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2012 DIGILAW 328 (CHH)

SANDEEP VERMA v. STATE OF C. G.

2012-12-11

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 9.9.2008 passed by Additional Sessions Judge, Bhatapara in Sessions Trial No. 03/2007 convicting the accused/appellant under Sections 346, 376 (1) and 506(B) IPC and sentencing him to undergo rigorous imprisonment for one year u/s 346, seven years with fine of Rs. 500 u/s 376(1) and five years with fine of Rs. 500 u/s 506(B) IPC, plus default stipulations. 2. Facts of the case in brief are that on 17.5.2007 a written report Ex. P-1 was lodged by the prosecutrix aged about 15 years at the relevant time alleging that on 28.4.2007 she had come to village Girra to attend the marriage of her brother. On 30.4.2007 at about 8 p.m. when she was going to the house of her aunt, all of a sudden two boys came from behind, gagged her mouth, took her by dragging to the house of one Diamond Sahu and stuffed her mouth with soil and then the other boy left the spot. Accused/appellant abused, beat and threatened her saying that if she disclosed the incident to anyone he would kill her as well as her family members. Thereafter, the accused/appellant threw her on the floor, removed her clothes including underwear and when she kicked him; he assaulted her on head as a result of which she became unconscious. After regaining consciousness, she found herself naked, blood was oozing from her private part and she was feeling pain. It is alleged that she was subjected to rape by the accused/appellant as a result of which she started losing consciousness. It is alleged that before committing the offence, accused/appellant had bolted the door from inside. She is alleged to have been taken out of the room by breaking open the door and taken for treatment to Dr. Pramod Tiwari at Baloda Bazar and on recovery from her physical condition, the report was lodged by her. Based on this written report, FIR Ex. P-2 was registered on 17.5.2007 for the offences under Sections 450, 376, 506 and 342 IPC. She was medically examined by Dr. Mamta Thakur (PW-13) who gave her report Ex. P-18. After completion of investigation, charge sheet was filed by the police for the offences under Sections 450, 376, 506 and 342 IPC. The Court below however framed the charge against the accused/ appellant under Sections 346, 506-B, and 376 (1) IPC. She was medically examined by Dr. Mamta Thakur (PW-13) who gave her report Ex. P-18. After completion of investigation, charge sheet was filed by the police for the offences under Sections 450, 376, 506 and 342 IPC. The Court below however framed the charge against the accused/ appellant under Sections 346, 506-B, and 376 (1) IPC. 3. In support of its case, prosecution has examined 14 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 above. 5. Counsel for the accused appellant submits that as per the case of the prosecution itself when the prosecutrix was subjected to rape, there were two persons and the prosecution has failed to prove as to who happened to be the other person. He submits that there is no clear evidence to show that it is the accused/appellant who committed rape on the prosecutrix and thus his conviction as mentioned above is not proper. He further submits that there is an inordinate delay of 17 days in lodging the report which has not been properly explained by the prosecution. Counsel for the accused/appellant submits that Dr. Pramod Tiwari (PW-14) who initially treated the prosecutrix has not supported the case of the prosecution and it was not even disclosed to him that the prosecutrix was subjected to rape by the accused/appellant. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that present is a case where prosecutrix was subjected to rape in a very brutal manner by the accused/appellant. He submits that though the prosecutrix aged about 16 years at the relevant time had become unconscious yet the accused/appellant did not leave her and made her the victim of his lust. He submits that delay in lodging the FIR has been properly explained by the prosecution stating that as the prosecutrix was not well physically and mentally, it could not be lodged promptly and as soon as her condition became normal she lodged the report. He submits that delay in lodging the FIR has been properly explained by the prosecution stating that as the prosecutrix was not well physically and mentally, it could not be lodged promptly and as soon as her condition became normal she lodged the report. He further submits that as the prosecutrix was medically examined after 17 days, no injury was noticed on her person which will not in any manner adversely affect the case of the prosecution. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-1) has stated that at the relevant time she was studying in class XI and had secured 76% marks in class X. According to this witness, she knew the accused/ appellant and that on 28.4.2007 she had come to village Girra to attend the marriage of her brother. On the date of incident at around 7.45 p.m. when she was going to the house of her aunt, the power supply was off and that as soon as she reached near the house of one Diamond Sahu, the accused/appellant along with one other person came there and forcibly took her in the house of said Diamond Sahu and gagged her mouth. They also stuffed soil in her mouth and then the other boy left the place. Thereafter the door was closed from inside but she could not say as to who did it. Accused/appellant was abusing her by using filthy language and also threatened her that if she disclosed the incident to anyone he would kill her as well as her family members. When she kicked the accused/ appellant, out of anger he assaulted her on head as a result of which she got hit against the wall. When the appellant was trying to commit rape on her, she became unconscious and after regaining consciousness about 30-45 minutes thereafter, she saw her clothes including underwear scattered there and then she again became unconscious. About 1-2 hours thereafter she was taken out of the room by her family members and brought home and as she did not regain consciousness, the doctor was called and after regaining consciousness, she came to know to have been subjected to rape. According to her, she was having body ache and feeling pain on her head, stomach and private part. When her condition deteriorated, she was taken to the clinic of Dr. According to her, she was having body ache and feeling pain on her head, stomach and private part. When her condition deteriorated, she was taken to the clinic of Dr. Pramod Tiwari at Baloda Bazar for treatment. About 10-12 days thereafter when her condition started improving, her parents took her to police Station Palari where the written report was lodged. As she was not in a position to speak properly, the police asked her to give written report which she lodged accordingly vide Ex.P-1 and after obtaining her consent she was medically examined. In lengthy cross-examination various suggestions were given to this witness but she remained firm and categorically stated that in what manner she was ravished by the accused/appellant. Her cross-examination also reveals that various unnecessary questions were put to her. Gayatri Verma (PW -2) - mother of the prosecutrix has stated that at the relevant time the prosecutrix was aged about 15 years and that on April 28 she along with her husband and the prosecutrix came to village Girra. On April 30 when she was sitting in the house along with other family members, prosecutrix came there eating mango and seeing this the other female members present there also asked the prosecutrix for the same to which she told that she would go to the house of her aunt and get it from there and saying that she left the house. When the prosecutrix did not return till 9-10 o’ clock they started making search for her and at that time the electricity supply had also resumed. While making search for her, “chor chor” like sound was heard and when she reached the place from where it was emanating, her sister-in-law namely Devsri and one Shyamvati saw the accused/appellant on the roof top of the house of Diamond Sahu but by that time she was not aware of the incident of rape and they were under the impression that there must be some thief. Villagers were called but nobody dared to enter the house of Diamond Sahu on account of fear that the person on his roof top might be carrying knife. With the help of some other person and in the light to torch when they peeped inside the house of Diamond Sahu, accused/appellant got down and as the prosecutrix was still missing she became perplexed. With the help of some other person and in the light to torch when they peeped inside the house of Diamond Sahu, accused/appellant got down and as the prosecutrix was still missing she became perplexed. After the house of Diamond Sahu was broken open, she saw the prosecutrix in unconscious and half-naked condition and was taken after being wrapped in cloth. She regained consciousness after the water was poured over her head and at that time one local doctor namely Bharat came there and gave injection and medicine to her. After regaining consciousness, she started weeping and asked about her father. As her condition was not good, they let her take rest for about half-an-hour. According to this witness, the prosecutrix was subjected to rape and there were abrasions on her back. There was injury on the head of the prosecutrix and she was complaining pain on her thigh. The prosecutrix is stated to have told this witness that taking advantage of her unconscious condition, the accused/appellant subjected her to rape in the house of Diamond Sahu. On the second day when physical condition of her daughter deteriorated, Panchayat meeting was called in the village and thereafter the prosecutrix remained under treatment of Dr. Pramod Tiwari for 12-15 days and during this period, she was not taking food nor was she in a position to talk or walk properly. According to this witness, as her daughter (prosecutrix) was not having sound sleep, the doctor gave her high doses of sedatives and that even while drafting the written report, she had become unconscious. In cross examination, she has denied that her other daughter Jaisri used to write letters to the accused/appellant or have a talk to him on phone. At the time when the prosecutrix was brought home, she was unconscious and doctor was called to see her. She has stated that after giving injection to her daughter, Dr. Bharat Sahu had asked her to take food but as she did not take it, medicine was given to her after she ate some biscuits. According to this witness, as her daughter's condition was getting bad to worse, first she was taken to the nearest clinic of Dr. Pramod Tiwari at Baloda Bazar and when there was no sign of improvement in her condition, she was shifted to a psychiatrist at Raipur who had prescribed sedatives for her to eliminate sleeplessness. According to this witness, as her daughter's condition was getting bad to worse, first she was taken to the nearest clinic of Dr. Pramod Tiwari at Baloda Bazar and when there was no sign of improvement in her condition, she was shifted to a psychiatrist at Raipur who had prescribed sedatives for her to eliminate sleeplessness. According to this witness, the prosecutrix was all-rounder, used to practise yoga and participate in race competition and cultural programmes apart from being a champion of NCC. This witness has admitted the fact that no oral or written report was lodged immediately after the incident as their first anxiety was to see improvement in the condition of her daughter and that as soon as she showed improvement to some extent and regained consciousness, written report Ex. P-1 was lodged. She then has described again as to what problems were being faced by her daughter and how she was treated by the doctor. She has denied the fact that in the Panchayat meeting a suggestion was given for the marriage of the prosecutrix with the accused/appellant and stated that as her daughter was very young, question of marriage without her consent or that of her husband cannot arise. Though there appear to be certain contradictions and omissions in the court statement of this witness if compared to her case diary statement Ex. D-2, they being very minor are insignificant. This witness has further admitted the fact that after the incident, the prosecutrix had gone to the house of the accused/appellant at village Girra to inform his father as to how much trouble she had undergone. An attempt has been made by the accused/appellant to show that the prosecutrix wanted to live in his house but this witness has categorically denied the same. This witness was also put several irrelevant questions in her cross examination but she remained firm to what she has stated in her examination-in-chief. Hemlal Verma (PW-3) - father of the prosecutrix has supported the statement of prosecutrix (PW-1) and his wife (PW-2) and stated that he along with his family members had come to village Girra to attend the marriage of his nephew where he was informed by his wife that his daughter (prosecutrix) was subjected to rape by the accused/appellant. He has further stated that his wife also informed him about the bad physical and mental condition of his daughter. He has further stated that his wife also informed him about the bad physical and mental condition of his daughter. This witness has admitted the fact that Panchayat meeting was called but as condition of his daughter was deteriorating she was shifted to hospital. He has also proved the date of birth of his daughter (prosecutrix) as 9.12.1991 vide Ex. P-6A which is her mark sheet of class VIII. This witness was also subjected to lengthy cross examination but he has denied all un-necessary suggestions given to him by the defence and remained firm in stating how the condition of his daughter had become worse and how she was treated by the doctors. Yogeshwari Verma (PW-4) aunt of the prosecutrix while describing the entire incident has made almost similar statement as by the mother of the prosecutrix (PW-2). She has stated that after hearing some noise emanating from the house of Diamond Sahu, her sister-in-law Shyamvati saw the accused on the rooftop of his house. She has then described as to how the prosecutrix was taken out of the house of Diamond Sahu in an unconscious condition and how she regained consciousness after the water was sprinkled on her face. Mohan Lal Sahu (PW-5) a local villager has stated that on the date of incident after hearing noise he along with other family members came to the house of Diamond Sahu and then prosecutrix was taken out of his house after covering her with a piece of cloth as she was in a naked and unconscious condition. Thereafter, according to this witness, doctor was called and the prosecutrix was medically treated and then he came to know through the women present there that she (prosecutrix) was subjected to rape by the accused/appellant. Paras Ram Dewangan (PW-6) is the patwari who prepared spot map Ex. P-7. He has duly supported the case of the prosecution. Dashrathram Kannoje (PW-7) - a local villager has stated similar to Mohan Lal Sahu (PW-5). He has stated that in the Panchayat meeting the accused/appellant was also called where he admitted his mistake. At this stage, this witness has been declared hostile. However, in cross-examinations, several un-necessary suggestions were given to this witness but he remained firm in stating that he saw the incident and in what manner the prosecutrix was taken out of the house of Diamond Sahu. At this stage, this witness has been declared hostile. However, in cross-examinations, several un-necessary suggestions were given to this witness but he remained firm in stating that he saw the incident and in what manner the prosecutrix was taken out of the house of Diamond Sahu. Dhanuram Sahu (PW-8) - a local villager has made similar statement like Mohan Lai Sahu (PW-5) and Dashrathram Kannoje (PW-7). Hemant Verma (PW-9) has stated that on 2nd or 3rd of June a Panchayat meeting was called in relation to encroachment of some land where father of the prosecutrix came and informed the villagers that his daughter was subjected to rape by the accused/appellant. Father of the accused/appellant was called and he admitted that his son had committed rape on the prosecutrix. Thereafter, father of the accused/appellant was asked to bring the accused/appellant in the meeting and in the evening when the meeting was called again, accused/appellant had admitted his guilt and then a decision was taken in the Panchayat meeting that nothing could be done there and the report was required to be lodged. Dular Das (PW-10) is the witness to seizure of certain articles made under Ex. P-6 who has not supported the case of the prosecution and has been declared hostile. Smt. Shyamvati (PW-11) aunt of the prosecutrix has stated that on the date of incident prosecutrix had left the house saying that she was going to the house of her aunt to get mangoes. In the night she was sleeping on the rooftop of her house and after hearing noise coming from the place of incident, she and other women had seen the accused/appellant standing on the rooftop of the house of Diamond Sahu and they took him to be thief. Thereafter, number of persons gathered there and the prosecutrix was taken out of the house of Diamond Sahu in an unconscious condition and she regained consciousness after drinking water and then she disclosed the entire incident. In cross examination also this witness remained firm to what she has stated in the examination in chief L.R. Giri (PW-12) is the investigating officer who has duly supported the case of the prosecution. Dr. Mamta Thakur (PW-13) is the witness who medically examined the prosecutrix on 18.5.2007 i.e. 18 days after the incident vide Ex. In cross examination also this witness remained firm to what she has stated in the examination in chief L.R. Giri (PW-12) is the investigating officer who has duly supported the case of the prosecution. Dr. Mamta Thakur (PW-13) is the witness who medically examined the prosecutrix on 18.5.2007 i.e. 18 days after the incident vide Ex. P-18 and according to her, when she (prosecutrix) was brought to her, she was not in a position to talk properly; that one finger easily entered her vagina; that her hymen was old torn and it was in 6 o’ clock position; that there was no sign of injury in her private part and no sign of recent sexual intercourse was there. In cross-examination, she has stated that the prosecutrix was looking in such a manner as if she was not in a position to talk and walk properly. Dr. Pramod Tiwari (PW-14) has stated that on 2.5.2007 he had treated various patients including a girl who was mentally sick and unable to answer the questions properly. He treated her for three days and advised for consulting a psychiatrist. According to him, the girl had not informed him about commission of rape on her nor did he find any injury on her body. This witness did not inform the police about the physical condition of the prosecutrix. In cross-examination, he has further stated that he was not informed by the prosecutrix or her relatives that she was subjected to rape. In the statement recorded under Section 313 of the Code of Criminal Procedure the accused/appellant has simply stated that he has been falsely implicated in the case and that at the time of incident he was not in the village and returned thereto after the incident. 9. Having thus gone through the entire evidence of the witnesses particularly that of the prosecutrix (PW-1) it is amply clear that on the date of incident at around 7.45 p.m. when she was going to the house of her aunt, at that time power supply was off and that as soon as she reached near the house of one Diamond Sahu, the accused/appellant along with one other person came there and forcibly took her in the house of said Diamond Sahu and gagged her mouth. They also stuffed soil in her mouth and then the other boy left the place. They also stuffed soil in her mouth and then the other boy left the place. Accused/appellant abused her by using filthy language and also threatened her that if she disclosed the incident to anyone he would kill her as well as her family members. When the prosecutrix kicked the accused/appellant, out of anger he assaulted her on head as a result of which she got hit against the wall. Her evidence also goes to show that when the appellant was trying to commit rape on her, she became unconscious and after regaining consciousness about 30-45 minutes thereafter, she saw her clothes including underwear scattered there and then she again became unconscious. Thus the entire evidence of the prosecutrix makes it clear that she was made a victim of rape by the accused/appellant that too in a brutal manner. This Court does not find any force in the argument of the counsel for the appellant that there is delay of about 17 days in lodging the report and therefore the entire case of the prosecution becomes doubtful, for the reason that the prosecutrix was not well physically and mentally for days together and as soon as her condition became normal she went to the police station with her parents and lodged the written report Ex. P-1. It is a settled legal position that in a case of rape few days delay in lodging the FIR is not always fatal. Record also shows that the prosecutrix was medically examined after 17 days and therefore even if no injury was noticed on her person by the doctor examining her, it will not in any manner adversely affect the case of the prosecution. Evidence of the prosecutrix is duly supported by other witnesses also including her mother, father and aunt. Moreover, there is evidence showing that in the Panchayat meeting the accused/appellant had admitted his mistake. It is thus evident from the record that taking helplessness of the prosecutrix, the accused/ appellant sexually victimized her. By molesting a girl like the prosecutrix herein, the accused/appellant has shown the animalism hidden in him and thereby left her long bright future in the heap of miseries. Record goes to show that the hapless prosecutrix was a girl of talent in all spheres such as study, sports, cultural activities etc. By molesting a girl like the prosecutrix herein, the accused/appellant has shown the animalism hidden in him and thereby left her long bright future in the heap of miseries. Record goes to show that the hapless prosecutrix was a girl of talent in all spheres such as study, sports, cultural activities etc. but the scar of being a rape victim put on her has ruined her entire merit and made her live a life in anonymity in the so-called civilized society. Refraining to observe further, this Court does not see any reason to show any sympathy for the animal-like tendency of the accused/appellant and holds the findings of the Court below just and proper. 10. Accordingly, the appeal is without substance and the same is dismissed. Judgment impugned is hereby affirmed. Accused/appellant is already in jail and therefore no order regarding his surrender is necessary to be passed. Appeal Dismissed.