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2013 DIGILAW 205 (CHH)

Narayan v. State of M. P.

2013-07-08

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 29-06-1998 passed by Second Additional Sessions Judge, Bilaspur in Sessions Trial No. 125/1997. By the impugned judgment, accused/appellant Narayan has been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.200/-, in default of payment of fine, to further undergo simple imprisonment for 2 months. 2. Case of the prosecution, in brief, is as under: On 13/01/1997, at about 8.00 PM, prosecutrix (PW -7) was sleeping in her room, her husband had gone to Village Sisda and her daughter was sleeping on another cot. The appellant came there and asked for tobacco. The prosecutrix (PW -7) replied that it was kept there and asked him to take it. The appellant bolted the door from inside, picked-up a sickle, threatened her of life, caused her to fall down, removed his underwear, uplifted petticoat and sari of the prosecutrix (PW-7) and committed forcible sexual intercourse with her without her consent. During the incident, Laxmi Gir (PW-3), who is nephew (Bhanja) of the prosecutrix (PW-7) had bolted the door from outside and inquired about the person by asking. Due to threatening of the appellant, the prosecutrix (PW7) did not reply. During all these, the villagers came there. The appellant was trying to escape from roof of the room. The villagers caught him. After opening the door, the prosecutrix (PW-7) narrated the incident to her mother-in-law, sister-in-law and nephew (Bhanja) Laxmi Gir (PW-3). The prosecutrix (PW-7) narrated the incident to her husband. The prosecutrix (PW -7) lodged First Information Report (Ex.P-12) in Police Station Seepat. The prosecutrix (PW 7) was sent to Primary Health Center, Seepat for medical examination. Dr. Shela Millton (PW -5) examined the prosecutrix (PW -7) and gave her report (Ex.P-7). 2 slides of vaginal swab of the prosecutrix (PW -7) were prepared by her and handed over to the police for chemical examination. In further investigation, spot map (Ex.-P/13) was prepared by Investigation Officer (S.H.O. I.L. Kurre, PW-8), the sickle was seized vide (Ex.P-3) and petticoat of the prosecutrix (PW -7), slides of her vaginal swab and her sari were seized vide (Ex.P-11). The seized articles were sent to Forensic Science Laboratory (FSL), Sagar for chemical examination and report (Ex.P-8) was received therefrom. In further investigation, spot map (Ex.-P/13) was prepared by Investigation Officer (S.H.O. I.L. Kurre, PW-8), the sickle was seized vide (Ex.P-3) and petticoat of the prosecutrix (PW -7), slides of her vaginal swab and her sari were seized vide (Ex.P-11). The seized articles were sent to Forensic Science Laboratory (FSL), Sagar for chemical examination and report (Ex.P-8) was received therefrom. In Ex.P-8, it is mentioned that article A i.e. underwear of the appellant, article B i.e. slide of the appellant, article D i.e. petticoat of the prosecutrix (PW-7) and article E i.e. slide of vaginal swab of the prosecutrix (PW -7) were stained with human spermatozoa. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Bilaspur, who, in turn, committed the case to the Court of Session, Bilaspur, from where it was received on transfer by the Second Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Sahid Anwar Ansari, learned counsel for the appellant argued that the prosecutrix (PW -7) was a consenting party, therefore, conviction of the appellant under Section 376 IPC is not sustainable. Hence, the appellant deserves to be acquitted of the charge framed against him. 4. On the contrary, Shri Anant Bajpai, learned Panel Lawyer appearing 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. I have heard rival contentions of the parties and have also perused the record of Sessions Trial No. 125/1997. 6. Prosecutrix (PW -7) deposed that on the date of incident she was sleeping in her house along with her children and her husband had gone to village Sisda. At about 8.00 PM, the appellant came her house and asked for tobacco. The appellant took tobacco, put off the lamp (Chimni), bolted the door from inside, picked up a sickle, threatened her of life, caused her to fall down, removed his underwear, uplifted her petticoat and sari and committed forcible sexual intercourse with her without her consent. Her mother-in-law Kailash Bai witnessed the incident. Laxmi Gir (PW-3) bolted the door from outside and Kailash Bai and Shivaji Rao (PW-1) were also present there. Her mother-in-law Kailash Bai witnessed the incident. Laxmi Gir (PW-3) bolted the door from outside and Kailash Bai and Shivaji Rao (PW-1) were also present there. On being asked by Shivaji Rao (PW-1) and Laxmi Gir (PW-3), the prosecutrix (PW-7) opened the door, came out from the room and narrated the incident to them. 7. Shivaji Rao (PW-l) deposed that on the date of incident, at about 9.00 PM, on being called by Kailash Bai, he went to the house of Kailash Bai along with Sarjoo Gir (PW-2). He saw that one person had entered the room of the prosecutrix (PW-7) and the door was closed from inside. He asked the prosecutrix (PW-7) to open the door. Laxmi Gir (PW-3) had bolted the door from outside. The prosecutrix (PW-7) did not open the door immediately. The appellant escaped through roof of the room, thereafter the prosecutrix (PW7) open the door. 8. Prosecutrix (PW-7) deposed in para-8 of her cross-examination that when the appellant was committing sexual intercourse with her, she did not raise any alarm and also did not make any efforts to save her from clutches of the appellant. She neither scratched the appellant nor pushed him away. When the appellant was committing sexual intercourse with her, her mouth was open and hands were free. After committing sexual intercourse by the appellant, she cleaned his pennis with her petticoat. In para-9 of her cross-examination, she deposed that while the appellant was committing sexual intercourse with her, her both legs were over the appellant and the appellant, sitting down, was committing sexual intercourse with her. 9. Shivaji Rao (PW-1) specifically deposed that on being inquired by him who was inside the room, the prosecutrix (PW-7) replied that nobody was in the room. The prosecutrix (PW-7) did not open the door immediately and, thereafter, the appellant came out from the house through the roof. At that time, Mangalsingh Gond, Ram Gond, Laxmi Gir (PW-3), Kailash Bai and Santram Gond (PW-4) were present there and they saw that the appellant was coming out of the room through the roof. The appellant jumped and began to flee, but Ram Gond caught him. He further deposed that prosecutrix (PW-7) did not disclose the incident to them. Sarjoo Gir (PW-2), Laxmi Gir (PW-3) and Santram (PW-4) also deposed in similar fashion. 10. The appellant jumped and began to flee, but Ram Gond caught him. He further deposed that prosecutrix (PW-7) did not disclose the incident to them. Sarjoo Gir (PW-2), Laxmi Gir (PW-3) and Santram (PW-4) also deposed in similar fashion. 10. According to the prosecutrix (PW-7), while she was sleeping in her house, the appellant entered her house and threatened her of life and, thereafter, committed sexual intercourse with her. Looking to the evidence of prosecutrix (PW-7), it appears that she did not raise any alarm and she also did not try to come out of the clutches of the appellant. She could raise the alarm for help and she could also scratch or kick to the appellant. She did not make any such efforts to save herself from the appellant. 11. From the above evidence, it is evident that the door of the house of the prosecutrix (PW-7) was bolted from inside. When Shivaji Rao (PW1), Sarjoo Gir (PW-2) and Laxmi Gir (PW-3) reached near the house of the prosecutrix (PW -7) and knocked and asked the prosecutrix (PW -7) to open the door, the prosecutrix (PW -7) could open the door but she did not open the door immediately. She opened the door after the appellant escaped through the roof of the house. In view of the above evidence, I find that the unnatural conduct of the prosecutrix (PW -7) goes to show that she was a consenting party to the commission of sexual intercourse by the appellant with her. Therefore, the evidence of prosecutrix (PW -7) cannot be based for conviction of the appellant. 12. I have carefully examined the entire evidence available on record. I am of the considered view that the trial Court erred in convicting the appellant for the offence punishable under Section 376 IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. 13. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 376 IPC are set aside and the appellant is acquitted of the charge framed thereunder. It is stated that he is on bail. His bail bonds are continued for a period of 6 months from today. Appeal Allowed.