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2013 DIGILAW 19 (CHH)

Prahalad v. State of C. G.

2013-01-07

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 07-05-2004 passed by Sessions Judge, Durg in Sessions Trial No.253/2003. By the impugned judgment, accused/appellant Prahalad has been convicted under Sections 450 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs.50/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months and rigorous imprisonment for 7 years and to pay fine of Rs.100/-, respectively. In default of payment of fine, to further undergo rigorous imprisonment for 1 month and 3 months, respectively. The jail sentences are directed to run concurrently. 2. Case of the prosecution, in brief, is as under: Prosecutrix (PW 1) is niece of Bhuwan (PW-2) and Smt. Jethibai (PW 3), Bhuwan (PW 2) and Smt. Jethibai (PW 3) were residing in the house of Bhagchand on rent. Prosecutrix (PW 1) was residing along with them from 2-7-2003. On 17-7-2003, Bhuwan (PW 2) had gone to Nagpur Engineering, Anjora for earning livelihood and Jethibai (PW 3) had gone to agricultural field for labour work. Prosecutrix (PW 1) was alone at the house. At about 2 P.M., the appellant came to her house, threatened her of life, caught her hand, caused her to fall down on the cot and committed forcible sexual intercourse with her. When Bhuwan (PW 2) and Jethibai (PW 3) returned home, prosecutrix (PW 1) narrated the incident to them. Prosecutrix (PW 1) lodged First Information Report (Ex.P-1) in Police Outpost Anjora. Prosecutrix (PW 1) was sent to District Hospital, Durg for medical examination. Dr. Smt. Shobha Rajput (PW 6) examined her and gave her report (Ex.P-10). She also prepared two slides of the vaginal swab of prosecutrix (PW 1). The appellant was also sent to District Hospital, Durg for medical examination. Dr. P. Balkishore (PW 4) examined him and gave his report (Ex.P-7), in which, he found the appellant capable of committing sexual intercourse. In further investigation, petticoat of prosecutrix (PW 1) was seized vide Ex.P-2. School admission register was seized vide Ex.P-4. Prosecutrix (PW 1) was sent for X-Ray Examination for determination of age. Dr. A.K.Sahu (PW 5) took out X-Ray of prosecutrix (PW 1) and gave his report (Ex.P-9), in which, he found the age of prosecutrix (PW 1) as 18 years. Spot-Map (Ex.P-11) was prepared. Underwear of the appellant was seized from the appellant vide Ex.P-13. Prosecutrix (PW 1) was sent for X-Ray Examination for determination of age. Dr. A.K.Sahu (PW 5) took out X-Ray of prosecutrix (PW 1) and gave his report (Ex.P-9), in which, he found the age of prosecutrix (PW 1) as 18 years. Spot-Map (Ex.P-11) was prepared. Underwear of the appellant was seized from the appellant vide Ex.P-13. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-16. Report (Ex.P-18) was received therefrom. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Ravi Kumar Bhagat, learned counsel for the appellant argued that the FIR (Ex.P-1) was lodged belatedly. The age of prosecutrix (PW 1) was above 16 years on the date of incident. The trial Court grossly erred in holding the appellant guilty for the offences punishable under Sections 450 and 376 IPC. On close scrutiny of the evidence available on record, possibility of prosecutrix (PW 1) having been consenting party cannot be ruled out. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal. 4. On the other hand, Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.253/2003. 6. First, I shall examine whether the age of prosecutrix (PW 1) was below 16 years on the date of incident? 7. The age of prosecutrix (PW 1) is mentioned as 15 years on her deposition-sheet, but she did not state regarding her date of birth or age. Bhuwan (PW 2) deposed that age of prosecutrix (PW 1) was 18-19 years. Khedan Singh Sinha (PW 4) deposed that he was posted as officiating Headmaster at Primary School Singhola since 1989. He had brought school admission register of the said school. The school admission register was maintained from 1988 to June, 1989. In the said register, at serial number 14, admission number 599, the date of birth of prosecutrix (PW 1) is mentioned as 23-9-1982. 8. Dr. He had brought school admission register of the said school. The school admission register was maintained from 1988 to June, 1989. In the said register, at serial number 14, admission number 599, the date of birth of prosecutrix (PW 1) is mentioned as 23-9-1982. 8. Dr. A.K.Sahu (PW 5) deposed that he had taken out X-Ray of right wrist, right elbow and right waist of prosecutrix (PW 1) and had given report (Ex.P-9), in which, he had found that the age of prosecutrix (PW 1) was 18 years. 9. Looking to the evidence of Bhuwan (PW 2), Khedan Singh Sinha (PW 4), Dr. A.K.Sahu (PW 5) and Ex.P-9 and P-3, it is established that the age of prosecutrix (PW 1) was above 18 years on the date of incident. 10. Prosecutrix (PW 1) deposed that on the date of incident, her maternal uncle Bhuwan (PW 2) and maternal aunt Jethibai (PW 3) had gone for earning livelihood. She was causing her younger brother to sleep and thereafter she also slept. At about 2 P.M., the appellant came to her house, removed her underwear and committed sexual intercourse with her. When the appellant inserted his penis into her vagina, then she woke-up and saw that the appellant was committing sexual intercourse with her. Thereafter, the appellant fled from there. When Bhuwan (PW 2) and Jethibai (PW 3) returned home, she narrated the incident to them. Bhuwan (PW 2) and Jethibai (PW 3) deposed that they had gone for earning livelihood and when they returned home at about 5:30 P.M., prosecutrix (PW 1) narrated the incident to them. 11. It is trite law that the sole testimony of the prosecutrix can be based for conviction without corroboration. Now, I shall examine whether the evidence of prosecutrix (PW 1) is cogent and trustworthy and can be based for conviction. 12. In the instant case, prosecutrix (PW 1) deposed that on the date of incident, her maternal uncle and aunt had gone for earning livelihood. She was causing her younger brother to sleep and thereafter she also slept. At about 2 P.M., the appellant came to her house, removed her underwear and committed sexual intercourse with her. When the appellant inserted his penis into her vagina, then she woke-up and saw that the appellant was committing sexual intercourse with her. Thereafter, the appellant fled from there. At about 2 P.M., the appellant came to her house, removed her underwear and committed sexual intercourse with her. When the appellant inserted his penis into her vagina, then she woke-up and saw that the appellant was committing sexual intercourse with her. Thereafter, the appellant fled from there. She deposed in the cross-examination that when the appellant was committing sexual intercourse with her, she did not make any effort to scratch, kick or push him away. She did not try to come out of his clutches. She further deposed that she had bolted the door of the house from inside. Had prosecutrix (PW 1) bolted the door of the house from inside, the appellant would not have entered her house. This goes to show that the door was not bolted from inside. 13. Prosecutrix (PW 1) deposed that it is true that when the appellant went out of her house, 10-20 villagers gathered in front of her house. It is also true that the villagers had scolded her and told not to do such wrong things. It is also true that when her maternal uncle Bhuwan (PW 2) and maternal aunt Jethibai (PW 3) returned home, the villagers told them that she had committed wrong thing with the appellant and they also asked them to send her back to her-Village Singhola. Bhuwan (PW 2) deposed that when he returned home, many persons had gathered in front of his house. They told him that prosecutrix (PW 1) had gone towards Khar. They also told him that they had seen prosecutrix (PW 1) with the appellant and when they scolded prosecutrix (PW 1), she ran towards the Khar. Jethibai (PW 3) deposed that prosecutrix (PW 1) told her only that the appellant had caught her hand and nothing else was told by prosecutrix (PW 1). 14. According to prosecutrix (PW 1), while she was sleeping, the appellant entered her house and she woke-up when the appellant was committing sexual intercourse with her. When prosecutrix (PW 1) woke-up, she could raise an alarm for help and could scratch, kick or push the appellant away to come out of his clutches. But, she did not make any such effort. 15. Looking to the evidence of prosecutrix (PW 1) and Bhuwan (PW 2), it appears that the villagers had seen prosecutrix (PW 1) and the appellant together and they had scolded prosecutrix (PW 1). But, she did not make any such effort. 15. Looking to the evidence of prosecutrix (PW 1) and Bhuwan (PW 2), it appears that the villagers had seen prosecutrix (PW 1) and the appellant together and they had scolded prosecutrix (PW 1). From their evidence, it further appears that the FIR (Ex.P-1) was lodged against the appellant after consultation with the Village Kotwar. 16. The facts and evidence of the case and the unnatural conduct of prosecutrix (PW 1) go to show that prosecutrix (PW 1) was a consenting party to the commission of sexual intercourse with her. Therefore, the evidence of prosecutrix (PW 1) cannot be based for conviction of the appellant. 17. On the basis of aforesaid discussion, I am of the view that the trial Court has committed an error in convicting the appellant for the offences punishable under Sections 450 and 376 IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. 18. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 450 and 376 IPC are set aside. He is acquitted of the charges framed thereunder. He is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.