Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 399 (CHH)

Hira Sai Nagesiya v. State of Madhya Pradesh

2014-11-17

GOUTAM BHADURI

body2014
JUDGMENT Goutam Bhaduri, J. 1. This is an appeal against the judgment dated 26.03.1998, passed by the IInd Additional Sessions Judge, Ambikapur, in Sessions Trial No. 394/96, whereby the appellant has been convicted under Section 450 of IPC and sentenced to undergo R.I. for 5 years and fine of Rs. 100/- and further for offence under Section 376 of I.P.C., the appellant has been convicted and sentenced to under go R.I. for 7 years and fine of Rs. 100/- and in default of payment of fine, additional R.I. for 3 months for each count was awarded. 2. The briefly stated facts of the prosecution was that the prosecutrix (RW.-1) was a resident of village - Rehda, Kadampara and was a student of Class-8th. On the date of incident, her father had went out of the village. The date of incident was stated to be 12.09.1996. It was further case of the prosecution that on 08.09.1996, the mother of the prosecutrix had also went to the Ambikapur in order to get herself treated. At the time of incident, the prosecutrix was with her elder brother Rakesh Singh and farm labour Dhurwa Prasad. It was further stated that on 12.09.1996, the brother of the prosecutrix Rakesh Singh had went to her maternal grand mother (Nam) and the prosecutrix while in her house was busy in cooking at 9.00 o'clock, at that time in their house, the farm labour Dhurwa Prasad was present. It was the case of the prosecution that while the prosecutrix was alongwith Dhurwa Prasad, the appellant accused forcefully entered into the house of the prosecutrix, who was drunk and caused assault to Dhurwa Prasad and forced him to flee the house and thereafter caught hold up the prosecutrix and took her into the kitchen. Thereafter, the appellant committed rape on her and left the house. It was the case of the prosecution that on the same date, the brother of the prosecutrix did not return and Dhurwa Prasad also to whom the accused had forced to leave the house did not return. On the next date, when the brother of the prosecutrix came back, the incident was narrated him and thereafter, it was disclosed to mother of the prosecutrix in the afternoon when her mother came back from Ambikapur. On the next date, when the brother of the prosecutrix came back, the incident was narrated him and thereafter, it was disclosed to mother of the prosecutrix in the afternoon when her mother came back from Ambikapur. It was also the case of the prosecution that thereafter, the brother of the prosecutrix Rakesh Singh in order to take revenge committed assault on the appellant who subsequently became insane and ultimately died on 15.09.1996. Thereafter, the grand mother of the prosecutrix had also died and as such for these reasons F.I.R. was lodged by delay on 16.10.1996. 3. After the report was made, the police had investigated the offence and the prosecutrix was subjected to medical examination, thereafter, with respect to the age of the prosecutrix, the documents were obtained and subsequently, the appellant was arrested and the charge sheet was filed. During the course of trial, the prosecution on their behalf has examined as many as 6 witnesses namely Ku. Reeta (P.W.-1), Umadevi (P.W.-2), Dr. T. Sai (P.W.-3), Havidan Toppo (P.W.4), Dr. J. Kujur (P.W.-5) and R.K. Mishra, the Investigation Officer as (P.W.-6). The defence on their behalf had examined Kariya Ram (D.W.-1), Sumitra (D.W.-2) and Prem Sai (D.W.-3). 4. The learned Court below after evaluating the evidence on record had convicted the appellant under the aforementioned sections. Hence this appeal. 5. Shri Arun Kochar, learned counsel appearing on behalf of the appellant would submit that in this case, there is no evidence on record which warrants the conviction. He referred to the statements of the prosecutrix and would submit that the falsity is writ large and if the statement of the prosecutrix is read as a whole, it would reflect that the prosecutrix was a consenting party. He would further submit that the age of the prosecutrix has not been categorically established by the prosecution that she was minor. He would further submit that the doctors have not supported the case of the prosecution about commission of rape. He would submit that the prosecutrix was not at all subjected to rape and F.S.L. also did not corroborate the fact that intercourse had happened. It was contended in these circumstances, defence version of witnesses should have been taken in account that due to land dispute between the parties, the false report was made. Therefore, the counsel would submit that the judgment and order of sentence be set-aside. 6. It was contended in these circumstances, defence version of witnesses should have been taken in account that due to land dispute between the parties, the false report was made. Therefore, the counsel would submit that the judgment and order of sentence be set-aside. 6. Per contra learned State counsel opposes the same and would submit that the prosecutrix had categorically established the fact that she was subjected to forceful rape. He would further submit that on the date of incident, the age of the prosecutrix was 15 years, therefore she was minor and therefore, the defence of consent can not be sustained. He would further submit that the delay in lodging FIR was explained properly, therefore, the order of the Court below is well merited, which do not call for any interference. 7. I have heard the learned counsel for the parties at length and perused the evidence and documents on record. 8. The prosecutrix in this case was examined as (P.W.-1). She in her statement has stated that on the date of incident, she was along-with farm labour Dhurwa Prasad at their home. This witness has stated that her mother was ailing and as such went to Ambikapur for taking treatment. Likewise, his brother was also not at the home. Narrating the incident, it has been stated that while, she was cooking food, the said Dhurwa Prasad was in the home and the accused appellant entered into the house and initially had assaulted the Dhurwa Prasad. This witness has further stated that the Dhurwa Prasad was forced to flee away from the home by such assault. Thereafter, the prosecutrix also wanted to flee away but she was caught hold of by the accused and was forcefully taken to the kitchen and there after the appellant committed rape by force. This witness has further stated that after the commission of rape, the appellant had left the place and the prosecutrix slept in the kitchen itself. Subsequently, it is stated that on the next day, the incident was narrated to her brother and also to her mother when her brother and mother came back. She has further stated that after hearing the incident her brother Rakesh assaulted the accused. She has further stated that due to this incident, her brother became insane and thereafter he died. Subsequently, it is stated that on the next day, the incident was narrated to her brother and also to her mother when her brother and mother came back. She has further stated that after hearing the incident her brother Rakesh assaulted the accused. She has further stated that due to this incident, her brother became insane and thereafter he died. It is further stated that after the incident her maternal grand mother (Nani) has also died, therefore, the delay in lodging the F.I.R. was caused. The FIR was proved as Ex. P/1. In the FIR, similar incident has been narrated that on the date of incident, the accused appellant initially assaulted the Dhurwa Prasad, who was in the house and thereafter, Dhurwa Prasad made to leave the house and subsequently, the rape was committed on prosecutrix. 9. The final charge sheet shows that the Dhurwa Prasad was named and was listed as prosecution witness, however, he has not been examined by the prosecution in this case. In cross-examination of the prosecutrix, she has stated that near her house, other 8-10 houses are also situated, which are 40-50 meters away. She has further stated that before 2-3 months of the incident, Dhurwa Prasad was staying with them in their house. While explaining the facts of the incident, she has further stated that the appellant Heera Sai was the friend of his brother and used to visit their house. She has further admitted that during the incident, she did not sustain any injury on her body. Further Umadevi (P.W.-2), the mother of the prosecutrix has stated that at the time of incident, the age of the prosecutrix was 15 years. In the cross-examination of this witness in response to a suggestion that some mortgage was created in respect of the land of father of the appellant with the family of the victim, the answer to it was in affirmative. The witnesses had admitted the fact that after the incident, she has not made a report to the police for a quite a long time. So the delay in lodging the FIR was also tried to be justified. 10. Dr. J. Kujur in this case was examined as P.W.-5. This witness has stated that on 17.10.1996, she had examined the prosecutrix. On examination, it was found that the prosecutrix did not have any injury on her body. So the delay in lodging the FIR was also tried to be justified. 10. Dr. J. Kujur in this case was examined as P.W.-5. This witness has stated that on 17.10.1996, she had examined the prosecutrix. On examination, it was found that the prosecutrix did not have any injury on her body. Neither any spermatozoa sign were present nor any injury was present over the private part of prosecutrix. According to the opinion of this witness, no specific opinion could have been given about the sexual act, however, it is stated that in order to affirm the fact that whether the recent intercourse had happened, slides were prepared for FSL and were sent for report. The doctor in its opinion Ex. P/2 had opined that for confirmation of the recent intercourse it was advised for chemical examination of vaginal slide to find out the presence of spermatozoa. Therefore, according to the medial report of doctor, who examined the prosecutrix, no definite opinion was given about the recent rape and reference was made for FSL test to confirm the commission of rape. The prosecution further has also placed the FSL report in case and is marked as Ex. P/13. The said report states the spermatozoa was absent. So the doctor as also the FSL has not corroborated the sexual intercourse. 11. Now coming to the age of the prosecutrix, it is proved by the prosecution witness P.W.-4 Havidan Toppo. This witness has proved a certificate, which purports the date of birth of the prosecutrix was shown to be 01.06.1981. The said certificate was marked as Ex. P/5. The said document records that on the basis of date of birth written in the admission register of the school, date of birth was shown as 01.06.1981. In the cross-examination, this witness has stated that the date of birth was disclosed by the prosecutrix herself and on that basis the date of birth was recorded. Further the witness P. W.-2 Umadevi, the mother of the prosecutrix has stated that the -age of the prosecutrix at the time of incident was 15 years, however, no cogent evidence was placed to prove the fact. The author of the document Ex. P/5 has not disclosed the fact on what basis, the date of birth was recorded. Further the witness P. W.-2 Umadevi, the mother of the prosecutrix has stated that the -age of the prosecutrix at the time of incident was 15 years, however, no cogent evidence was placed to prove the fact. The author of the document Ex. P/5 has not disclosed the fact on what basis, the date of birth was recorded. The Hon'ble Supreme Court in a case of Birad Mai Singhvi v. Anand Purohit AIR 1988 SC 1796 , had observed in para-24 as under:-- "24.......The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value." Therefore, in the light of aforesaid legal principle as against the evidence the date of birth, I am of the opinion that age of the prosecutrix was not clearly established. 12. Further entire perusal of the evidence, it would reveal that the prosecutrix had stated that at the time of commission of offence, one Dhurwa Prasad was present and to him the assault was made and he was made to leave the house, however, the prosecution has not examined such witness, who was the very vital witness in order to prove the happening of incident. Reading of the evidence of prosecutrix further do not inspire confidence. It become highly improbable that a person who was at the house of prosecutrix just before the incident when was assaulted and was forced to flee the scene of incident as a natural consequence will not call any person from the vicinity for help when the house is situated at Basti and near by other houses are situated. It become highly improbable that a person who was at the house of prosecutrix just before the incident when was assaulted and was forced to flee the scene of incident as a natural consequence will not call any person from the vicinity for help when the house is situated at Basti and near by other houses are situated. Further the medical report do not spell out any injury on the private part of the prosecutrix and doctor has also not supported any sexual intercourse. The medical report of doctor and FSL also do not support commission of crime, so under the circumstances, it would not be proper to base the entire conviction on the sole statement given by the prosecutrix specially when FIR was delayed by a month. On the contrary, a land dispute was said to be prevailing which is stated by Kariyaram (D.W.-1) in between the parties. In view of the above, the prosecution has failed to prove the case beyond all reasonable doubt, I am of the opinion that the benefit of doubt should have been leaned in favour of the appellant. 13. In a result, the appeal is allowed and the judgment passed by the learned Court below is set aside. It is submitted that the appellant is on bail. His bail bond shall continue for a period of six months from today. Appeal Allowed.