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2012 DIGILAW 297 (CHH)

RAMKUMAR PRAJAPATI v. STATE OF C. G.

2012-11-06

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 30.4.2008 passed by Additional Sessions Judge (FTC) Ramanujganj (Sarguja) in Sessions Trial No. 214/2007 convicting the accused/appellant under Section 376 (1) IPC and sentencing him to undergo RI for ten years and pay fine of Rs. 500/- in default of payment of fine to further undergo RI for two months. 2. Facts of the case in brief are that on 1.2.2007 FIR (Ex. P-5) was lodged by the prosecutrix - a pregnant lady aged about 19 years alleging that on 31.1.2007 marriage of her sister-in-law was being solemnized and all her family members were busy in attending the members of marriage party. It is alleged that on that day in the night hours when she was sleeping in her house all alone, accused/appellant also came and slept there. Allegedly, as the people used to frequent to her house, the door was left open. At about 12 in the night, accused/appellant got over her cot and committed forcible sexual intercourse with her. When the prosecutrix tried to raise cries, the accused/appellant threatened to kill her. After her husband got back, she narrated the entire incident to him. It is alleged that Suraj (PW-10) had seen the accused/appellant while he was coming out of her house. Based on this report, offence under Section 376 IPC was registered against the accused/appellant. She was medically examined on 1.2.2007 by Dr. Manju Ekka (PW-8) who gave her report Ex. P-12 stating that at that time the prosecutrix was carrying pregnancy of 28-30 weeks. After completion of investigation, charge sheet was filed by the police on 3.4.2007 for the said offence. 3. In support of its case, prosecution has examined 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveled 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 present is clear case of consent but unfortunately as the accused/appellant was seen by Suraj (PW-10) while coming out from the house of the prosecutrix and incident was narrated by him to her husband, the report came to be lodged. Counsel for the accused/appellant submits that present is clear case of consent but unfortunately as the accused/appellant was seen by Suraj (PW-10) while coming out from the house of the prosecutrix and incident was narrated by him to her husband, the report came to be lodged. She further submits that while deposing in the Court, the prosecutrix has improved her version and stated that when she tried to raise cries, accused/appellant inserted a piece of cloth in her mouth but nothing like this has been stated by her either in the FIR or in the statement recorded under Section 161 of the Code of Criminal Procedure. She submits that no protest was offered by the prosecutrix while being raped by the accused/appellant and even the medical report does not support the case of the prosecution. Lastly she submits that if the conviction part of the judgment impugned is not going to be interfered with, taking into consideration the fact that the accused/ appellant is in jail since 1.2.2007, his sentence may be reduced to the period already undergone by him or at least to seven years. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that looking to the manner in which the accused/appellant ravished a pregnant lady, findings of the Court below are well founded and call for no interference therewith. He further submits that the minimum sentence for commission of rape on a pregnant lady is rigorous imprisonment for ten years provided in Section 376 (2) (e) IPC and that is what has been imposed on the accused/appellant, which is quite justified. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-9) has stated that on the date of incident there was marriage of her sister-in-law namely Kismatia Bai and all her family members had gone to attend the same and that due to she being ill was all alone in her house. At about 11-12 in the night, accused/appellant came to her house and after removing her as well as his own clothes committed forcible sexual intercourse with her which went on for about half an hour. According to her, when she tried to raise an alarm, accused/appellant inserted a piece of cloth in her mouth. During the course of incident, her petticoat and blouse were torn by the accused/appellant. According to her, when she tried to raise an alarm, accused/appellant inserted a piece of cloth in her mouth. During the course of incident, her petticoat and blouse were torn by the accused/appellant. After commission of the offence, the accused/appellant went away and when Suraj (PW-10) came back after attending marriage, she disclosed the incident to him. Said Suraj then called her husband and the incident was disclosed to him also. Thereafter, her husband went to the house of accused/appellant but he did not open the door and then on the next day she along with her husband went to the police station and lodged the report. Subsequently, she was medically examined and as advised by her husband she did not take bath before being medically examined. Paragraphs 8 to 10 of the deposition of this witness go to show that there ate material contradictions and omissions in the same. According to this witness, while lodging the report she disclosed to the police that at the time of commission of rape, accused/appellant had inserted a piece of cloth in her mouth that he removed her as well as his own clothes and that her blouse and petticoat were torn by him but if the same is missing there-from, she could not tell the reason for that. She has admitted that the house where the incident had taken place and the one where marriage was being solemnized are adjacent to each other. She has also admitted that there was no light in her house; that there was a crowd outside her house and the voice raised from her house could be heard by the outsiders. She has admitted that because of the marriage function, frequent movement of people was going on to her house. She has further admitted that during the incident she did not nail-scratch, bite or kick the accused/appellant. Suraj (PW-10) a child witness aged about 11 years at the relevant time has stated that he knew the accused/appellant and that the prosecutrix happened to be his sister-in-law. According to him, on the date of incident he saw the accused/appellant coming out of the house of the prosecutrix and pulling his pant up. This witness has further stated that he was informed by the prosecutrix that accused/ appellant had insulted her. According to him, on the date of incident he saw the accused/appellant coming out of the house of the prosecutrix and pulling his pant up. This witness has further stated that he was informed by the prosecutrix that accused/ appellant had insulted her. This witness too has categorically stated that due to marriage ceremony there was huge crowd near the house of the prosecutrix. Dr. Manju Ekka (PW -8) is the witness who medically examined the prosecutrix and gave her report Ex. P-12 opining that she was carrying pregnancy of 28-30 weeks, no injury was noticed on person and no definite opinion regarding recent sexual intercourse. According to this witness, she prepared slides and handed over the same to the constable for being taken to Forensic Science Laboratory for chemical examination. This witness also did not notice any mark of resistance on the body of prosecutrix. Suresh (PW-1) and Ram Vriksha (PW-2) are the witnesses to seizure of petticoat and a sealed packet made under Ex.P-1 and P-2 respectively who have not supported the case of the prosecution and have been declared hostile. Constable Punni Yadav (PW-3) is the witness who received a sealed packet from the hospital and prepared seizure memo Ex. P-2. Shankar Ram (PW-4) is the witness to seizure of articles made under Ex. P-2 and P-3. Constable Kashmir Paikra (PW-5) is the witness who took the sealed packet to Forensic Science Laboratory. Omnarayan Singh (PW-6) is the Patwari who prepared spot map Ex. P-4. P.D. Minj (PW-7) is the witness who assisted in the investigation. Dr. R.Y. Prajapati (PW-11) is the witness who medically examined the accused/appellant and gave his report Ex. P-15 stating that he was capable of performing sexual intercourse. 9. Undisputedly, there is no FSL report on record. More so, statement of the prosecutrix made in the Court and the things described by her at the time of lodging FIR and in the statement recorded under Section 161 Cr.P.C. are not consistent to each other. In the statement made before the Court, prosecutrix has stated that while being raped by the accused/appellant she tried to raise an alarm but he had inserted a piece of cloth in her mouth. In the statement made before the Court, prosecutrix has stated that while being raped by the accused/appellant she tried to raise an alarm but he had inserted a piece of cloth in her mouth. However, nothing like this finds place in the FIR or in the statement recorded under Section 161 Cr.P.C. Similarly, her overall conduct also goes to show that she did not offer any protest to the act of the accused/appellant and permitted him to have sexual intercourse with her which went on for about half an hour. Record goes to show that on account of marriage of her sister-in-law in the adjacent house there was a crowd near the place of incident and had she in fact made an attempt to get rid of the accused/appellant, accused/appellant would not have succeeded in committing the offence. The story put forth by the prosecutrix appears to be the outcome of Suraj (PW-10) having seen the accused/appellant coming out of her house pulling up his pant and then he informed the same to her husband. Thus looking to the evidence available on record the Court below does not appear to be justified in convicting the accused/appellant under Section 376 (1) IPC. 10. In view of the aforesaid discussion, judgment impugned cannot be made sustainable and liable to be set aside as such. Appeal is allowed. Findings of the Court below recorded in the judgment under challenge are set aside. Accused/appellant is acquitted of the charge leveled against him. Appellant who is in jail be set free forthwith if not required in any other case. Appeal Allowed.