Ashok Kumar @ Laxminarayan Tiwari vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal arises out of the judgment and order dated 15.3.2002 passed by Special Judge & Additional Sessions Judge Durg in Special Case No. 36/ 2000 convicting the accused/appellant under Sections 376 and 450 IPC and sentencing him to undergo rigorous imprisonment for seven years and three years respectively on each count. Facts of the case in brief are that on 21.12.1998 at 12.05 after noon FIR Ex. P-1 was lodged by the prosecutrix-a married lady aged about 29 years at the relevant time alleging that on 20.12.1998 at about 3 p.m. she was in her house along with her niece and that her husband had gone to graze the goats. It is alleged that when she was cooking food in her house, accused/ appellant came there and asked her as to what vegetable she had cooked. Accused/appellant is also said to have asked about her other family members and when she told him that her husband had gone to graze the goats and her mother-in-law and father-in-law to field, he gave 50 paise to her niece and sent her to buy the chocolate. After her niece left the house, accused/appellant went to her, after catching hold of her he took her to the other room, when she tried to raise her voice he pressed her mouth and then after upturning her clothes committed bad work (forcible sexual intercourse) with her after making her lie on the ground. It is also alleged that when the prosecutrix started weeping, the accused/appellant offered her Rs. 20/- and asked her not to disclose the incident to anyone and then after leaving the money there he left the spot. Thereafter, in the evening when her husband, father-in-law and mother-in-law retuned home, she narrated the incident to them. The prosecutrix is also said to have informed the incident to the persons present in the village meeting and then the matter was reported to the police on the next day. Based on this FIR, offences under Sections 452 and 376 IPC and 3(1)(XII) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "Act") were registered against the accused/appellant. Prosecutrix was medically examined on 22.12.1998 vide Ex. P-6 by Dr. Brinda Mandge (PW-6). After completion of investigation, charge sheet was filed by the police on 13.1.1999 for the offences under Sections 452 and 376 IPC and 3(1)(XII) of the Act. However, the Court below framed charge against the accused/appellants u/s 450, 457, 376(1), 323 and 506(II) IPC and charges were also framed by the Court under these sections.

In support of its case, prosecution has examined as many as 08 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the allegation made against him and pleaded his innocence and false implication in the case.

After hearing the parties, the Court below has acquitted the accused/appellant of the charge u/s 3(1)(XII) of the Act but convicted and sentenced him as mentioned in paragraph No. 1 of this judgment.

Counsel for the appellant submits that the prosecutrix has not stated that she was subjected to forcible sexual intercourse by the accused/appellant and she has merely stated about "bad work" and that word "sexual intercourse" has been mentioned in the FIR at the instance of the investigating officer. Likewise, she submits that other witnesses have also stated that the prosecutrix was subjected to bad work and nobody has stated that she was subjected to rape by the accused/appellant. She submits that the accused/appellant has been falsely implicated in the case just for getting an amount of Rs. 50,000/- from the State Government given to the rape victims belonging to scheduled tribe category which the prosecutrix does belong to. According to her, medical report also does not support the case of the prosecution as according to the doctor medically examining the prosecutrix no external or internal injury was found on her person. Counsel for the appellant submits that though the Panchayat meeting is said to have been called, none of the witnesses has been examined in support of the same. She further submits that even the niece of the prosecutrix; who was present in the house before and after the incident has not been examined by the prosecution. Lastly, she submits that the matter has been compromised between the appellant and the prosecutrix outside the Court and that he had already remained in jail for about three years and three months, sentence imposed on him may be reduced to the period already undergone by him.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that looking to the statement of the prosecutrix describing the manner in which the incident of rape has taken place, no interference with the same is called for.

Prosecutrix (PVV-1) has stated in her evidence that the accused/appellant is Brahmin by caste whereas her caste is Gond. On the date of incident, when she was cooking food in house in the presence of her minor niece, accused/appellant came there and sought to know as to what vegetable was cooked by her. When the prosecutrix told him about vegetable being cooked, the accused/appellant showed his willingness to have that on which she told him that as he was Brahmin by caste, how he could have the food cooked by her. Thereafter, the accused/appellant caught hold of her, took her in the room and committed bad work (sexual intercourse) with her. As after the incident she was weeping, accused/appellant offering her Rs. 20/- asked her not to disclose the incident to anyone and then he left the spot. On arrival of her husband, father-in-law and mother-in-law she narrated the incident to them as also to the members of Panchayat held in the village in the night and then on the next day the report was lodged and she was sent for medical examination. Police had seized a petticoat and Rs. 20/- from her vide Ex. P-2. In cross examination she has clarified as to how she knew the accused/appellant who used to visit her house frequently. This witness has stated that on being told by her father-in-law and mother-in-law she used to touch the feet of the accused/appellant who was called as "Maharaj" in the village. It may be mentioned here that in villages a person belonging to Brahmin caste is known as Maharaj. She has stated that at the relevant time her husband was studying in class XII as a private student and in spare time he was also attending the domestic work. Denying various irrelevant suggestions put to her by the defence, this witness remained firm to what she has stated in the examination in chief. She has categorically stated that she did not receive any amount for lodging the report against the accused/appellant. Pawan Kumar Gond (PW-2)-the husband of the prosecutrix has stated in her evidence that on the date of incident he had gone to graze the goats and when returned home in the evening, prosecutrix was weeping and on being asked she told him that accused/ appellant had subjected her to bad work despite resistance. This witness has also stated that accused/appellant gave 50 paise to his niece and sent her out for getting the chocolate and then after the incident was over he offered Rs. 20/- to his wife and asking her not to disclose the incident he left the spot. According to him, the incident was informed to members of the Panchayat also. After the incident, the accused/appellant is said to have left for his village Devarbija and on being called he came back but denied to have done any bad work. In cross examination also this witness stated the same thing as in the examination-in-chief. He however has clarified that the accused/appellant was not permanently living in his village though he was having a house there in which his family members used to live. According to this witness, report could not be lodged in the evening as consultation with the villagers was made and then the decision to lodge the report was taken. This witness has shown his ignorance as to payment of money by the State Government to the rape victims belonging to SC or ST category. Tijan Bai (PW-3)-the mother-in-law of the prosecutrix has stated that on the date of incident when she returned from the field, prosecutrix informed her that she was subjected to insult by the accused/appellant and after commission of the offence he had left Rs. 20/- for her and then after holding the Panchayat in the village the report was lodged. Dr. GS. Thakur (PW-4) is the radiologist who has proved the age of the prosecutrix vide Ex. P-4 according to which at the relevant time she was aged about 17 years. Janaklal Deshlahre (PW-5) is the Patwari who prepared spot map Ex. P-5. Dr. (Smt.) Vrinda Mandge (PW-6) is the witness who medically examined the prosecutrix and gave her report Ex. P-6 opining that no internal or external injury was noticed by her and no definite opinion regarding recent intercourse with the prosecutrix could be given. Jagdish Uikey (PW-7) is the witness who recorded FIR Ex. P-1. While supporting the case of the prosecution this witness has stated that at the time of recording of FIR the prosecutrix had not used the word "intercourse" and he himself had written the same to clarify the intention of the prosecutrix. S.K. Mulakwar (PW-8) is the investigating officer who has supported the case of the prosecution.

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

Minute examination of the evidence available on record goes to show that taking advantage of loneliness and helplessness of the prosecutrix, appellant entered her house and by giving money to get the chocolate he sent her niece out and committed forcible sexual intercourse with her. All the suggestions put by the defence have been categorically denied by the prosecutrix and she remained firm in making the statement that accused/appellant committed rape on her. This Court finds no force in the argument of counsel for the appellant that in the FIR prosecutrix has used the word "bad work" which cannot be termed as sexual intercourse and that the word "intercourse" used in the bracket has been written at the instance of investigating officer. In the FIR the prosecutrix has described that after pressing her mouth, the accused/ appellant took her inside the room, made her lie on the ground and after upturning her clothes committed bad work with her and after completion of the offence he offered her Rs. 20/-. In the Court statement she has categorically deposed that accused/appellant caught hold of her, took her inside the room and thereafter committed bad work (sexual intercourse) with her. True it is that other witnesses have also used the word "bad work" but considering the FIR and the Court statement of the prosecutrix, the only conclusion which can be drawn is that she was subjected to rape by the accused/appellant. Word "bad work" used by the prosecutrix cannot be construed to be otherwise in the sex related offences. It cannot be expected from the prosecutrix who happens to be a rustic villager to describe the incident of rape in an elaborate manner. This Court does not find any force in the argument of the counsel for the accused/appellant that just to get Rs. 50,000/- from the State Government the prosecutrix has lodged a false report against the accused/appellant because all the suggestions put by the defence have been categorically denied by her and other witnesses as well the defence has not collected any material to show as to why she would implicate the accused/appellant in a false case.

This Court also finds no force in the argument of the counsel for the appellant that the accused/appellant and the prosecutrix have compromised the matter outside the Court and therefore the appellant may be acquitted. Offences under Sections 376 and 450 IPC are not compoundable in nature and therefore no compromise can be recorded based on the applications filed for the said purpose. Moreover, the application (IA No. 137/2004) for compromise has typed in Hindi without mentioning as to under what Section it has been filed. This application appears to have been drafted with the help of legal assistance and simply the signature of the prosecutrix has been obtained. Similarly, other application (IA No. 3816/2002) typed in English whereas affidavit of the prosecutrix is in Hindi and even in the said affidavit it is not mentioned that the contents of the application have been explained to her in Hindi. Be that as it may, as the offences under Sections 376 and 450 IPC are not compoundable in nature, the accused/appellant cannot be acquitted. True it is that effect of such applications can be considered while imposing the sentence and as per the proviso appended to Section 376 IPC that by assigning adequate and special reason, the Court has power to reduce the sentence for a term less than seven years but in the case in hand this Court does not find any special or adequate reason to do so. Accordingly, this argument of the counsel for the appellant is rejected.

The Court below appears to have been justified in convicting and sentencing the accused/appellant as mentioned above and therefore the appeal being without substance is liable to be dismissed and it is dismissed as such. Appellant is reported to be on bail. He be arrested forthwith and sent to jail to serve out the remaining part of the sentence. Counsel for the appellant submits that the Court below has not made it clear whether the sentences imposed on the appellant are to run separately or concurrently and therefore the same needs clarification to this effect. Needless to say that the sentences imposed on the accused/appellant will run concurrently.