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2008 DIGILAW 60 (CHH)

MANTHIR YADAV v. STATE OF C. G.

2008-03-18

DHIRENDRA MISHRA

body2008
JUDGMENT Shri Dhirendra Mishra, J. :- 1. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 3ed March 2006 passed in S.T.No. 76/2005 whereby learned Special Court under S.C./S.T. Act, Bastar at Jagdalpur, has convicted the appellant under Section 376 of Indian Penal Code and sentenced him with RI for seven years, pay a fine of Rs.3,000/- and in default thereof, to undergo additional RI for six months. 2. Case of the prosecution, in brief, is that the prosecutrix, aged about 30 years, a married lady, belonging to scheduled tribe, was receiving treatment from the appellant as she did not bear child and the appellant was treating her by practicing sorcery. On 15.12.2004 at about 10.00 p.m. the appellant visited the house of the prosecutrix in Village Bhirawahi in connection with her treatment. He lit an earthen lamp in the kitchen garden of the prosecutrix and asked her husband to remain there and see that the earthen lamp continues to bum. Thereafter, he took the prosecutrix towards forest and committed rape with her. After some time, the appellant returned and fled from there on his motorcycle. The prosecutrix narrated about the incident to her husband Aghan Singh and Mangal Singh. After the incident a meeting was convened in the village, the appellant was also called in the said . meeting and he confessed his guilt in the presence of villagers. 3. Report (Ex.P/1) of the incident was lodged on 25.12.2004 at about 18.00 hours at P.S. Bhanupratappur. The prosecutrix as also the appellant were sent for medical examination. Dr. Sarita Goti (PW -5) examined the prosecutrix and gave her report of EX.P/4. Slides of vaginal swab were prepared during investigation and sent for chemical examination to Forensic Science Laboratory, Raipur. 4. After completing investigation charge sheet was filed against the appellant under Section 376 of IPC and Section 3(1)(12) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, in the Court of Judicial Magistrate First Class, Bhanupratappur, who in turn, committed the case to the Court of Sessions Judge. Jagdalour and the same was received on transfer by the learned Additional Sessions Judge for trial. 5. During trial the prosecution examined 7 witnesses in all. Jagdalour and the same was received on transfer by the learned Additional Sessions Judge for trial. 5. During trial the prosecution examined 7 witnesses in all. Thereafter, statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in which be denied the circumstances appearing against him in the prosecution evidence and pleaded that husband of the prosecutrix had demanded Rs. 5,000/- from him for payment to the labourers and on his refusal a false complaint was lodged against him. He was confined in his home from Ist December to 18th December 2004 as he was sick. He also examined Banshilal as DW -1 and his wife Rekha Yadav as DW -2. 6. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one of this judgment. 7. Learned counsel for the appellant submits that the story given by the prosecution is highly improbable. It is alleged that the appellant committed rape with the prosecutrix while her husband was sitting in his kitchen garden, merely at a distance of 65 meters and he was aware of the fact that his wife has gone with the appellant to the place of incident. The incident is of 15th December 2004, her husband came to know immediately after the incident and the meeting was allegedly convened after 2-4 days of the incident. However, report of the incident was lodged only on 25th December 2004 at about 6.00 p.m. The trial Court has based the conviction on the evidence of the prosecutrix (P.W -1), Aghan Singh (PW -2). husband of the prosecutrix and Ramji (PW - 3), brother of husband of the prosecutrix in relation, who was present in the above meeting. Though 20 persons were present in the said meeting, but none of the independent witnesses has been examined during trial. Moreover, there is material discrepancies in the statements of the prosecutrix and her husband, however, learned trial Court ignoring the above inconsistencies in the prosecution case, has convicted and sentenced the appellant by the impugned judgment. 8. On the other hand, learned counsel for the State has supported impugned judgment of the trial Court. 9. I have heard learned counsel for the parties and perused the records of the trial Court as also the impugned judgment. 10. 8. On the other hand, learned counsel for the State has supported impugned judgment of the trial Court. 9. I have heard learned counsel for the parties and perused the records of the trial Court as also the impugned judgment. 10. First Information Report (Ex.P/1) was lodged by the prosecutrix on 25.12.2004 at about 6.00 p.m. mentioning therein that the incident occurred on 15.12.2004 at about 10.00 p.m. and calling of the meeting in the village has been assigned a reason for lodging the report belatedly. 11. PW -I the prosecutrix, in her evidence, has stated that she is married for the last eight years. However, she could not bear child. They called the appellant some 2-3 months before the incident for her treatment by practicing sorcery. The appellant came to their home at about 10.00 p.m. on motorcycle and asked her husband to sit before the earthen lamp, took her on foot to a distance on the pretext of performing some puja-paat, threw her on the ground and raped her after gagging her mouth. Thereafter, the appellant fled from there. She narrated about the incident to her husband after returning home. After 2-4 days of the above incident, a meeting was convened in the village and the accused was also called in the said meeting. However, he was avoiding coming in the meeting and ultimately, when he came in the .meeting, the prosecutrix informed the Panchas that he has robbed her honour. On being enquired by the Panchas, the accused confessed in the meeting having committed mistake. She has stated in her cross-examination in paragraph-8 that she suffered pain on account of being thrown on the earth, however, there was no bleeding. She had mentioned to the doctor about the pain, who examined her. She has admitted that she did not offer resistance as she is of weak stature. A meeting was convened 2-4 days before lodging of the report. 12. PW-2 Aghan Singh, husband of the prosecutrix, has also deposed in the similar lines and stated that after the incident his wife returned alone and informed him that the appellant has raped her after inserting clothe in her mouth. At that time the accused also returned and went away on his motorcycle. The accused admitted before the Panchas that he had committed mistake. In cross-examination, he has stated that 50-60 persons were present in the meeting. At that time the accused also returned and went away on his motorcycle. The accused admitted before the Panchas that he had committed mistake. In cross-examination, he has stated that 50-60 persons were present in the meeting. He has denied the suggestion that a demand of Rs.50,000/- or any amount was made from the appellant. 13. PW -3 Ramji, brother of the husband of the prosecutrix in relation, who is also a witness of the meeting, has deposed that in the said meeting the appellant, the prosecutrix and her husband were present. About 20 persons had gathered in the said meeting. The prosecutrix had alleged that the accused robbed her honour and on being asked, the accused stated that he has committed mistake. 14. In the medico legal examination report of the prosecutrix and the appellant, no injury or abnormalities was noticed on their persons. Dr. Sarita Goti (pW -5), who examined the prosecutrix, has not given any definite opinion about rape and she has also stated that she did not notice any external or internal injury over person of the prosecutrix nor the prosecutrix complained any pain over her body. 15. The question for consideration for the purpose of this appeal is - whether the trial Court was justified in acting upon the solitary testimony of the prosecutrix regarding commission of the offence or whether in the facts and circumstances of the case, evidence of the prosecutrix inspires confidence, on the basis of which it could be conclusively held that the appellant was guilty of the offence of rape? 16. As per prosecution story, husband of the prosecutrix Aghan Singh was aware of the incident of rape immediately after the incident on 15.12.2004 itself, the villagers also came to know about the incident immediately and a meeting was allegedly convened after 2-4 days of the incident, in which the appellant is said to have confessed his guilt. However, the report was lodged only on 25.12.2004 i.e. 10 days after the incident. Though, delay in lodging the report alone cannot be a circumstance to suspect the version of the prosecutrix, if it otherwise inspires confidence. 17. However, the report was lodged only on 25.12.2004 i.e. 10 days after the incident. Though, delay in lodging the report alone cannot be a circumstance to suspect the version of the prosecutrix, if it otherwise inspires confidence. 17. In the instant case, the prosecutrix has stated in her deposition that the accused came to their home at about 10.00 p.m. on motorcycle whereas in the FIR she has stated that the appellant came to her home in the evening at about 4.00; at that time the labourers were present in the home and after departure of the labourers, the offence was committed by the appellant. From the evidence available on record, it appears that husband of the prosecutrix was sitting in the kitchen garden near the earthen lamp and the rape was allegedly committed at a distance of only 65 meters from him. The prosecutrix and the appellant had gone towards the direction of the place of incident in the presence and knowledge of her husband. The independent witnesses, who were present in the meeting, though available, have not been examined except one Ramji, who is brother of the husband of the prosecutrix in relation. The prosecutrix has claimed that she was suffering body pain on account of being thrown on the earth and she had told the doctor, who examined her about the pain, but her version is not corroborated trom the medical evidence of Dr. Sarita Goti (PW -5). 18. After closely scrutinizing the evidence of the prosecutrix and other two witnesses namely Aghan Singh (PW -2) and Ramji (PW -3) and further considering the inordinate delay of 10 days in lodging the report, in the considered opinion of this Court the trial Court was not justified in placing implicit reliance on the version of the prosecutrix in convicting the appellant under Section 376 of IPC by the impugned judgment. The Court below ought to have extended benefit of doubt to the appellant. 19. In the result, the appeal succeeds. Conviction of the appellant under Section 376 of IPC and sentence passed thereon, are set aside. He is acquitted of the above charge. He be set at liberty forthwith, if not required in any other case. Appeal Allowed.