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2011 DIGILAW 155 (CHH)

Awadhram Alias Bega v. State of Madhya Pradesh

2011-04-19

PRITINKER DIWAKER

body2011
Judgment (1) THIS appeal is directed against the judgment and order dated 15-4-2000 passed by Additional Sessions Judge, Sakti District Bilaspur in Sessions Trial No. 403/1999 convicting the accused/appellant for the offences punishable under Sections 450 and 376, IPC and sentencing him to undergo rigorous imprisonment for three years with fine of Rs.2000/- u/S.450 and rigorous imprisonment for seven years with fine of Rs.3000/- u/S.376, IPC plus default stipulations. (2) FACTS of the case in brief are that on 27-2-1999 FIR (Ex. P-1) was lodged by prosecutrix (P.W. 1) - a married lady aged about 22 years at the relevant time alleging that on 24-2-1999 when she was in her house along with her husband, at about 8 p.m. the appellant came there in a drunken state and asked her husband to get some snacks from the nearby shop. It is alleged that when her husband had gone to get the snacks, taking advantage of her loneliness, the accused/appellant caught hold of her hand, threw her on the floor and after upturning her sari and petticoat committed forcible sexual intercourse with her. It is further alleged that as the appellant had tied her mouth with his towel, she could not raise alarm and that after committing rape, the accused/appellant removed the towel from her mouth and fled away. Thereafter, on her breath becoming normal, she raised the screams on hearing which Firtinbai and Dhanbai reached there and she narrated the incident to them. After completion of investigation challan was filed by the police for the said offence on 16-11-1999. So as to hold the accused/appellant guilty, prosecution has examined 24 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Tulsidas (D.W. 1) has also been examined by the defence in support of its case. (3) After hearing the parties, the trial Court has convicted and sentenced the accused/ appellants as mentioned above in paragraph No. 1 of this judgment. (4) COUNSEL for the appellant submits that present is a case of false implication of the accused/appellant as he had fought Panchayat election against Tilak Ram (P.W. 4) who is related to the prosecutrix and her family members. (4) COUNSEL for the appellant submits that present is a case of false implication of the accused/appellant as he had fought Panchayat election against Tilak Ram (P.W. 4) who is related to the prosecutrix and her family members. He submits that there are material contradictions in the Court statement of the prosecutrix if compared to the FIR and her case diary statement and in these circumstances the appellant is entitled for acquittal. He further submits that there is an inordinate delay of two days in lodging the FIR which has not been satisfactorily explained by the prosecution. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the delay of two days in lodging the FIR has been properly explained by the prosecution that as the panchayat elections were going on and the police might be engaged in the same, the report Could not be lodged immediately. He further submits that FSL report Ex. P-32 is positive as the sperm was found in the underwear seized from the accused/appellant. (5) PROSECUTRIX (P.W. 1) has stated in her evidence that on the date of incident when she was in her house with her husband, at about 8 p.m. the accused/appellant came there in a drunken condition and asked her husband to get some snacks from the nearby shop: According to her, when her husband had gone to get the snacks, the accused/appellant first pressed her breasts and when she was to raise an alarm, he tied her face with a small towel, threw her on the floor and after upturning her sari and petticoat and removing his own Lungi committed forcible sexual intercourse with her. She has stated that on hearing her cries, Firtinbai (P.W. 2) and Dhanbai (P.W. 3) reached there to whom she narrated the incident. She has further stated that after her husband got back, she narrated the entire incident to him also and then she along with him had gone to the house of the accused/appellant but he did not come out of his house. She has stated that as on the date of incident panchayat elections were to take place, the report could not be lodged on the same day and two days thereafter she along with her husband, Firtin Bai and Samrin Bai had gone to the police station and lodged the report. She has stated that as on the date of incident panchayat elections were to take place, the report could not be lodged on the same day and two days thereafter she along with her husband, Firtin Bai and Samrin Bai had gone to the police station and lodged the report. Thereafter, she was sent for medical examination, her petticoat was seized by the police vide Ex. P-3 and the spot map Ex. P- 4 was prepared by the Patwari. In cross-examination, this witness has stated that apart from herself, her sister-in-law and brother- in-law were also living in the same house but on the date of incident they had gone to witness Ganesh immersion ceremony. She has denied the fact that she used to work in the house of the accused/appellant. She has however admitted that it is her husband who used to work there. She has stated that her husband took 10-15 minutes in getting back with snacks. According to her, as the Patwari and the police inspector had not asked any thing about the location of the snacks shop, she had not disclosed the same to them; She has stated that as soon as her husband stepped out for getting snacks, accused/appellant had come close to her in 2-3 minutes and pressed her breasts and that she had disclosed the same to the police but why the same is missing from the FIR and her case diary statement she could not tell the reason thereof. According to this witness, she had even abused the appellant and also informed the police about the same but if it is not mentioned in the FIR and her case diary statement she could not say anything. She has stated that at the time of incident she was sitting in her room itself and was not dragged by the accused/appellant from the verandah and if the same is mentioned in the case diary statement, she could not tell the reason for that. She has clarified that at the time of incident the accused/appellant had not removed her sari but he simply upturned the same as well as the petticoat and she did not sustain any injury in the process as being smeared with cow dung the surface of the spot was smooth. She has clarified that at the time of incident the accused/appellant had not removed her sari but he simply upturned the same as well as the petticoat and she did not sustain any injury in the process as being smeared with cow dung the surface of the spot was smooth. She has further made it clear that as apart from her mouth, the appellant had tied her eyes also with a small towel, she could not see as to whether the accused/appellant had removed his Lungi or he wore the underwear. According to her while the appellant was subjecting her to sex. she had offered resistance but as he was in a drunken state, she was helpless. She has stated that as her mouth was tied up with a small towel, she could not even bite the accused/appellant as a mark of resistance. She has stated that before the date of incident, the appellant had never entered her house. According to her, in village relation the accused/appellant happens to be her brother. She has also denied the fact that she had any affair with the accused/appellant. She has stated that the commission of offence might have taken hardly five minutes and that after the incident she had wiped her private part with her petticoat. She has stated that she would take bath and wash her sari and petticoat daily. In paragraph 27 of her deposition she has stated that as on the second day of the incident, there was voting in the village the report could not be lodged on that day and on the third day of the incident the panchayat meeting was called and when no decision was taken there, she along with her husband and other relatives went to the police station and lodged the report. She has denied the fact that a false report was lodged by her against the accused/appellant at the instance of Tilakram (P.W. 4). Firtinbai (P.W. 2) has stated in her evidence that after hearing the voice of the prosecutrix when she rushed to her house, she saw the accused/appellant running away and then the prosecutrix informed her that she was subjected to rape by the accused/appellant. She has stated that the prosecutrix being her daughter-in-law in relation did not give the detailed description of the incident. Thereafter, this witness has been declared hostile. She has stated that the prosecutrix being her daughter-in-law in relation did not give the detailed description of the incident. Thereafter, this witness has been declared hostile. Dhanbai (P.W. 3) has stated in her evidence almost the same thing as by Firtinbai (P.W. 2). Tilakram (P.W. 4) has stated in his evidence that he was informed by the husband of the prosecutrix that the appellant had committed rape on his wife and on being inquired by him, the prosecutrix had also narrated the incident to him. Sewakram (P.W. 5) - the husband of the prosecutrix supporting the case of the prosecution has stated in his evidence that when he was in his house along with his wife, the appellant called him and gave Rs.5/- for getting the snacks from the market. According to him, when he returned home with the snacks, appellant was not there and the prosecutrix was found weeping and informed him about the rape committed by the accused/appellant. He has stated that at that time Firtinbai and Dhanbai were also present in his house. According to this witness, on being asked as to why she had not protested against the act of the accused/appellant, the prosecutrix informed him that she was forcibly subjected to rape by him. Thereafter, according to him, he and his wife went to the house of the accused/appellant and asked him to come out of the house but he did not do that. Thereafter, the incident was informed to the villagers and village meeting was called and two days thereafter the report came to be lodged. According to this witness, he being illiterate could not tell the exact date of the incident. In cross-examination also this witness stood firm to what he has stated in the examination-in-chief. Rohit Kumar (RW. 6), Nanhu (P.W. 7), Budhwa (P.W. 8), Netram Ratre (P.W. 9), Tarachandra (P.W. 11) and Damru alias Damlu (P.W. 12) have also made similar statement as has been made by Tilakram (P.W. 4). Devlal (P.W. 10) is the witness to the seizure of certain articles made under Ex. P-8. Kanhaiyalal (P.W. 13) is the witness to the arrest vide arrest memo Ex. P-9. Ram Avtar Soni (P.W. 14) is the witness to seizure of slides made under Ex. P-10. Pritam Singh Yadav (P.W. 15) is the head constable and witness to seizure of slides and had taken the prosecutrix for medical examination. P-8. Kanhaiyalal (P.W. 13) is the witness to the arrest vide arrest memo Ex. P-9. Ram Avtar Soni (P.W. 14) is the witness to seizure of slides made under Ex. P-10. Pritam Singh Yadav (P.W. 15) is the head constable and witness to seizure of slides and had taken the prosecutrix for medical examination. Parasram (P.W. 16) - the head constable is the witness to seizure of articles made under Ex. P. 10. Sub Inspector A. K. Bajpai (P.W.17) is the investigating officer who has supported the case of the prosecution. P.R. Dewangan (P.W. 18) is the witness who had medically examined the accused/appellant and given his report Ex. P.23 opining that he was capable of performing sexual intercourse. Mohan (P.W. 19) has not supported the case of the prosecution and has been declared hostile. Panchuram (P.W. 20) is the witness to spot map Ex. P-4. Suresh Pathak (P.W. 21) is the witness who took the accused/ appellant for medical examination. Dr. (Ku.) S. Kachhap (P.W. 22) is the witness who had medically examined the prosecutrix and given her report Ex. P-26 opinion that there was no injury on her person and she was habitual to sexual intercourse. Nandlal Dhiwar (P.W. 23) is the Patwari who prepared the spot map Ex. P-4. Sub Inspector namely D. Banjor (P.W. 24) is the witness who had prepared charge-sheet. Tulsidas (D.W. 1) has stated that the accused/appellant had fought election against Tilakram (P.W. 4) who was related to the prosecutrix and other family members. (6) MINUTE examination of the material available on record including the evidence of the witnesses particularly that of the prosecutrix shows that after asking her husband to get the snacks from the market when the prosecutrix was all alone, he made her the victim of his thirst for sex after tying her mouth with a small towel. Of course, there is delay of two days in lodging the report but the same has been explained by the prosecutrix that as the panchayat elections were due on the date of incident, the report could not be lodged properly. To decide a case involving rape, the first and foremost thing to be seen is the statement of the prosecutrix and if the same appears to be trustworthy, the other technical lacunae such as delay in lodging the, report etc. would not be fatal to the case of the prosecution. To decide a case involving rape, the first and foremost thing to be seen is the statement of the prosecutrix and if the same appears to be trustworthy, the other technical lacunae such as delay in lodging the, report etc. would not be fatal to the case of the prosecution. In the case in hand, the prosecutrix has been throughout very consistent while stating the things transpired and that apart the FSL report is also positive and that being so the delay in lodging the FIR should not come in the way to decide the case on merit. The act of the appellant in first driving the husband of the prosecutrix out of the house and then committing forcible sexual intercourse with her taking advantage of her loneliness, does not call for any lenient consideration. Accordingly, the judgment of the trial Court,being based on the evidence adduced by the, prosecution is flawless and warrants no interference therewith. Appeal thus goes and the judgment impugned remains as it is. As the accused/appellant is already in jail, no order regarding his surrender etc. is necessary. (7) DISMISSAL is the net result of this appeal. Appeal dismissed.