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2012 DIGILAW 249 (CHH)

NARSINGRAM v. STATE OF C. G.

2012-09-25

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 10-06-2004 passed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 298/2003. By the impugned judgment, accused/appellant Narsingram has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 452 IPC Rigorous imprisonment for 2 years and to pay fine of Rs. 1,000/- in default of payment of fine, to undergo simple imprisonment for 3 months Under Section 376 IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 5,000/-, in default of payment of fine, to undergo simple imprisonment for 1 year Under Section 506-B IPC Rigorous imprisonment for 2 years and to pay fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for 2 months 2. Case of the prosecution, in brief, is as under: On 1-7-2003, at about 1:00 pm, prosecutrix (PW-1) (in purview of Section 228A IPC, name of the prosecutrix is not being mentioned) was alone in her house. Appellant Narsingram entered the house of prosecutrix (PW-1) and showing a knife, threatened her of life. On the point of knife, the appellant committed sexual intercourse with the prosecutrix (PW-1) and threatened her if she will disclose the incident to anyone, he will kill her. The prosecutrix (PW-1) narrated the incident to her husband Prabhuram (PW-2). Prabhuram (PW-2) went to the house of the appellant, asked about the incident and warned him not to come his house again. Thereafter, Prabhuram (PW-2) went to Raipur. The appellant, on Saturday, at about 1:00 a.m., again entered the house of the prosecutrix (PW-1) and committed sexual intercourse with her. The appellant threatened her if she will disclose the incident to her husband, he will kill her. The prosecutrix (PW-1) lodged written complaint (Ex.P-in Police Chowki Bhakhara, on the basis of which, First Information Report (Ex.P-6) was recorded in Police Chowki Bhakhara. During investigation, spot map (Ex.P-1) was prepared by Assistant Sub-Inspector N.P. Chandrakar (PW-4). Another spot map (Ex.P-17) was prepared by Patwari Kejuram Dhruw (PW-5). Petticoat of prosecutrix (PW-1) was seized vide Ex.P-2. The appellant was arrested vide Ex.P-15 and at his instance, a knife was seized vide Ex.P-3. Underwear of the appellant was also seized vide Ex.P-4. Prosecutrix (PW-1) was sent to Primary Health Centre, Gujara, District Dhamtari for medical examination vide Ex.P-10. Dr. Petticoat of prosecutrix (PW-1) was seized vide Ex.P-2. The appellant was arrested vide Ex.P-15 and at his instance, a knife was seized vide Ex.P-3. Underwear of the appellant was also seized vide Ex.P-4. Prosecutrix (PW-1) was sent to Primary Health Centre, Gujara, District Dhamtari for medical examination vide Ex.P-10. Dr. Vandana Vyas (PW-9) examined prosecutrix (PW-1) and gave her report (Ex.P-10A). The appellant was also sent to Primary Health Center, Gujara, District Dhamtari for medical examination Ex.P-10. Dr. Vandana Vyas (PW-9) examined prosecutrix (PW-1) and gave her report (Ex.P-10A). The appellant was also sent to Primary Health Center, Gujara, District Dhamtari for medical examination vide Ex.P-13. Dr. H.C. Godheja (PW-7) examined the appellant and gave his report (Ex.P-17). The seized petticoat and slide of vaginal swab of prosecutrix (PW-1) and the underwear of the appellant were sent to Forensic Science Laboratory, Raipur for chemical examination. Report (Ex.P-20) was received therefrom. After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Dhamtari, who, in turn, committed the case to the Court of Session, Raipur, from where, it was received on transfer by Additional Sessions Judge, Dhamtari, 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), Prabhuram (PW-2 - husband of the prosecutrix), Rohit Kumar Sahu (PW-3), ASI N.P. Chandrakar (PW-4), Patwari Kejuram Dhruw (PW-5), Narayan Giri (PW-6), Dr. H.C. Godheja (PW-7), Kewarabai (PW-8) and Dr. Vandana Vyas (PW -9). The appellant did not examine any witness in his defence. 4. Shri Pushkar Sinha, learned counsel for the appellant argued that written complaint (Ex.P-5) and First Information Report (Ex.P-6) were lodged belatedly. He further argued that the trial Court has grossly erred in holding the appellant guilty for the offences punishable under Sections 452, 376 and 506B IPC. He further argued that the case of the prosecution is highly improbable. He further argued that 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. He further argued that 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 Rajendra Tripathi, leaned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 6. Having heard rival contentions of the parties, I have perused record of Sessions Trial No. 298/2003 with utmost circumspection. The conviction of the appellant is based on the evidence of prosecutrix (PW-1) and Prabhuram (PW-2 - husband of the prosecutrix). 7. I shall first deal with the question of delay in lodging written complaint (Ex.P-5) and FIR (Ex.P-6). 8. Prosecutrix (PW-1) deposed that she lodged written complaint (Ex.P-5) in Police Chowki Bhakhara. Prabhuram (PW-2) also deposed that his wife lodged written complaint (Ex.P-5) in the Police Chowki. ASI N.P. Chandrakar (PW-4) deposed that he was posted as ASI at Police Chowki Bhakhara. He further deposed that prosecutrix (PW-l) gave written complaint (Ex.-P-5) on the basis of which he recorded FIR (Ex.P-6). Date and time of the incident is 1-7-2003, at about 1:00 pm, and the written complaint (Ex.P-5) was lodged in Police Chowki Bhakhara on 7-7-2003 and the FIR (Ex.P-6) was also recorded on 7-7-2003. The distance between the police chowki and the place of occurrence is 17 kilometers. Prosecutrix (PW-1) deposed that her husband had gone to Raipur for earning livelihood. Her husband returned on Sunday morning then she narrated the incident to her husband and thereafter, prosecutrix (PW-1) lodged written complaint (Ex.P-5) in Police Chowki Bhakhara. ASI N.P. Chandrakar (PW-4) deposed that on the basis of written complaint (Ex.P-5), he recorded FIR (Ex.P-6) for the offences under Sections 452, 376 and 506B IPC. The reason for delay in lodging writing complaint (Ex.P-5) and FIR (Ex.P-6) is mentioned as " ifr ?kj esa ugha gksus ckgj jgus dkj.k ". Prosecutrix (PW-1) depose that her husband was not present in the village. When her husband returned home on Sunday morning, she narrated the incident to him. She further deposed that her husband used to return home on every Sunday and Thursday. Prosecutrix (PW-1) depose that her husband was not present in the village. When her husband returned home on Sunday morning, she narrated the incident to him. She further deposed that her husband used to return home on every Sunday and Thursday. She further deposed that on Thursday, at about 2:00 pm, the appellant came to her house. At that time, she was sleeping along with her children. The appellant gagged her mouth. The appellant had a knife in his hand, he threatened her of life and committed sexual intercourse with her against her will. She further deposed that her husband returned his house on Sunday and she narrated the incident to him. 9. Looking to the evidence of prosecutrix (PW-1), it appears that the appellant entered the house of prosecutrix (PW-1) and committed sexual intercourse with her prior to second incident, i.e., on 1-7-2003. The report was not lodged by prosecutrix (PW-1) for the first incident. 10. Prosecutrix (PW-1) deposed that her Jethani was residing adjacent to her room. She further deposed that she did not narrate the incident to anybody in the village. 11. Prabhuram (PW-2) deposed that the appellant committed sexual intercourse with his wife for which he did not lodge any report in police station. He further deposed that after the first incident, he had gone to Raipur and when he returned on Tuesday, prosecutrix (PW-1) narrated the subsequent incident to him. He further deposed that he used to return his home thrice a week, i.e., on Sunday, Tuesday and Wednesday, He further deposed that it is true that the report was not lodged in the police station for the first incident. 12. Looking to the evidence of prosecutrix (PW-1) and Prabhuram (PW-2), it appears that prosecutrix (PW-1) narrated the first incident to her husband on Sunday, but report was not lodged by the prosecutrix (PW-1) against the appellant for the first incident. Second incident took place on 1-7-2003 and the written complaint (Ex.P-5) was made on 7-7-2003 in Police Chowki Bhakhara, i.e., after 6 days of the incident. Delay in lodging the written complaint is not properly explained which is fatal to the case of the prosecution. 13. Prosecutrix (PW-1) deposed that her husband Prabhuram (PW-2) used to go to Raipur for earning livelihood and used to return home on every Sunday, Tuesday and Thursday. On Thursday, at about 2:00 pm, the appellant entered her house. Delay in lodging the written complaint is not properly explained which is fatal to the case of the prosecution. 13. Prosecutrix (PW-1) deposed that her husband Prabhuram (PW-2) used to go to Raipur for earning livelihood and used to return home on every Sunday, Tuesday and Thursday. On Thursday, at about 2:00 pm, the appellant entered her house. At that time, she was sleeping with her children. The appellant had a knife in his hand, he threatened her of life, caused her to fall down on the floor and committed sexual intercourse with her against her will. She further deposed that when her husband returned home, she narrated the incident to him. She further deposed that her husband had gone to the house of the appellant and made complaint against him. She further deposed that on Saturday, at about 1:00 am, when she was sleeping with her children, the appellant entered her house and caused her to fall down on the floor and committed sexual intercourse with her against her will. She further deposed that her husband returned home on Sunday morning. She narrated the incident to him. Prabhuram (PW-2) also deposed in similar fashion. 14. 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. 15. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) 2012 Cri.L.J. 693 (SC), 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 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 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. 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." 16. Prosecutrix (PW-1) deposed that it is true that she did not know what was asked from the appellant by her husband. She further deposed that it is true that her Jethani was residing adjacent to her room. She further deposed that she did not narrate the incident to her Jethani. She further deposed that the appellant committed sexual intercourse with her on second occasion. She did not narrate the incident to her Jethani and villagers regarding commission of sexual intercourse by the appellant. She further deposed that when her husband went to the house of the appellant for elucidation, the appellant abused him, threatened him and assaulted him. Thereafter, she lodged report against the appellant. She further deposed that had the appellant not abused her husband she would not have lodged the report against the appellant. 17. Prosecutrix (PW-1) deposed in paragraph 8 of cross-examination that the appellant did not enter her house through the front gate. She further deposed that the appellant used to enter her house through fence (Baadi) side. She further deposed that it is true that when the appellant committed sexual intercourse with her, she did not raise any alarm. She further deposed that it is true that for the first incident, when sexual intercourse committed by the appellant with her, she did not lodge any report against the appellant. She further deposed that the appellant committed marpeet with her husband, therefore, she lodged the report against the appellant. Had the appellant not abused her husband, she would not have lodged the report against the appellant. She further deposed that it is true that she snatched the knife from the appellant and kept with her. 18. Looking to the evidence of prosecutrix (PW-1), it appears that Jethani of the prosecutrix was residing adjacent to the room of the prosecutrix. Had the appellant entered house of the prosecutrix (PW-1) and committed sexual intercourse with her without her consent, she would have shouted and her Jethani would have reached there. But, she did not raise any alarm at the relevant point of time, which shows her unnatural conduct. 19. Had the appellant entered house of the prosecutrix (PW-1) and committed sexual intercourse with her without her consent, she would have shouted and her Jethani would have reached there. But, she did not raise any alarm at the relevant point of time, which shows her unnatural conduct. 19. According to the prosecutrix (PW-1), she was sleeping along with her children. The appellant entered her house and committed sexual intercourse with her. Dr. Vandana Vyas (PW-9) deposed that she examined prosecutrix (PW-1) and gave her report (Ex.P-10A), in which, no internal or external injury was found on the body of the prosecutrix (PW-1). Had the appellant committed sexual intercourse with the prosecutrix (PW-1), who is a married woman, she should have tried to save herself and in these circumstances, she should have sustained some injuries on her body, but no injury was found on her body. Dr. H.C. Godheja (PW-7) examined the appellant and gave his report (Ex.P-17). He deposed that no internal or external injury was found on the body of the appellant. Therefore, mere statement of prosecutrix (PW-1) that she was threatened by the appellant due to which she did not raise any alarm is not sufficient to hold that the appellant committed forcible sexual intercourse with her. 20. Belated lodging of the written complaint (Ex.P-5) and the FIR (Ex.P-6), evidence of prosecutrix (PW-1) and her unnatural conduct go to show that the 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. 21. 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 offences punishable under Sections 452, 376 and 506B IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. 22. In the result, the appeal is allowed and the conviction and sentence awarded to the appellant under Sections 452, 376 and 506B IPC are set aside. He is acquitted of the charges framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.