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2012 DIGILAW 155 (CHH)

PHAGURAM v. STATE OF C. G.

2012-06-22

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal arises out of the judgment and order dated 23.4.1997 passed by Sessions Judge, Raipur in Sessions Trial No. 419/1995 convicting the accused/appellant under Section 376/511 IPC and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Facts of the case in brief are that on 4.7. I 995 at about 9.45 p.m. FIR Ex. P-1 was lodged by Laxmi Bai (PW -1) - mother of the minor prosecutrix aged about two and a half years at the relevant time, (not examined) alleging that on that day at about II a.m. she had gone to grocery shop leaving her daughter (prosecutrix) in the house playing where the accused/appellant who happened to be the son of her landlord was also sleeping. She has further alleged that when she returned from the shop, her daughter (prosecutrix) was weeping and on being asked she took out her underwear. On examination by her, apart from dried up semen-like white substance, she found redness and swelling in the private part of her daughter and after being asked as what had happened to her, she told her that accused/appellant had tried to commit forcible sexual intercourse after making her lie on the cot. Based on this FIR, offence under Section 376/511 IPC was registered against the accused/appellant, prosecutrix was medically examined on that day itself by Dr. Mira Baghel (PW-8) and her report is Ex. P-7. After completion of investigation, challan was filed by the police on 26.7.1995 for the said offence. 3. In support of its case, prosecution has examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 3 I3 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 convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that statement of Laxmi Bai (PW -1) - the lodger of the report is highly exaggerated one and a very improbable story has been put forth by her. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that statement of Laxmi Bai (PW -1) - the lodger of the report is highly exaggerated one and a very improbable story has been put forth by her. She submits that it is literally impossible for a small child aged about two and a half years to narrate the incident in the manner as has been disclosed by this witness. She submits that evidence is there that the prosecutrix was not able to speak properly and in these circumstances it cannot be believed that she could have narrated anything to her mother. She further submits that though as per medical report Ex. P7 redness and swelling was found on the vulva of the prosecutrix, no internal injury was there. According to her, said injury could be sustained by the prosecutrix by other means also. Counsel for the appellant further submits that statement of the prosecutrix under Section 161 of the Code of Criminal Procedure was recorded by the police in spite of the fact that she was not in a position to speak. She submits that when the prosecutrix was produced in the Court on 23.4.1996, a specific finding has been recorded by the Court below that she was not able to speak. She further submits that statements of other witnesses examined by the prosecution such as Ashok Kumar (PW-3), Keshav Ram (PW4) and Keju Ram (PW-7) are contradictory to each other and there are material discrepancies in the same. She further submits that there was an old enmity between the father of the appellant and that of the prosecutrix as father of the prosecutrix who was residing as tenant in the house of the father of the appellant was not in a position to pay rent regularly and for the said purpose Laxmi Bai (PW -1) had even sold her anklet (saanti). Lastly, she submits that as the accused/appellant has already remained in jail for about 28 days and the incident had taken place about 17 yeas ago, the sentence imposed on him may be reduced to the period already undergone by him if this Court is not inclined to interfere with the conviction part of the judgment impugned. 6. Lastly, she submits that as the accused/appellant has already remained in jail for about 28 days and the incident had taken place about 17 yeas ago, the sentence imposed on him may be reduced to the period already undergone by him if this Court is not inclined to interfere with the conviction part of the judgment impugned. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that from the statement of Laxmi Bai (PW1) it is apparent that immediately after she reached home, prosecutrix was found weeping and informed her as to the manner in which the incident had taken place. He further submits that immediately after the incident Ashok Kumar (PW3), Keshav Ram (PW-4) and Keju Ram (PW-7) reached the place of incident and before them accused/appellant had made extra judicial confession. He further submits that present is not a case where the prosecutrix was unable to speak as the evidence is there to show that though she was not able to speak but was very much able to communicate the things. 7. Heard counsel for the parties and perused the material available on record. 8. Laxmi Bai (PW -1) - the mother of the prosecutrix and lodger of the report (Ex. P-1) has stated that on the fateful day the accused/appellant had committed rape on her daughter. According to her on the date of incident when she had gone to the grocery shop, her daughter (prosecutrix) was playing in house along with the accused/appellant. About half an hour thereafter when she returned home, she found her daughter weeping by standing at the door and on being asked she told about the underwear having been removed by the accused/appellant. On further being asked as to why the underwear was removed, she told her that after removing underwear he made her lie on the cot and tried to commit sexual intercourse with her. This witness has further stated that when she saw after removing underwear of her daughter, she found redness on her private part. Thereafter, she informed the incident to Laxmi Bai Verma, Ajoo Mukud, Likhi Nayak etc. and then the report was lodged., She has further stated that Panchayat meeting was called where the accused/appellant admitted his guilt and pleaded pardon. This witness has further stated that when she saw after removing underwear of her daughter, she found redness on her private part. Thereafter, she informed the incident to Laxmi Bai Verma, Ajoo Mukud, Likhi Nayak etc. and then the report was lodged., She has further stated that Panchayat meeting was called where the accused/appellant admitted his guilt and pleaded pardon. In cross examination, this witness has stated that at the time of incident her daughter was aged about two and a half years but she did not remember her date of birth. According to her, she was living as tenant in the house of the accused/appellant and adjaceiu to her house, Laxmi Verma and Ravi Verma were also living as tenant. She has stated that her husband was working in a Cement Factory. According to her, room of the accused/appellant was about 70 ft. away from her room and in between other tenants were also residing. She has stated that if someone raises a voice from her room, it can be heard in the room of the appellant also and that she was informed by the prosecutrix that when she tried to raise her cries, accused/appellant had gagged her mouth. She has further admitted that the incident had taken place in rainy season and in the said season insects do appear. When she came to live in the house of the appellant as tenant, her daughter was aged about one and a half years and at the time of incident her age was two and a half years. She has stated that it is incorrect to say that at the time of incident her daughter was not able to speak properly. According to her, when she had gone to the grocery shop, her daughter was playing with the accused/appellant and the other tenant was taking bath in the courtyard. She has stated that at the time of recording of her statement Ex.D-1 by the police, she had informed that when she had gone to the grocery shop, her daughter was playing with the accused/appellant and if the same is not mentioned therein, she cannot tell the reason for that. She has stated that at the time of recording of her statement Ex.D-1 by the police, she had informed that when she had gone to the grocery shop, her daughter was playing with the accused/appellant and if the same is not mentioned therein, she cannot tell the reason for that. According to this witness, when she returned from the grocery shop, her daughter was standing near the door weeping whereas the accused/appellant was sleeping in his house by closing the door and in spite of being asked by her number of times, he did not open the same. She made the query from the prosecutrix in presence of Nil am Bai, Rohini Bai and son of Rohini Bai and in their presence she took out the underwear of the prosecutrix and found swelling in her private part and shewas feeling difficulty in urinating. In paragraph 8 of her deposition, this witness has denied that for last two months the rent could not be given to the accused/ appellant and then she has stated that after selling her anklet (saanti) at Raipur 8-10 days prior to the date of incident the rent was given. She has denied the fact that accused/appellant had asked her to vacate the house. She has stated that Panchayat meeting was called in the evening at about 5 p.m. and the Panchayat people were not permitting her to go to the police station saying that matter would be resolved in the village itself. However, ultimately the report was lodged. Several suggestions were put to this witness regarding local election but they are of no significance. Khilavan Verma (PW-2) - the father of the prosecutrix has stated that on the date of incident when he came to his house for launch, he saw a crowd and on an enquiry from his wife, she informed him that her daughter was subjected to rape by the accused/appellant. Thereafter, he informed the incident to elder people of the village and in the evening at about 5 p.m. Panchayat meeting was called where the accused/appellant had admitted his guilt. When he went to the doctor for treatment of his daughter, he refused for that saying that first he should go and report the matter to the police. In paragraph 5 of his evidence, he has stated that Panchayat was called first time at 1 O'clock. When he went to the doctor for treatment of his daughter, he refused for that saying that first he should go and report the matter to the police. In paragraph 5 of his evidence, he has stated that Panchayat was called first time at 1 O'clock. In paragraph 7 this witness has admitted that one Kesav Ram Verma who happened to be his brother-in-law had fought election of Sarpanch and he was having enmity with the accused/appellant. Ashok Kumar (PW-3), Keshay Ram (PW-4) and Keju Ram (PW-7) are the witnesses to extra judicial confession made by the accused/appellant but Court below has disbelieved the said confession in paragraph 9 of judgment impugned. Arjun (PW-5), Rikhiram (pW6) and Sahasram (PW -9) have not supported the case of the prosecution and have been declared hostile. Dr. (Smt.) Mira Baghel (PW-8) who medically examined the prosecutrix has stated in her evidence that no external injury was there on the body of the prosecutrix, her hymen was intact and on touching vulva she was complaining pain, injury could be sustained by hard and blunt object. In paragraph No. 11 of her evidence she has stated that the injury sustained by the prosecutrix could be caused due to insect bite also. Sub Inspector namely Rajendra Prasad Sharma (PW -10) is the investigating officer who has supported the case of the prosecution. Assistant Sub Inspector namely Haril Sidar (PW -11) is the witness who did part of the investigation and registered FIR Ex. P-1. Dukalha Ram Sahu (DW- 1) has stated that father of the prosecutrix was residing as tenant in the house of the accused/appellant and there was some dispute between them on which father of the accused/appellant had asked the father of the prosecutrix to vacate the house. 9. From the aforesaid analysis of the evidence of the witnesses it is clear that on the date of incident the parents of the prosecutrix were living as tenant in the house of the accused/appellant and once she had to sell her anklet (saanti) to pay the rent. Record also goes to show that at the time of incident the prosecutrix (not examined) was a minor girl aged about two and a half years and on 23.4. Record also goes to show that at the time of incident the prosecutrix (not examined) was a minor girl aged about two and a half years and on 23.4. I 996 when she was produced before the Court for recording her statement, the concerned judge himself has noted in its order sheet that she being a child of two and a half year was not in a position to speak and ultimately she was given up by the public prosecutor. The story put forth by the mother of the prosecutrix and lodger of the report that on her return from the grocery shop she found her daughter (prosecutrix) weeping and on being asked she removed underwear indicating to the accused/appellant to have tried a forcible sexual intercourse with her, appears to be too exaggerated to have come out from the mouth of such a tender aged girl. It appears very difficult to presume that a two and a half year aged girl who undisputedly was not in a position to speak properly, could have given such an account of incident with this much clarity as has been brought forth by her mother. Of course, I on medical examination of the prosecutrix swelling was noticed on her private part but according to the doctor herself such injury could be caused by insect bite also. It has come in the evidence of the witnesses that parents of the prosecutrix were living in the house of the accused/appellant as tenant and according to Dukalha Ram Sahu (DW-1) once there was some dispute between the two families over payment of rent and therefore possibility of their relations turning sour and ultimately resulting in concoction of a false story cannot be ruled out. Record also goes to show that at the relevant time the accused/ appellant was in his teens and therefore having been driven by chaotic situation prevailing after the incident he might have made the so called extra judicial confession but not out of free will. Though the FIR in this case was lodged after extra judicial confession made by the accused/appellant but even then the same has not been disclosed by the mother of the prosecutrix to the police at the time of lodging of FIR and therefore the factum of extra judicial confession also becomes doubtful. Though the FIR in this case was lodged after extra judicial confession made by the accused/appellant but even then the same has not been disclosed by the mother of the prosecutrix to the police at the time of lodging of FIR and therefore the factum of extra judicial confession also becomes doubtful. Of course, the story put forth by the prosecution stirs the conscience of the Court but that alone cannot be the basis for conviction but there has to be legal evidence for doing so. 10. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has been unable to prove its case beyond reasonable doubt and accordingly accused/appellant must get the benefit of the same. Thus the findings of the Court below being based on mis-appreciation of evidence available on record cannot be sustained. Appeal is thus allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. He is reported to be on bail. His bail bonds stand discharged. Appeal Allowed.