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2013 DIGILAW 248 (CHH)

Dashrath Bhuiyan v. State of C. G.

2013-08-26

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

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JUDGMENT 1. This appeal is directed against judgment dated 31.12.2007 passed by Second Additional Sessions Judge (FTC), Ramanujganj, District Surguja in Sessions. Trial No. 95/2002. By the impugned judgment, accused/appellant Dashrath Bhuiyan has been convicted under Section 376 of the Indian Penal code and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for one month. Case of the prosecution, in brief, is as under: 7-8 months prior to 19.11.2001, when prosecutrix (PW-11) was going to forest for collecting wood, the appellant met her, consoled her saying that he would marry her and committed sexual intercourse with her. Thereafter, the appellant continued to have physical relationship with the prosecutrix, as a result of which, the prosecutrix became pregnant. Prosecutrix (PW-11) told the appellant about her pregnancy, but the appellant avoided marrying her Thereafter, a Village Panchayat was held in which, the appellant refused to keep the prosecutrix (PW-11) with him. Prosecutrix (PW-11) made a written complaint (Ex-P/11) in Police Station Ramanujganj. On the basis of written complaint (Ex-P/ll), First Information Report (Ex-P/12) was recorded in Police Station, Ramanujganj. Prosecutrix (PW-11) was sent to District Hospital, Ambikapur for medical examination. Dr. Sarita Singh (PW-9) examined the prosecutrix (PW-11) and gave her report (Ex-P/10), that prosecutrix (PW-11) was carrying-pregnancy of about 28-30 weeks. She also prepared two slides of vaginal swab of the prosecutrix (PW-11) for chemical examination. The appellant was also sent to Community Health Centre, Ramanujganj for medical examination. Dr. BR Sharma (PW-15) examined him and gave his report (Ex-P/16) finding that the appellant was capable to perform sexual intercourse. 2. In further investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ramanujganj, who, in turn, committed the case to the Court of Session, Surguja, from where it was received on transfer by Second Additional Sessions Judge (FTC), Ramanujganj, who conducted the, trial and convicted and sentenced the appellant as mentioned above. 3. Mr. R.K. Jain and Mr. Rajkumar Gupta, learned counsel appearing for the appellant argued that FIR (Ex-P/12) was lodged belatedly. They further argued that the trial Court grossly erred in holding the appellant guilty for the offence punishable under Section 376 IPC. They further argued that the case of the prosecution is highly improbable. 3. Mr. R.K. Jain and Mr. Rajkumar Gupta, learned counsel appearing for the appellant argued that FIR (Ex-P/12) was lodged belatedly. They further argued that the trial Court grossly erred in holding the appellant guilty for the offence punishable under Section 376 IPC. They further argued that the case of the prosecution is highly improbable. A close scrutiny of the evidence available on record reveals possibility of the prosecutrix (PW-11) having been a consenting party. Therefore, conviction of the appellant under Section 376 IPC is not sustainable and the appellant deserves to be acquitted of the charge framed against him. 4. On the other hand, Mr. Neeraj Mehta, 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, we have perused the records of Sessions Trial No. 95/02. 6. We shall first deal with the question of delay in lodging the First Information Report (Ex-P/12). 7. Prosecutrix (PW-11) deposed that when she was sleeping in her house, the appellant entered her house, committed sexual intercourse with her and threatened her of life. She further deposed that the appellant is her uncle in relation and she used to call him as uncle. She further deposed that the appellant committed sexual intercourse with her twice in her house. She further deposed that she made a report in Police Station Ramanujganj. 8. Ex-P/11 is a written compliant. In the written complaint, it is mentioned that the appellant assured the prosecutrix (PW-11) to marry her and committed sexual intercourse with her. The appellant continued to have sexual relationship with her, due to which she became pregnant. When the prosecutrix (PW-11) told the appellant about her pregnancy, the appellant refused to marry her. Thereafter, she lodged written report (Ex-P/11) in Police Station, Ramanujganj on 19.11.2001. In the FIR (Ex-P/12), it is mentioned that the appellant promised to marry the prosecutrix (PW-11). Prosecutrix (PW-11) did not lodge First Information Report (Ex-P/12) promptly. According to the FIR (Ex-P/12), the appellant committed sexual intercourse with the prosecutrix (PW-11) 7-8 months prior to lodging of the FIR. Delay in lodging the FIR was not properly explained. 9. In the FIR (Ex-P/12), it is mentioned that the appellant promised to marry the prosecutrix (PW-11). Prosecutrix (PW-11) did not lodge First Information Report (Ex-P/12) promptly. According to the FIR (Ex-P/12), the appellant committed sexual intercourse with the prosecutrix (PW-11) 7-8 months prior to lodging of the FIR. Delay in lodging the FIR was not properly explained. 9. The appellant committed sexual intercourse with the prosecutrix with her consent or without her consent or under misconception of facts or consent given by the prosecutrix to have sexual intercourse with the appellant, the burden to prove this fact always lies on the prosecution. The burden is on the prosecution to prove each and every ingredients of the offence. 10. Prosecutrix (PW-11) deposed that her mother refused to keep her along with her and she was handed over to her brother-in-law (jeeja). After sometime, her brother-in-law also left her and she came back to her mother's house. 11. In Ex-P/11, it is mentioned that prior to 7-8 months of lodging of FIR (Ex-P/12), when the prosecutrix was going to forest for collecting wood, the appellant met her, promised her to marry her and committed sexual intercourse with her. But, in the Court statement, she deposed that the appellant entered her house and committed sexual intercourse with her. There is material contradiction in the FIR and in the Court statement of the prosecutrix (PW-11). Looking to the First Information Report (Ex-P/12), it appears that the appellant committed sexual intercourse with the prosecutrix (PW-11) several times and the prosecutrix (PW-11) did not disclose the incident to anybody. Even she did not disclose the incident to her mother. 12. Looking to the evidence of the prosecutrix, it appears that the prosecutrix (PW-11) narrated the incident to her mother and villagers after carrying pregnancy of 27-29 weeks, i.e. for about 6-7 months. Therefore, delay in lodging the FIR (Ex-P/12) is not properly explained by the prosecution, which is fatal to its case. 13. It is a trite law that the sole testimony of a prosecutrix can be based - for conviction without further corroboration. 14. Now, we shall examine whether the evidence of the prosecutrix is cogent, trustworthy and can be based for conviction? 15. The date and time of the incident was 7-8 months prior to lodging of FIR (Ex-P/12). The prosecutrix (PW-11) made written complaint (Ex-P/11) on 19.11.2001. 14. Now, we shall examine whether the evidence of the prosecutrix is cogent, trustworthy and can be based for conviction? 15. The date and time of the incident was 7-8 months prior to lodging of FIR (Ex-P/12). The prosecutrix (PW-11) made written complaint (Ex-P/11) on 19.11.2001. In the FIR (Ex-P/12), it is mentioned that when the prosecutrix (PW-11) was going to the forest for collecting wood, the appellant committed sexual intercourse with her in the forest and thereafter, the appellant again committed sexual intercourse with her in her house. But, in her Court statement, she specifically deposed that the appellant entered her house and committed forcible sexual intercourse with her. In the Court statement, she did not state that the appellant promised to marry her. She simply stated that the appellant threatened her of life. Looking to the evidence of the prosecutrix (PW-11), it appears that the appellant committed sexual intercourse with the prosecutrix (PW-11) several times and the prosecutrix (PW-11) did not disclose the incident to anybody. On the date of her deposition, age of the prosecutrix (PW-11) was 25 years. In the FIR (Ex-P/12), her age is mentioned as 21 years. It appears that the prosecutrix was above 16 years. There is no evidence that the appellant committed sexual intercourse with the prosecutrix (PW-11) after obtaining consent under fear of injury or after misconception of facts or false promise to marry. 16. Prosecutrix (PW-11) lodged the report after her being pregnant. She was 21 years old at the time of the incident. The appellant committed rape on her and assured to marry her. Thereafter, the appellant committed sexual intercourse with her 2-3 times, as a result of which, she became pregnant. Then, FIR (Ex-P/12) was lodged, i.e., after 7-8 month of the alleged first incident of rape. Had the rape been committed by the accused/appellant much against her will, she would not have voluntarily submitted to his subsequent rapes after the alleged first incident of rape. It is apparent that the prosecutrix (PW-11) was major and was aged about 21 years at the time of the incident and not only she was the consenting party, but was also well aware of the consequences. 17. Belated lodging of FIR (Ex-P/12), written complaint (Ex-P/11), evidence of the prosecutrix (PW-11) and her unnatural conduct would go to show that she was the consenting party to the commission of sexual intercourse. 17. Belated lodging of FIR (Ex-P/12), written complaint (Ex-P/11), evidence of the prosecutrix (PW-11) and her unnatural conduct would go to show that she was the consenting party to the commission of sexual intercourse. Therefore, evidence of the prosecutrix cannot be based for conviction of the appellant. 18. On the basis of the aforesaid discussion, we are of the view that the learned trial Court committed an error in convicting and sentencing the appellant under Section 376 IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 376 IPC are set aside. He is acquitted of the charge framed against him. It is stated that he is in jail. He be released forthwith, if not required in any other case.