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2014 DIGILAW 290 (CHH)

Ram Sudhir v. State of Chattisgarh

2014-08-01

PRITINKER DIWAKER

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JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 6.1.1999 passed by the Additional Sessions Judge, Baikunthpur, District Koriya (MP) in S.T. No. 290/98 convicting the accused/appellant under Sections 376(1), 506 Part-II & 346 of IPC and sentencing him to undergo RI for seven years, to pay a fine of Rs. 2000/- to undergo RI for two years, to pay a fine of Rs. 500/- and to undergo RI for two years, to pay a fine of Rs. 500/- with default stipulations respectively. All the sentences were directed to run concurrently. 2. Brief facts of the case are that on 9-7-1998 at 1 p.m. FIR (Ex.P/1) was lodged by the prosecutrix (PW-1), aged about 20 years, alleging therein that on the previous night at about 8 p.m. when she was returning to her house, which was on the first floor, from the house of her maternal uncle, which was on the ground floor, the accused/appellant forcibly took her to his house after dragging her about 100 meters and there he committed forcible sexual intercourse with her twice. At about 4 a.m. the accused/appellant left his house after locking her inside the house. When she raised alarm, her brother came from the back door of the house of the accused/appellant and then she opened the door and narrated the entire incident to her family members. Based on this FIR, offences under Sections 376, 342 & 506-B of IPC were registered against the accused/appellant. The prosecutrix was medically examined on 9.7.1998 by PW-12 Dr. Kalavati Patel vide Ex.P/IIA wherein she has mentioned that there was no external or internal injury on the person of the prosecutrix, she was habitual to sexual intercourse and there was no sign of rape on her body. On 10.7.1998 the accused/appellant was also medically examined by PW-11 Dr. A.K. Sharma vide Ex.P/15A in which he opined that the accused/appellant was capable of performing sexual intercourse. After investigation, charge-sheet was filed against the accused/appellant for the offence under Sections 376, 342, 506-B of IPC. However, the trial Court framed charges under Sections 346, 376(1) and 506 Part-II of IPC against him. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 12 witnesses. Statement of the accused/appellant was recorded under Section 313 of Cr. However, the trial Court framed charges under Sections 346, 376(1) and 506 Part-II of IPC against him. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 12 witnesses. Statement of the accused/appellant was recorded under Section 313 of Cr. P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. 5. Contention of learned counsel for the appellant is as under: (i) That about five years prior to the date of incident the prosecutrix was married to one Biharilal who is resident of another village but as her husband was mentally disturbed, she left his house and started residing with her parents. On the date of incident, her husband and mother-in-law had come to her house to take her and it appears that as she was not interested to go with them, she stayed with the accused/appellant in the night in his house and when this fact was known to the people residing in the vicinity, they offered face-saving excuse, made the accused/appellant scape-goat and lodged a false report against him. (ii) That a very improbable story has been put forth by the prosecutrix, according to her throughout the night she was subjected to forcible sexual intercourse by the accused/ appellant, however, she did not raise any hue and cry for help when she herself admits that her mouth was not gagged at any point of time and that the house of the accused/appellant is surrounded by number of other houses. (iii) That even the medical evidence does not support the version of the prosecutrix. 6. On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of the accused/appellant is strictly in accordance with law, there is no illegality or infirmity in the same warranting interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 prosecutrix in her Court statement has stated that her marriage was solemnized with one Lal Bihari of Shankar Ghat, Ambikapur but at the time of incident she was residing with her parents because her husband had become insane. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 prosecutrix in her Court statement has stated that her marriage was solemnized with one Lal Bihari of Shankar Ghat, Ambikapur but at the time of incident she was residing with her parents because her husband had become insane. She has stated that on the date of incident, some guests had come in her house, at about 8 p.m. her mother had sent her to the house of her maternal uncle for bringing some utensils and while she was returning to her house the accused/appellant caught hold of her hand on the staircase and after gagging her mouth took her to his house. Then the accused/appellant closed the door, threatened her of life if she raises cry, threw her on the floor, made her remove her clothes and thereafter he removed his clothes and committed sexual intercourse with her. She has stated that in the night the accused/appellant committed sexual intercourse twice against her will. However, at about 4 a.m. the accused/appellant after locking the door from outside left his house and when she was screaming for help, hearing her cries her brother Dharamchand (PW-2), neighbour Shrawan Singh (PW-4) and Gulabchand came there from the back door which was opened by her, they took her out from the house of the accused/appellant and then she narrated the entire incident to her mother and brother and thereafter, she along with her brother went to police station and lodged the report. In her cross-examination, she has stated that she got married with Biharilal about five years back, she lived with him for about three years but since last two years she was residing with her parents as her husband had become insane. She has stated that on the date of incident her husband and mother-in-law had come to take her. She has admitted the fact that the house of her maternal uncle is on the ground floor of her house, she is not required to cross any road to reach the house of her maternal uncle and she goes to the house of her maternal uncle by using staircase. She has admitted the fact that the house of her maternal uncle is on the ground floor of her house, she is not required to cross any road to reach the house of her maternal uncle and she goes to the house of her maternal uncle by using staircase. She has stated that house of the accused/appellant is about 100 meters away from her house, it is mines colony where they reside, in which there are total 56 block-wise quarters and each block contains four quarters - two on the ground floor and two on the first floor. She has stated that there is a road in between the quarters of the accused/appellant and herself. She has admitted the fact that she was not dragged by the accused/appellant but was pulled by him to his house and as at that time the accused/appellant had pressed her mouth she could not bite him. She has stated that the accused/appellant had thrown her on the cemented floor and then after removing her undergarments committed sexual intercourse with her. She has admitted that the back door of the house was closed from inside but she did not open the same because there was no staircase to go down. She has stated that her brother and other persons came in from the said back door when she opened the door. She has admitted the fact that in the incident she did not suffer any injury nor her bangles were broken. 9. PW-2 Dharamchand is brother of the prosecutrix. He has stated that on the date of incident at about 11 p.m. when he returned to his house he was informed by his mother that the prosecutrix has gone somewhere and then he went to search her but could not get her. However, in the morning after hearing the cries of his sister/prosecutrix he went to the house of the accused/appellant and found the same locked. Then he along with others entered the house of the accused/appellant from the back door and found his sister/ prosecutrix there. Thereafter, the prosecutrix was taken to his house where she informed about the incident to her mother. 10. Then he along with others entered the house of the accused/appellant from the back door and found his sister/ prosecutrix there. Thereafter, the prosecutrix was taken to his house where she informed about the incident to her mother. 10. PW-3 Jaipatibai, mother of the prosecutrix, has stated that at the eve of Savan festival husband of the prosecutrix and her mother-in-law had come to her house, she had sent her daughter/prosecutrix to bring some utensils from the house of her brother but she did not return. In the night she asked her husband and son to search the prosecutrix and on the next morning the prosecutrix was found in the house of the accused/appellant. PW-4 Shravan Singh has not supported the prosecution case and has been declared hostile. PW-5 Shriram is a witness to seizure Ex.P/3 by which clothes of the prosecutrix were seized. He has stated that there are number of two-storied quarters near the quarter of the accused/appellant. He has admitted the fact that till 8 p.m. the residents of the colony remain awake and till 11 p.m. the persons would move here and there in connection with their duties. PW-6 Ramsubhag has turned hostile and not supported the prosecution case. PW-7 Shivprasad is a witness to seizure Ex.P/7 & P/8 whereby vaginal slide of the prosecutrix and underwear of the accused/appellant respectively were seized. PW-8 Balkunwar has turned hostile and not supported the prosecution case. PW-9 B.M. Paikra, the investigating officer, has duly supported the prosecution case. PW-10 Ram Vichar Choube, Patwari, prepared the spot map Ex.P/4. PW-11 Dr. A.K. Sharma, medically examined the accused/appellant and opined that he is capable of performing sexual intercourse. PW-12 Dr. Kalavati Patel conducted MLC (Ex.P/11A) of the prosecutrix wherein she found no external or internal injury on the body of the prosecutrix and mentioned that she is habitual to sexual intercourse. 11. From the evidence it is clear that the prosecutrix was not interested to go back to her matrimonial home and was residing at her parents house. On the date of incident, when her husband and mother-in-law had come to her house, she was asked by her mother to bring some utensils from the house of her maternal uncle, who was residing on the ground floor of her house. However, she was recovered from the house of the accused/ appellant which is about 100 meters away from her house. However, she was recovered from the house of the accused/ appellant which is about 100 meters away from her house. The story put forth by the prosecutrix appears to be highly improbable and creates doubt in the mind of the Court as to whether the accused/appellant has forcibly taken her to his house or it was she who had accompanied him of her own free will. It has come in evidence that the house of the accused/appellant where the prosecutrix was confined and subjected to rape is surrounded by other houses and it has not been stated by the prosecutrix that throughout the night her mouth was gagged. She remained in the house of the accused/appellant from 8 p.m. till 4 p.m., however, no hue and cry was raised by her. Though the prosecutrix has stated that she was forcibly taken by the accused/appellant by catching hold of her hand, she was thrown on the cemented floor and then subjected to forcible intercourse, but the medical evidence belies the version of the prosecutrix, according to which there was no external or internal injury or sign of resistance on the person of the prosecutrix. Furthermore, according to the prosecutrix, when her brother and other persons came to her rescue it is she who opened the back door which was bolted from inside. Though the prosecutrix has tried to justify her conduct in this regard by stating that as there was no staircase at the back door to go down she did not open the door earlier, however, the same does not inspire confidence because when the door was bolted from inside, at least she could have opened the same, come out of it and raised alarm for help as the said house was surrounded by number of other adjacent quarters. Thus in the totality of facts and circumstances of the case, the quality of evidence adduced by the prosecution, particularly the evidence of the prosecutrix and her entire conduct during the incident as well as subsequent thereto, the possibility cannot be ruled out that on the date of incident the prosecutrix out of her own free will accompanied accused/appellant to his house and the sexual intercourse, if any, was committed by the accused/appellant, then the she was a consenting party to the said act. In these circumstances, the appellant is definitely entitled to be acquitted of the charges levelled against him by extending him benefit of doubt. 12. In the result, the appeal is allowed. Conviction of the, accused/appellant under Sections 376(1), 506 Part-II & 346 of IPC is hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. He is on bail, therefore, his bail bonds shall continue for a period of six months from today in view of provisions of Section 437-A of Cr. P.C. Appeal allowed.