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2014 DIGILAW 351 (CHH)

Nathuram v. State of Chhattisgarh

2014-09-19

P.SAM KOSHY

body2014
JUDGMENT P. Sam Koshy, J. 1. By way of the present criminal appeal the appellant intends to challenge the judgment of conviction and the order of sentence dated 12.06.2003 passed by Third Additional Sessions Judge, (FTC) Mungeli, District-Bilaspur, in Sessions Trial No. 90/2000. By the said judgment the Court below has found the appellant to be guilty of having committed the offence punishable u/s. 376(1), 450, 366, 376(1) and 307 of I.P.C. and was sentenced to undergo rigorous imprisonment for seven years with fine of Rs. 2000/- under each of the sections with necessary default stipulations. 2. Facts leading to the instant criminal appeal is that about six months prior to 04.12.1999 the appellant/accused is said to have entered the house of the prosecutrix Bhanu Bai and there he is said to have forcefully committed sexual intercourse with the prosecutrix and thus have committed rape on the prosecutrix and thereafter on many occasions the appellant/accused is said to have on the pretext of marriage maintained the physical relationship with the prosecutrix on account of which she got conceived, and subsequently on the date of incident the appellant is said to have taken the prosecutrix from Mungeli to village Bilha where he took her to the Railway track near the Bilha Railway Station and there, also he committed sexual intercourse with the prosecutrix and thereafter threatened her of her life by pushing her in front of running train. The reason for threat and assault was that, in spite of the appellant/accused having asked the prosecutrix to get abortion of the pregnancy of the prosecutrix through the appellant but the prosecutrix has not accepted the same therefore, the appellant is said to have tried to assault the prosecutrix. With great difficulty she could free herself from the clutches of the appellant and she raised an alarm and on hearing the alarm one of the villager came forward and on seeing the villager the appellant/accused ranaway from the said place of occurrence. 3. The prosecutrix immediately took the shelter in the house of a lady at Bilha and thereafter she came to Bilaspur and from there to her village and informed her parents about the same and on the next date she alongwith her father, mother and the Kotwar of the village reported the matter to the Police authorities at Police Station-Mungeli. 3. The prosecutrix immediately took the shelter in the house of a lady at Bilha and thereafter she came to Bilaspur and from there to her village and informed her parents about the same and on the next date she alongwith her father, mother and the Kotwar of the village reported the matter to the Police authorities at Police Station-Mungeli. On receiving the report of the prosecutrix Police registered Crime No. 246/1999 and F.I.R. was lodged against the appellant/accused. During the course of investigation the statement of the relevant witnesses were recorded and all of them submits the fact that the appellant/accused had exploited the prosecutrix and subsequently refused to marry her in spite of the fact that she got conceived on account physical relationship with the appellant. 4. Subsequently, charge-sheet was filed before the Court below and the matter was put to trial before the Court of third Additional Sessions Judge (FTC) Mungeli and the case was registered as Sessions Case No. 90/2000, during the course of trial the prosecution has examined as many as 12 witnesses, however, on the defence side only the statement of the appellant was recorded. 5. After completion of trial the Sessions Court vide impugned judgment dated 12.06.2003 found the appellant to be guilty of having committed the offence punishable u/s. 376(1), 450, 366, and 376(1) of I.P.C. and further sentenced the appellant to undergo R.I. for 7 years for each of the sections and also fine of Rs. 2000/- for each of the sections convicted upon and with default stipulations of six months R.I. in the event of non-payment of fine. 6. It is this judgment dated 12.06.2003 which is under challenge in the instant criminal appeal. The appellant has challenged impugned judgment on more than one ground. 7. Counsel for the appellant submits that there is no independent witness to support the case of the prosecution except the statement of the prosecutrix so as to hold the appellant guilty for the aforesaid offence. 8. Counsel for the appellant further submits that there is no supportive piece of evidence nor is there any corroborative piece of evidence brought during the course of trial before the Court below so as to hold the appellant guilty having committed the offence. 9. 8. Counsel for the appellant further submits that there is no supportive piece of evidence nor is there any corroborative piece of evidence brought during the course of trial before the Court below so as to hold the appellant guilty having committed the offence. 9. Counsel for the appellant further submits that necessary ingredients for constituting the offence punishable u/s. 376(1),307, 450 and 376(1) of I.P.C. are not found from the evidence which have come on record. For this reason also the Trial Court's judgment convicting the appellant for the aforesaid sections is contrary to law and is also contrary to evidence and, therefore, the same deserves to be set aside and the appellant may be acquitted from the charges. 10. Counsel for the appellant referring to the evidence which have come on record, submitted that except for the prosecutrix and her father there is not much evidence which have come on record. He further submitted that from the plain reading of the evidence of the prosecutrix itself it would reveal that the prosecutrix was a consenting party if at all if there was commission of the offence. The reason, being that if the appellant is said to have sexually exploited the prosecutrix without her consent then in the facts and circumstances of the case it would reveal that there was ample opportunity for the prosecutrix to have raised an alarm or at least show the sign of protest while the said act was being done by the appellant. 11. Similarly, counsel for the appellant further submitted that from the plain reading of the statement of the prosecutrix also it would reveal that when the appellant was forcefully taking the prosecutrix from Mungeli to Bilha on the Luna Moped he was assisted by another person namely Sevan, but the said Sevan has not made an accused person nor was any effort made on the part of the prosecutrix for impleading the said Sevan as accused person by moving appropriate application before the Court below. Similarly, counsel for the appellant further raised the question as to the fact that there was many other material witnesses whom the prosecution could have examined in support their case by which the case of the prosecution could have independently proved and established. 12. Similarly, counsel for the appellant further raised the question as to the fact that there was many other material witnesses whom the prosecution could have examined in support their case by which the case of the prosecution could have independently proved and established. 12. Similarly, the counsel for the appellant further submitted that in the instant case the offence u/s. 307 would not have been made out at for the alleged injury sustained by the prosecutrix also were simple in nature. In the given facts and circumstances of the case the counsel for the appellant stressed hard that no offence u/s. 375(1) of that u/s. 450, 376(1), 307 and 540 of I.P.C. is not made out and the appeal deserves to be allowed and the appeal is also liable to be exonerated/honorably acquitted from all the charges leveled against him. 13. On the contrary, the State counsel referring to the statement of the different witnesses that have been recorded before the Court below submitted that in fact in the given piece of the evidence it can be safely reached to the conclusion that the appellant has in fact sexually exploited the prosecutrix on the pretext of marriage and also on account of the said physical relationship that he maintained with the prosecutrix and she got conceived and she carrying pregnancy of 5 to 6 months. The appellant wanted to prosecutrix to abort the child and when the prosecutrix refused to abort the child in her womb, the appellant is said to have taken her to Bilha and firstly, he committed sexual intercourse with the prosecutrix near the Railway track and subsequently, after committing the sexual intercourse he is said to have assaulted her by pressing hard upon her neck with his feet wearing his shoes. In the given facts and circumstances of the case and the evidence which have come on record on behalf of the prosecution, the State counsel prays for rejection of the appeal, confirming and holding the conviction and the sentence imposed upon the appellant. 14. In the given facts and circumstances of the case and the evidence which have come on record on behalf of the prosecution, the State counsel prays for rejection of the appeal, confirming and holding the conviction and the sentence imposed upon the appellant. 14. Having considered the rival contention put forth by the counsel appearing for the either side, if we peruse the evidence that has come on record particularly, that of PW-3, the prosecutrix and it would clearly shows that on one hand the prosecutrix states that when the first time the appellant had sexually intercourse with her she was alone at the house and the appellant had reached her house and had asked for her brother and when she replied that her brother had gone to the field for work then he forcefully entered into the house and further forcefully catching hold of the prosecutrix and ravished her. However, in her examination in chief she narrates that after the appellant had entered to the house he had first removed all the clothes that the prosecutrix was wearing thereafter, the appellant also removed all the clothes that he was wearing then the appellant is said to have committed sexual intercourse with the prosecutrix this itself gives a great element of doubt on the statement of the prosecutrix as in the course of the appellant taking time to remove the clothes she had ample opportunity of raising an alarm, having not done so gives an element of consent on the part of the prosecutrix in the said alleged act. 15. In paragraph-15 of her deposition the prosecutrix in very categorical terms has stated:- Further in her evidence the prosecutrix has further stated that on a subsequent date when she was going to Mungeli from her village for purchase of "Chappel" the appellant is said to have come on Luna along with another person named Sevan and is said to have forcefully made the prosecutrix to sit on the luna along with Sevan and have taken her from Mungeli village to Bilha. The distance between her native village Khujha Police Station Mungeli Distt. The distance between her native village Khujha Police Station Mungeli Distt. Bilaspur to Bilha Railway station quite far and the fact that the prosecutrix was being taken by road from Mungeli to Bilha railway station itself is improbable and that she was not in a position to raise an alarm in between so that she could attract the public attention and could have got the appellant and the accompanying persons trapped. From the fact that the prosecutrix went alongwith the appellant on his luna so far from the village at Mungeli to Bilha itself would reflect the great element of consent while going with the appellant. 16. Similarly, there are further discrepancies and a large number of missing links in her deposition when she says that when she was being taken to Bilha to her native village Khujha the appellant was accompanied the person named Sevan. The said Sevan has not been made an accused person in the instant case in spite of the fact that he has allegedly assisted the appellant for taking her from Mungeli to Bilha. There is perhaps no justification given by the prosecution for not making the said Sevan as accused persons in the instant case. 17. Likewise, another missing links in the deposition of the prosecutrix is that, she gives the statement that near the Railway track the appellant is said to have committed sexual intercourse with her again, after sexual intercourse the appellant is said to have assaulted the prosecutrix and giving her injuries in different place and she raised an alarm and a villager is said to have come for rescuer but the said villager is also not brought as a witnesses nor he has been cited as witness, thereafter, the prosecutrix is again is said to have taken the shelter in the house of a lady near Bilha Railway Station. The said lady at whose house the prosecutrix had taken shelter immediately after the incident, has not supported the case of prosecution and have turned hostile, the case of the prosecution further got weakened on this count. 18. In the judgment of Hon'ble Supreme Court in the case of Dinesh Jaiswal vs. State of Madhya Pradesh, 2010 (3) 232 has categorically held that the statement of the prosecutrix becomes reliable only when the case of the prosecution as well as the statement of the prosecutrix, prima facie, inspires confidence. 19. 18. In the judgment of Hon'ble Supreme Court in the case of Dinesh Jaiswal vs. State of Madhya Pradesh, 2010 (3) 232 has categorically held that the statement of the prosecutrix becomes reliable only when the case of the prosecution as well as the statement of the prosecutrix, prima facie, inspires confidence. 19. The Supreme Court in the above referred judgment has in very categorical terms held that: "10. There can be no quarrel with this proposition but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence". 20. From the aforementioned discrepancies/improbabilities which are reflected the deposition of the prosecutrix, the entire case of the prosecution gives great element of doubt as to the genuinity of complaint made against the appellant. The story of the prosecution as well as the prosecutrix that the prosecutrix was forcefully taken by the appellant on luna from Mungeli to Bilha is very difficult to accept particularly in light of her statement as she has enunciated in paragraph-18. The said deposition of paragraph-18 is reproduced herein for ready reference: 21. Further, if we see, the other witnesses examined except the father of the prosecutrix who is an interested witnesses and who has narrated the entire episode that he has been informed by her daughter about the incident which is the said same thing as has been stated by the prosecutrix. Apart from the father of the prosecutrix there is no any independent witnesses who have supported the case of the prosecution for that matter. 22. That apart in the entire deposition of the PW-4 the father of the prosecutrix, the presence of Sevan is not disclosed while the prosecutrix was being taken from Mungeli to Bilha. Whereas, the prosecutrix in her statement stated that when she has gone to Mungeli the appellant came on luna alongwith Sevan and both of them took her to Bilha near railway track where the appellant is said to have committed rape on the prosecutrix Sevan was also standing nearby her when the appellant was committing rape on her. Whereas, the prosecutrix in her statement stated that when she has gone to Mungeli the appellant came on luna alongwith Sevan and both of them took her to Bilha near railway track where the appellant is said to have committed rape on the prosecutrix Sevan was also standing nearby her when the appellant was committing rape on her. This fact about the presence of Sevan in the company of the appellant while the prosecutrix was being taken forcefully from Mungeli to Bilha is not reflected in the deposition of the PW-4 the father of, the prosecutrix. On this ground the statement of the father of the prosecutrix and that of the prosecutrix gets doubtful. 23. However, since there is no other evidence corroborative or supportive case of the prosecution and that the evidence of PW-3, PW-4 i.e. the evidence of prosecutrix as well as the father of the prosecutrix also contains a large number of missing links creating strong doubt on the prosecution story. It is the settled position of law that in the event of any doubt the benefit of doubt should go in favour of the accused person under these circumstances, this Court is of the view, that the findings arrived at by the Court below is not proper. In addition it could also be reflected that the PW-8 Shobharam, PW-10 Ramcharan, PW-11 Banihaar Das, have turned hostile and not supporting the case of the prosecution. Further, if we see the record of the Court below it would show that the initial typed report it would reflect that in the said report of assault which is said to have inflicted by the appellant after committing rape on the prosecutrix is missing. Similarly, the PW-5 and PW-6 have also turned hostile and not supported the prosecution. 24. Thus, in the foregoing reason, in view of the fact that there are large number of discrepancies and missing links in the statement of the prosecutrix as well as the father i.e. PW-3 and PW-4 and the discrepancies so reflected are very vital in nature gives the benefit of doubt to the appellant and the order of conviction of the appellant for the offence punishable, u/s. 376(1), 450, 366, 376(1) and 307 of I.P.C. as awarded by the Court below is hereby set aside. Under the said circumstances, the findings arrived at by the learned Court below convicting the appellant for the offence 376(1), 450, 366, 376(1) and 307 of I.P.C. does not appear to be proper, legal and justified. Accordingly, the present criminal appeal is allowed. Impugned judgment dated 12.06.2003 is hereby set aside and the appellant on being given the benefit of doubt is acquitted of the charges levelled against him under sections 376(1), 450, 366, 376(1) and 307 of I.P.C. The appellant is on bail, his bail bonds shall continue for a period of six months from today in view of Section 437 of Cr. P.C.