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2012 DIGILAW 235 (CHH)

Mahaveer @ Budga v. State of C. G.

2012-09-14

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 29-01-2004 passed by Additional Sessions Judge, Janjgir, District Bilaspur in Sessions Trial No.302/2003. By the impugned judgment, accused/appellant Mahaveer @ Budga has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 376(1) of the IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month Under Section 450 of the IPC Rigorous imprisonment for 3 years and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month 2. Case of the prosecution, in brief, is as under: Prosecutrix (PW 1) (in purview of Section 228-A of the Indian Penal Code, name of the prosecutrix is not being mentioned) is a married woman. On 26-3-2003, she was sleeping in her house. Her husband Ganeshram Suryawanshi (PW 2) had gone to Naila to earn livelihood and her son Roopnarayan @ Pappu (PW 3), aged about 10 years had gone out of the house for watching television. The appellant entered the house of the prosecutrix (PW 1) and bolted the door from inside. The appellant threatened prosecutrix (PW 1) of life and committed sexual intercourse with her against her-will. Prosecutrix (PW 1) lodged Dehafi Nalishi (Ex.P-8). Regular First Information Report (Ex.P-7) was recorded in Police Station, Champa. The prosecutrix (PW 1) was sent to Government BDM Hospital, Champa for medical examination vide EX.P-11. Dr. Veena Chandra (PW 14) examined the prosecutrix (PW 1) and gave her report vide Ex.P-5, in which, she found that the hymen of the prosecutrix (PW 1) was old ruptured and she was habitual to sexual intercourse. Slide of vaginal swab was also prepared. The appellant was also sent to the Government BDM Hospital, Champa for medical examination vide Ex.P-12. Dr. R.K.Chandra (PW 15) examined the appellant and gave his report vide Ex.P-6, in which, he found that the appellant could perform the act of sexual intercourse. In further investigation, site map (Ex.P-4) was prepared by Patwari Ramlal Yadav (PW 13). The appellant was also sent to the Government BDM Hospital, Champa for medical examination vide Ex.P-12. Dr. R.K.Chandra (PW 15) examined the appellant and gave his report vide Ex.P-6, in which, he found that the appellant could perform the act of sexual intercourse. In further investigation, site map (Ex.P-4) was prepared by Patwari Ramlal Yadav (PW 13). After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Janjgir, who, in turn, committed the case to the Court of Session, Bilaspur, from where, it was received on transfer by Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. To hold the appellant guilty, the prosecution examined prosecutrix (PW 1), Ganeshram Suryawanshi (PW 2 - husband of the prosecutrix), Roopnarayan @ Pappu (PW 3 - son of the prosecutrix), Dhaniram (PW 4), Jeevanlal (PW 5), Padumlal (PW 6), Premlal (PW 7), Gangaram (PW 8), Sampatibai (PW 9), Krishna Bai (PW 10), Antram Kansari (PW 11), Laxmi Prasad Kenwat (PW 12), Patwari Ramlal Yadav (PW 13), Dr. Veena Chandra (PW 14), Dr. R.K.Chandra (PW 15), ASI V.K. Awasthi (PW 16), Sub Inspector Nakul Singh (PW 17) and Head Constable Sachidanand Gupta (PW 18). The appellant examined Gendram Suryawanshi (DW 1) in his defence. 4. Shri Gurudev Sharan, learned counsel for the appellant argued that the First Information Report (Ex.P-7) was lodged belatedly. He further argued that the trial Court has grossly erred in holding the appellant guilty for the offence punishable under Sections 376(1) and 450 IPC. He further argued that the prosecution case is highly improbable. It is impossible for anyone to commit forcible sexual intercourse with a married woman. On close scrutiny of the evidence available on record, possibility of the prosecutrix having being a consenting party cannot be ruled out. Therefore, the conviction of the appellant is not sustainable and the appellant deserves to be acquitted. 5. On the other hand, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supported the impugned judgment and pleaded for no interference with the same by this Court. 6. I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial Mo.302/2003. The conviction of the appellant is based on the evidence of the prosecutrix (PW 1). 7. 6. I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial Mo.302/2003. The conviction of the appellant is based on the evidence of the prosecutrix (PW 1). 7. I shall first deal with the question of delay in lodging the First Information Report (Ex.P-7). 8. Prosecutrix (PW 1) deposed that she gave written complaint (Ex.P14) and lodged First Information Report (Ex.P-7) in Police Station, Champa. Ganeshram Suryawanshi (PW 2) also deposed that her wife (the prosecutrix) gave written complaint (Ex.P-14) and lodged the FIR (Ex.P-7) in Police Station, Champa. Sub-Inspector Nakul Singh (PW 17) deposed that the prosecutrix (PW 1) had given written complaint (Ex.P-14), on the basis of which, he recorded Rojnamcha Sanha No.132 dated 3-4-2003 (Ex.P-15C). 9. The date and time of the incident was 26-3-2003 at about 11:30 pm. Rojnamcha Sanha (Ex.P-15C) was recorded on 3-4-2003 at about 6:30 pm. The distance between the police station and the place of incident is 15 kilometers. Prosecutrix (PW 1) deposed that her husband had gone to Naila for earning livelihood. Her husband returned home on 1-4-2003, then she narrated the incident to him. Ganeshram Suryawanshi (PW 2) deposed that he returned his house on 1-4-2003 and then prosecutrix (PW 1) narrated the incident to him. Thereafter, prosecutrix (PW 1) gave written complaint (Ex.P-14) in Police Station, Champa. 10. ASI V.K. Awasthi (PW 16) deposed that on the basis of Rojnamcha Sanha dated 3-4-2003 (Ex.P-15C), he registered Crime No.58/2003 under Sections 376 and 450 IPC on 5-4-2003 vide FIR (Ex.P-7). 11. The date and time of the incident was 26-3-2003 at about 11:30 pm. Husband of the prosecutrix returned his house on 1-4-2003. The written complaint (Ex.P-14) was made in the police station on 3-4-2003. The Rojnamcha Sanha (Ex.P-15C) was recorded on 3-4-2003 at about 6.30 pm and the First Information Report (Ex.P-7) was registered on 5-4-2003 at about 8:35 pm. The distance between the police station and the place of incident is 15 kilometers. The reason for delay in lodging the FIR (Ex.P-7) is mentioned as ^^ifr ds ckgj jgus ls^^ Prosecutrix (PW 1) deposed that her husband was not present in the village. When her husband returned home on 1-4-2003, she narrated the incident to him. The distance between the police station and the place of incident is 15 kilometers. The reason for delay in lodging the FIR (Ex.P-7) is mentioned as ^^ifr ds ckgj jgus ls^^ Prosecutrix (PW 1) deposed that her husband was not present in the village. When her husband returned home on 1-4-2003, she narrated the incident to him. She further deposed that it is true that her husband Ganeshram Suryawanshi (PW 2) used to go out for earning livelihood in the morning and return in the evening daily. It appears that her husband Ganeshram Suryawanshi (PW 2) used to return home in the evening daily. In this situation, prosecutrix (PW 1) had ample opportunity to tell the incident to her husband Ganeshram Suryawanshi (PW 2) immediately, but she did not disclose the incident to him prior to 1-4-2003. Ganeshram Suryawanshi (PW 2) deposed that his family members were residing nearby his house. He further deposed that his family members did not stop or prevent anybody to send message to him. It is also true that none of his family members prevented the prosecutrix (PW 1) to lodge a report against the appellant. 12. Looking to the evidence of the prosecutrix (PW 1) and her husband Ganeshram Suryawanshi (PW 2), it appears that the prosecutrix (PW 1) narrated the incident to her husband on 1-4-2003. It also appears that houses of brothers of Ganeshram Suryawanshi (PW 2) were situated nearby the house of Ganeshram Suryawanshi (PW 2) in which prosecutrix (PW 1) was residing with her husband Ganeshram Suryawanshi (PW 2). Prosecutrix (PW 1) deposed that her husband had three brothers. Her mother-in-law and father-in-law used to sleep in the courtyard of her house. Looking to the evidence of the prosecutrix (PW 1), it appears that the father and mother of Ganeshram Suryawanshi (PW 2) were residing with him. The written complaint (Ex.P-14) was made in the police station on 3-4-2003, i.e., after 8 days of the incident. Rojnamcha Sanha (Ex.P-15C) was recorded on 3-4-2003, Dehati Nalishi (Ex.P-8) was recorded on 5-4-2003 and the FIR (Ex.P-7) was registered on 5-4-2003. The delay in lodging complaint is not properly explained which is fatal to the case of the prosecution. 13. Prosecutrix (PW 1) deposed that on 26-3-2003, her husband had gone to Naila for earning livelihood. Rojnamcha Sanha (Ex.P-15C) was recorded on 3-4-2003, Dehati Nalishi (Ex.P-8) was recorded on 5-4-2003 and the FIR (Ex.P-7) was registered on 5-4-2003. The delay in lodging complaint is not properly explained which is fatal to the case of the prosecution. 13. Prosecutrix (PW 1) deposed that on 26-3-2003, her husband had gone to Naila for earning livelihood. Her father-in-law and mother-in-law had gone for attending Ramayan and her son Roopnarayan @ Pappu (PW 3) had gone out of the house for watching television. She further deposed that on the same day, at about 8:00 pm, after taking meals, she slept in the house and shut the door of the house but did not bolt it from inside. At about 11:30 pm, the appellant entered her house, bolted the door from inside, turned the light off and caught her hand. She woke up and tried to raise alarm, but the appellant threatened her of life, threw her on the cot and committed sexual intercourse with her. At that time, her son Roopnarayan alias Pappu (PW 3) returned home and knocked the door, but the appellant did not open the door. Thereafter, Roopnarayan alias Pappu (PW 3) shouted. On hearing his shout, her Jeth (elder brother of her husband), Jawahar, Dhaniram (PW 4), Jeevanlal (PW 5) and Gangaram (PW 8) came there. The appellant did not open the door and he also did not allow her to open it. Jawahar, Dhaniram (PW 4), Jeevanlal (PW 5) and Gangaram (PW 8) pushed the door from outside and opened it. At that time, the appellant hid under the cot. They caught the appellant and took him out of the house. 14. Prosecutrix (PW 1) deposed that on 1-4-2003, her husband returned home. She narrated the incident to him and lodged the First Information Report (Ex.P-7) in Police Station, Champa. 15. It is trite law that the sole testimony of the prosecutrix can be based for conviction without further corroboration. Now, I shall examine whether the evidence of the prosecutrix (PW 1) is cogent, trustworthy and can be based for conviction? 16. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) 2012 Cri.L.J., the Hon'ble Supreme Court observed as follows: "Evidence of Prosecutrix: 15. Now, I shall examine whether the evidence of the prosecutrix (PW 1) is cogent, trustworthy and can be based for conviction? 16. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) 2012 Cri.L.J., the Hon'ble Supreme Court observed as follows: "Evidence of Prosecutrix: 15. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called 'Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : (2004 AIR SCW 6563); and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191 ) : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." 17. Prosecutrix (PW 1) deposed that she did not know what was mentioned by her Jeth (elder brother of her husband) in the written report (Ex.P 14). She did not know from where the report was got written. She further deposed that on 26-3-2003 at about 8 P.M., she had slept after taking dinner. At that time, door of the house was shut but she had not bolted it from inside. She further deposed that the appellant entered her house, bolted the door from inside, threw her on the cot and committed sexual intercourse with her. At that time, her son Roopnarayan alias Pappu (PW 3) returned home and knocked the door. The appellant did not allow her to open the door. Roopnarayan alias Pappu (PW 3) shouted. Having heard his shout, her Jeth Jawahar, Gangaram (PW 8), Jeevanlal (PW 5), Dhaniram (PW 4) and some other villagers gathered there and they knocked the door, but the appellant did not open the door nor he allowed her to open it. Thereafter, the appellant hid under the cot. Roopnarayan alias Pappu (PW 3) shouted. Having heard his shout, her Jeth Jawahar, Gangaram (PW 8), Jeevanlal (PW 5), Dhaniram (PW 4) and some other villagers gathered there and they knocked the door, but the appellant did not open the door nor he allowed her to open it. Thereafter, the appellant hid under the cot. She further deposed that her son Roopnarayan alias Pappu (PW 3) and her Jeth Jawahar, Gangaram (PW 8), Jeevanlal (PW 5) and Dhaniram (PW 4) opened the door pushing it from outside. At that time, the appellant had hidden under the cot. She further deposed that her father-in-law and mother-in-law used to sleep in the courtyard of her house. She further deposed that it is true that before her lodging the report, the appellant and his wife had lodged a report against Dhaniram (PW 4), Jeevanlal (PW 5), Padumlal (PW 6) and Ramkumar. Dhaniram (PW 4), Jeevanlal (PW 5) and Padumlal (PW 6) are her Jeth. It is true that police had taken Dhaniram (PW 4), Jeevanlal (PW 5) and Padumlal (PW 6) to the police station. It is also true that a panchayat had taken place in the village in which an agreement had entered into in this regard. 18. Prosecutrix (PW 1) deposed that it is true that her Jeth Jeevanlal (PW 5) had, saying that she was characterless, beaten her. She further deposed that she had not stated to her family members that the appellant had committed rape with her. It is true that the courtyard of her house and the courtyard of house of her Jeth are situated adjacent to each other. It is also true that on creating any voice from her house, the same is heard in the house of her Jeth. She further deposed that 15-20 members were residing in the house of her Jeth. 19. Ganeshram Suryawanshi (PW 2) deposed that it is true that his all family members reside nearby his house. 20. Roopnarayan alias Pappu (PW 3) deposed that he had gone to the house of Bhikhari for watching TV. He returned his house at about 2 P.M. (night hours). The door of the house was closed from inside and light of the house was also turned off. He knocked the door, but the same was not opened from inside. Then, he called his Tau (elder father). He returned his house at about 2 P.M. (night hours). The door of the house was closed from inside and light of the house was also turned off. He knocked the door, but the same was not opened from inside. Then, he called his Tau (elder father). Having heard his voice, Dhaniram (PW 4), Jeevanlal (PW 5), Padumlal (PW 6) and Ramkumar came there. They opened the door pushing it from outside. They saw that the appellant had hidden under the cot. Dhaniram (PW 4), Jeevanlal (PW 5) and Padumlal (PW 6) deposed in similar fashion. 21. Looking to the evidence of prosecution witnesses, it appears that the father-in-law and mother-in-law of the prosecutrix (PW 1) were residing with prosecutrix (PW 1), house of Jeth of prosecutrix (PW 1) was situated adjacent to her house and 15-20 family members were residing in the house of her Jeth. Had the appellant entered her house and committed forcible sexual intercourse with her, she would have shouted and their relatives would have reached there, but her non-shouting at the relevant point of time unveils her unnatural conduct. 22. Roopnarayan alias Pappu (PW 3) specifically deposed that when he returned his house, the door of the house was closed from inside. When he pushed the door, it did not open. Then, he knocked the door, but nobody opened it from inside. He called his Tau. They pushed the door from outside and opened it. Had the appellant committed forcible sexual intercourse with prosecutrix (PW 1), she would have shouted and raised an alarm for help at the time of knocking the door by her son Roopnarayan alias Pappu (PW 3), but she did not raise any alarm to come out of clutches of the appellant. 23. According to the prosecution, when prosecutrix (PW 1) was sleeping, the appellant entered her house and committed sexual intercourse with her. Dr. Veena Chandra (PW 14) deposed that she examined prosecutrix (PW 1) and gave her report (Ex.P-5). In Ex.P-5, no internal or external injury was found on the body of prosecutrix (PW 1). Had the appellant committed forcible sexual intercourse with prosecutrix (PW 1), who is a married woman, she would have tried to save her and in this circumstance, she would have sustained some injury on her body, but no any injury was found on her body. Dr. Had the appellant committed forcible sexual intercourse with prosecutrix (PW 1), who is a married woman, she would have tried to save her and in this circumstance, she would have sustained some injury on her body, but no any injury was found on her body. Dr. R.K.Chandra (PW 15) deposed that he examined the appellant and gave his report (Ex.P-6). He further deposed that no any external injury was found on the body of the appellant. Therefore, mere statement of prosecutrix (PW 1) that she was threatened by the appellant, therefore, she did not raise any alarm is not sufficient to hold that the appellant committed forcible sexual intercourse with her. 24. Belated lodging of the written complaint and the FIR, the evidence of prosecutrix (PW 1) and her unnatural conduct go to show that prosecutrix (PW 1) was a consenting party to the commission of sexual intercourse. Therefore, the evidence of prosecutrix (PW 1) cannot be based for conviction of the appellant. 25. On the basis of aforesaid discussion, I am of the view that the learned trial Court committed an error in convicting and sentencing the appellant for the offence under Sections 376(1) and 450 IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. 26. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 376(1) and 450 IPC are set aside. He is acquitted of the charges framed against him. He is in jail. He be released forthwith, if not required in any other case. Appeal Allowed.