Ashok Chakradhari vs State of C.G. and Others

Pritinker Diwaker, J.—As these two appeals arise out of the same judgment and order dated 30.6.2010 passed by Special Judge, Durg in Special Case No. 13/2008 convicting accused/appellant - Ashok Chakradhari under Sections 376(1) and 450 IPC and sentencing him to undergo R1 for 7 years with fine of Rs. 1,000/- and convicting accused/appellant Tekendra Nishad u/s 456 IPC and sentencing him to undergo R.I. for 3 years with fine of Rs. 2,000/- plus default stipulations, they are disposed of by this common judgment. Facts of the case in brief are that on 16.01.2007 F.I.R. Ex. P-6 was lodged by the prosecutrix (PW-13) aged about 35 years to the effect that on 14.01.2007 when she was sitting opposite her house, accused/appellants came there, accused Ashok caught hold of her and kissed her. When she objected to this, they left her house. In the night when she was sleeping in her house along with her nephew Rama and niece Jyoti (PW-1), at about 11.00 p.m. both the accused/appellants again came there, accused Ashok gained an entry to her house and after removing his clothes committed forcible sexual intercourse with her and at that time accused Tekendra was standing there. It is alleged that her niece and nephew had also seen the incident. It is further alleged that on account of the demise of her mother-in-law, she could not lodge the report promptly. Based on this report, offences u/s 376/34 IPC and 3(1) (xii) of SC & ST (Prevention of Atrocities) Act, 1989 were registered against them. Prosecutrix was medically examined by Dr. G. Chakravarthy (PW-6). After completion of investigation, charge sheet was filed by the police on 28.02.2007 under Sections 376(2)(g) and 450 IPC and 3(1)(xii) of the special Act. The Court below however framed the charge against accused Ashok under Sections 450, 376(1) IPC and 3(2)(v) of the Special Act whereas, against accused Tekendra it was u/s 456 IPC.

In support of its case, prosecution has examined 13 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has acquitted accused Ashok of the charge u/s 3(2)(v) of the special Act but convicted and sentenced them as mentioned above.

Counsel for the accused/appellants submit that the accused/appellants have been implicated in a false case and the story put forth by the prosecution is highly improbable. According to him, there are material inconsistencies in the statement of the prosecutrix which make her entire version totally untrustworthy. They submit that there are contradictions in the statement of the prosecutrix (PW-13) and Jyoti (P W-1) in relation to timing of offence. They further submit that the incident had taken place at 11.00 p.m. whereas the prosecutrix has stated in her statement that it had taken place at 12.00 in the afternoon while Jyoti (PW-1) who was also present at the time of incident has stated that that the incident had taken place at 1.00 p.m. Counsel for the appellants submit that this difference in the timing of the incident is very material and the accused/appellants are entitled for acquittal. They submit that even the medical report of the prosecutrix does not support the case of the prosecution as no injury was found on her body.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that there is no reason for this Court to disbelieve the statement of the prosecutrix and the same is very natural. He submits that prosecutrix being a rustic villager may not be expected to give exact timing of the incident but if her overall conduct is seen, it is clear that she was subjected to rape by accused Ashok. He submits that the statement of child witness namely Jyoti (PW-1) is also fully reliable and there is no reason to disbelieve the same. According to him, statement of the prosecutrix has been duly supported by Ashok Nishad (PW-3) Rukmani Bai (PW-4) who have stated that on the next morning the incident was disclosed to them by the prosecutrix. Lastly, he submits that the prosecutrix being a married lady, absence of injury on her person will not have any adverse impact on the case of the prosecution.

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

Prosecutrix (PW-13) has stated that about three years prior thereto at about 12 noon when she was sitting opposite the house of her brother-in-law along with her niece Jyoti (PW-1) and nephew Ram, accused appellants came there on motorcycle, accused Ashok took her inside the house by dragging and the other accused whose name she did not remember also pushed her. She was taken inside the room where accused Ashok threw her on the floor, removed his pant, tore her blouse and after upturning her sari and petticoat committed forcible sexual intercourse with her. According to this witness, she was subjected to rape by accused Ashok for about one hour and on hearing her cries, Rama (not examined) and Jyoti (PW-1) came there and accused Ashok had kicked them away. In the night at about 8 p.m. both the accused/appellants again came to her house and asked her to allow them for having bad work and they also started dragging her but due to the refusal on her part they left the place. As it was getting dark in the night she did not disclose the incident to anyone and on the next date she made disclosure of that to village Kotwar. Since the meeting as assured by the village Kotwar was not convened, after arrival of her brother-in-law she went to the police station and lodged the report. In cross-examination she has stated that she understood the term such as morning, noon, evening and night. She has admitted that she did not report the incident taken place in the noon hours to the police. She has denied that when she lodged the report, she informed the police that in the afternoon she was teased by the accused/appellants. According to her, it is incorrect to say that in the afternoon she was not raped by accused Ashok. She has denied that she has falsely implicated the accused/appellants because of some dispute with respect to the business of pigs. She has admitted that she did not inform the incident to her neighbours as they had gone to the field. In paragraph-10 she has admitted that at the time of incident she did not make any effort to save herself. Jyoti (PW-1) a child witness aged about 10 years who happens to be niece of the prosecutrix has stated that on the date of incident at about 1 p.m. when she was sitting in her house along with the prosecutrix (PW-13) and Rama (not examined), the accused/appellants came there on a motorcycle. After alighting the motorcycle, accused Ashok took the prosecutrix and committed bad work with the prosecutrix whereas other accused was standing outside. When she and her brother tried to see the incident, accused Ashok slapped her. According to her, accused Ashok was inside the room for about one hour and at that time other accused namely Tekendra was asking her and her brother to get away. In cross-examination she has stated that her house and that of the prosecutrix is common. Khilawan (PW-2) has not supported the case of the prosecution and has been declared hostile. Ashok Nishad PW-3) though has been declared hostile, he has stated that the prosecutrix came to him and informed that she was teased by accused Ashok. On being cross examined by public prosecutor he has admitted that the prosecutrix had informed her about being subjected to rape by accused Ashok. Rukmni Bai (PW-4) -sister-in-law of the prosecutrix has stated that on the date of incident on account of demise of her elder mother, she had gone to her village and the prosecutrix was in the house along with children. On the second day when she returned home, prosecutrix informed her that after consuming liquor accused/appellants had come to her house, accused Ashok dragged her inside the house and committed forcible sexual intercourse with her. According to, her, the prosecutrix also informed her that the accused/appellants then left her house saying that they would come again in the night. She is also stated to have been informed by the prosecutrix that on account of fear the incident was not disclosed to Sarpanch and the village Kotwar. Prosecutrix is also stated to have informed this witness that in the night accused/appellants again came there carrying clubs in their hands and told her that they would commit rape on her and beat the children. However, as the children were in the house, the accused/appellants got back. Sukhram (PW-5) is the witness to seizure made vide Ex. P-2 who has not supported the case of prosecution and has been declared hostile. Dr. G. Chakravarthi (PW-6) is the witness who medically examined the prosecutrix and gave her report Ex. P-3 opining that no external or internal injury was noticed on her person and that no definite opinion regarding rape could be given by her. Smt. Seema Nishad (PW-7) is the witness who proved caste certificate of the prosecutrix Ex. P-5. R.K. Rai (PW-8) is the witness who recorded FIR Ex. P-6 and sent the prosecutrix for medical examination. Chandrika Prasad Khare (PW-9) is the Patwari who prepared spot map Ex. P-7. Murari (PW-10) is the witness to seizure made under Ex. P-2 has not stated anything specific. Rajnesh Singh (PW-11) is the Investigating Officer who has duly supported the case of prosecution. Dr. R.N. Pandey (PW-12) is the witness who medically examined accused Ashok and gave his report Ex. P-15 stating that he was capable of performing sexual intercourse.

Though underwear of accused Ashok and petticoat as well as the vaginal slides of the prosecutrix were sent for chemical examination but no FSL report is there on record.

Having thus seen the entire evidence available on record particularly that of prosecutrix (PW-13) and Jyoti (PW-1), it becomes crystal clear that there is inconsistency in the same with regard to the timing of the incident. In the FIR the prosecutrix has stated that the incident had taken place at 11 p.m. whereas according to her court statement it has taken place at 12 noon and though the accused/appellants had come to her house again in the night and asked for sexual favour from her, on account of refusal on her part they got back. The child witness Jyoti (PW-1) who was present at the time and place of the incident has however given the time of incident as 1 afternoon. Moreover, nephew of the prosecutrix namely Rama who is also said to have been present in the house at the time of incident, has not been examined by the prosecution. Further, though certain articles belonging to accused Ashok and the prosecutrix were sent to Forensic Science Laboratory for chemical examination, no report to this effect is available on record. The prosecutrix has stated in her evidence that while being dragged by the accused/appellants she had sustained injury on her right knee, the doctor (PW-6) has clearly stated in her report Ex. P-3 that there was no external injury on any part of her body. In the aforesaid view of the matter, this Court arrives at the only conclusion that the findings record by the Court below are not based on just and proper appreciation of the evidence of the witnesses and that being so the judgment impugned cannot be allowed to stand. Accordingly, the appeals are allowed. Judgment impugned is set aside. The appellants are acquitted of the charges levelled against them. Accused Tekendra is already on bail and his bail bonds stand discharged. However, accused Ashok is in jail and therefore he be set free forthwith if not required in any other case.