1 2025:CGHC:3639-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 13/01/2025 Judgment Delivered on 21/01/2025 CRA No. 1582 of 20 17 1. Madan Banjare @ Madan Bajpayee S/o Ajeetram Bajpayee, aged about 25 years, R/o Kotmisonar, Police Station Akaltara, Civil & Revenue District – Janjgir Champa, Chhattisgarh. 2. Rajkumar Sonawani @ Potu S/o Shantilal Sonwani, aged about 24 years, R/o Ward No. 7 Piparsatti, Police Station Akaltara, Civil & Revenue District – Janjgir Champa, Chhattisgarh. ---- Appellants Versus • State of Chhattisgarh Acting Through Officer-in- charge, Police Station – Akaltara, Civil & Revenue District – Janjgir Champa, Chhattisgarh. ---- Respondent For Appellants :- Mr. Devesh G. Kela, Advocate. For State :- Mr. Sharad Mishra, Panel Lawyer Amicus Curiae :- Mr. Ashish Tiwari, Advocate. DB: Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal C.A.V. Judgment Sanjay Kumar Jaiswal , J. Digitally signed by HEERA LAL SAHU Date: 2025.01.23 10:35:29 +0530 2 1 This criminal appeal under Section 374(2) of the CrPC preferred by the appellants (A-1 & A-2) herein against the impugned judgment of conviction and order of sentence dated 05.09.2017 passed by the learned Additional Sessions Judge, FTC Janjgir, District – Janjgir Champa (C.G.), in S.T. No. 98/2016 by which the appellants have been convicted and sentenced as under:- Conviction Sentence U/s 376-D of IPC Rigorous imprisonment for 20 years with fine of Rs. 20,000/-, in default of fine amount additional R.I. for 6 months. U/s 323/34 of IPC Rigorous imprisonment for 6 months with fine of Rs. 1,000/-, in default of fine amount additional R.I. for 6 months. U/s 427/34 of IPC Rigorous imprisonment for 6 months with fine of Rs. 1,000/-, in default of fine amount additional R.I. for 6 months. (All the sentences were directed to run concurrently). 2 The case of the prosecution, in a nutshell, is that prosecutrix lodged a written report vide Ex.P-1 to this effect that on 10.04.2016 in night at about 12:00 hours, the prosecutrix (PW-1) was sleeping with her family in her house in Ameripar Kotmi Sonar, at that time, appellants Madan Banjare, Potu Satnami and one another co-accused Yashwant Banjare stood in front of the house of 3 prosecutrix and started abusing her and vandalizing the house by hitting the house with sticks. They challenged the prosecutrix (PW-1) and her husband (PW-2) to come out. When the prosecutrix and her husband came out, the accused Madan Banjare using filthy language started assaulting the prosecutrix with a stick. The husband of the prosecutrix ran towards the colony for help. Meanwhile, the accused Madan and Potu dragged the prosecutrix to Ameripar Narwa. There, both of them threw the victim on the ground. The accused was saying that the son Umesh of the prosecutrix has ran away with the wife of the appellant and that those people will rape her. Saying this, first Potu and then Madan raped the prosecutrix one by one, then seeing the villagers coming, both of them fled on their motorcycle. 3 Further, case of the prosecution is that on the basis of the said written report FIR was lodged vide Ex.P-2. During the investigation, after obtaining the permission of the Executive Magistrate and consent from the prosecutrix and her husband vide Ex.P-3, MLC of the prosecutrix was conducted vide Ex.P-4 by Dr. Lalita Toppo (PW-9). Accused Madan Bajpai and Potu alias Rajkumar were also examined by Dr. C.P. Singh (PW-10) vide Exs.P-21 & P-22, in which the accused were found to be capable of having sexual intercourse. The statements of the witnesses were recorded. Crime Details form was prepared vide Ex.P-6. Properties were seized vide Exs.P-5, P-9 and P-25 and sent for chemical examination to FSL. In FSL report (Ex.P- 28) semen and human sperm were found on the 4 underwear, petticoat and vaginal swap slides of the prosecutrix (Articles A1, A2 and B, respectively) and semen and human sperm were also found on the underwear of the appellants (Articles C & D). During the investigation, the petticoat, underwear, two slides of the prosecutrix, which were preserved during chemical tests, and blood stains of the prosecutrix and accused Madan and Potu alias Rajkumar were sent to C.D.F. Hyderabad for DNA testing. In DNA test report (Exs.P-32 & P-33) it is stated that “Results from the DNA test performed on exhibits provided are sufficient to conclude that the biological material present on the sources of exhibit A (black colour petticoat of victim) and exhibit B (vaginal slides of victim) is form the sources of exhibit E (Madan Banjare @ Madan Bajpai), exhibit F (Rajkumar Sonwani @ Potu) and exhibit G (blood stains of victim)”. After completion of investigation, charge sheet was filed against the appellants. 4 In order to bring home the offences, prosecution has examined as many as 12 witnesses and exhibited 33 documents. The statement of the appellants was taken under Section 313 of CrPC wherein, appellants abjured their guilt and entered into defence stating that they have not committed the offence. However, the appellants in support of their defence has exhibited only 2 documents (Exs.D-1 & D-2). 5 The learned trial Court after appreciating the oral and documentary evidence available on record, acquitted co-accused Yashwant Kumar Bajpai @ Lasra for the offences punishable under Sections 294, 323/34 (two times) & 427/34 of IPC. However, 5 the appellants (A-1 & A-2) has been convicted and sentenced for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. 6 Learned counsel for the appellants would submit that the appellant has been falsely implicated in this case due to enmity. The trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences by recording a finding which is perverse to the record as there is no evidence on record upon which their conviction could have been based. He further submits that the seizure of the petticoat of the prosecutrix and the underwear of the appellants have not been proved beyond reasonable doubt. The prosecutrix herself stated that she came to the police after taking a bath and therefore there is no evidentiary value of the DNA report. He also submits that the learned trial Court has failed to see that no independent witness has supported the case of the prosecution. Thus, the appeal is liable to be allowed and the appellants are liable to be acquitted. He placed reliance on the decision of the Hon’ble Supreme Court in the mater of Rahul v. State of NCT of Delhi1. 7 Per contra, learned State counsel would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt. He would further submit that considering the medical report (Ex.P-4), FSL report (Ex.P28) and DNA test report (Exs.P-32 & P- 1 (2023) 1 SCC 83 6 33) and also considering the other evidence available on record, the conviction of the appellants is well merited and the instant appeal deserves to be dismissed. 8 We have heard learned counsel for the parties, considered their rival submissions made hereinabove and gone through the records with utmost circumspection. 9 The prosecutrix/victim (PW-1) in her Court statement clearly stated that on the date of the offence, i.e. 10.04.2016, accused Potu alias Rajkumar and Madan had sticks in their hands with which they assaulted her as soon as they came out and while assaulting her they dragged her to the side of the drain. Then accused Madan made her lie down on the ground saying that her son Umesh has run away with his wife and he will also rape her. Then accused Potu alias Rajkumar took off her underwear and raped her. At that time accused Madan was holding her. After that accused Madan raped her, then accused Potu alias Rajkumar was holding her. Accused Yashwant was watching there and was also abusing. 10 Prosecutrix (PW-1) further stated that when the accused started assaulting her near the door, at the same time her husband Beniram (PW-2) had gone to call the owner of the brick kiln. He came back with the owner of the brick kiln immediately after the accused raped her. Seeing him the accused fled away on a motorcycle. She told her husband and the owner of the brick kiln Pardeshi about the incident and then came to the police station and filed a report against the accused persons. The 7 prosecutrix (PW-1) remained consistent in her statement. 11 Beniram (PW-2), husband of the prosecutrix who has clearly stated that the appellants came to their door at about 12:00 hour in night and abused them and also assaulted the prosecutrix (PW-1) on account of a dispute with regard that son Umesh of the prosecutrix taken away the wife of appellant Madan Banjare @ Madan Bajpayee with him. 12 Dr. Lalita Toppo (PW-9) examined the prosecutrix (PW-1) and gave her MLC report vide Ex.P-4. According to the MLC report (Ex.P-7) 7 injuries were found on the body of the deceased which are as follows: 01. injured had swelling on her left upper arm and complained of pain on touching it. 02. There was a lacerated wound measuring 0.5x1/4 cm between the thumb and middle finger of left hand and it was red. 03. There were three dot-like scratch marks below ear. 04. There were 1/4x1/4 cm scratch marks on the lower front part of right arm and there were three scratches at one place. 05. A scratch mark measuring 0.5x1/4 cm was present on the middle part of right chest and was red. 06. A contusion mark measuring 5x9 cm was present on the back of waist and on the upper thigh which was red and painful on touching. 07. A contusion measuring 10x4 cm was present on the lower outer part of the right thigh which was red and painful. 13 Considering the statement of the victim (PW-1) which has been corroborated by the statement of 8 Beniram (PW-2) and the MLC report (Ex.P-4) proved by Dr. Lalita Toppo (PW-9). Moreover, the FSL report (Ex.P-28) in which semen and human sperm were found on the undergarments of the victim and the appellants and the DNA report (Exs.P-32 & P- 33) which shows that the DNA of the appellants matched with the biological material present on slides of the victim (PW-1). As such, on the basis of aforesaid evidence available on record, the finding recorded by the learned trial Court that the appellants are guilty of having committed rape with the prosecutrix (PW-1) against her will and consent and also assaulted her, is strictly in accordance with the law, for which, they have rightly been convicted and sentenced. We do not find any illegality or perversity in the findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding. 14 Learned counsel for the appellants argued that the samples were sent delayed for DNA profiling, therefore, the DNA report cannot be relied upon. In this regard, he placed reliance on the decision of the Hon’ble Apex Court in the matter of Rahul (supra) and quoted para 32 of the judgment which is as follows: “32. It is true that PW-23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to 9 the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.” But the facts of the present case are totally different from the judgment on which reliance has been placed by the counsel for the appellants, and no question has been put before the investigating officer in his cross-examination regarding the delay in sending the samples for DNA profiling, therefore, they cannot get the benefit of that judgment. 15 Thus, on the basis of the above discussion, it is clear that the case of the prosecution against the appellants has been corroborated not only by the victim (PW-1) but also by medical evidence (Ex.P-4), FSL report (Ex.P-28) and DNA report (Exs.P-32 & P-33), no such contradiction has been found in it by which the statement of the prosecutrix (PW-1) or the case of the prosecution can be doubted or 10 disbelieved. In this case, the arguments raised in the appeal are not found acceptable, therefore, no need to interfere with the findings recorded by the trial Court. 16 As a result of the above discussion, this Court finds that the order of conviction and sentence passed by the trial Court does not call for any interference. Hence, the appeal is liable to be and is hereby dismissed. 17 Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned for information and necessary action, if any. 18 The Registry is directed to send a copy of this judgment to the concerned Superintendent of jail where the appellant is undergoing his jail term, informing him that he is 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. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu