Ashwini Raatre vs State of C.G.

Pritinker Diwaker, J.—The Appellant in this appeal is challenging the legality, validity and propriety of the judgment dated 17.7.2006 passed by the Additional Sessions Judge, (FTC), Raipur in Sessions Trial No. 196/2006 convicting the accused/Appellant under Sections 363 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 200, and rigorous imprisonment for seven years with fine of Rs. 300 respectively, with default stipulations.

Brief facts of the case unfolded by the prosecution are that on 19.3.2006 at about 2.30 p.m. prosecutrix (P W-12) was taken by the Appellant from Imlibhata to village Tarashiv, Tilda, Bhatapara and ultimately to Itwari (Nagpur). Missing report Ex. P-12 was lodged on 21.3.2006 by Ganesh Ram (PW-13), the father of the prosecutrix. Further case of the prosecution is that on 27.3.2006 the prosecutrix was brought back to her village by her brother in law and other relatives and thereafter on 29.3.2006 her statement was recorded by the police in which she stated that at Nagpur the Appellant and she herself stayed for two nights where Appellant subjected her to rape. On the basis of this statement of the prosecutrix, the Station House Officer of police station, Kharora registered the offences punishable under Sections 363, 366, 376 and 506 of the Indian Penal Code, against the Appellant, vide FIR Ex. P-20. Thereafter, on 29.3.2006 she was sent for medical examination to Community Health Centre, Tilda where Dr. Mina Samuel (PW-17) examined her and vide medical report Ex. P-22 she opined that hymen of the prosecutrix was ruptured, two fingers easily entered her vagina, and as the prosecutrix was habitual to sexual intercourse, no definite opinion regarding instant sexual intercourse could be given.

So as to prove the guilt of the accused, prosecution has examined as many as 17 witnesses. Statement of the 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.

After hearing the parties the trial Court has convicted and sentenced the accused/Appellant as mentioned in paragraph No. 1 of this judgment and acquitted him of the offences punishable under Sections 366 and 506 of the Indian Penal Code. Hence this appeal.

Counsel for the Appellant submits that the trial Court has landed itself in the legal error while convicting and sentencing the accused/Appellant for the offences punishable under Sections 363 and 376 IPC for the reason that the prosecutrix has not stated in her evidence that she was subjected to rape by the Appellant and that the penetration, which is a sine qua non to establish the commission of rape, took place. He further submits that unless penetration is established, conviction u/s 376 IPC cannot be warranted and it can be safely presumed that the prosecutrix was not subjected to rape. According to him the prosecutrix has merely stated that the Appellant had done "Galat Kaam" with her whereas in her police statement recorded u/s 161 of the Code of Criminal Procedure she has stated that Appellant committed rape on her. He submits that the prosecutrix has not disclosed anything to her mother, father, grand father or any other relatives about the commission of rape by the Appellant. She had also not disclosed about her having been subjected to rape by the accused/Appellant, to Mangal Chand (PW-14) who had brought her back from Nagpur. According to him, the prosecutrix for the first time had disclosed the incident of rape in the Court only and therefore her statement regarding commission of rape cannot be said to be credible and trustworthy. He further submits that the prosecutrix had sufficient opportunity to raise an alarm while she was being taken to Nagpur and other places but surprisingly she kept mum and did not even report the matter to the police and thus solely on the basis of statement of the prosecutrix the Appellant cannot be convicted u/s 376 of the Indian Penal Code.

As regards the offence u/s 363 of the Indian Penal Code, counsel for the Appellant submits that the mother and father of the prosecutrix have not stated anything in their statement that the prosecutrix was taken away forcefully without their consent and therefore, the Appellant cannot be convicted u/s 363 of the Indian Penal Code also. He further submits that when on the same set of evidence the Appellant has been acquitted of the offences punishable under Sections 366 and 506 of the Indian Penal Code he cannot be convicted under Sections 363 and 376 of the Indian Penal Code without there being any other reliable and clinching evidence in that regard. According to him when the statement of the prosecutrix is not supported by any other evidence, minute scrutiny of her evidence is required in the case. He submits that in this case merely on the basis of statement of the prosecutrix the Appellant deserves to be acquitted. He submits that Dr. Mina Samuel (PW-17) who has medically examined the prosecutrix has also not supported the case of the prosecution as she has categorically stated that the prosecutrix has not suffered any internal or external injury. He also submits that the report of the chemical analyzer also does not support the case of the prosecution. In support of his submission counsel for the Appellant places reliance on the judgments of the Supreme Court in the matter of Aman Kumar and Another Vs. State of Haryana, and in the matter of Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand), and submits that in both these cases it has been held by the Apex Court that penetration of male organ into private part of victim/prosecutrix is a must to bring the offence u/s 376 IPC into play. According to him, in the present case, the penetration has not been established by the prosecution and therefore the Appellant cannot be convicted u/s 376 of the Indian Penal Code. Counsel for the Appellant has filed an affidavit of the father of the Appellant to the effect that as after marriage the prosecutrix is leading a happy married life, liberal view may be taken and his sentence may be reduced to the period already undergone. In support of his submission he has relied upon a judgment of the Supreme Court in the matter of State of Punjab Vs. Kulwant Singh @ Kanta, . In the case cited by him, the accused and the prosecutrix were in love with each other which ultimately culminated into the sexual intercourse.

Repudiating the arguments advanced by the counsel for the Appellant, counsel appearing for the Respondent/State supporting the impugned judgment of the trial Court submits that the prosecutrix has categorically stated in her evidence, relevant portion of which reads as under:

It has been submitted by the counsel for the State that from this statement of the prosecutrix it is clear that she was subjected to rape by the Appellant. It is argued that the prosecutrix is not required to give the details as to the manner in which she was subjected to rape and no other meaning of the words used in her statement can be derived in sex-related offences. He submits that when the factum of the prosecutrix being minor on the date of incident remains undisputed, theory of consent becomes immaterial. He submits that merely non-raising of alarm by the prosecutrix after having been kidnapped does not make the Appellant entitled for acquittal because so many reasons such as threat etc. are there which could have not permitted her to open her mouth against the Appellant. According to him, in her statement the prosecutrix has categorically stated that Appellant subjected her to sexual exploitation by putting her under threat of life. Lastly he submits that in the absence of injury on the body of the prosecutrix as has been opined by the doctor who examined the prosecutrix, the Appellant cannot claim acquittal.

Heard counsel for the parties and perused the material available on record including the judgment of the trial Court.

Admittedly, at the time of commission of the offence i.e. in between 19.3.2006 and 27.3.2006 the prosecutrix was a minor girl as according to her school record (Ex. P-9) which is duly proved by Murlidhar Verma, Head Master (PW-8) her date of birth is 9.9.1990. The contention of the counsel for the Appellant that in the absence of the detailed narration of the incident of rape, the Appellant cannot be convicted u/s 376 IPC, is not acceptable to this Court for the reason that she has categorically stated in her evidence that "at Nagpur accused did bad work with me. Forcibly did bad work Accused removed my clothes and came to me, spread my thighs, I refused him to do bad work but in spite of this he did not conceded to my request. Accused had mounted on me". Thus the prosecutrix has categorically stated the act of the accused/Appellant in detail and therefore, the judgments cited by him are distinguishable on facts. The words "Galat Kaam" used by the prosecutrix in her evidence cannot be construed otherwise in the sex-related offences. The aforesaid decisions of the Supreme Court relied upon by the counsel for the Appellant are of no help to the accused/Appellant in the present case because in those cases the point involved was whether penetration was done or not and whether the offence alleged in that case would fall u/s 376/511 IPC. But, in the present case, the prosecutrix has categorically stated that she was subjected to physical relationship by the Appellant and no further details regarding the manner in which the offence of rape was committed, are required from the prosecutrix. The other argument that the statement of the prosecutrix is not supported by any other evidence is not acceptable to this Court because it is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In this case, the prosecutrix has given a vivid account of the entire episode as to how the accused sexually assaulted her and unless there are compelling reasons necessitating corroboration of the statement of the prosecutrix, hex testimony alone is sufficient to convict an accused u/s 376 of the Indian Penal Code. Moreover, nothing has been elicited by the defence as to why the Appellant has been falsely implicated in this case and thus the stand of false implication taken by the accused/Appellant is also not worth acceptance. The other contention that the medical report of the prosecutrix does not support the case of the prosecution is also not acceptable to this Court because the prosecutrix was forcibly removed from her lawful guardianship on 19.3.2006 and remained under the clutches of the accused/ Appellant till 27.3.2006 and she was medically examined only on 29.3.2006 and if no injury has been found on her body after such a long interval, it will not give any benefit to the accused/Appellant. The leniency sought for in the sentence because of the fact that the prosecutrix is already married to some other man and is leading a happy married life, cannot change the course of justice and the decision cited by the counsel for the Appellant is absolutely distinct on facts as in the decision of the Supreme Court taken support of by the Appellant, the sexual intercourse was the culminating effect of love affairs existing between the accused and the prosecutrix. Unfortunately such is not the case herein.

Thus in sum and substance what comes out of the entire aforesaid narration of facts is that the Appellant removed the prosecutrix from her lawful guardianship, took her to various places and during their stay at Nagpur he committed rape on her. This act of the accused/Appellant is more than sufficient to put him within the framework of Sections 363 and 3 76 of the Indian Penal Code. Accordingly, the judgment of the trial Court convicting and sentencing the accused/Appellant under Sections 363 and 376 of the Indian Penal Code is well founded and does not call for any interference in this appeal.

Thus the appeal fails and is dismissed as such.