both of them went to police station Machatoli to lodge the report but the Station House Officer refused to register the same. According to her, after refusal from the Station House Officer to register the FIR, she went to the office of Collector, Bilaspur, along with her husband where she was assured by the Collector regarding an action to be taken on her report. In her cross examination this witness has admitted that though the place where the incident had taken place is a densely populated locality but she did not disclose the incident to anyone. She has stated that when she was made to get down from the bus by accused Ganesh Singh Mandvi, she had raised an alarm but no one could hear her voice. Statement of the prosecutrix prima facie appears to be un- natural and fabricated one and thus not worthy of credence.

Arun Kumar Trivedi (PW-2) who is the husband of the prosecutrix has stated in his evidence that at the relevant time he was working as timekeeper in the irrigation department. According to him, his father in law had brought the prosecutrix to his house and only then he came to know about her having been subjected to forcible sexual intercourse by all the three accused persons. This witness has admitted that he was informed by his wife that she had lodged a report against him for demand of dowry. According to him, even after an assurance from the Collector, Bilaspur report was not registered against the accused/appellants. He has stated that accused Ganesh Singh Mandvi had asked him to part with Rs. 5000 to each of the accused persons for not making the incident of rape on his wife public. However, on being confronted with his previous statement recorded u/s 200 of the Code of Criminal Procedure, this witness has stated that he cannot say as to how the said statement has been recorded. It is relevant to note that in Ex. D-2 this witness has stated that his wife had informed him that she was taken by the accused persons but in the Court statement he has stated that she was taken by accused/appellant Ganesh Singh Mandvi only and was subjected to rape. This witness has stated in his cross examination that in his statement recorded u/s 200 of the Code of Criminal Procedure he had not made any statement regarding demand of Rs. 5000 by each of the accused/appellants for not making the matter public. According to this witness, the prosecutrix was kept in the house of accused/appellant Ganesh Ram Mandvi for 8 days and was subjected to forcible sexual intercourse by all the accused persons whereas the prosecutrix herself has stated that she was kept in his house for three days only.

Thus the evidence of the prosecution witnesses particularly that of the prosecutrix (PW-1) and her husband Arun Kumar Trivedi (PW-2) appear to be full of contradictions and omissions and therefore does not inspire confidence of this Court. Moreover, there are various inconsistencies in their statement recorded u/s 200 of the Code of Criminal Procedure and that recorded before the Court. Not only this, the prosecutrix herself has stated that she was made to alight the bus by the accused/appellant Ganesh Singh Mandvi near a barrier and accompany him to his house but she did not offer any resistance to his act and permitted all the three accused persons to sexual intercourse for three long days. Thus the entire story put forth by the prosecutrix appears to be quite unnatural to warrant conviction.

In view of the above factual background, this Court is of the view that the Court below has erred in appreciating the evidence available on record while recording the findings convicting and sentencing the accused/appellants for the offences mentioned above. Accordingly, the appeal is allowed and the impugned judgment dated 5.5.1993 being contrary to the evidence available on record is set aside. Appellants are acquitted of the charges levelled against them. Appellants are reported to be on bail. Their bail bonds stand discharged.