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2013 DIGILAW 95 (CHH)

DHARAMJIT v. STATE OF C. G.

2013-03-08

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 12.1.2010 passed by Additional Sessions Judge (FTC) Pratappur, District Sarguja in Sessions Trial No. 249/2007 convicting the accused/appellant for the offence punishable under Sections 450 and 376 IPC and sentencing him to undergo RI for five years with fine of Rs. 500/- u/s 450 and RI for seven years with fine of Rs. 500/- u/s 376 IPC, plus default stipulations. 2. Facts of the case in brief are that on 1.11.2004 FIR Ex. P-1 was lodged by the prosecutrix - a married lady aged about 20 years alleging that on that day about 8 p.m. when she was sleeping in her house, co-accused Puni came there and made an inquiry about her family members and then he went away. She has further alleged that in the midnight, she felt as if someone was sleeping beside her and on inquiry he disclosed his name as Puni. Thereafter, the prosecutrix pushed him aside but by that time the accused/appellant herein also came there carrying some gupti like weapon with him and threatened her that he would poke it in her stomach and do away with. Accused/appellant is then alleged to have pressed her breast on account of which the blouse worn to her was torn and then after upturning her petticoat he committed forcible sexual intercourse with her. After committing rape on her, the accused/appellant is said to have thrown her down the cot as a result of which she sustained injury on her forehead and became unconscious. About one and a half hour thereafter she regained consciousness she started weeping and on hearing her sobs her grand-mother came there to whom she narrated the entire incident. Based on this report, offence under Sections 450 and 376(2)(g) IPC was registered against both the accused persons and she was medically examined on 2.11.2004 by Dr. Pratibha Rajul Jain (PW-11) who gave her report Ex. P-13. After completion of investigation, charge-sheet was filed on 28.3.2005 under the same Sections showing both the accused persons absconding. Co-accused Puni was arrested after some time, put to trial and then acquitted vide judgment dated 25.2.2008. Present appellant was arrested on 14.5.2009 and then the trial started in his respect also. 3. In support of its case the prosecution has examined 12 witnesses. Co-accused Puni was arrested after some time, put to trial and then acquitted vide judgment dated 25.2.2008. Present appellant was arrested on 14.5.2009 and then the trial started in his respect also. 3. In support of its case the prosecution has examined 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled 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 the judgment. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the accused/appellant submits that the accused/appellant has been implicated in a false case and that the statement of the prosecutrix does not appear to be trustworthy as since very beginning she has been inconsistent while stating the things either before the police or the Court and thus based on such weak type of evidence, conviction of the accused/appellant is not sustainable in the eye of law. Lastly, he submits that the accused/appellant is in jail since 14.5.2009 and if this Court is not inclined to interfere with the conviction part of the judgment impugned, at least the sentence may be reduced to the period already undergone. 7. On the other hand, counsel for the respondent supports the judgment and submits that the findings recorded by the Court below are based on due appreciation of the evidence on record and therefore no interference with it is called for. 8. Prosecutrix (PW-1), in her examination before the Court taken place on 10.12.2009 has stated that she knew the accused/appellant and that earlier also her statement was recorded before the Court. She has stated that on the date of incident someone whose name she did not know had entered her house by breaking open the door and after making her unconscious by pressing her neck he fled away. After regaining consciousness she started weeping on hearing which her grand-mother came there and after being given primary home treatment by her, she felt somewhat better. According to this witness, the person entering her house in the night had thrown her down the cot and pressed her neck on account of which her blouse got torn. After regaining consciousness she started weeping on hearing which her grand-mother came there and after being given primary home treatment by her, she felt somewhat better. According to this witness, the person entering her house in the night had thrown her down the cot and pressed her neck on account of which her blouse got torn. She went on to state that due to darkness, she could not identify the person who had entered her house and that after tearing off her blouse and underwear he inserted his private part into that of her and on account of that she was weeping. This witness has further stated that on the date of incident her husband and in-laws were not in the house and when on the next day her husband returned he called his parents and then the report came to be lodged. Thereafter, with her consent Ex. P-2 she was medically examined at Ambikapur. She is also stated to have given the blouse worn by her on the date of incident to the police which was seized under Ex. P-6. In paragraph No. 15, this witness has stated that earlier also she had deposed in the Court against accused Puni and the present appellant and while doing so she had stated that accused/appellant had entered her house and subjected her to rape. She has further stated that as the accused/appellant was drunk, she was under the impression that it is he who had entered her house. Then she has stated that the accused/appellant being her brother-in-law (Jeth) should be let off. This witness has further stated that earlier on account of being tutored by the advocate of accused Puni and his uncle, she had given the statement in the Court to ensure his release from jail. At this stage the prosecutrix was declared hostile. On being put to cross-examination by the public prosecutor, this witness has stated that on the date of incident at about 8 p.m. co-accused Puniram had come to her house, made an inquiry with respect to her family members and then in the night some boy slept by her side and when he touched her, she woke up and on being asked by her he disclosed his name that it was Puni and then she pushed him aside. She has further stated that by that time the appellant herein also came there carrying some gupti like weapon with him and threatened her saying that he would kill her by inserting it in her stomach. Thereafter, he pressed her breast on account of which her blouse got torn. She has admitted that after upturning her petticoat the present appellant pressed her breast and committed forcible sexual intercourse with her. According to this witness, after committing sexual intercourse, the appellant threw her down the cot as a result of which she suffered injury on her forehead. She has further stated that earlier to save co-accused Puni she had given a false statement and this time the accused/appellant herein should also be let off as the relations between them have restored to normalcy. This witness has again reiterated that in order to save the accused/appellant she was not disclosing the truth before the Court. Then she has stated that when her memory was refreshed, she disclosed the actual incident before the Court. On being again cross-examined, this witness has stated that at the time of incident all the four doors of her house were not closed. According to her, everyday she used to go for sleep in between 8 and 9 p.m. after switching off the light and on the date of incident also she had gone to sleep after switching off the light and due to darkness she could not see or identify the person who had entered her house and committed forcible sexual intercourse with her and the report was lodged by her only on the basis of suspicion. Then this witness has stated that the report in the police station was not lodged by her but by her father. According to her, she was not even aware of the contents of the report nor did she make any statement to the police. She has further stated that the police people had just obtained her signature on a paper but did not disclose her as to what was written on it. Similarly, according to her, the Patwari also had obtained her signature on a blank paper. Pardeshi (PW-5) - father-in-law of the prosecutrix has stated in respect of the present appellant that his statement was never recorded by the police and whatever he has stated was on the basis of tutoring by others. Similarly, according to her, the Patwari also had obtained her signature on a blank paper. Pardeshi (PW-5) - father-in-law of the prosecutrix has stated in respect of the present appellant that his statement was never recorded by the police and whatever he has stated was on the basis of tutoring by others. According to him, he even did not know how the prosecutrix suffered injuries as she did not disclose anything to him. Ku. Manju (PW-6) - sister-in-law of the prosecutrix has not stated anything in respect of the accused/appellant and has been declared hostile. Somaru (PW-7) - the witness to seizure has also not stated anything specific and has been declared hostile. Dr. (Smt.) Pratibha Rajul Jain (PW-11) is the witness who medically examined the prosecutrix has not stated anything in respect of the accused/appellant. This witness has stated that the abrasion on the neck of the prosecutrix could be as a result of friction by chain but she has not given any opinion regarding commission of rape on the prosecutrix. 9. Minute examination of the evidence available on record particularly that of the prosecutrix makes it clear that she has not been consistent while deposing the things before the Court as in the examination-in-chief as also in the cross-examination she has put forth an altogether different story and was declared hostile. Thereafter, while being cross-examined by the defence, she has brought yet another different story. She has however admitted that due to darkness she was not aware as to the person who had slept by her side and then committed forcible sexual intercourse with her and it is due to the appellant's being in an intoxicated condition, she has disclosed his name to be offender on the basis of suspicion. True it is that in sex-related offences, the statement of the prosecutrix is good enough to convict the accused and no further corroboration of the same is required. However, in a case where the prosecutrix remains throughout inconsistent in deposing the things before the Court, her testimony is required to be looked into in the light of other evidence collected by the prosecution and without following that exercise, conviction of the accused in such cases would be bad in law. In these circumstances, this Court finds it difficult to be in agreement with the findings recorded by the Court below convicting and sentencing the accused/appellant as mentioned above. In these circumstances, this Court finds it difficult to be in agreement with the findings recorded by the Court below convicting and sentencing the accused/appellant as mentioned above. Appeal is thus allowed and the judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. As he is in jail, he be set free forthwith if not required in any other case. Appeal Allowed.