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2012 DIGILAW 120 (CHH)

BHOKULAL @ DEEPAK KUMAR DHOBHI v. STATE OF C. G.

2012-04-24

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal arises out of the judgment and order dated 07.03.2009 passed by Additional Sessions Judge Korba in Sessions Trial No. 14/2008 convicting the accused/appellant under Section 376 (1), 450 and 457 IPC and sentencing him to undergo rigorous imprisonment for seven years with fine of Rs. 10,000/- u/s. 376 (1), rigorous imprisonment for five years with fine of Rs. 1,000/- u/s. 450 and rigorous imprisonment for three years with fine of Rs. 1,000/- u/s. 455 IPC plus default stipulations. 2. Facts of the case in brief are that on 06.12.2007 at about 04.30 p.m. an unnumbered report was lodged in police outpost Urga by the prosecutrix (PW-1) - a married lady aged about 25 years alleging that on 04.12.2007 her husband and father-in-law had gone to Dharmjaigarh to collect kosha yarn and she was all alone in her house. According to the case of the prosecution after taking meals when she was sleeping after closing the doors of her house, at about 12 in the midnight accused/appellant gained an entry thereto by jumping over the wall. After hearing jumping-like sound she woke up and sat on the cot thereafter the accused/appellant caught hold of her hand, made her lie on the cot and after removing her sari, petticoat and blouse committed forcible sexual intercourse with her. On voice being raised by her, the accused/appellant slapped her and threatened her of life and after commission of the offence he left the place of incident. It is alleged that on account of fear she did not come out of her house in the night, however, in the next morning she disclosed the incident to Vinay, Neeraj, Vicky, Rekha and Chanchal Dewangan and after arrival of her husband to him also and then the report was lodged. It is alleged that as on the date of incident her husband was not at home, the report could not be lodged promptly. Based on this unnumbered report, FIR (Ex. P-l) was registered in police station City Kotwali under Section 456, 376 and 506 (II) IPC. After completion of investigation charge sheet was filed by the police for the said offences. However, the Court below framed charge against the accused/appellants under Section 450, 457, 376 (1), 323 and 506 (II) IPC. 3. In support of its case, prosecution has examined as many as 13 witnesses. After completion of investigation charge sheet was filed by the police for the said offences. However, the Court below framed charge against the accused/appellants under Section 450, 457, 376 (1), 323 and 506 (II) IPC. 3. In support of its case, prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the allegation made against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted the accused/ appellant of the charge under Sections 323 and 506 (II) but convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. Counsel for appellant submits that the prosecutrix does not appear to be a trustworthy witness because in the FIR and in her case diary statement she has stated that the incident had taken place at 12 in midnight whereas in the Court statement she has stated that apart from midnight, in the evening also she was subjected to rape by the accused/appellant. He further submits that the delay in lodging FIR has not been sufficiently explained by the prosecutrix. He further submits that report was lodged by the prosecutrix at the instance of her relative Brinda Bai (PW-8) and cousin of her husband. According to him, the prosecutrix herself has stated in her evidence that had she not met Brinda Bai (PW -8), report would not have been lodged by her. Counsel for the appellant further submits that medical report of the prosecutrix does not support the case of the prosecution and likewise seizure of articles like bed sheet, petticoat and underwear is also doubtful because as per the statement of the husband of the prosecutrix namely Doctor Prasad (PW-2) it was made four days after the incident. He submits that in the Court statement the prosecutrix has categorically stated that she has made the statement at the instance of her husband and sister-in-law. Lastly, he submits that the appellant is in jail since 7.3.2009 and during trial also he remained in jail for about 20 days and thus the total jail period comes to three years and two months and in these circumstances the sentence imposed on him may be reduced to the period already undergone by him. 6. Lastly, he submits that the appellant is in jail since 7.3.2009 and during trial also he remained in jail for about 20 days and thus the total jail period comes to three years and two months and in these circumstances the sentence imposed on him may be reduced to the period already undergone by him. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that no cross examination of the prosecutrix was done in respect of the first incident of rape and it appears that she being a rustic villager has described only one incident which has been misunderstood by the Court below. According to the State counsel, delay has been properly explained by the prosecutrix saying that as her husband was not at home such delay has occurred in lodging the report. He further submits that minor contradictions are bound to be there in the statement of the prosecutrix because her statement was recorded after about six months from the date of incident. He submits that statement of the prosecutrix has been duly supported by other witnesses who have categorically stated that after the incident she had informed them about the same. He further submits that in the absence of any evidence on record to the contrary, the defence of false implication of the accused/appellant in the case in hand has no value in the eye of law. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellant who was resident of her village and her name is Deepak. According to this witness, on the date of incident in the evening when she was cooking food in her courtyard, accused/appellant came there and asked her that if she permitted him to have sex with her once he would give her Rs. 400/- but she refused for it. Thereafter, the accused/appellant slapped her, threw her on the cot and after embracing her he committed forcible sexual intercourse with her and then left the spot. 400/- but she refused for it. Thereafter, the accused/appellant slapped her, threw her on the cot and after embracing her he committed forcible sexual intercourse with her and then left the spot. According to her, on that day she was all alone in her house as her husband and father-in-law had gone to Dharamjaigarh to collect Kosha yam and that at the time of incident she had told the accused/appellant that she would inform her husband about his act but he did not pay any heed to her words and said that he did not have any fear of him. She has further stated that on the same day at 12 in the night, accused/appellant came to her house from the loft-side and when gave her a push she woke up and saw that he was sleeping over her. This witness has stated that as the light of the house was on, she had recognized said person to be the accused/appellant. She has stated that before committing sexual intercourse, the accused/appellant did not speak to her and he was fully drunk. At the time of incident, the prosecutrix had worn petticoat, blouse and underwear and that the accused/appellant had committed rape on her after removing her underwear. She has further stated that while being subjected to rape by the accused/appellant she had cried for help but he had slapped her and pressed her mouth and that as the fan was in running condition, her voice could not be heard by anyone. Then, according to this witness, after committing the offence, accused/appellant ran away from the spot with the help of ladder. According to this witness, on the second day when her husband and father-in-law returned from Dharamjaigarh, she was weeping and on being asked by her husband about the cause of weeping, she disclosed the incident to them who in turn informed the same to the Sarpanch of the village. On the third day, she along with her husband (PW-2) and one Brinda Bai (P.W.-8) went to police out-post Urga and lodged the report Ex. P-l under her signature and then with her consent vide Ex. P-2 she was medically examined. She has further stated that police had seized bed sheet, petticoat and underwear vide seizure memo Ex. P-3. On the third day, she along with her husband (PW-2) and one Brinda Bai (P.W.-8) went to police out-post Urga and lodged the report Ex. P-l under her signature and then with her consent vide Ex. P-2 she was medically examined. She has further stated that police had seized bed sheet, petticoat and underwear vide seizure memo Ex. P-3. On the second day of the incident in the morning, she is said to have disclosed the incident to her neighbour Chanchal and his brothers Vikki and Neeraj who had advised her to inform the same to her husband and father-in-law on their arrival. According to her as on the date of incident she was carrying pregnancy, police had got sonography done on her at Korba. In cross examination, this witness has stated that she had studied up to class VIII, that the incident had taken place in the 12 midnight and that at the time of her statement being recorded she was carrying pregnancy of eight months. According to her, she is the second wife of her husband and from the first wife her husband is having three grown-up children. She has further stated that when her husband remained engaged in weaving work, villagers used to visit her house for playing cards. She has stated that while going to the police station, she and her husband had gone to the house of her sister and it is she who took them to the police station and that had her sister not been there, report would not have been lodged. According to her, the incident was narrated to the police by her sister on which, she too was put certain questions by the police. This witness has stated that she signed the documents as asked by the police. She has stated that she did inform the police about the first incident of rape which had taken place in the evening. In cross examination, certain irrelevant questions were put to this witness, which were answered by her describing the manner in which she subjected to rape by the accused/appellant. In paragraph No. 18 this witness has stated that before her marriage, her father-in-law used to sell ganja and in this connection people used to come to her house and play cards. In cross examination, certain irrelevant questions were put to this witness, which were answered by her describing the manner in which she subjected to rape by the accused/appellant. In paragraph No. 18 this witness has stated that before her marriage, her father-in-law used to sell ganja and in this connection people used to come to her house and play cards. She has admitted that the accused/appellant had asked her husband and father-in-law not to indulge in sale of ganja but has denied that on account of this she has falsely implicated him in the case of rape. This witness has admitted that the things which she has stated in the Court have been stated at the instance of her husband and sister. Then she has stated that the statement in the Court has been made by her of her own. Doctor Prasad (PW-2) - the husband of the prosecutrix has stated in his evidence that on the date of incident he was not at home and on the next day when he came back from Dharamjaigarh, his wife (prosecutrix) was weeping and on being asked as to why she was weeping, she told him that the accused/appellant had come to her house from loft-side and committed forcible sexual intercourse with her. He has further stated that on the date of incident itself in the evening the accused/appellant had come to his house and threatened her of beating and taking away by dragging. According to him, on the next day, he along with his wife and Brinda Bai (PW-8) went to the police station and lodged the report. On the second day thereafter, the prosecutrix was taken to the doctor at Saragbadia by the police but as the doctor was not available there she was taken to some other doctor at Korba. In cross examination, this witness has stated that when he returned home on the second day of the incident, his wife (prosecutrix) narrated the entire incident to him but as he was not having money, report could not be lodged on that day and it came to be lodged on the 4th day. According to him, four days after medical examination of the prosecutrix, bed sheet was given to the police by him. Dr. R.K. Raj (PW-3) is the witness who medically examined the accused/appellant and gave his report Ex. According to him, four days after medical examination of the prosecutrix, bed sheet was given to the police by him. Dr. R.K. Raj (PW-3) is the witness who medically examined the accused/appellant and gave his report Ex. P-5 opining that he was capable of performing sexual intercourse. Hemlal Dewangan (PW-4) - the Up Sarpanch of the village has not stated anything specific and has been declared hostile. Neeraj Kumar Dewangan (PW5) and Chanchal (PW-6) have also not supported the case of the prosecution and have been declared hostile. Dr. Jyoti Sahu (PW -7) is the witness who medically examined the prosecutrix and gave her report Ex. P-8 opining that she was carrying pregnancy but no external or internal injury was noticed on her person. Brinda Bai (PW-8) has stated in her evidence that about 7-8 months prior to recording of her evidence, prosecutrix, her husband and Chhatlal Dewangan (PW-9) had come to her house and informed the incident of rape on the prosecutrix. She has stated that husband of the prosecutrix happened to be her cousin and therefore she knew him. She has stated that the prosecutrix had informed her that she wanted to lodge the report and accordingly the matter was reported to the police, petticoat of the prosecutrix was seized but bed sheet was not seized in her presence. According to her, police had asked the prosecutrix whether the petticoat was washed to which she replied in negative. Chhatlal Dewangan (PW-9) - father-in-law of the prosecutrix has stated that on the date of incident he along with his son had gone to Dharamjaigarh and the prosecutrix was all alone in the house whereas in the other house his elder son was living. He has further stated that he was residing with the prosecutrix and her husband whereas his other son was living separately. According to him, he returned home on the second day with his son and the prosecutrix informed them that in the night she was subjected to rape by the accused/appellant. According to him, he informed the incident to the uncle of the appellant and had also informed to Laxmi Narayan - the elder brother of the uncle of the appellant who at that time was President of Gram Panchayat, Umreli but when no decision was taken, he decided to report the matter to the police. According to him, he informed the incident to the uncle of the appellant and had also informed to Laxmi Narayan - the elder brother of the uncle of the appellant who at that time was President of Gram Panchayat, Umreli but when no decision was taken, he decided to report the matter to the police. According to him, petticoat of the prosecutrix was seized in the police station itself. Vinay Dewangan (PW -10) has not supported the case of the prosecution has been declared hostile. R.K. Patre (PW-11) is the investigating officer who has supported the case of the prosecution. Dr. Premish Verma (PW-12) is the witness who had done sonography of the prosecutrix vide Ex. P-12 and Ex.P-13. Chunaram (PW-13) is the witness who had produced the FSL report in the Court. 9. Having thus considered in detail the evidence of the witnesses and the material available on record it appears that as per the FSL report, in the articles marked as "A, B and D" i.e. bed sheet, petticoat and slides, spermatozoa was found though in the underwear of the prosecutrix it was not. As per the evidence of the prosecutrix on the date of incident she was subjected to rape by the accused/appellant twice, first in the evening and then in the midnight also whereas case of the prosecution itself is that the accused/appellant had entered her house at 12 in the midnight and committed sexual intercourse with her against her will and without her consent. According to her husband (PW-2) and father-in-law (P.W.-9), only once in the night she was subjected to rape by the accused/appellant. Thus the Court statement of the prosecutrix becomes doubtful and that being so it does not inspire the confidence of this Court. Though in her Court statement the prosecutrix has stated that she offered resistance to the act of the accused/appellant and tried to come out of his clutches, she has not been very specific in stating as to in what manner she made an effort to do so. More so, other witness namely Vinay, Neeraj, Vicky, Rekha and Chanchai Dewangan whom the prosecutrix narrated the incident have not supported the case of the prosecution and have been declared hostile. More so, other witness namely Vinay, Neeraj, Vicky, Rekha and Chanchai Dewangan whom the prosecutrix narrated the incident have not supported the case of the prosecution and have been declared hostile. As per the record the incident had taken place on 4.12.2007 whereas the report Was lodged on 6.12.2007 and this delay in doing so has not been properly explained by the prosecution. Likewise, the evidence with respect to the seizure of articles is not conclusive because as per the evidence of the prosecutrix it was made from the spot whereas other witnesses do not say so. Husband of the prosecutrix namely Doctor Prasad (PW-2) has stated that on the fateful day in the evening also accused/appellant had come to his house and threatened the prosecutrix of beating and taking away there-from whereas according to the prosecutrix herself in the evening also she was subjected to rape by him. If the prosecutrix was subjected to rape by the accused/appellant in the evening also, there was sufficient for her to disclose the incident to her neighbours and other persons as well but she chose to remain silent throughout the day and informed the same to her neighbours namely Vinay, Neeraj, Vicky, Rekha and Chanchal Dewangan on the next day at about 8 a.m. which is clear from paragraph 7 of her deposition. Even the neighbours of the prosecutrix named above have not supported the case of the prosecution and have been declared hostile. 10. Thus in view of the aforesaid discussion, this Court is of the considered opinion that the statement of the prosecutrix does not tally with that of others and that she herself while stating the things before the police and the Court did not remain consistent. That being the position, the Court below appears to have gone wrong in weighing the evidence of the witnesses and basing its conclusion convicting the accused/appellant thereon. As the prosecution has not been able to establish its case beyond reasonable doubt, appellant must receive the benefit thereof. 11. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charges levelled against him. He is said to be in jail and therefore he be released forthwith if not required in any other case. Appeal Allowed.