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2012 DIGILAW 112 (CHH)

MOHANLAL VERMA v. STATE OF C. G.

2012-04-13

PRITINKER DIWAKER

body2012
JUDGMENT 1. The appellant has preferred this appeal against the judgment and order dated 6.10.2009 passed by Additional Sessions Judge, Bhatapara District Raipur in Sessions Trial No. 01/2009 convicting the accused/appellant under Sections 456, 376 and 506 (Part-II) IPC and sentencing him to undergo simple imprisonment for one year with fine of Rs.100 u/s 456, simple imprisonment for seven years with fine of Rs.100 u/s 376 and simple imprisonment for six months with fine of Rs.100 u/s 506 (Part-II) IPC, plus default stipulations. 2. Facts of the case in brief are that on 26.4.2008 FIR Ex. P-3 was lodged by Pawan Kumar Verma (PW-2) stating that he is resident of village Arjuni and is working in the Lafarge Cement Company, Gopalnagar. He has stated that on 26.4.2008 at about 8 a.m. when he was in his office, his wife Hemin Verma (PW-5) informed him on telephone that accused/appellant herein who is resident of his village entered into his house after jumping over the fencing with an object to commit theft and when he was seen by his wife she shouted saying "Chor Chor" and thereafter the accused/appellant fled away from the spot in the same way. He immediately came back to his village where his wife informed him the entire incident in detail. In the night of 25.4.2008 after taking meals his wife was sleeping in the terrace of his house along with his son whereas the prosecutrix was sleeping in a room in the ground floor. At about 2 a.m. his wife heard the shouts of the prosecutrix and when she went to her room, she saw the accused/appellant pressing her mouth and after seeing her he fled away from the spot. In the FIR it is further stated that when his wife shouted, Tukaram and Bhikhram (PW-3) came there and she narrated the entire incident to them. It is further stated in the FIR that when he enquired from the accused/appellant, he admitted his guilt and informed him that while jumping over the wall he sustained sprain on his left ankle and that he was provided iodex by one Krishna Kumar Sahu. Based on this FIR, offence under Section 456 IPC was registered against the accused/appellant. It is further stated in the FIR that when he enquired from the accused/appellant, he admitted his guilt and informed him that while jumping over the wall he sustained sprain on his left ankle and that he was provided iodex by one Krishna Kumar Sahu. Based on this FIR, offence under Section 456 IPC was registered against the accused/appellant. Case diary statements of Bhikhram, Krishna Kumar Sahu, Tukaram, the prosecutrix and Pawan Kumar Verma were recorded on 27.4.2008 but none of the witnesses including the prosecutrix, her mother and lodger of the FIR namely Pawan Kumar Verma have stated that any incident of rape had taken place on 26.4.2008. After investigation, challan was filed against the accused/appellant on 09.05.2008 under Section 456 IPC. Subsequent to filing of challan a written report Ex.P-5 was made by Pawan Kumar Verma on 16.5.2008 to the Superintendent of Police, Raipur alleging that in the intervening night of 25/26.4.2008 his minor daughter (prosecutrix PW-9) was subjected to rape by the accused/appellant. It is further stated in the said report that the accused/appellant entered his house and after inserting a piece of cloth in the mouth of the prosecutrix committed rape on her. It is further stated that accused/appellant had entered his house with Krishna Kumar who was keeping a watch on his activities. It is stated that as the prosecutrix was threatened by the accused/appellant, she disclosed the incident of rape hesitatingly. It is stated that while making the first report on 26.4.2008 incident of rape was also disclosed to the police but Station House Officer of Police Station Arjuni being under the pressure of local politicians and having accepted .the bribe had suppressed the case of rape. It is stated that initially an offence under Section 457 IPC was registered which was later scored and re-written as under Section 456 IPC and thereafter the accused/appellant was released on bail. In the written report it is further stated that after the incident the accused/appellant had threatened him that he would finish his entire family and repeat the offence of rape again. In the written report it was prayed by Pawan Kumar Verma that a serious offence has been converted into the lesser one and therefore the matter be re-enquired and case of rape be also registered against the accused/appellant. In the written report it was prayed by Pawan Kumar Verma that a serious offence has been converted into the lesser one and therefore the matter be re-enquired and case of rape be also registered against the accused/appellant. From the endorsement made by the Superintendent of Police, Raipur in this written report it appears that the matter was referred to SDO (P) Bhatapara for further enquiry and taking appropriate action in accordance with law. After investigation, supplementary challan was filed by the police on 11.11.2008 against the accused/appellant under Section 376 IPC. From the record, it appears that on 17.5.2008 prosecutrix was medically examined vide Ex. P-1C, case diary statements of the prosecutrix, her mother Hemin Bai (PW-5) and father Pawan Kumar Verma (PW-2) were recorded on 8.7.2008 where it has been alleged by them that on 26.4.2008 the prosecutrix was subjected to rape by the accused/appellant. Charges were framed by the Court below against the accused/appellant under Sections 456, 376 and 506 (Part-II) IPC. 3. In support of its case, the prosecution has examined as many as 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the allegations made against him and pleaded his innocence and false implication in the case. This apart, one Mohd. Mazid (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties, the Court below convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. 5. Pushpa Rathore (PW-1) is the witness who took the prosecutrix for medical examination and assisted in the investigation. Pawan Kumar Verma (PW-2) - the father of the prosecutrix has stated in his evidence that on 25.4.2008 at about 2 a.m. the accused/appellant had entered his house and committed forcible sexual intercourse with his daughter. On that day he was not at home and gone to his workplace falling within police station Pamgarh District Janjgir where he received telephonic information from his wife that one thief had entered his house. When he reached home, his wife informed him that it is the accused/ appellant who had entered the room of the prosecutrix and pressed her neck. Thereafter, accompanied by the prosecutrix and his wife he went to the police station and lodged the report. When he reached home, his wife informed him that it is the accused/ appellant who had entered the room of the prosecutrix and pressed her neck. Thereafter, accompanied by the prosecutrix and his wife he went to the police station and lodged the report. Then he has stated that he took 2-4 persons of his village along with him to the police station to lodge the report where Town Inspector had asked him to bring his wife and the prosecutrix. Then he took the prosecutrix and his wife to the Police Station where FIR Ex.P-3 was lodged. He has stated that after lodging the report he went back to his work place at Gopal Nagar where he stayed for 1-2 days and during this period investigation was done by the Police, spot map was prepared and statements of the witnesses were recorded. In paragraph-7 of his deposition he has stated that when he was at his work place, he used to have talk with his wife and one day she informed him that his daughter was subjected to rape by the accused/appellant and on insistence she disclosed to his wife that it is the appellant who committed rape on her but as she was threatened to life by him, she did not disclose the incident to anyone. After receiving this information he took leave, came back to Arjuni and consoled the prosecutrix saying to her not to worry and she would be taken to her aunt's house, prior to this, prosecutrix was already sent to Raipur where he met her, gathered entire information where she informed him that the accused/appellant had subjected her to rape but on account of fear she did not disclose the same to anyone. After receiving this information from the prosecutrix he along with one advocate namely G. L. Verma went to the Office of the Superintendent of Police, Raipur and as the Superintendent of Police was on leave, he met one Lal Umendra Singh and informed the entire incident to him and then written report Ex.P-5 duly signed by him was given. Said written report was returned to him by the Superintendent of Police, Raipur saying that enquiry would be conducted by S.D.O. (P) Bhatapara. Thereafter he approached S.D.O.(P), Bhatapara and showed him written report Ex.P-5. S.D.O.(P), Bhatapara recorded his statement, that of his wife and the prosecutrix and then asked them to get back. Said written report was returned to him by the Superintendent of Police, Raipur saying that enquiry would be conducted by S.D.O. (P) Bhatapara. Thereafter he approached S.D.O.(P), Bhatapara and showed him written report Ex.P-5. S.D.O.(P), Bhatapara recorded his statement, that of his wife and the prosecutrix and then asked them to get back. Thereafter he has stated that the prosecutrix was medically examined. At the time of incident age of the prosecutrix was 12 years as according to her marks sheet of class V her date of birth is 21.10.1995. He has stated that no document whatsoever was seized by the Police in relation to the date of birth of his daughter and that he disclosed the same on the basis of her marks sheet of class-v which was brought by him as was asked by the Govt. pleader. He has stated that accused/appellant happened to be his next door neighbour and in between two houses a narrow lane passes. He has stated that the accused/appellant used to throw garbage in the said lane but he has denied that there was any dispute on account of the same. He has admitted that first report dated 26.04.2008 was in respect of theft only. He has stated that on 26.04.2008 itself he had gone to lodge the report to Police Station Bhatapara about commission of rape on his daughter. He has admitted that his brother-in-law Girdharilal is an advocate but he has denied that he used to take his advice from time to time. He has stated that his daughter was subjected to rape in her room and the same was disclosed to the Police in the written report made by him. When lodging the first report he is stated to have gone to Police Station along with Mazid Khan, Akhlesh and Adil. Bhikhram (PW-3) has not supported the case of the prosecution and has been declared hostile. Krishn Kumar Sahu (PW-4) has also not supported the case of the prosecution and has been declared hostile. Smt. Hemin Bai (PW-5) - the mother of the prosecutrix has stated that on the date of incident when she was sleeping in the terrace of her house and her daughter in the room situated in the ground floor, at about 2 a.m. she heard the voice of her daughter and when she went to her room she saw that the accused/appellant was running out there-from. Thereafter she enquired from the prosecutrix who at that time was crying with pain and after getting somewhat settled, she informed her that accused/appellant caught hold of her, inserted a piece of cloths in her mouth and then she called up her husband and informed the entire incident to him and also asked him to come back immediately. She has stated when nobody came to her rescue she telephoned to Tukaram who came there along with Bhikhram and then the incident was disclosed to them. She has further stated that some discrepancies in her statement may be on account of passage of time. According to her, on being asked the prosecutrix informed her that after removing her clothes the accused/appellant subjected her to rape and then after arrival of her husband the incident was narrated to him and then the report was lodged. She has however denied that there was any dispute between her family and the family of the accused/appellant. She has admitted that she had only informed the police about the incident of theft saying that accused/appellant entered her house. Subsequently, she has stated that her statement was recorded by SDO (P) Bhatapara. There are material contradictions and omissions in paragraphs 26 to 29 of her evidence. Dr. Anita Verma (PW-6) is the witness who had medically examined the prosecutrix vide Ex. P-1C who has stated that her secondary sexual characters were developed, no external or internal injury was noticed on her person and that she was habitual to sexual intercourse. She has further stated that no definite opinion regarding recent sexual intercourse with the prosecutrix could be given. She has stated that age of the prosecutrix as 12 years was recorded by her on the basis of information given by the prosecutrix and her mother. Dr. D.P. Verma (PW-7) is the witness who medically examined the accused/appellant has stated that he noticed sprain on his left ankle. G.S. Shukla (PW-8) is the witness who investigated the subsequent incident in relation to commission of rape and has stated as to the manner in which the investigation was carried out by him. Dr. D.P. Verma (PW-7) is the witness who medically examined the accused/appellant has stated that he noticed sprain on his left ankle. G.S. Shukla (PW-8) is the witness who investigated the subsequent incident in relation to commission of rape and has stated as to the manner in which the investigation was carried out by him. Anju Verma (PW-9) the prosecutrix herein has stated that she knew the accused/appellant and on the date of incident when she was sleeping in her room and her mother on the terrace, accused/appellant entered her room, mounted on her, started pressing her breasts removed her salwar and underwear and inserted his private part into that of her. When she raised her cry to call her mother, accused/appellant had inserted a piece of cloth in her mouth. After committing the offence when the accused/appellant removed the cloth from her mouth, she again called her mother by crying who at that time was in the terrace. On hearing her cries her mother came to her and then she narrated the incident to her. In paragraph 2 of her evidence this witness has stated that she had only told her mother that the appellant had come to her room to commit theft and pressed her breasts and that on being informed by her brother, on the next day her father came back and then the report was lodged by him. She has stated that her statement was recorded by the police but on account of the threats given by the appellant to finish her and her mother. According to this witness, as she used to weep daily her mother had asked her as to why she was doing so, she disclosed the entire incident to her 11 days thereafter and then the second report was lodged by her mother and father. In cross examination, she has stated that she was not aware about her age but she has denied that the accused/appellant used to visit her house. She has stated that she did not raise her voice as a piece of cloth was inserted in her mouth by the accused/appellant. She has further admitted the fact that when her statement was recorded by the police, she did not disclose the entire incident but then she has stated that she had disclosed the incident of rape to the police. She has further admitted the fact that when her statement was recorded by the police, she did not disclose the entire incident but then she has stated that she had disclosed the incident of rape to the police. S.N. Sidar (PW-10) is the investigating officer of the first incident under Section 456 IPC who recorded the statements of the witnesses. He has categorically stated that it is incorrect to say that at the time of recording of statement, prosecutrix was scared or under fear. He has specifically asked the prosecutrix as to what had happened but she never disclosed the incident of rape. He has stated that complainant Pawan Kumar Verma never came to the police station for informing that her daughter was subjected to rape by the accused/ appellant. 6. Minute examination of the evidence available on record reveals that on 26.4.2008 the appellant had entered the house of the prosecutrix and on seeing him she raised her voice on hearing which her mother woke up and saw the accused/appellant running away there-from. This incident was immediately informed to the father of the prosecutrix on phone and on the second day when he returned from his workplace, first FIR Ex. P-3 was lodged and the offence under Section 456 IPC was registered against the accused/appellant. In relation to this incident the police recorded the case diary statement of Pawan Kumar Verma (PW-2), Hemin Bai (PW-5), Prosecutrix (PW-9) and one Tukaram on 27.4.2008 but none of them has stated that the prosecutrix was subjected to rape by the accused/appellant. Thus second written report was lodged by Pawan Kumar Verma becomes doubtful where he has stated that while lodging the first report he had informed the police about the incident of rape on his daughter but to help the accused/appellant under political pressure of the local leaders and by accepting the bribe, serious offence has been converted into a non-serious one and even the offence under Section 457 IPC has been scored and made to appear as under Section 456 IPC. Further, in her court statement the prosecutrix has stated that initially she had not informed her mother and father about the incident of rape but as she used to cry daily, her mother had asked her as to why she was doing so, she disclosed the same to her mother. Further, in her court statement the prosecutrix has stated that initially she had not informed her mother and father about the incident of rape but as she used to cry daily, her mother had asked her as to why she was doing so, she disclosed the same to her mother. Here again, the Court statement of the prosecutrix runs contrary to the subsequent written report Ex. P-5 lodged by complainant Pawan Kumar Verma (PW-2). Moreover, the investigating officer of the first case (PW-10) has categorically stated that the prosecutrix never informed him about being subjected to rape by the accused/appellant. He has further stated that while recording the statement of the prosecutrix she was not scared or under fear. This statement again creates doubt about the statement of the prosecutrix where she has stated that on account of fear or being scared she did not disclose the incident of rape immediately. Even the Court statement of Pawan Kumar Verma (PW-2) is contrary to the written report Ex. P-5. In the Court statement initially he has stated about the first incident and then has stated that after lodging the first report and recording of case diary statement he went back to his workplace where he used to have telephonic talks with his wife and one day she had informed him that the prosecutrix was subjected to rape by the accused/appellant and she used to cry. He has further stated that as the prosecutrix was scared she did not disclose the incident but as per the statement of the investigating officer the prosecutrix was not under any such state of mind. Most importantly, medical examination of the prosecutrix shows that no internal or external injury was found on her person, that her hymen was old torn, two fingers easily entered her vagina and that she was habitual to sexual intercourse and no definite opinion regarding recent intercourse could be given. Subsequent written report lodged by the father of the prosecutrix namely Pawan Kumar Verma (PW-2) creates doubt in the mind of this Court because although various allegations have been made against the police authorities, no such evidence has been adduced by him in the Court. The second report lodged by him runs contrary to the statement of the prosecutrix, her mother and other witnesses. Inordinate delay in making allegation of rape has also not been explained by this witness. The second report lodged by him runs contrary to the statement of the prosecutrix, her mother and other witnesses. Inordinate delay in making allegation of rape has also not been explained by this witness. Thus commission of rape on the prosecutrix by the accused/appellant still remains a doubtful story. 7. Thus it is clear from the evidence of the witnesses that the prosecution has not been able to prove its case with respect to the commission of rape on the prosecutrix by leading any cogent and reliable evidence and that being so the appellant is entitled for benefit of doubt. Accordingly, the findings recorded to the Court below to this extent cannot be sustained. However as the entry gained by the appellant in the house of the prosecutrix has been duly proved by the prosecution, his conviction under Sections 456 and 506 (part-II) IPC recorded by the Court below appears to be just and proper. 8. Accordingly, the appeal is partly allowed. Conviction of the appellant under Section 376 IPC is set aside and the appellant is acquitted of the said charge levelled against him. However, his conviction under Sections 456 and 506 (Part-II) IPC is hereby maintained. 9. As the appellant is already in jail since the date of arrest itself i.e. and thereby completed the entire sentence under Sections 456 and 506 (Part II) IPC, he be set free forthwith if not required in any other case. Appeal Partly Allowed.