Anil Kumar Kaushik vs State of Chhattisgarh

Pritinker Diwaker, J.—The present appeal arises out of the judgment and order dated 27.6.2008 passed by Additional Sessions Judge, Balod in Sessions Trial No. 03/2008 convicting the accused/appellant for the offence under Sections 450 & 376 (I) of IPC and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000 u/s 450 and to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1,000 u/s 376(I) IPC plus default stipulations.

Case of the prosecutior in brief is that on 20.11.2007, FIR Ex. PI was lodged by the prosecutrix (PW 1), a married lady aged about 22 years alleging that on 18.11.2007 at about 2.30 p.m. when she was going to her field, on the way accused/appellant met her and asked to accompany him to her house i.e. prosecutrix house to which she informed the accused that her house was locked, however the accused/appellant insisted to go to her house on the pretext that he had some urgent work. She has further alleged that both went to her house and as soon as she entered her house from backside, the accused/appellant caught hold her hand, took her in the cattle shed and against her wish committed forcible sexual intercourse with, her. On cry being raised by her, accused/appellant threatened to kill her. After commission of the offence when her husband came to the house and scolded the accused, he fled away from the spot. She has alleged that the accused was seen by the neighbours, namely Savitri, Gayatri and Satu while he was fleeing after commission of rape. Thereafter the incident was informed to her brother-in-law, mother-in-law and sister-in-law. On 19 and 20.11.2007 village meeting was convened however the same was not attended by the accused/appellant and therefore a decision was taken to lodge a report and accordingly the FIR was lodged. After investigation, challan was filed by the police on 27.12.2007 for the offence under Sections 376 and 506 of IPC.

So as to hold the accused/appellant guilty, prosecution has examined 16 witnesses in.support of its case, Statement accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. Apart from this, two witnesses namely Devnarayan Koushik and Rameshwaranand Yadav (DW 1 & DW 2) were also examined by the defence in support of its case.

After hearing the parties the trial. Court has convicted and sentenced the accused/appellant for the offence as mentioned above.

Contention of the learned counsel for the appellant is that present appears to be a case of consent where unfortunately, the prosecutrix and the accused were seen in a compromising position by the husband of the prosecutrix and that is why a false report has been lodged against the appellant He further submits that on the alleged date of incident, there was a function of ''Chhathi'' in the house of the accused/appellant and therefore question of leaving his house and involving himself in such act does not arise. Apart this, there is an inordinate delay of about two days in lodging the FIR which has not been satisfactorily explained by the prosecution. He further submits that even the medical report of the prosecutrix does not support her case.

On the other hand, learned counsel for the State supports the impugned judgment and submits that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

Prosecutrix (PW 1) in her Court statement has stated that she knows the accused/appellant as he is her relative. On the date of incident when she was going to her field on the way, the accused/appellant met her and a conversation took place between them. Thereafter the accused/appellant requested her to accompany him to her house but she refused the same by saying that her house was locked. Being insisted by the accused, she accompanied him to her house thinking that he might have some information about her brother and uncle. Both entered the house of the prosecutrix from backside as the front door was locked. She has further stated that as soon as they entered the house, the accused/appellant caught hold her hand and when she abused him and made efforts to get rid of her hand, the accused pressed her neck and pulled her to the cattle shed where he committed forcible sexual intercourse with her. Her bangles were also broken while she was attempting to come out from the clutches of the accused. Thereafter the accused/appellant fled away on seeing her husband who came there by hearing her raised alarm. She was also beaten by her husband for doing bad'' work with the accused/appellant. In the evening when her father-in-law, mother-in-law, brother-in-law and sister-in-law came to the house, the entire incident was narrated by her to them and on the second day a village meeting was called but the accused did not turn up though his parents were present and they made a promise that their son would remain present on the next meeting but neither the accused nor his parents attended the same. Thereafter a report was lodged because in the meeting heir husband had told her that he would not keep the prosecutrix in his house. After lodging the report Ex.P 1, she was medically examined and her clothes were also seized vide Ex.P 4 by the police. From Paragraph 13 to 16, it is clear that there are material contradictions and omissions in the statement of this witness. She has stated that her father-in-law came back to her house at about 3 p.m. and at that time her husband was beating her and she was rescued by her father-in-law. On the date of incident her family members had gone to the house of the accused/appellant to attend Chhathi function and this fact was disclosed by her in case diary and at the time of lodging FIR but if the same has not been recorded she cannot tell the reason. As the accused/appellant is her family member, she did not offer much resistance to accompany him. She has further stated that when she met the accused/appellant on the way, she was well aware of the fact that there was no one in the house and he'' house was locked from front side and that is why she entered the same from the back side. She has stated that it was she who first entered the house from back door and the appellant had followed her. She has further stated that after throwing her the accused/ appellant removed her dress by his both hands but thereafter she herself has stated that the appellant pulled out her clothes as a result of which they were torn. While she was being subjected to sexual intercourse by the accused/appellant she made efforts to come out from the clutches of the appellant and all these facts had disclosed by her to the police at the time of lodging FIR and if the same has not been recorded she cannot tell the reason. She has stated that at the time, the accused/appellant first thrown her on the floor and removed his clothes, she did not shout but during sexual intercourse she cried 5-6 times.

Savitri Markande (PW 2) and Fulbai (PW 3) for whom it is alleged by the prosecutrix that they had seen the accused/appellant in her house have not supported the case of the prosecutrix and have been declared hostile. Iswar Singh Dewangan (PW 4) is the Patwari who had prepared the spot map Ex.PS. Mukesh Koushik (PW 5) husband of the prosecutrix has stated that on the date of incident at about 2 p.m. after closing his shop when he came to his house, he found the front door locked then he entered the house from back side. After hearing the shout of his wife as "save save", he went there and saw the accused/appellant committing sexual intercourse with his wife to which he shouted and hearing his sought Savitrir Satu and 2-3 other villagers gathered there. Thereafter the accused/appellant on touching his feet pleaded for forgiveness by saying that "uncle I have committed mistake and therefore pardon me" and thereafter he ran away. The incident was informed to some elderly persons of the village and on second day, a panchayat meeting was called which was attended by the parents of the accused/appellant but the accused did not attend the same. On the assurance of parents of the accused the meeting was postponed for next day but on that day also the accused did not attend the meeting, therefore the report was lodged. In cross-examination he has stated that on the date of incident all the family members except he and his wife had gone to the house of the accused/appellant to attend the Chhathi function as a son was born in his house. He had informed the police at the time of recording of his statement u/s 161 Cr.P.C regarding the hearing of voice of his wife as "Save" and if the same has not been recorded, he cannot tell the reason. He further stated that he also informed the police about the fact that the appellant had touched his feet and pleaded for forgiveness and if this fact also has not been recorded, he cannot tell the reason. Teju Ram (PW 6) the local villager has not supported the prosecution case and has been declared hostile. Dr. Smt. Shashi Claudius (PW 8) who had medically examined the prosecutrix and given her report Ex. P 11 has stated that she found three abrasions on the hands of the prosecutrix however no injury was found on her private part, leg and back. Krishnlal Dewangan (PW 9) an eye witness to the meeting has stated that, in the said meeting the prosecutrix had made allegations against the accused/appellant M.K. Dhruv (PW 11) is the Investigating Officer who has supported the prosecution case. S.R. Deshlahre (PW 13) is the A.S.I, who has done part of investigation. Dr. S.K. Meshram (PW 14) who had examined the accused has stated that he was capable of performing sexual intercourse. Rahul Netam (PW 16) is the Head Constable who had recorded the FIR.

Minute examination of the witnesses in particular the prosecutrix and her husband shows the fact, that when the prosecutrix and the accused/appellant were in a compromising position, the husband of the prosecutrix reached there and saw them, that after incident she was beaten by her husband and therefore possibility of the consent cannot be ruled out. Besides this, the prosecutrix entered the house from backside knowing the fact that the front door of her house is locked indicates that she was a consenting party. So far as injuries sustained by the prosecutrix are concerned, they may have been caused of severe beating by her husband. The record shows that there is an inordinate delay of more than 48 hours in lodging the FIR which has not been satisfactorily explained by the prosecution. The two witnesses namely Savitri Markande (PW 2) and Fulbai (PW 3) who are said to have seen the accused/appellant in the house of the prosecutrix have not supported the prosecution case. More so Lot of contradictions and omissions are there in the evidence of the Prosecutrix which creates doubt in the mind of this Court therefore the accused/appellant is entitled for the benefit of the same. The entire evidence as adduced by the prosecution in particular the statement of the prosecutrix does not inspire full confidence of this Court to uphold the conviction of the accused/appellant under sections 450 & 376 (I) of IPC and that being so benefit of doubt must go in favour of the accused/appellant.

Accordingly, the appeal is allowed. Judgment impugned dated 27.6.2008 convicting and sentencing the accused/appellant is set-aside. Appellant is acquitted of the charges levelled against him. The appellant is reported to be on jail since 26.11.2007. He be set free if not required in any other case.